author: MICHAEL MASSENGALE, Justice.

text:
    OFFICE OF the ATTORNEY GENERAL OF TEXAS, Appellant, v. David S. CRAWFORD, Appellee.
    No. 01-08-00681-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 31, 2010.

      John B. Worley, Assistant Attorney General, Michael D. Becker, Assistant Attorney General, Rande K. Herrell, Assistant Attorney General, Child Support Division/Appellate Litigation Section, Austin, TX, for Appellant.
    John Gordon Bock, Adair & Myers, PLLC, Houston, TX, for Appellee.
    Panel consists of Justices JENNINGS, ALCALA, and MASSENGALE.
   OPINION

MICHAEL MASSENGALE, Justice.

This appeal calls upon us to determine whether the Office of the Attorney General, in its capacity as the state’s Title IV-D agency, has standing to sue to modify a child support order to provide support for adult disabled children. Because the Family Code excludes the OAG from its statutory grant of standing to specified classes of individuals authorized to bring such an action, and the OAG has received no assignment of rights from any individual who is authorized to file the suit, we affirm the trial court’s order of dismissal.

Background

Appellee David S. Crawford was divorced in 1994. The divorce decree provided that his former spouse would be the sole managing conservator of the couple’s two children, W.C.C. and M.M.C. Crawford was ordered to pay monthly child support for both children until either of them turned 18 (or if fully enrolled in high school, graduated), and thereafter a reduced amount of support for the remaining child on the same terms. Subsequently he fell behind on his child support payments.

Title IV-D of the Social Security Act requires states to enforce child support obligations, and the legislature has designated the Office of the Attorney General as the Title IV-D agency for Texas. The Family Code establishes the OAG’s rights and responsibilities relating to the collection of child support. Pursuant to that authority, the OAG filed suit against Crawford to enforce the child support order. In May 2006, the trial court signed an agreed order holding that Crawford owed approximately $11,000 in unpaid past child support through February 2006.

In June 2007, the OAG filed a new petition, this time seeking to modify the support order and confirm an additional ar-rearage in child support payments. Crawford responded by filing an October 2007 motion to terminate child support based on W.C.C. turning 18 in June 2008 and M.M.C. turning 18 in September 2007. The OAG then filed a supplemental suit for modification of the child support order. It claimed that because both of Crawford’s adult children suffer from disabilities that existed before each turned 18, they are entitled to continuing support. See Tex. Fam.Code Ann. §§ 154.301-.309 (Vernon 2008 & Supp.2009).

Crawford challenged the OAG’s authority to pursue the action in the absence of an assignment from a person with standing to sue under Family Code section 154.303. In response the OAG argued that, as the Title IV-D agency, it had authority to bring the suit based on general standing principles. Alternatively, the OAG argued that it had an assignment as a matter of law due to the operation of other provisions of the Family Code. The trial court ruled that the OAG did not demonstrate its standing and dismissed the case without prejudice. The OAG appeals from this ruling.

Analysis

In its sole issue, the OAG argues that its suit for modification of a support order should not have been dismissed. It claims to have independent standing to sue Crawford in order to modify the existing child support order and require him to make support payments to benefit his adult disabled children. Standing is a threshold issue for any lawsuit. A party who lacks standing cannot invoke the subject-matter jurisdiction of the court. See, e.g., Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Courts must pay scrupulous attention to questions about a plaintiffs standing out of respect for the separation of governmental powers. See id. at 444.

The only disputed issue in this appeal is one of statutory construction, which we review de novo. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). The supplemental suit for modification was filed by the OAG pursuant to Family Code chapter 154, subchapter F, which authorizes court-ordered support for adult disabled children. The statutory scheme includes a provision expressly identifying limited classes of parties authorized to seek relief:

A suit provided by this subchapter may be filed only by:
(1) a parent of the child or another person having physical custody or guardianship of the child under a court order; or
(2) the child if the child:
(A) is 18 years of age or older;
(B) does not have a mental disability; and
(C) is determined by the court to be capable of managing the child’s financial affairs.

Tex. Fam.Code Ann. § 154.303(a) (Vernon 2008). The statute also contemplates that a party authorized to seek relief may assign that right to the OAG, in its capacity as the State’s Title IV-D agency:

The parent, the child, if the child is 18 years of age or older, or other person may not transfer or assign the cause of action to any person, including a governmental or private entity or agency, except for an assignment made to the Title IV-D agency.

Id. § 154.303(b). The OAG’s pleading did not indicate that it had been assigned the right to file the suit. Nor does the OAG now argue that its suit has been authorized in the form of an express assignment from any of the persons granted standing to sue by section 154.303.

Instead, the OAG argues that in its capacity as the state’s Title IV-D agency, it has general standing, apart from section 154.303, to seek modification of the child support order. In this regard it relies upon Family Code section 102.007, which states that “In providing [Title IV-D] services authorized by Chapter 231, the Title IV-D agency ... may file a child support action authorized under this title, including a suit for modification or a motion for enforcement.” Tex. Fam.Code Ann. § 102.007 (Vernon Supp.2009). The OAG’s suit seeks a modification of child support which is authorized, in substance, under the title in question, Family Code title 5, which generally addresses parent-child relationships and suits affecting the parent-child relationship.

The OAG also argues that its general powers as the state’s Title IV-D agency establish its standing. The Family Code bestows upon the OAG qualified powers to “establish and enforce child support obligations,” provide services required by Title IV-D, and represent the State in an action relating to Title IV-D services. The OAG thus argues that because it acquired the right to provide general Title IV-D services on behalf of W.C.C. and M.M.C., it also has standing to sue Crawford to modify the existing child support order.

Crawford does not question the OAG’s general standing to provide Title IV-D services. Instead, he contends that the OAG’s claim to standing is expressly negated by Family Code section 154.303, which more specifically addresses the standing question. We agree. That statute provides that a suit to obtain court-ordered support for a disabled adult child “may be filed only by” specified parties, of whom the OAG is not one. Id. § 154.303(a). The use of the word “only” expressly excludes from the scope of statutory standing all persons other than those identified. “We rely on the plain meaning of the text unless a different meaning is supplied by legislative definition, is apparent from the context, or unless such a construction leads to absurd results.” See, e.g., State v. K.E.W., 315 S.W.3d 16, 21 (Tex.2010). The plain meaning of section 154.303(a) thus precludes the OAG’s arguments for standing to sue on more general principles, without resort to any other interpretive aids. This reading is also consistent with the traditional rule of statutory construction in Texas that the more specific statutory provision controls over the more general. E.g., Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex.2000); Lufkin v. City of Galveston, 63 Tex. 437, 439 (1885). We also note that the OAG’s general standing argument does violence to the structure of section 154.303 because it would render meaningless section 154.303(b)’s requirement of a specific assignment to the OAG. The legislature could not have intended such a result. See In re Derzapf, 219 S.W.3d 327, 332 (Tex.2007).

In the alternative, the OAG argues that it received a general assignment as a matter of law, relying upon In re A.M.E., 71 S.W.3d 401 (Tex.App.-San Antonio 2001, no pet.), and Villarreal v. Villarreal, No. 14-03-00577-CV, 2004 WL 1381025 (Tex. App.-Houston [14th Dist.] June 22, 2004, no pet.) (mem. op.). Both of these cases are distinguishable because they involved the assignment of support rights to the OAG which is legally deemed to occur upon an application for child support services.

To the contrary, in light of the specific language of section 154.303, which excludes the OAG from its grant of standing, all arguments based on general principles of standing must fail. General standing rules do not apply when a statute creates an express exception. See, e.g., Bland Indep. Sch. Dist., 34 S.W.3d at 556; Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984); Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 850 (Tex.App.-Fort Worth 2005, no pet.); In re Sullivan, 157 S.W.3d 911, 915 (Tex.App.-Houston [14th Dist.] 2005, orig. proceeding [mand. denied]). For that reason, the general principle under section 231.104 that the OAG has a statutory assignment of support rights for the purpose of establishing and enforcing child support and medical-support obligations does not suffice to establish the OAG’s standing to file this suit in light of the more specific language and express exclusion of the OAG from the narrow class of individuals granted standing to sue pursuant to section 154.303.

Similarly, the fact that the OAG had standing to file its original petition to enforce Crawford’s child support obligations does not mean that it maintained standing to file a subsequent petition to require continuing support payments for adult disabled children. A party may have standing to sue another for one purpose but not others; “standing is not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n. 6, 116 S.Ct. 2174, 2183 n. 6, 135 L.Ed.2d 606 (1996). In this case, the OAG’s standing cannot be inferred from its prior action to enforce support obligations because section 154.303 specifically provides that unless it has received an assignment, the OAG does not have standing to file suit for the purpose of establishing support for adult disabled children.

This result does not preclude the OAG from assisting adult disabled children to obtain support as provided in the Family Code. Our application of the statute merely enforces the legislature’s expressly stated intent to require the OAG to obtain a specific assignment before doing so.

We hold that Family Code section 154.303 requires a specific assignment from a person listed in section 154.303(a) in order for the OAG to have standing to sue to modify an existing child support order to provide support for adult disabled children. It is undisputed that the OAG did not have such an assignment. Accordingly, we affirm the trial court’s order of dismissal.

      . See Office of Attorney Gen. v. Lee, 92 S.W.3d 526, 527 n. 1 (Tex.2002) (citing 42 U.S.C. § 654(4)).

      . See id. (citing Tex. Fam.Code Ann. §§ 231.001, .0011, .101 (Vernon 2008)).

      . Crawford initially presented this challenge in the form of a motion to show authority pursuant to Rule 12 of the Texas Rules of Civil Procedure. The OAG contends this issue should have been presented by a plea to the jurisdiction instead. Regardless of the procedural vehicle, Crawford challenged the OAG’s standing, which is an essential prerequisite to the court's subject matter jurisdiction. See, e.g., Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000) (noting that absence of subject-matter jurisdiction may be raised by procedural vehicles other than plea to jurisdiction).

      . Crawford contends the case is moot because he has paid the child support arrearage. As acknowledged in his brief, however, this fact is not contained within the appellate record, and we are therefore unable to resolve the appeal on this basis.

      . Tex. Fam.Code Ann. § 231.002(d)(1)(A) (Vernon Supp.2009). Under this provision, "on approval by and in cooperation with the governor" the Title IV-D agency may establish and enforce child support obligations pursuant to "reciprocal arrangements with the federal government, another state, or a foreign country or a political subdivision of the federal government, state, or foreign country." Id.

        . Id. § 231.101(a)(3), (4) (Vernon Supp.2009). The services specifically authorized by this provision include establishment of “child support and medical support establishment” and the "review and adjustment of child support orders.” Id.

      . Id. § 231.109 (Vernon 2008). This provision applies to actions brought under the authority of federal law or under Family Code chapter 231. Id.

      . See, e.g., The New Shorter Oxford English Dictionary on Historical Principles 2000 (Lesley Brown ed., 1993 ed.) (defining "only” to mean, among other things, "no more than; nothing other than; ... nothing more besides; solely, merely, exclusively” or "By itself, alone, without anything else”).

      . See Tex. Fam.Code Ann. § 231.104(b) (Vernon 2008). In re A.M.E. was a case in which the trial court allowed a child support obligor to make arrearage payments directly to the child's grandmother, instead of the OAG. In re A.M.E., 71 S.W.3d at 402. The San Antonio Court of Appeals reversed, holding that Family Code section 231.104 requires that payments be made to the OAG when it provides Title IV-D services. Id. at 403. No question about an assignment of rights was presented in Villarreal, in which the OAG was asked to provide Title IV-D services to collect unpaid child support under an existing child support order. The Fourteenth Court of Appeals simply noted section 231.104's requirement that payments be made to the OAG when the OAG provides Title IV-D services, but it was not a disputed issue in the case. Villarreal, 2004 WL 1381025, at *1 n. 1. Neither A.M.E. nor Villarreal presented a question about the OAG’s right to sue to modify an existing child support order to provide support for adult disabled children, and nothing in Family Code section 231.104 purports to assign to the OAG the right to file such a suit, as opposed to the right to collect support.


source: Caselaw Access Project

author: Justice MOSELEY.

license: Public Domain

text:
    Raymond Dean LACKEY, Appellant, v. The STATE of Texas, Appellee.
    No. 06-10-00035-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Aug. 18, 2010.
    Decided Sept. 1, 2010.

      Steven R. Miears, Bonham, for appellant.
    Richard Glaser, Fannin County Dist. Atty., Jeff T. Kovach, Asst. Dist. Atty., Bonham, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

I. FACTUAL AND PROCEDURAL BACKGROUND

Raymond Dean Lackey was arrested for driving while intoxicated (DWI) and was subsequently charged with DWI second offense, a class A misdemeanor. Prior to trial, Lackey filed a motion to suppress certain statements he made after his arrest, as well as a motion to suppress evidence seized in connection with his arrest. These motions were scheduled to be heard by Fannin County Judge Eileen Cox at Lackey’s pretrial hearing on December 2, 2009.

Because Judge Cox was suffering from pneumonia on the date scheduled for hearing, she was absent from the office. In light of her absence, Judge Cox proffered an oral motion to appoint John Skotnik, an attorney practicing law in Bonham, Texas, to act as Fannin County Judge in her absence. Pursuant to the oral motion of Judge Cox, an order was entered on December 2, 2009, appointing Skotnik during Cox’s absence from office:

In my absence from the office on December 2, 2009, I hereby appoint the Honorable JOHN SKOTNIK, attorney at law, to act for me as County Judge involving any mental or chemical dependency, criminal, juvenile, civil or probate matters.

The order, signed by Cox and Skotnik, was referred to by Cox as a “general appointment.”

Neither Lackey nor his counsel was given notice that Skotnik would be sitting as the judge for Lackey’s pretrial hearing. Counsel for Lackey was therefore surprised to find Skotnik on the bench when he arrived for the hearing. Even so, Lackey did not voice any objection to Skot-nik presiding over the pretrial hearing on December 2, and the hearing proceeded as scheduled. At the conclusion of the hearing, Skotnik entered two orders — one denying Lackey’s motion to suppress statements and the second denying Lackey’s motion to suppress illegally seized evidence.

On March 3, 2010, Lackey filed a “motion to set aside ‘order denying defendant’s motion to suppress’ ” and requested a new hearing on his motion to suppress, citing Skotnik’s alleged lack of qualification to sit as a visiting judge. Lackey claimed that because Skotnik never held the office of an elected county or state judge, Skotnik lacked authority to sit as county judge at his pretrial hearing and lacked authority to issue the orders which deny suppression of certain statements and evidence. After his motion was denied, Lackey entered into a plea agreement whereby he reserved the right to appeal the issue of Skotnik’s authority to hear and rule on his pretrial motions.

On appeal, Lackey contends the trial court erred in appointing Skotnik to preside as judge over his pretrial motions pursuant to Section 26.023 of the Texas Government Code, since Skotnik was not statutorily qualified to sit as a visiting judge. Tex. Gov’t Code Ann. § 26.023 (Vernon 2004). Consequently, Lackey claims entitlement to a new hearing on his suppression motions before a duly appointed judge. We agree.

II. ANALYSIS

A. Statutory Application

Central to our analysis of the propriety of Skotnik’s appointment is the application of the correct statute. The parties to this appeal are in disagreement in regard to this central factor. Statutory construction is a question of law we review de novo. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex.2008). Our primary objective when construing a statute is to give effect to the Legislature’s intent as expressed in the statute’s language. Tex. Gov’t Code Ann. § 312.005 (Vernon 2005); Combs, 258 S.W.3d at 631-32. When the statutory language is clear and unambiguous, such language is applied in accordance with its plain and common meaning. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008).

The Texas Government Code, subchap-ter C, Sections 26.021 through 26.028, outlines procedures for the appointment of a visiting judge for a constitutional county court, such as Fannin County. Section 26.021 provides that subchapter C applies only to a county in which:

(1) there is no statutory county court at law or statutory probate court; and
(2) all duties of the county court devolve on the county judge.

Tex. Gov’t Code Ann. § 26.021 (Vernon 2004). Such was the case in Fannin County at all times relevant to this appeal.

On appeal, the State claims that Section 26.022 of the Texas Government Code applies to the subject appointment. Section 26.022 provides:

Appointment for Particular Matters
(a) The county judge for good cause may at any time appoint a visiting judge with respect to any pending civil or criminal matter.
(b) The visiting judge may be appointed on motion of the court or on motion of any counsel of record in the matter. Each counsel of record is entitled to notice and hearing on the matter.
(c) To be appointed a visiting judge, a person must be agreed on by the counsels of record, if the counsels are able to agree.
(d) The motion for appointment and the order appointing the visiting judge shall be noted on the docket. A written motion or order may be filed among the papers of the case.
(e) The visiting judge has the powers of the county judge in relation to the matter involved.

Tex. Gov’t Code Ann. § 26.022 (Vernon 2004).

The State contends that Section 26.022 provides authority for Skotnik’s appointment, and indeed is the statute on which said appointment was based. In support of its position, the State points to the trial court’s statement that “I would like to put on the record that good cause was shown at that time that the County Judge was out with pneumonia at that time. That there is a motion by — on the Court’s motion.” The State argues that if Skotnik was not appointed pursuant to this section, there would be no requirement for a showing of good cause; conjunctively, no such appointment could be predicated on a motion. Even if the trial court intended to rely on this section of the statute, it does not necessarily follow that the trial court was correct in doing so.

Lackey maintains that Section 26.022 is not applicable here because the appointment was necessitated by Judge Cox’s absence “because of physical incapacity” and the appointment was described by Judge Cox as a “general appointment.” In other words, the appointment was not made only for a particular matter — Lackey’s pretrial — but for all matters to be heard by Judge Cox on December 2, 2009. Lackey maintains that the applicable statute for this appointment is Section 26.023 of the Texas Government Code, which provides:

Appointment for Absence of Judge
(a) The county judge may appoint a retired judge or a constitutional county judge from another county as a visiting judge when the county judge is absent from the county or absent because of physical incapacity.
(b) The visiting judge shall sit in all matters that are docketed on any of the county court’s dockets and has the powers of the county judge in relation to the matter involved.
(c) Without the consent of the commissioners court, visiting judges appointed under this section may not sit for more than 15 working days during a calendar year.
(d) The order appointing the visiting judge shall be noted in the docket of the court.

Tex. Gov’t Code Ann. § 26.023 (Vernon 2004).

The order purporting to appoint Skotnik states the appointment was made due to Judge Cox’s “absence from the office.” As Judge Cox explained, she was suffering from pneumonia on December 2, 2009. Subsection (a) provides that appointment of a visiting judge is authorized when the county judge is (1) absent from the county or (2) absent because of physical incapacity. The State maintains Judge Cox was not absent due to physical incapacity based on the fact that she was able to sign the order. The phrase “physical incapacity,” as that term is utilized in Section 26.023(a), is not defined in the statute or in the caselaw. Nevertheless, we believe the context in which this term is used was not intended to be narrowly confined to circumstances in which the judge is so totally and completely physically incapacitated that he is unable to sign his name; rather, it is reasonable to conclude that the term “physical incapacity” includes illness which necessitates absence from the bench.

Here, Skotnik was appointed to act for Judge Cox as county judge “involving any mental or chemical dependency, criminal, juvenile, civil or probate matters.” Rather than appointing Skotnik to act in a particular matter, as envisioned by Section 26.022, the order purports to authorize Skotnik to act in any number of matters that fall within the categories enumerated in the order. Judge Cox aptly referred to the appointment as a “general appointment.”

The plain language of each of these sections, taken together, indicates that when a judicial appointment is made for a particular matter, the parties must be notified and given the opportunity to agree on the appointment. This procedure logically fits the appointment to a matter that is made only for the parties thereto. On the other hand, when an appointment is made because the county judge is absent due to physical incapacity, it would be burdensome, at best, to notify all parties scheduled to appear in the county court during the period of said absence — which period may be ill defined — and unworkable to attempt to have all parties agree to the appointment. In light of the language of the order, the court’s characterization of same as a “general appointment,” Judge Cox’s absence from the bench due to physical incapacity, and the language of the statutory provisions in question, we conclude that Section 26.028 of the Texas Government Code governs the appointment at issue. Tex. Gov’t Code Ann. § 26.023.

Section 26.023 explicitly requires the appointment of “a retired judge or a constitutional county judge from another county....” Such was not the case here, as Skotnik was neither a retired judge nor a constitutional county judge from another county. Tex. Gov’t Code Ann. § 26.023(a). Because the appointment did not comport with the requirements of Section 26.023(a), the appointment was made in the absence of statutory authority. We, therefore, must determine, based upon the evident lack of authority, whether the orders issued by Skotnik are void or merely voidable. The State contends such analysis is unnecessary because the issue of Skotnik’s qualifications, not having been raised at the pretrial hearing, is now waived.

B. Waiver or Void Orders?

In support of its waiver argument, the State relies on Janecka v. State, 823 S.W.2d 232 (Tex.Crim.App.1990). In Ja-neeka, the State failed to object to the appointment of a special master who was to make findings of fact and conclusions of law at a hearing on remand to determine whether the rights of the appellant were harmed based on the trial court’s error in overruling appellant’s motion to quash the indictment. The court determined that because the State chose to fully participate in the proceeding before the special master without raising its objection, such failure constituted a waiver of error. Id. at 244 (op. on reh’g). The trial court had no statutory authority which would permit it to refer the hearing to a special master in a case on direct appeal. The State thus contended that the special master was without authority to preside over the hearing. Id. at 243. Nevertheless, the Texas Court of Criminal Appeals determined the State waived its right to complain.

Janecka is unlike this case in that the trial court adopted the special master’s findings of fact and conclusions of law. When the findings and conclusions of a special master are adopted by the trial court, such findings become conclusive and are the findings of the trial court. See Lesikar v. Moon, 237 S.W.3d 361, 371 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). Owens-Coming Fiberglas Corp. v. Caldwell, 830 S.W.2d 622, 625 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding). In Janecka, there was no claim that the trial court was without proper authority to adopt the findings of fact and conclusions of law at issue. Accordingly, we do not find Janecka to govern the issue of whether Lackey waived the right to contest Skotnik’s authority to rule on the suppression motions.

Additional authority relied on by the State in support of its waiver argument is not in point, simply because, and as the State acknowledges, such authority relates to the issue of procedural defects in the appointment of a judge. An objection to the procedure involved in appointing a judge must be made at or prior to the hearing at which the appointed judge is to preside. Miller v. State, 866 S.W.2d 243, 245-46 (Tex.Crim.App.1993). That is, judicial functions resulting in errors involving a violation of a statutory procedure are not void, but voidable. If a judge is qualified and not constitutionally or statutorily disqualified, the judge’s actions are not void although procedural irregularities in the manner in which the case came before the particular judge may render the conviction voidable. Davis v. State, 956 S.W.2d 555, 559 (Tex.Crim.App.1997). Here, we are not faced with an issue of procedure; rather, we are faced with the issue of the appointed judge’s authority to act.

The authority of the judge to act is not a jurisdictional issue, per se, as judicial power is vested in courts, not individuals. Id. As the Davis court aptly acknowledged, “This is not to say that judicial functions performed by one without any authority to act may not be void.” Id. Where, for example, a trial judge is constitutionally or statutorily disqualified to preside over the proceedings, a conviction is void. Ex parte Seidel, 39 S.W.3d 221, 225 (Tex.Crim.App.2001) (citing Davis, 956 S.W.2d at 559).

Davis enumerates a number of circumstances in which the action of the trial court, done without authority, is void. For example, in the circumstance a retired judge was not authorized to preside because there was nothing in the record to show that the regular judge was absent, disabled, or disqualified at the time of trial — as required by statute — the conviction was reversed. Herrod v. State, 650 S.W.2d 814, 817-18 (Tex.Crim.App.1983). Further, if the trial judge is related to a party or formerly prosecuted the same case, the judge is constitutionally disqualified under Article V, Section 11 of the Texas Constitution. Ex parte Vivier, 699 S.W.2d 862 (Tex.Crim.App.1985). Likewise, a judge who has not taken the constitutionally required oath is not qualified. See French v. State, 572 S.W.2d 934 (Tex.Crim.App.1977). The actions of a judge without authority are void if the judge is either disqualified, or is not qualified. Thull v. State, 963 S.W.2d 879, 881 (Tex.App.-Texarkana 1998, no pet.); see also In re B.F.B., 241 S.W.3d 643, 646 (Tex.App.-Texarkana 2007, no pet.); Mata v. State, 991 S.W.2d 900, 902 (Tex.App.-Beaumont 1999, pet. ref'd) (citing Davis, 956 S.W.2d at 559). Otherwise the actions are merely voidable and must have been objected to in order to be preserved for appeal. Id.

In this case, the appointed judge had no authority to act because he was not qualified to sit as a judge of a constitutional county court pursuant to Section 26.023 of the Texas Government Code. Skotnik was neither a retired judge nor a constitutional county judge from another county. See Tex. Gov’t Code Ann. § 26.023. Because the actions of a judge are void if the judge is not qualified, this case does not present an issue of waiver. Here, the authority of the judge to act as such cannot be waived — just as the subject-matter jurisdiction of a court cannot be waived. Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 181 (Tex.2004) (subject-matter jurisdiction cannot be waived). Likewise, just as subject-matter jurisdiction cannot be conferred on a court by the consent of the parties, a judge cannot be qualified to act as such by the consent of the parties. See Juarez v. Tex. Ass’n of Spotting Officials El Paso Chapter, 172 S.W.3d 274, 278 (Tex.App.-El Paso 2005, no pet.) (subject-matter jurisdiction cannot be conferred by consent). The authority of the judge to act, in this case, is derived from statute. See Tex. Gov’t Code Ann. § 26.023. Mere silence by a party or even active participation in a hearing cannot waive the issue of the authority of the judge to so act, nor can it serve to vest a judge with authority to act.

III. CONCLUSION

Lackey’s participation in the pretrial hearing conducted by Skotnik, without objection, does not act as a waiver of his right to now contest the validity of the orders entered at that hearing. Because Skotnik was without authority to enter the orders denying Lackey’s suppression motions, such orders are void. Accordingly, the trial court erred in denying Lackey’s motion to set aside the void orders and in failing to grant a new hearing on the suppression motions. Lackey is entitled to have both such orders set aside and is further entitled to a new hearing on each such motion.

We reverse the judgment and remand to the trial court for further proceedings in accordance with this opinion.

      . Tex. Penal Code Ann. § 49.04 (Vernon 2003), § 49.09 (Vernon Supp. 2009). We note the information in this case identifies the Texas Penal Code provisions as Sections 49.04 and 49.08. This latter section has to do with intoxication manslaughter, and was evidently a typographical error in the information.

      . On June 7, 2010, the Honorable Joe Moss was sworn in as the first judge of the newly established statutory County Court in Fannin County. Prior to that time, however, Fannin County was served only by a constitutional county court, the current judge of which court is the Honorable Eileen Cox.

      . There was no notice of a hearing in regard to the appointment or selection of Skotnik, and Lackey did not agree to have Skotnik sit as the judge on his case.

      . While this motion generically refers to the "motion to suppress," it is clear from the context of the record that Lackey complains of the rulings both on the motion to suppress statements and the motion to suppress evidence seized at the time of his arrest.

      . Moss, the newly appointed judge for the statutory County Court in Fannin County, testified at the hearing on Lackey’s motion to set aside Skotnik’s orders. Moss has never known Skotnik to be an elected judge — at the state or county level — since the year he was licensed to practice law in 1985. Skotnik sits as a municipal judge for the City of Bonham.

      . The trial court did not indicate which provision of the Texas Government Code it relied on for issuance of the order of appointment.

      . The State outlines the manner in which it contends the trial court complied with each subsection of Section 26.022. The State further contends that this section of the Texas Government Code does not require that a visiting judge be a retired judge or an elected judge at any level in this State. Because we find that Section 26.022 is not applicable to the appointment here, we do not address the issue of whether the appointment was in compliance with this section. Tex. Gov’t Code Ann. § 26.022.

      . A retired judge "means ... a retiree ... or a person who served as an active judge for at least 96 months in a statutory probate or statutory county court and has retired under the Texas County and District Retirement System.” Tex. Gov’t Code Ann. § 74.041(6) (Vernon 2005).


author: HOLLIS HORTON, Justice.

text:
    Charles DUFF, Individually, and Judith Lee Hunts, Individually and as the Independent Administrator of the Estate of David Scott Duff, Appellants, v. Michael SPEARMAN, Innova Aircraft, Inc., and Innova Ventures, Inc., Appellees.
    No. 09-09-00282-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 15, 2010.
    Decided Sept. 9, 2010.

      Steven D. Sanfelippo, Martin E. Rose, Kevin A. Koudelka, Rose Walker, L.L.P., Dallas, Carlton Bryan Cantrell, Lanny Ray, Cantrell, Ray, Maltsberger & Marcus, PLLC, Huntsville, for appellants.
    Gary Linn Evans, George Andrew Coats, Coats & Evans, P.C., The Woodlands, W. Scott Golemon, Haas & Golem-on, L.L.P., Conroe, for appellees.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

This appeal arises from an experimental-airplane crash that caused the deaths of the airplane’s pilot and passenger. We find no reversible error regarding the venue of the case. Although the trial court erred by refusing Charles Duffs request to withdraw a deemed admission, that error does not require a new trial. The trial court also erred in awarding taxable costs to Michael Spearman and Innova Aircraft, Inc. By entering a new judgment on the jury’s verdict, these errors can be remedied on remand. Accordingly, we affirm the trial court’s judgment as to Innova Ventures, Inc., we reverse the trial court’s judgment decreeing that appellants take nothing against Michael Spearman and In-nova Aircraft, Inc., and we remand the case to the trial court with instructions to recalculate the amounts the jury awarded to appellants, to enter findings on litigation costs, to recalculate the net awards to the appellants, and to award appellants their taxable costs against Michael Spearman and Innova Aircraft, Inc.

Background Facts

Michael Spearman, a resident of Montgomery County, Texas, hired Turbine Design, Inc. to build an airplane referred to by the parties as the “TD2” or the “Spear-man Raptor.” When the plane reached the test stage in the construction process, Spearman paid Mike Lumbert, a test pilot, to perform test flights of the TD2. Lum-bert tested the TD2 for approximately thirty-four hours during the summer of 2004. In late July 2004, Lumbert advised Spearman that he felt the TD2 required additional testing, and he also advised Spearman that issues existed that made the TD2 “hazardous and/or unsafe which need further development^]” Lumbert’s July 2004 correspondence to Spearman concluded that “a sign off and release of the aircraft into Phase II [was] inappropriate.”

Approximately eight months later, Spearman asked Terry Willis, a resident of Travis County, Texas, if he would fly the TD2 to Texas from Florida. During Spearman’s telephone call with Willis, Spearman suggested that Willis talk with several people that had been involved in the TD2’s development, examine the TD2, and “look over all the details[.]” After doing so, Willis was to decide whether to perform additional test flights, and after flying the plane, decide whether to obtain a ferry permit or to sign the plane off into Phase II testing. Willis could then fly the plane to Texas.

On April 8, 2005, Willis, accompanied by David Duff, and Charles Lawrence, an employee of Innova Aircraft, travelled together by private plane to New Smyrna, Florida to talk to various individuals familiar with the TD2. Although both Willis and Duff were licensed pilots, Spearman expected Willis to pilot the TD2 in the event Willis decided to fly the plane to Texas.

On the day following their arrival in New Smyrna, Florida, Lawrence gave all of the TD2’s test-flight documentation to Willis, including Lumbert’s July 2004 correspondence that reflects Lumbert’s concern over the TD2’s operating characteristics. Following his initial test flight of the TD2, which occurred on April 9, Willis told Lawrence that he would complete the TD2’s testing.” On April 10, 2005, Willis, accompanied by Lawrence, flew the TD2 from New Smyrna to Deland, Florida, from Deland to Daytona, Florida, and then from Daytona back to New Smyrna. On April 11, Willis, accompanied by Lawrence, flew the TD2 from New Smyrna to Lake-land, Florida. According to Lawrence, none of the problems identified in Lum-bert’s July 2004 correspondence occurred during these flights. On April 12, 2005, Willis, accompanied by Duff, flew the plane from Lakeland to Daytona Beach, Florida. Before leaving the Daytona Beach airport on April 12, Willis showed Lawrence documents indicating that he had completed the TD2’s Phase I testing.

Willis and Duff departed from the Day-tona Beach airport on April 12. While approaching an airport near Bogalusa, Louisiana, Willis and Duff were killed when the TD2 crashed. Approximately one year later, Duffs parents, Charles Duff and Judith Hunts, along with Duffs estate (collectively referred to as “the appellants”), sued Michael Spearman in Travis County. Their suit alleged that venue was proper in Travis County because “all or a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in Travis County[.]”

Spearman filed a motion to transfer venue of the case from Travis County to the county of his residence, Montgomery County. See Tex. Civ. Prao. & Rem.Code Ann. § 15.002(a)(2) (Vernon 2002). In his motion, Spearman asserted that all or a substantial part of the events giving rise to the appellants’ claims had not occurred in Travis County. Specifically, Spearman asserted that no facts related to the crash occurred in Travis County, and he denied that he had misrepresented facts about the TD2 to either Willis or Duff. After a hearing, the trial court in Travis County transferred the appellants’ case to Montgomery County.

In November 2008, the trial judge conducted a jury trial. In its verdict, the jury awarded the Estate of David Duff damages of $15,000, awarded Judith Hunts damages of $975,000, and awarded Charles Duff damages of $303,000. The jury apportioned negligence between those it determined to have been negligent as follows: (1) Michael Spearman, 4%; (2) Charles Lawrence, 4%; (3) John Cunningham, 2%; (4) “Pilot in Command,” 70%; (5) Terry Willis, for acts and omissions other than as “Pilot in Command,” 10%; (6) David Duff, for acts and omissions other than as “Pilot in Command,” 10%. Additionally, the jury answered “no” to a question asking whether Willis acted in the furtherance of a mission for Spearman’s benefit. The trial court’s judgment offset the appellants’ recovery against Spearman and Innova Aircraft with a settlement credit and litigation costs. The judgment then decrees that the appellants “recover nothing from Defendants Michael Spearman, Innova Aircraft, Inc.[,] and In-nova Ventures, Inc.,” and orders that “Defendants recover their taxable costs from Plaintiffs.”

Issues on Appeal

In five issues, the appellants challenge the trial court’s judgment. In their first issue, the appellants argue that the Travis County trial court erred in transferring the lawsuit to Montgomery County. In issue two, the appellants assert that the trial court erred in admitting character evidence to show Willis’s character as a bad pilot. In issue three, the appellants contend that based on the evidence, Willis acted as Spearman’s agent as a matter of law. In issue four, the appellants argue the trial court erred when it refused to allow Charles Duff to withdraw an admission establishing that David Duff was the TD2’s “Pilot in Command” at the time the TD2 crashed. In issue five, the appellants argue that as the prevailing party they were entitled to be awarded their taxable costs.

Venue

The appellants argue that we should reverse the judgment in this case and order it transferred to Travis County because all or a substantial part of the events or omissions giving rise to the claim occurred there. See Tex. Civ. PRAC. & Rem.Code Ann. § 15.002(a)(1). According to the appellants, the events or omissions that occurred in Travis County consisted of Spearman’s phone calls with Willis before Willis went to Florida, and Spear-man’s e-mail to Willis in which Spearman asked Willis to fly the TD2 to Texas. Although it was not shown that Spearman was physically in Travis County when these events occurred, the appellants conclude that Spearman’s misrepresentations, failures to warn, and concealment of material facts should all be considered as having occurred in Travis County. The appellants further argue that Spearman’s spoliation of evidence supports a ruling that venue was proper in Travis County. Spearman’s spoliation of evidence consisted of his failure to preserve data on three different computers.

[1 — 4] Under Texas law, the plaintiff is given the opportunity to file suit in any county of proper venue. See Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex.1994). It is reversible error to transfer the case to another county of proper venue, if the county the plaintiff initially chose is also a county of proper venue. See id. at 262. If there is any evidence of probative force to support venue in the county where the plaintiff initially filed suit, a trial court is required to deny the request to transfer venue, even if the evidence preponderates to the contrary. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex.1995). If the county receiving the case proceeds to conduct a trial, we consider the entire record including the evidence from the trial on the merits in determining whether a transferring court improperly ordered a case transferred to another county. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993).

The appellants argue that Spear-man’s solicitation of Willis, together with Spearman’s misrepresentations about the TD2 and his failure to disclose what he knew about the TD2, should all be considered as occurring in Travis County. But the appellants overlook the fact that they were required to show where Duff relied on Spearman’s alleged misrepresentations. Justifiable reliance is an element of proof for claims involving concealment and for claims alleging misrepresentation. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 & n. 24 (Tex.2002); McCamish v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.1999) (citing Restatement (Second) of Torts § 552 (1977)); see also Fed. Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex.1991) (adopting the elements of section 552 of the Restatement (Seoond) of Torts for claims of negligent misrepresentation).

Here, with respect to flying the TD2, whatever Spearman disclosed or failed to disclose about the TD2 was relied upon by Willis in Florida. Additionally, it was undisputed that Willis knew the TD2 was an experimental airplane requiring additional testing. While statements that Spearman made to Willis while Willis was in Travis County might have played some role in Willis’s decision to travel to Florida, his decision to fly the TD2 was based on what he learned about the TD2 when he was in Florida. While in Florida, Willis talked to various people familiar with the TD2’s characteristics and then flew the TD2 several times before attempting to fly the TD2 to Texas. Further, there is no evidence that Spearman had conversations with Duff in Travis County. Duffs decision to participate in returning the TD2 to Texas also occurred while Duff was in Florida. Having considered the entire record, we conclude that there is no probative evidence that a substantial part of the events or omissions giving rise to the appellants’ claims occurred in Travis County.

Next, we consider the appellants’ argument that Spearman’s spoliation of evidence supplies venue facts sufficient to require the lawsuit to be returned to Travis County. “The doctrine of spoliation refers to the improper destruction of evidence relevant to a case.” Buckeye Ret. Co. v. Bank of Am., N.A., 239 S.W.3d 394, 401 (Tex.App.-Dallas 2007, no pet.). If a trial court determines that a party has failed to preserve documents that it is on notice to preserve, the trial court may take affirmative measures to correct the effects of the spoliation. Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex.1998); see also Buckeye, 239 S.W.3d at 401. The affirmative measures can range “from a jury instruction on the spoliation presumption to, in the most egregious case, death penalty sanctions.” Trevino, 969 S.W.2d at 953. Faced with an abuse of the discovery process, trial courts are given significant discretion in deciding whether to impose an appropriate sanction. Tex.R. Civ. P. 215.3.

At trial, the trial court gave the jury an instruction on Spearman’s spoliation of evidence. However, the appellants never asked the trial court to sanction Spearman for his failure to preserve evidence by returning the case to Travis County, nor did the appellants object at the charge conference that the proposed jury instruction on spoliation was an insufficient sanction. Additionally, while the appellants’ motion for sanctions argued that the information Spearman failed to preserve was “critical to the determination of whether venue was proper[,]” the appellants’ motion and supplemental motion for sanctions did not request the Montgomery County trial court to return the case to Travis County. Further, the appellants never asked the trial court to find that Spear-man’s spoliation of evidence warranted findings of venue facts sufficient to establish venue in Travis County. Instead, the appellants’ motion for sanctions requests the trial court to give the jury a spoliation instruction, which it gave. The spoliation instruction the appellants requested does not inform the trial court that the appellants also desired to sanction Spearman by deeming venue facts as having been established.

As the Trevino court made clear, “there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual case.” Trevino, 969 S.W.2d at 953. The trial court, in remedying discovery abuse, has the right to determine in the first instance whether to deem facts as being established in determining an appropriate sanction for discovery misconduct. See Tex.R. Civ. P. 215.2(b)(3) (allowing a trial court’s sanction to include that a matter shall be taken as having been established). Even if a venue finding is an appropriate sanction for discovery misconduct, a matter we need not decide, such a remedy was not first requested of the trial court here. See Trevino, 969 S.W.2d at 953; see also Tex.R.App. P. 33.1 (preserving error for appellate review requires the complaining party to show that he presented his complaint to the trial court in a timely request, objection, or motion and that the trial court ruled on the request). Because the appellants did not first ask the trial court for the sanction they now ask for, Spearman’s spoliation of evidence, their argument is not preserved for appellate review. See Tex.R.App. P. 33.1(a)(1). We overrule issue one.

Character Evidence

In their second issue, the appellants complain the trial court erred by admitting evidence that Willis “had flown airplanes negligently in the past.” In their brief, the appellants point to testimony elicited from John Cunningham, John Cook, Dan Gray, Sven Hendrickson, Steven Jackson, and Michael Spearman. The appellants argue that Rule 404(a) of the Texas Rules of Evidence prohibits the admission of testimony of a person’s character traits to prove that the person acted in conformity with them. See Tex.R. Evid. 404(a). They further argue that Rule 404(b) prohibits the admission of testimony about Willis’s other wrongs or acts because the testimony was used to show that Willis acted in the same manner at the time of the crash. Tex.R. Evid. 404(b). Spear-man responds that the evidence about which appellants complain was relevant and admissible “to demonstrate Duffs negligence in electing to fly with Willis on the accident flight[.]”

We conclude that the appellants have failed to preserve the complaints they make in issue two for our review. To preserve error for purposes of appellate review, the Rules of Appellate Procedure require parties to make timely and specific objections at the earliest possible opportunity to preserve complaints that relate to a trial court’s admission of evidence during a trial. Tex.R.App. P. 33.1; Oyster Creek Fin. Corp. v. Richwood Investments II, Inc., 176 S.W.3d 307, 316 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (failing to object operated as waiver of complaint that trial court erroneously admitted evidence of prior crime); Schwartz v. Forest Pharm., Inc., 127 S.W.3d 118, 123-24 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (failing to timely object to testimony about the plaintiffs litigious character waived right to complain on appeal of the trial court’s admission of the testimony). The record references the appellants provide in their brief concerning the admission of character evidence reflect that the appellants lodged no objections when the testimony about which they now complain was elicited during trial. Nor did the appellants object when various witnesses attested to their respective opinions of Willis’s character as a pilot.

By failing to lodge objections when these witnesses testified, the appellants failed to preserve their complaints concerning the admission of testimony about Willis’s character as a pilot. Tex.R.App. P. 33.1. We overrule issue two.

Agency

The first question the trial court gave the jury asked: “Was Terry Willis acting in the furtherance of a mission for the benefit of Michael Spearman and subject to control by Michael Spearman as to the details and means of the mission?” The jury responded, “No.” In issue three, the appellants argue that the evidence conclusively establishes that Willis acted as Spearman’s agent. Additionally, the appellants contend that their evidence conclusively establishes that Willis was on a mission for Spearman.

First, we note the general rule regarding agency under Texas law. “Texas law does not presume agency, and the party who alleges it has the burden of proving it.” IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597 (Tex.2007) (citing Buchoz v. Klein, 143 Tex. 284, 184 S.W.2d 271 (1944)). When challenging the legal sufficiency of the evidence supporting an issue on which the appellant has the burden of proof, the appellant is required to “demonstrate on appeal that the evidence [conclusively] establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam). A legal sufficiency review of a no-evidence point must credit favorable evidence if a reasonable fact-finder could and disregard the contrary evidence unless a reasonable fact-finder could not disregard it. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex.2005). A reviewing court will sustain a no-evidence point when: (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of 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 establishes conclusively the opposite of the vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003).

Relying on definitions contained in title 14, section 1.1 of the Code of Federal Regulations, the appellants argue that Spearman was the “operator” of the April 12, 2005 flight. Additionally, the appellants point to evidence in the record showing that Spearman (1) assigned Willis the task of flying the TD2, (2) directed that the TD2 be flown to Texas, (3) employed the persons responsible for maintaining the TD2, (4) transported Willis to Florida, (5) provided fuel for the flight, (6) controlled the information regarding the TD2 that Willis obtained before the TD2’s final flight, and (7) asked Willis to certify the airworthiness of the TD2 before its final flight. The appellants further argue the evidence established that Spearman retained the right to limit Willis’s actions as those. actions related to the TD2. The appellants also note that Spearman retained the right to control Willis’s actions, even if Spearman did not “actually exercise[ ] that right.” In discussing the evidence from the trial, the appellants point to Spear-man’s testimony in which he acknowledges that Willis was to do “only what I told him to do.” Finally, the appellants contend that only Spearman stood to benefit from relocating the TD2 to Texas.

In response, Spearman does not contend that Willis was not on a mission for his benefit. Instead, Spearman argues that he did not control “the details and means of the mission.” See Am. Nat’l Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 373-74 (1936) (overturning judgment against a principal where the injury from an automobile accident had been caused by an agent who was not under the principal’s control at the time of the accident). Spearman disputes that he had control over Willis as to numerous details that were involved in Willis’s final flight. Spearman points to evidence showing that he left to Willis the decision on whether to return the TD2 to Texas. Spearman explained to the jury that during a flight, it was up to the pilot to decide what happened. Specifically, Spearman contends the evidence showed the he did not control where the aircraft was to be flown, the route of the flight, how the aircraft was to be flown, the amount of fuel loaded on the plane, where the TD2 was to stop to refuel, or whether Willis allowed Duff to fly as a passenger.

Spearman further argues that the appellants’ expert aircraft accident investigator, Warren Wandel, agreed that there was no evidence that Spearman had directed the details of the TD2’s final flight. Spearman notes that Wandel, in addressing the TD2’s final flight, testified that Willis (1) served as the plane’s “Pilot in Command,” (2) determined the route for the flight, (3) decided where to stop to refuel, (4) decided the date and time of the plane’s departure, and (5) selected Austin as the plane’s destination.

To determine whether the doctrine of respondeat superior applies to an agency relationship, juries are asked to determine whether the agent was on a mission for the principal and whether the agent was subject to the principal’s control with respect to the details of the mission. See English v. Dhane, 156 Tex. 231, 294 S.W.2d 709, 711 (1956) (holding that the car’s owner was not responsible for negligence of the agent driving the car absent the owner’s control over the agent’s operation of the car at the time in question); see also Comm, on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges P.C.J. 7.10 (2008) (“Respondeat Superi- or — Nonemployee.... On the occasion in question, was Tim Thomas operating the vehicle in the furtherance of a mission for the benefit of Don Davis and subject to control by Don Davis as to the details of the mission?”).

Vicarious liability does not impose liability on the principal solely because an agent is on the principal’s mission. See Denke, 95 S.W.2d at 378. Recognizing that vicarious liability is a judicially created remedy, the Texas Supreme Court has emphasized that limitations exist on the doctrine’s reach. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541 (Tex.2002) (expressly recognizing a number of factors affecting “whether and when vicarious liability is appropriate”). In Wolff, the Texas Supreme Court explained that the paramount factor used in determining whether to impose vicarious liability on a party is “whether the person being held responsible can be said to have had a right to control the activities of the wrongdoer.” Id.

In the employment context, a written contract provision providing a right to the employer to control certain employees does not alone control the jury’s decision on whether the employer had the necessary right of control when there is evidence showing otherwise. See Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex.1992) (per curiam) (“Where the right of control prescribed or retained over an employee is a controverted issue, it is a proper function for the fact-finder to consider what the contract contemplated or whether it was even enforced.”). Whether Spear-man exercised or had the right to control Willis was an issue on which the jury heard conflicting evidence. Much of the evidence reflects that Spearman did not control the details of Willis’s decisions regarding the TD2’s final flight. Although the Texas Supreme Court has recognized that an airplane’s co-owner riding in the plane’s passenger seat might have a joint right of control with the co-owner pilot over the plane, Spearman, the plane’s owner, was not present during any of the TD2’s flights. See Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 15 (Tex.1974) (explaining that although the person in the pilot’s seat had “superior command” of the plane, the co-owner, who was also in the plane, had the right to be heard regarding the flight based upon his ownership interest in the plane).

Having carefully reviewed the evidence, we conclude that the evidence does not establish as a matter of law that Spearman exercised control over the means and details of Willis’s mission. As a result, the trial court did not err by overruling the appellants’ motion for directed verdict and their motion for judgment notwithstanding the verdict. We overrule issue three.

Deemed Admission

In issue four, the appellants argue the trial court abused its discretion by refusing Charles Duffs request to withdraw a deemed admission. Spearman served Charles Duff with discovery that contained eight requests for admissions. Duff was one day late in responding to Spearman’s discovery request. By operation of Rule 198.2(c) of the Texas Rules of Civil Procedure, Charles Duff admitted Spearman’s requests. Rule 198.2(c) provides: “If a response is not timely served, the request is considered admitted without the necessity of a court order.” Tex.R. Civ. P. 198.2(c).

On October 24, 2006, Charles Duff moved to withdraw his deemed admissions. On December 4, 2006, the trial court partially granted and partially denied Charles Duff’s request to withdraw his deemed admissions. The trial court refused to allow Duff to withdraw his admission that David Duff had served as the TD2’s “Pilot in Command,” as well as three of his other deemed admissions. However, in the same order, the trial court granted Charles Duffs request to withdraw some of his deemed admissions.

The record contains no findings of fact or conclusions of law to explain the reasons the trial court allowed Charles Duff to withdraw some of his deemed admissions but not others. On December 13, 2006, Charles Duff asked the trial court to reconsider its ruling and to allow him to withdraw the remaining deemed admissions. On October 16, 2008, the trial court heard Charles Duffs motion to reconsider. During the hearing, a paralegal employed by the firm representing Charles Duff explained that she had mistakenly calculated the date Spearman’s requests for admissions were due. As a result, Duffs responses were filed one day late. At the conclusion of her testimony, the trial court said:

From [the paralegal’s] point of view, I’ll say to her, as a paralegal and individual, my ruling had nothing to do with her mis-calendaring. It had everything to do with Counsel’s gamesmanship that was being played early on, including in these responses. That’s the purpose of my ruling. You got a record. Y’all go mediate.
Motion denied.

The record before us does not support the conclusion that Duff had engaged in discovery abuse. As of the date the trial court denied Charles Duffs request to withdraw his deemed admissions, the clerk’s record reflects that Spearman had never complained that Charles Duffs responses to discovery were inadequate. As of the date Charles Duff answered Spear-man’s requests for admissions, the clerk’s record reveals that Spearman had not filed any motions to compel discovery. Duffs response to Spearman’s request for admissions is neither ambiguous nor evasive, as Duff expressly entered an unqualified denial to the request now in issue. Further, we find nothing in the record to indicate that the trial court attempted any lesser sanction against the attorneys for engaging in whatever conduct the trial court viewed as “gamesmanship” before it made a ruling affecting a party’s right to have a material issue resolved by the jury. See TransAmerican Nat’l Gas Corp. v. Powell, 811 S.W.2d 913, 917-18 (Tex.1991) (suggesting that trial courts should first consider lesser sanctions and that “just sanctions must not be excessive” and “the punishment should fit the crime”).

The parties tried the case to the jury over the course of three weeks in November 2008. During the trial, the jury was never informed that Charles Duff admitted that David Duff had served as the TD2’s “Pilot in Command.” Various expert witnesses for both sides expressed their opinions that on the TD2’s final flight, Willis had served as the “Pilot in Command.” Additionally, no witness testified during the trial that David Duff had been the “Phot in Command” of the TD2’s final flight. In their closing arguments, the attorneys for both sides argued to the jury that Willis had been the TD2’s “Pilot in Command” during its final flight.

Shortly before the parties rested, the trial court conducted a charge conference. During the charge conference, Duff again requested permission to withdraw the deemed admission now in issue, and his attorneys pointed out that the jury had been presented evidence proving that Willis served as the TD2’s “Pilot in Command.” Nevertheless, the trial court again refused Duffs request to withdraw the deemed admission.

Because Duffs admission affected only his case, and not that of Judith Hunts’ or the Estate of Duffs, the trial court decided to charge the jury by asking it to return findings on negligence as to Michael Spearman, Charles Lawrence, John Cunningham, “Pilot in Command,” Terry Willis, and David Duff. The jury was then asked to determine the percentages of negligence attributable to each person that it determined to have been negligent. During the charge conference, the appellants informed the court that they had no objection to the court’s proposed apportionment issue.

While the jury deliberated, the trial court obtained an important stipulation from the parties regarding the possible appeal of its submitting the negligence of the “Pilot in Command.” The attorneys for all parties stipulated that in the event the jury apportioned fault to the TD2’s “Pilot in Command,” the percentage apportioned to the “Pilot in Command” would be attributed to Willis in determining the judgment with respect to the claims of the Estate of Duff and Judith Hunts. The parties further stipulated that if a reviewing court later determined the trial court erred by refusing to allow Charles Duff to withdraw his admission, the fault the jury attributed to “Pilot in Command” would then, with respect to Charles Duffs claim, be attributed to Willis.

Later that day, the jury returned its verdict. Based on the questions submitted to it, the jury attributed negligence to each of the persons about whom the charge inquired, including the TD2’s “Pilot in Command.” In apportioning negligence, the jury attributed the negligence between these persons as follows: Spearman, 4%; Lawrence, 4%; Cunningham, 2%; “Pilot in Command,” 70%; Willis, 10%; and Duff, 10%. The jury also found that Lawrence and Cunningham had acted as employees of Innova Aircraft, and further found that Spearman was “responsible for the conduct of Innova Aircraft, Inc.”

In its answer to a question on damages, the jury awarded Charles Duff $303,000; awarded Judith Hunts $975,000; and awarded the Estate of Duff $15,000. Prior to the trial, Spearman had extended a settlement offer that later proved to be substantially more favorable to the appellants than the amounts awarded to them by the jury. See Tex.R. Civ. P. 167; Tex. Civ. Prao. & Rem.Code Ann. §§ 42.001-005 (Vernon 2008). After trial, and because the settlement offer triggered their right to receive litigation costs as an offset to the jury’s award, the appellees sought a post-trial offset under Rule 167. Spear-man submitted an affidavit to support a claim for attorneys’ fees, and requested the trial court to offset the amounts the jury had awarded with his litigation costs. See Tex.R. Civ. P. 167. In March 2009, the trial court rendered a judgment decreeing that Charles Duff, Edith Hunts, and the Estate of Duff recover nothing against the defendants, Michael Spearman, Innova Aircraft, and Innova Ventures. The trial court’s judgment also decrees that the ap-pellees are entitled to recover their taxable costs. The trial court’s judgment recites that the court finds that the appellees are “entitled to reductions, offsets and credits under Texas Civil Practices and Remedies Code Chapter 33, as well as Texas Civil Practices and Remedies Code Chapter 42 (TRCP 167)[.]” However, the judgment is silent regarding the amount of the settlement credit or the litigation costs offset the trial court allowed in calculating the appellants’ net award.

Given this background, we address whether the trial court erred by failing to grant Charles Duffs request to withdraw the deemed admission in dispute. By allowing Charles Duff to withdraw the majority of his deemed admissions, and given the trial court’s comments to the paralegal during the hearing, it is apparent that the trial court accepted the paralegal’s explanation as having established “good cause.” See Tex.R. Civ. P. 198.3(a) (requiring a party show “good cause” to withdraw deemed admission). “Good cause is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference.” Wheeler v. Green, 157 S.W.3d 439, 442 (Tex.2005). Since the trial court accepted the paralegal’s explanation, its decision to deny Charles Duffs request to withdraw the single admission now in dispute was not based on Duffs failure to establish that his late filing was a mistake.

Additionally, the trial court did not suggest that Duffs delay of one day had prejudiced Spearman’s ability to present his side of the case. See Tex.R. Civ. P. 198.3(b). “Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party’s ability to prepare for it.” Id. at 443. Duffs failure to timely respond to discovery occurred at an early stage in the proceedings, and well before the close of the discovery period allowed by the trial court’s pre-trial order. The record does not support a finding of undue prejudice.

None of the parties including Spearman, utilized Duffs deemed admission when presenting their respective claims to the jury. See Tex.R. Civ. P. 198.3 (“A matter admitted under this rule is conclusively established as to the party making the admission.... ”). We conclude that Spear-man would not have suffered undue prejudice had the trial court granted Charles Duffs motion to withdraw Duffs deemed admission that concerned David Duff having piloted the TD2.

To withdraw a deemed admission, Rule 198.3 also requires a finding that the merits of the action are served by allowing the admission to be withdrawn. See Tex.R. Civ. P. 198.3(b). Because the parties did not rely on the admission in presenting their evidence, it appears the parties recognized that presenting evidence concerning who had piloted the TD2 would assist the jury in resolving the disputed issues. A party that, without objection, allows the trial court to admit evidence controverting a matter deemed admitted may waive his right to rely upon the matter. See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex.1989) (holding that the plaintiff “waived ... his right to rely upon those admissions which were controverted by testimony admitted at trial without objection”). The appellants’ attorneys, during the charge conference, argued that Spearman had waived his right to rely on the admission by introducing evidence that Willis piloted the TD2.

We conclude that by introducing evidence that Willis piloted the TD2, Spear-man waived his reliance on Charles Duffs deemed admission that David Duff had piloted the TD2. See id. To the extent there is an implied finding that Spearman did not waive his right to rely on the admission, such an implied finding is contrary to the great weight and preponderance of the evidence. See id. We further conclude that any implied finding that the merits of the case would not be served by allowing Charles Duff to withdraw the admission is against the greater weight and preponderance of the evidence. See id.

Next, we address whether the trial court’s ruling can be upheld as a discovery sanction for counsel’s “gamesmanship.” Although Charles Duff filed his responses to the requests one day late, he did not simply object and then refuse to respond to Spearman’s request. Instead, subject only to his objections, he unequivocally denied that David Duff had piloted the plane. The way in which Duff responded to the requests did not justify a sanction.

A trial court’s discretion in deeming a request to have been admitted is limited by due process. Wheeler, 157 S.W.3d at 443. “When requests for admissions are used as intended — addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents — deeming admissions by default is unlikely to compromise presentation of the merits.” Id. (citation omitted). Nevertheless, “[d]ue process concerns arise when a party uses deemed admissions to preclude presentation of the merits of a case.” Thomas v. Select Portfolio Servicing, Inc., 293 S.W.3d 316, 320 (Tex.App.-Beaumont 2009, no pet.) (citing Wheeler, 157 S.W.3d at 443).

Here, the trial court stated that its ruling “had nothing to do with [the paralegal’s] mis-ealendaring[,]” and then alluded to the appellants’ attorneys’ handling of discovery by stating that the court’s ruling “had everything to do with Counsel’s gamesmanship.” With respect to Charles Duffs claim, Charles Duffs admission that David Duff had served as the “Pilot in Command” defeated his recovery. See Tex. Civ. Prac. & Rem.Code Ann. § 33.001 (Vernon 2008) (barring a claimant’s recovery if his percentage of responsibility is greater than fifty percent); Utts v. Short, 81 S.W.3d 822, 832 (Tex.2002) (“[W]hen a suit involves derivative claims, the derivative plaintiff cannot recover if the injured or deceased person’s negligence is greater than fifty percent.”). In summary, had the trial court allowed the admission to be withdrawn, Charles Duffs recovery before litigation costs are offset, would equal ten percent of his damages. As the deemed admission was applied by the trial court, Charles Duff lost the judgment despite winning the jury’s verdict.

In Wheeler, the Texas Supreme Court warned that “absent flagrant bad faith or callous disregard for the rules, due process bars merits-preclusive sanctions[.]” Wheeler, 157 S.W.3d at 443. At the point the trial court imposed the sanction, Spearman’s attorneys had made no effort to obtain less extensive sanctions, nor is there any indication in the record that the trial court considered imposing sanctions against Charles Duffs attorneys for engaging in whatever conduct the trial court viewed as having been inappropriate. See TransAmerican Natural Gas Corp., 811 S.W.2d at 917-18 (holding that a sanction must not be excessive and must fit the crime). Here, Charles Duff filed a full response to the admission in dispute, and he unequivocally denied Spearman’s request one day after the requests were due under the Texas Rules of Civil Procedure. Having carefully reviewed the record, we find nothing to support an implied finding that the appellants’ attorneys or Charles Duffs response was made in bad faith or with callous disregard for the rules. Moreover, Charles Duffs response to the admission is consistent with the evidence later introduced by both parties at trial. Because the record does not support a sanction affecting the merits of Charles Duffs case, we conclude the trial court did not have the discretion to impose a merits-preclusive sanction. We further conclude that the trial court’s refusal to allow Charles Duff to withdraw the deemed admission in dispute constitutes an abuse of discretion.

In their brief, the appellants suggest they were harmed by the trial court’s ruling because the admission precluded the jury from deciding who was the “pilot-in-command of the [TD2] at the time of the accident.” However, we do not agree that the jury’s verdict was affected by Duffs deemed admission. First, the trial court and the parties never informed the jury of Charles Duffs admission. Second, the witnesses at trial who addressed the identity of the person serving as the TD2’s pilot during the plane’s final flight identified Willis as having been the TD2’s “Pilot in Command.” Third, after the crash, Willis was found in the TD2’s front seat, which was the seat typically used by the TD2’s pilot. Finally, during the jury’s deliberations, all of the parties stipulated that if the trial court was found to have erred in denying Charles Duff permission to withdraw the deemed admission in issue, the “Pilot in Command’s” negligence would be attributed to Willis. Based on the record, as well as the parties’ stipulation, we conclude the trial court’s error had no effect on the result reached by the jury.

Nevertheless, the trial court’s use of the admission affected the final judgment. In light of the parties’ stipulation to allocate the negligence of the “Pilot in Command” to Willis, we hold that the judgment can be corrected by the trial court. Therefore, we affirm the jury’s verdict and the jury’s findings, but we reverse the judgment because the trial court failed to calculate the judgment properly. We remand the judgment to the trial court to allow it to recalculate the judgment by allocating the jury’s finding on the negligence of the “Pilot in Command” to Willis.

When the trial court recalculates the judgment, based on the percentage of negligence findings by the jury, we note for the trial court’s benefit that Spearman and Innova Aircraft are not jointly liable. See Tex. Civ. Prac. & Rem.Code Ann. § 38.013(b) (Vernon 2008) (providing for joint and several liability if a defendant found more than fifty percent responsible). Therefore, the trial court’s calculation of the jury’s award is to be determined by multiplying the damage awarded each appellant by the fault the jury apportioned to each appellee. See Roberts v. Williamson, 111 S.W.3d 113, 123 (Tex.2003) (explaining under circumstances similar to these, that a jury award against a severally-liable defendant is not generally offset by a settlement credit in the absence of a recovery exceeding the one-satisfaction rule); C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 321 (Tex.1994), abrogated on other grounds by Battaglia v. Alexander, 177 S.W.3d 893, 900 (Tex.2005) (“Section 33.013(a) sets the liability to the claimant of each [severally liable] defendant at an amount equal to that defendant’s percentage of responsibility multiplied by the damages found by the trier of fact.”).

After determining the amount the jury awarded each of the appellants, the trial court must then calculate the amount of the litigation costs to award appellees, and then offset the jury’s award the appellants with the appellees’ litigation costs. See Tex.R. Civ. P. 167.4(d)-(g) (providing limitations on the litigation costs offset), Tex. Civ. Prac. & Rem.Code Ann. § 42.004 (Vernon 2008) (providing that the offering party may recover “litigation costs” if the award is less than eighty percent of the rejected offer). In this case, the amount the trial court determined as the appellees’ permissible “litigation costs” is not known, as the offset amount is not contained within the trial court’s judgment, nor is the amount the trial court determined to be “litigation costs” found elsewhere in the record. While we do find evidence in the record that the appellees incurred “litigation costs” of $151,454.00, we find nothing to indicate the trial court awarded the entire amount claimed as the offset amount.

As a reviewing court, we are unable to make original findings of fact in the first instance. See generally Tex. Nat’l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex.1986). Therefore, we are unable to render an initial award of litigation costs. On remand, the trial court must determine the offset amount based on the evidence before it to determine the net amounts to be awarded each appellant in the trial court’s judgment. See Tex.R. Crv. P. 167.4(c), (d). Without the benefit of findings on the proper offset award in the first instance, we are without authority to reform the trial court’s judgment.

In summary, we hold the trial court erred in utilizing a deemed admission in calculating the judgment. Because the trial court’s error did not affect the jury’s verdict, we hold the proper remedy is to remand the case to the trial court to allow the trial court to reconsider the net amounts due to each of the appellants.

Taxable Costs

In issue five, the appellants assert the trial court erred by taxing them with costs of court. Rule 131 of the Texas Rules of Civil Procedure provides that the successful party is to be awarded “all costs incurred therein, except where otherwise provided.” Tex.R. Civ. P. 131.

Both parties ask that we address whether Rule 167.4’s offset provision affects the determination of which side is considered as “successful” for purposes of taxing costs under Rule 131. In a case that involves an award that includes both noneconomic and economic damages, Rule 167.4(d) applies a formula that caps the maximum amount the trial court can award as an offset to a sum that will always be lower than the jury’s award. See Tex.R. Civ. P. 131, 167.4(d) (providing that the litigation costs offset cannot exceed the sum of noneconomic damages and one-half of the economic damages).

Thus, when the formula contained in rule 167.4 is applied to the jury’s award in the matter before us, the appellants will be the successful parties for purposes of being awarded court costs under Rule 131. See Tex.R. Civ. P. 131. Because the jury’s award in this case includes both noneco-nomic and economic damages, the appellants will be the prevailing party for purposes of taxing court costs. On remand, regardless of the amount of litigation costs the trial court finds to be reasonable, the formula provided in Rule 167.4(d) will prevent the appellants’ awards from being completely offset by litigation costs. Therefore, the appellants were the successful parties, and they are entitled to recover taxable costs under Rule 131. We further note, however, that the appellants may not recover taxable costs for any costs incurred after the date they rejected Spearman’s settlement offer. See Tex.R. Civ. P. 167.4(f). We sustain the appellants’ fifth issue.

In conclusion, we overrule issues one through three. We sustain issues four and five; therefore, we reverse the trial court’s judgment, as it fails to properly calculate each appellant’s net award. We remand the case to the trial court for the limited purpose of recalculating the judgment by attributing the negligence of the “Pilot in Command” to Willis and rendering judgment on the jury verdict. The trial court shall then calculate the net judgment after determining the amount to award the ap-pellees for their litigation costs. We further order the trial court to award the appellants their taxable costs, as limited by Rule 167.4(f), as each appellant was successful at trial. Finally, we further affirm the trial court’s judgment as to Innova Ventures, Inc.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

      . For convenience, we refer to Spearman's plane as the "TD2."

      . Phase I is an initial test flight period for experimental aircraft. Under the Federal Aviation Administration (''FAA”) regulations, the TD2 was required to be operated during Phase I testing within sixty miles of an airport in Deland, Florida. Successful completion of Phase I testing was necessary to remove the TD2's geographic restriction.

      . Willis was a licensed pilot who owned a plane built by Turbine Design known as the Turbine Legend. Spearman testified that Willis’s experience with the Turbine Legend was a significant factor in his decision to allow Willis to fly the TD2.

      . A ferry permit is an FAA document that grants the FAA’s permission for an aircraft to be flown outside its existing restrictions.

      . Duff was a licensed pilot and a Travis County resident.

      . Innova Aircraft, Inc. is an entity that Spear-man created to complete the construction of the TD2.

      . The order transferring the case was signed March 9, 2006.

      . The jury, in response to issue number two, found that Lawrence had acted as an employee of Innova Aircraft, a named party to the suit.

      . The jury, in response to issue number three, found that Cunningham had acted as an employee of Innova Aircraft.

      . “Pilot in Command” was not a named party to the suit, nor did the trial court designate "Pilot in Command" as a responsible third-party defendant. See Tex. Civ. Prac. & Rem.Code Ann. § 33.004 (Vernon 2008).

      . Prior to the trial, the trial court designated Terry Willis as a responsible third party. See id.

      . Prior to trial, the appellants reached a settlement of $250,000 with The Spearman Group, also known as Spearman Real Estate Partnership, Porous Media, Ltd., and Porous Media Corporation. In their settlement, the appellants reserved their claims against Inno-va Aircraft, Innova Ventures, Inc., and Michael Spearman, individually and in his capacity as an employee and officer of Innova Aircraft and Innova Ventures.

      . A settlement offer complying with certain provisions of the Texas Rules of Civil Procedure or with certain provisions of the Texas Civil Practice and Remedies Code, if rejected, triggers statutory offset rights that allow the defendant to offset a plaintiff’s recovery with its "litigation costs” when the judgment is significantly less favorable than the rejected settlement offer. See Tex R. Civ. P. 167.4; Tex Civ. Prac. & Rem.Code Ann. § 42.004 (Vernon 2008).

      . The trial court's instruction states: "The Court has found that the defendant Michael Spearman failed to preserve certain computer information and data that was material and relevant to pending litigation. You may presume that such information and data would have been unfavorable to defendant Michael Spearman.”

      . Rule 404(a) provides: "Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: [listing two exceptions that are not relevant to this appeal].” Tex.R. Evid. 404(a).

      . Rule 404(b) provides: "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]” TexR. Evid. 404(b).

      . The question submitted to the jury tracks the issue suggested in the Texas Pattern Jury Charges, section 7.10. See Comm, on Pattern Jury Charges, State Bar of Tex, Texas Pattern Jury Charges P.J.C. 7.10 (2008). Section 7.10 explains that it is used "if the respondeat superior doctrine is raised in a case not involving an ordinary employee.” Id. at 7.10 cmt.

      . The trial court admitted as an exhibit a copy of title 14 of the Code of Federal Regulations, current as of September 11, 2007. It provides a number of general definitions relevant to piloting planes, including a definition of the term "operate." Under section 1.1, title 14, “Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise). Operational control, with respect to a flight, means the exercise of authority over initiating, conducting or terminating a eight.” 14 C.F.R. § 1.1 (2007).

      . The request in issue, request for admission two, states: “Admit that [David] Duff was the pilot-in-command of the Aircraft during the Accident flight.” Charles Duff’s responses, filed one day late, contained this objection, "Plaintiffs object to Request for Admission No. 2 to the extent that it uses terms that are undefined, vague and ambiguous.” Nevertheless, on the same date and in the same document, Charles Duff then responded to the request, answering: "Denied.”

      . The certificate of service on Spearman’s discovery containing the request at issue reflects that the request was served by certified mail on May 18, 2006. By virtue of the "mailbox rule,” Charles Duff was required to respond to Spearman's request by June 20, 2006. See Tex.R. Civ. P. 21a. According to Charles Duff’s certificate of service that accompanied his discovery responses, he filed his response on June 21, 2006, or one day later than the period allowed under the Rules of Civil Procedure.

      . In final argument, Spearman's attorney argued: "Per the Court’s definition — and this is right out of the Federal Aviation Regulations — 'the pilot-in-command means the person who has final authority and responsibility for the operation and safety of the flight, has been designated as pilot-in-command before or during the flight, and holds the appropriate category, class, and type rating, if appropriate, for the conduct of the flight.’ And we all know, there’s not been any evidence to the contrary that Mr. Willis was the pilot-in-command of the airplane."

      . With respect to Lawrence, the charge instructed the jury that, "for purposes of this subsection, do not consider acts or omissions, if any, of Charles Lawrence while he was employed by Turbine Design[.]” Because Turbine Design had settled before trial, and Lawrence, before working for Innova Aircraft, had been Turbine Design’s employee, we assume that this instruction was intended to focus the jury on Lawrence's conduct after he left his employment with Turbine Design. The appellants did not object to any of the instructions that accompanied this question.

      . With respect to Cunningham, the charge also instructed that, "for purposes of this subsection, do not consider acts or omissions, if any, of John Cunningham while he was employed by Turbine Design[.]” We assume this instruction was intended to focus the jury on Cunningham’s conduct that occurred after he left Turbine Design’s employment.

      . With respect to "Pilot in Command," the charge instructed that, “for purposes of this subsection, consider only acts or omissions, if any, of the Pilot in Command of the flight from Daytona to Bogalusa[.]” We assume that the trial court gave the jury this instruction to allocate the findings of fault in a manner consistent with its prior decision to preserve its ruling as to Charles Duff's deemed admission. The appellants did not object to this language of the charge during the charge conference.

      . With respect to Willis, the charge instructed that, "for purposes of this subsection, do not consider acts or omissions of Terry Willis, if any, as the Pilot In Command of the flight from Daytona to Bogalusa[.]" We assume this instruction was included for reasons we explain in footnote 24. The appellants did not object to this language during the charge conference.

      . With respect to David Duff, the charge instructed that, "for purposes of this subsection, do not consider acts or omissions of David Duff, if any, as the Pilot In Command of the flight from Daytona to Bogalusaf.]” We assume this instruction was included for the same reasons we explain in footnote 24. The appellants did not object to this language during the charge conference.

      . This stipulation allowed the trial court to allocate the negligence finding on “Pilot in Command” to David Duff, Charles Duff's son, based on Charles Duff’s deemed admission.

      . We express no opinion regarding whether the trial court's judgment properly made Spearman, in his individual capacity, responsible for the conduct of employees of Innova Aircraft, as the appellees have not raised any issues by cross-point in the appeal. Therefore, that issue is not before us.

      . The jury apportioned Spearman's individual responsibility at 4%, Lawrence's at 4%, and Cunningham's at 2%. The jury then determined that Lawrence and Cunningham had acted as employees of Innova Aircraft. The jury also found that Spearman was responsible for the acts and omissions of Innova Aircraft, and Spearman has not appealed this finding.

      . As provided by Rule 167.4(c) of the Texas Rules of Civil Procedure:
      Litigation costs are the expenditures actually made and the obligations actually incurred-directly in relation to the claims covered by a settlement offer under this rule-for the following:
      (1) court costs;

        (2) reasonable fees for not more than two testifying expert witnesses; and
      (3) reasonable attorney fees.

      . Rule 167.4 of the Texas Rules of Civil Procedure provides:
      (a) Generally. If a settlement offer made under this rule is rejected, and the judgment to be awarded on the monetary claims covered by the offer is significantly less favorable to the offeree than was the offer, the court must award the offeror litigation costs against the offeree from the time the offer was rejected to the time of judgment.
      (b) “Significantly less favorable" defined. A judgment award on monetary claims is significantly less favorable than an offer to settle those claims if;
      (1) the offeree is a claimant and the judgment would be less than 80 percent of the offer; or
      (2) the offeree is a defendant and the judgment would be more than 120 percent of the offer.
      (c) Litigation costs. Litigation costs are the expenditures actually made and the obligations actually incurred — directly in relation to the claims covered by a settlement offer under this rule — for the following;
      (1) court costs;
      (2) reasonable fees for not more than two testifying expert witnesses; and
      (3) reasonable attorney fees.
      (d) Limits on litigation costs. The litigation costs that may be awarded under this rule must not exceed the following amount:
      (1) the sum of the noneconomic damages, the exemplary or additional damages, and one-half of the economic damages to be awarded to the claimant in the judgment; minus
      (2) the amount of any statutory or contractual liens in connection with the occurrences or incidents giving rise to the claim.
      (e) No double recovery permitted. A party who is entitled to recover attorney fees and costs under another law may not recover those same attorney fees and costs as litigation costs under this rule.
      (f) Limitation on attorney fees and costs recovered by a party against whom litigation costs are awarded. A party against whom litigation costs are awarded may not recover attorney fees and costs under another law incurred after the date the party rejected the settlement offer made the basis of the award.
      (g) Litigation costs to be awarded to defendant as a setoff. Litigation costs awarded to a defendant must be made a setoff to the claimant's judgment against the defendant.

      . Although not entirely clear from the trial court's judgment, it appears the trial court possibly erred by utilizing the $250,000.00 received by the appellees in a pre-trial settlement as an offset to the appellants' net award. Since we have reversed the judgment and remanded the case to the trial court to recalculate each appellant’s net award, we need not further address the proper manner of calculating the net amount to be awarded each appellant in the trial court's future judgment.

      . When the appellants completed the presentation of their case, the trial court granted Innova Venture's motion for directed verdict. Subsequently, the trial court submitted no issues to the jury with respect to the appellants' claims against Innova Ventures. The appellants have advanced no issue on appeal concerning the trial court’s failure to submit jury issues on their claims against Innova Ventures.