author: Opinion By Justice FITZGERALD.

text:
    Steven KAHN, Appellant, v. IMPERIAL AIRPORT, L.P., Appellee/Cross-Appellant, v. Steven Kahn and Condom Sense, Inc., Cross-Appellees.
    No. 05-08-01022-CV.
    Court of Appeals of Texas, Dallas.
    March 16, 2010.

      Russell Hubbard, Monica Lynne Luebker, Glast, Phillips & Murray, PC, Dallas, TX, for appellant.
    Scott D. Weber, Calloway, Norris, Bur-dette & Weber, Dallas, TX, for appellee.
    Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion By Justice FITZGERALD.

This appeal involves a commercial lease (the Lease) for a retail store selling adult novelty items under the name “Condom Sense” in Irving, Texas. Imperial Airport, LP (Imperial), the lessor, sued Steven Kahn, Condom Sense, Inc. (CSI), and M. Stack, LLC (M. Stack) for breach of the Lease. CSI and M. Stack counterclaimed, alleging Imperial had breached a pre-Lease agreement between Kahn and Imperial’s leasing agent. The trial court’s judgment found Kahn liable and awarded Imperial damages for breach of the Lease, attorney’s fees, and interest. The judgment ordered that Imperial take nothing on its claims against CSI and M. Stack and that CSI and M. Stack take nothing on their breach-of-Lease counterclaim. Kahn appeals; Imperial cross-appeals. We affirm the trial court’s judgment in part and reverse and remand it in part.

Background

Imperial owned the leased premises; Bradford Management Company, Inc. managed the property for Imperial. Bradford employee Michael Brashears negotiated the Lease with Kahn. Kahn signed the Lease in July 2005. The Lease term began October 1, 2005 and extended for sixty-three months. The leased premises was to be occupied by a store under the name “Condom Sense.” Kahn operated four stores under the same name in Dallas. During the negotiations, Brash-ears visited at least one of the Dallas stores. Thus, both parties knew the nature of the store that was to occupy the premises.

At trial two different versions of the Lease were introduced into evidence. Kahn’s version was Defendant’s Exhibit 1. It includes the following signature block for the lessee; italicized words were handwritten or printed on the Lease signature page by Kahn.

LESSEE:

Condom Sense

By: Steve Kahn It’s president

Steve Kahn (President) (Type Name and Title)

By: DBA Condom Sense

(Type Name and Title)

The page appears to be dated July 2, 2005, although the date is less than clear. The document Kahn objected to was Plaintiffs Exhibit 1; it is dated July 21, 2005. The lessee’s signature block on this exhibit is similar, but not identical:

LESSEE:

Condom Sense

By: It’s president

Steve Kahn (Type Name and Title)

By: Steven Kahn

(Type Name and Title)

Other than the date, the significant difference between the two signature blocks is Kahn’s inclusion on his version of the handwritten phrase “DBA Condom Sense.”

With Imperial’s knowledge, Kahn applied for the store’s certificate of occupancy himself. He did not disclose the nature of the business in his application. In December 2005, Kahn oversaw creation of M. Stack, a limited liability corporation that Kahn claims was to be the actual lessee. During this time period, Imperial finished out the premises to Kahn’s specifications at a cost of $27,000. Rent was paid for the initial months of the Lease term by an entity named SB TAZ, LLC.

The Irving Condom Sense store opened on February 9, 2006. The next day, the store was raided by the Irving police,- who seized some, but not all, of the store’s inventory. The City of Irving did not close the store down. However, Kahn, his mother Marcia Kahn, and M. Stack (collectively designated the Applicants by the City) entered into an Agreed Order with the City. The terms of that order required the store to cease sale of “items used in conjunction with sexual activity” and to change its name. In return, the Applicants would avoid prosecution. But despite the order, the store did not re-open, and after April 2006 no more rent payments were made. Imperial locked the lessee out, seized the remaining inventory, and attempted to re-let the premises. Imperial did not find a new tenant until August 2007.

Imperial sued Steven Kahn, CSI, and M. Stack for breach of the Lease. Imperial also made claims for misrepresentation against Kahn. CSI and M. Stack counterclaimed based on the seizure of the inventory. The case was tried to the court, and the trial court issued a lengthy set of findings of fact and conclusions of law. The court’s judgment denied Imperial’s claims against CSI and M. Stack. It ordered Kahn to pay Imperial the finish-out costs, leasing commissions incurred, attorneys’ fees, interest, and costs. Finally, the judgment ordered Imperial to return the seized inventory.

Kahn appeals. Imperial cross-appeals as to certain trial-court rulings involving Kahn and CSI. M. Stack is not a party to this appeal.

Standard of Review

Findings of fact entered in a case tried to a court are of the same force and dignity as a jury’s verdict on jury questions. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). We apply the same standards in reviewing the legal and factual sufficiency of the evidence supporting the trial court’s fact findings as we do when reviewing the legal and factual sufficiency of the evidence supporting a jury’s answer to a jury question. Rich v. Olah, 274 S.W.3d 878, 883 (Tex.App.-Dallas 2008, no pet.). In a legal sufficiency review, we consider the evidence in the light most favorable to the finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We ask whether the evidence, crediting favorable evidence if a reasonable fact finder could and disregarding contrary evidence unless a reasonable fact finder could not, would permit reasonable and fair-minded people to reach the finding under review. Id. at 827. In our factual sufficiency review, we consider all the evidence; we will set aside the finding only if the evidence supporting the finding is so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In a bench trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. LaCroix v. Simpson, 148 S.W.3d 731, 734 (Tex.App.-Dallas 2004, no pet.). This Court is not a fact finder and we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). We review the trial court’s conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002).

BReach of Lease

The parties’ issues are rooted in the Lease at the most fundamental level. They disagree concerning the identity of the lessee, whether there was a breach of the Lease, and the appropriate measure of damages for any breach found. We address these issues in turn.

Identifying the Lessee

The trial court concluded Kahn breached the Lease and is individually liable as the lessee. Kahn’s first four issues challenge these findings. Imperial’s first cross-issue, on the other hand, argues CSI should be held liable as lessee jointly and severally along with Kahn.

Two Versions of the Lease

In his first issue, Kahn challenges the trial court’s ruling admitting into evidence a version of the Lease that varied from the version introduced by Kahn. Kahn argues Imperial’s version of the Lease was not properly admitted because it was proved up by an untimely filed business records affidavit. Rule 902(10) of the Texas Rules of Evidence requires business records affidavits to be filed at least fourteen days prior to trial. Imperial’s affidavit was filed twelve days before trial. Kahn objected to the exhibit, and the issue was discussed at a pre-trial hearing. Ultimately the trial court granted Imperial leave to file the untimely affidavit.

The rules of civil procedure give a trial court substantial discretion in admitting evidence. And when an act is required to be performed within a specified time, the court generally has discretion to order that period of time enlarged. Tex.R. Civ. P. 5. However, even if the trial court lacked discretion to extend the period of time for filing business records affidavits, there is no reversible error unless admission of the alternative version of the Lease probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1). Kahn makes no argument at all concerning any harm purportedly caused by the shortened time period between the filing date and the start of trial. Instead, Kahn’s arguments are limited to the potential harm caused by admitting a version of the Lease that does not include any assertion Kahn was signing for a “DBA.” The only difference between the two versions of the Lease is the signature page. The trial judge heard the attorneys argument on this issue and heard the parties testify as to when and how the Lease was executed. The court could consider the differences between the documents and the testimony of the parties. The trial court was uniquely well-situated to review the conflicting evidence, to determine how much weight to give to the different documents and testimony, and to draw conclusions based on weight and credibility of the evidence. See Rich, 274 S.W.3d at 884 (“In a bench trial, the trial court is the sole judge of the credibility of the witnesses, assigns the weight to be given their testimony, may accept or reject all or any part of their testimony, and resolves any conflicts or inconsistencies in the testimony.”). We conclude the court’s admission and examination of the second version of the Lease did not probably cause rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1). We overrule Kahn’s first issue.

Kahn’s Individual Liability

In his third and fourth issues, Kahn challenges the trial court’s findings that he entered into the Lease in his individual capacity and should be liable in that capacity. Kahn testified he signed the Lease on July 21, 2005 as Condom Sense’s president. He testified he was not president of CSI on that date, but he did not know what entities he was president of on that date. Kahn claimed at trial that M. Stack was really the lessee under the Lease, although he acknowledged that “M. Stack” did not appear anywhere in the Lease. He agreed that M. Stack did not exist when the Lease was signed, or when the Certificate of Occupancy was signed, and that he had no authority to sign the Lease for M. Stack. Kahn testified it was his practice to have a DBA Condom Sense enter into a lease on behalf of an entity to be formed after “everything [is] resolved.” If the landlord wanted the lease signed before formation, he testified, there would be an addendum to the lease. But Kahn testified no addendum was drafted in this case, and he had never notified anyone at Bradford that M. Stack was to be the lessee for the Irving store.

Kahn’s arguments have no basis in law. Initially, an individual cannot sign for and bind a DBA entity. A DBA is no more than an assumed or trade name. And it is well-settled that a trade name has no legal existence. See Davis v. Raney Auto Co., 249 S.W. 878, 878 (Tex.Civ.App.-Texarkana 1923, no writ) (trade name “has no actual or legal existence”). Thus, to the extent Kahn purported to sign the Lease on behalf of Condom Sense as a DBA, he bound only himself. Likewise, one cannot sign for and bind a legal entity that does not yet exist. Kahn argues he signed the Lease as a promoter for the later-created M. Stack. But when a promoter signs a contract on behalf of an unformed entity, he is personally liable on the contract unless there is an agreement with the contracting party that the promoter is not liable. Fish v. Tandy Corp., 948 S.W.2d 886, 897 (Tex.App.-Fort Worth 1997, writ denied). Our record contains no evidence Imperial agreed not to hold Kahn liable. Moreover, the Lease was not made in the name of the unformed entity; there was conflicting testimony concerning whether Brashears knew Kahn was purporting to sign for an unformed entity; and no evidence was presented indicating M. Stack adopted the Lease after its formation. See id,. We conclude that, under the facts of this case, Kahn is personally liable on the Lease.

Imperial argued below that Kahn is liable individually because a specific provision of the Lease, article 14.09, makes a person executing the Lease individually liable if he makes false representations concerning the ability of the corporation to do business or his authority to sign for the corporation. In his second issue, Kahn asserts the trial court erred in finding he made any misrepresentation. But there is ample evidence suppoxiing the trial court’s finding. Although Kahn testified that Brashears knew Kahn was signing the Lease for an unformed entity, Brashears denied that he had been told. Based on Kahn’s conduct and representations, Brashears believed Kahn signed for CSI. Kahn signed as president of the lessee entity — whatever it was at that time — although he was not president of any entity he could name at trial. Marcia Kahn, the actual president of CSI, testified Kahn did not have authority to sign the Lease on behalf of CSI. We conclude a reasonable fact finder could have concluded Kahn misrepresented his own or the lessee’s status. See City of Keller, 168 S.W.3d at 822. We further conclude the evidence supporting the misrepresentation finding is not so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. See Cain, 709 5.W.2d at 176. The trial court had sufficient evidence to make its credibility determinations in this case, and we will not substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Clancy, 705 S.W.2d at 826.

Kahn’s signature and his arguments suggest a number of possibilities: Kahn signed the Lease for CSI when he had no authority to do so; Kahn signed for a nonexistent LLC; or Kahn signed for a DBA. In each of those scenarios liability as lessee would fall, if at all, on Kahn personally. We affirm the trial court’s conclusion that Kahn was individually liable as lessee in this case. We overrule Kahn’s second, third, and fourth issues.

Ratification

Kahn’s eighth issue argues the court erroneously failed to find in his favor on the affirmative defense of ratification. “Ratification is the adoption or confirmation by a person, with knowledge of all material facts, of a prior act that did not then legally bind that person and which that person had the right to repudiate.” Avary v. Bank of America, N.A., 72 S.W.3d 779, 788 (Tex.App.-Dallas 2002, pet. denied). Kahn argues that even if there were initially grounds for holding him individually liable under the Lease, Imperial confirmed M. Stack as the true lessee. Because ratification is an affirmative defense, Kahn bore the burden of proof. See id. at 787-88. Kahn relies upon the Acceptance of Premises, a trial exhibit that he signed on December 12, 2005. Kahn asserts that Imperial received the Acceptance of Premises and made no objection to it, thus ratifying M. Stack as the true lessee.

In this instance, the signature block included the typed name of the lessee as “Condom Sense,” with a handwritten annotation as to the identity of the lessee. Again, handwritten entries are in italics.

LESSEE

STACK LLC DBA

Condom Sense (Type Name of Lessee)

By Steven Kahn (Signature)

Steven Kahn Its President (Type Name and Title)

12/12/05 (Date Signed)

The purported lessee on this document— Stack LLC DBA Condom Sense — was never an entity related to the Kahns in any way. And the entity that Steven Kahn argues ratified the Lease through this document — M. Stack — is not mentioned in the document. (Indeed, the record establishes that M. Stack still did not exist when Kahn signed the Acceptance of Premises.) The names of the entities are similar, but in the end that similarity only adds to the confusion caused by Kahn’s cavalier usage of entities and titles. In dealing with Imperial, Kahn signed documents as president of Condom Sense, president of DBA Condom Sense, and president of Stack LLC. Rent for the Irving store was paid by yet another entity, SBK TAZ, LLC. And Steven Kahn testified that he never informed Imperial that M. Stack, once it was finally formed, was to be the lessee under the Lease. The Lease was never amended to name M. Stack as lessee, nor was the Lease assigned or its obligations in any manner transferred to M. Stack. Ratification requires knowledge of all material facts. Id. at 788. We find no evidence Imperial knew of the existence of M. Stack, let alone that Kahn was asserting M. Stack had become Imperial’s lessee. The trial court did not err in finding there was no ratification in this case. Kahn’s eighth issue is without merit.

CSI’s Liability

In its first cross-issue, Imperial argues CSI should be jointly and severally liable as lessee — along with Kahn — based on the legal principle of apparent authority. Apparent authority arises when a principal either: (a) knowingly permits an individual to hold himself out as having authority to act as agent for the principal, or (b) acts with such a lack of ordinary care as to clothe the individual with indicia of authority, leading a reasonably prudent person to believe the agent has authority to bind the principal. Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 (Tex.1998). In making a determination of apparent agency, only the conduct of the principal is relevant, and the principal must have full knowledge of all material facts. Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex.2007). Thus, our review examines the conduct of the principal and the reasonableness of the third party’s assumptions about authority. Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907, 913 (Tex.App.-Dallas 2008, no pet.). Representations by the purported agent are not evidence of apparent authority; nor are the mere speculations of the third party. Id. Indeed, “[wjithout acts of the purported principal, acts of a purported agent which may mislead persons into false inferences of authority, however reasonable, will not serve as a predicate for apparent authority.” CNOOC Southeast Asia Ltd. v. Paladin Resources (SUNDA) Ltd., 222 S.W.3d 889, 899 (Tex.App.-Dallas 2007, pet. denied) (quoting Disney Enters., Inc. v. Esprit Fin., Inc., 981 S.W.2d 25, 30 (Tex.App.-San Antonio 1998, pet. dismissed w.o.j.)). Finally, Texas law does not presume agency; the party alleging agency has the burden of proving it. IRA Resources, Inc. v. Griego, 221 S.W.3d 592, 597 (Tex.2007). Thus, it was Imperial’s burden below to prove the elements of apparent agency.

In this case, Imperial relies exclusively on acts or statements attributed to the putative agent, Kahn, rather than to the putative principal, CSI. Imperial’s pleading refers only to statements and conduct by Kahn. Likewise, its briefing in this Court refers only to statements and conduct by Kahn. Our review of the record has identified no contact between Marcia Kahn (CSI’s president and apparently its sole representative) and Imperial or Bradford or Brashears. Nor do we find evidence that Marcia Kahn allowed her son to hold himself out as CSI’s agent. Marcia Kahn testified she did not know her son had planned to open an Irving store and had negotiated the Lease until he asked her “to file for a corporation.” Imperial argues Steven Kahn led it to believe he was acting for CSI. But apparent agency can only be created by the acts of the principal. First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 471 (Tex.2004). Indeed, “[d]eclarations of the alleged agent, without more, are incompetent to establish either the existence of the alleged agency or the scope of the alleged agent’s authority.” Gaines, 235 S.W.3d at 183-84.

Kahn argues we should not even address Imperial’s apparent authority argument because it was not pleaded. Imperial responds that the issue was tried by consent. We conclude the facts relied upon by Imperial were pleaded and placed into evidence at trial. However, as a matter of law, those facts do not establish apparent agency. Thus, Imperial’s argument fails on the merits. We decide Imperial’s first cross-point against it.

Existence of a Breach

In his fifth issue, Kahn argues the trial court erroneously found he had breached the Lease.

Article 14-09 of the Lease

The trial court found Kahn breached article 14.09, quoted above, by misrepresenting both the lessee’s corporate status and his own authority in signing the Lease. However, assuming the trial court is correct and Kahn did misrepresent his own or the lessee’s status, he did not thereby breach the Lease. Article 14.09 is not a covenant Kahn promised to keep. It is a liability-shifting provision, assuring the Lessor that someone will satisfy the obligations of the Lessee. Accordingly, article 14.09 establishes Kahn’s liability if some other breach of the Lease is proven, but it will not on its own support an award of damages against Kahn.

Nonpayment of Rent

The trial court also found that:

Despite Imperial’s full performance of all obligations and conditions of the Lease, beginning in the month of April, 2006, Kahn, despite demand, failed and refused to pay rentals and other charges due under the terms of the Lease, or to otherwise cure the breach of the Lease.

Kahn does not deny he failed to make payments due under the Lease beginning in April 2006. However, he argues his failure to comply with Lease obligations should be excused because the Lease was terminated by the City’s actions, which he characterizes as a taking of the leased premises. The trial court’s findings support Kahn on this issue. The court found “a substantial part of the Leased Premises was taken by the City of Irving for quasi-public use under a governmental law, ordinance or regulation” and that this taking materially interfered with the intended use of the leased premises. Accordingly, according to the trial court, no rent or other obligations of the lessee were owed after the date of the raid. In its second cross-point, Imperial challenges the trial court’s finding that the Lease terminated and Kahn was, as a result, discharged from his obligations as lessee. We agree with Imperial on this issue.

A taking may be either physical or regulatory. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex.1998). A physical taking occurs when the government, authorizes an unwarranted physical occupation or appropriation of an individual’s property. See id.; City of Dallas v. Blanton, 200 S.W.3d 266, 271 (Tex.App.-Dallas 2006, no pet.). The trial court did not find, and Kahn does not contend, the City physically appropriated the leased premises for some governmental purpose. Instead, the trial court found Kahn’s leasehold was taken by the City “under a governmental law, ordinance or regulation.” A compensable regulatory taking occurs if governmental regulations deprive a property owner of all economically viable use of his property or if those regulations totally destroy the property’s value. City of Dallas v. VRC LLC, 260 S.W.3d 60, 65 (Tex.App.-Dallas 2008, no pet.). Kahn has not argued that the City’s sexually oriented business ordinance destroyed the value of the leased premises or the ability to use the premises for any economically viable purpose. However-, we will recognize a regulatory taking if the governmental restrictions unreasonably interfered with Kahn’s rights to use his property. See id. We determine whether there has been unreasonable interference by considering (1) the economic impact of the regulation, and (2) the extent to which the regulation interferes with the owner’s distinct investment-backed expectations. Id. (citing Mayhew, 964 S.W.2d at 935).

Kahn argues the Irving Condom Sense store could not be operated for its intended use under the terms of the Agreed Order and under the City’s interpretation of its ordinance. However neither of these restrictions on the use of the leased premises qualifies as a governmental taking. The Agreed Order represents the joint decision of the Applicants — including Kahn — and the City; it was not a unilateral act or regulation by the City. Kahn could have chosen to litigate the City’s interpretation of the ordinance. Indeed, he testified at trial that at least one court had held Condom Sense was not a sexually oriented business under an identical ordinance. But Kahn voluntarily agreed not to litigate and to accept the restrictions in the Agreed Order. And as to the restrictions posed by the ordinance itself, it is uncontroverted that the Irving ordinance pre-dated Kahn’s negotiation of the Lease and that Kahn himself was familiar with the ordinance. When existing law regulates the use of property, an owner’s reasonable expectations must take those regulations into account. See City of Dallas v. VRC, 260 S.W.3d at 66. Kahn did not prove he had a reasonable expectation of operating the store he intended at the leased premises. Accordingly, we conclude he did not prove a regulatory taking in this case. See id.

No provision of the Lease provides for termination of the Lease under these circumstances. Article 8.01 involves termination when all or a substantial part of the leased premises are taken by governmental action. We have concluded no such taking occurred. In article 3.03, the lessee promises to comply with all laws, ordinances, orders, rules, and regulations of governmental entities. Again, the undisputed facts establish the City’s sexually oriented business ordinance pre-dated the Lease and Kahn was familiar with its terms. Nevertheless, he promised, as lessee, to comply with it. The Lease certainly does not provide that his obligations are excused if he breaks that promise.

We conclude the Lease was not terminated by any action or regulation of the City or by operation of the Lease itself. Accordingly, when Kahn failed to pay rent and otherwise comply with his obligations as lessee, his breach was not excused. Kahn’s fifth issue is overruled, and Imperial’s second cross-point is sustained.

Damages Under the Lease

In his sixth issue, Kahn argues the trial court should not have awarded Imperial contract damages and attorney’s fees when the court found the Lease had been terminated. Because we have concluded the Lease was not terminated, we overrule this issue.

In Kahn’s seventh issue, Kahn challenges the trial court’s damages award itself. The trial court awarded Imperial $45,000 in damages, representing the sum of $27,000 Imperial spent to finish out the leased premises at Kahn’s request and $18,000 Imperial spent for commissions in connection with the Lease. Kahn argues these amounts are not the natural, probable, and foreseeable consequences of his breach. We agree. Kahn’s breach was the failure to pay rent and otherwise comply with his obligations as lessee from April 2006 through August 2007. Amounts spent for initial finish out or commissions are not relevant to this breach, and the Lease does not otherwise make them recoverable. We sustain Kahn’s seventh issue to the extent it complains of the $45,000 award for contract damages.

Conclusion

We affirm the trial court’s judgment in all respects except insofar as it awards Imperial damages in the amount of $45,000 for Kahn’s breach of the Lease. We reverse that damages award, and the related pre-judgment and post-judgment interest awards, and we remand the case for further proceedings on damages consistent with this opinion.

      . Kahn and M. Stack also alleged conversion of inventory and sought a declaration that they were the rightful owners of the inventory. Those claims have been resolved and are not at issue in this appeal.

      . The date is handwritten in blanks:
      this 2— day of July, 2005.
      The superscript following the handwritten "2” appears to read “th."

      . Imperial has returned the seized inventory, so inventory-related issues are not included within this appeal.

      . “DBA” — or "d/b/a” — is the abbreviation for "doing business as”; it generally precedes a person's or business's assumed name. Black's Law Dict. 425 (8th ed. 2004). An assumed name, or a trade name, is the name under which a business operates. Id. at 133, 1533. In this opinion we will use the term DBA to mean an assumed or trade name.

      . The provision states in its entirety:
      If Lessee executes this Lease as a corporation, each of the persons executing this Lease on behalf of Lessee does hereby personally represent and warrant that Lessee is a duly authorized and existing corporation, that Lessee is qualified to do business in the state in which the leased premises are located, that the corporation has full right and authority to enter into this Lease, and that each person signing on behalf of the corporation is authorized to do so. In the event any representation or warranty is false, all persons who execute this Lease shall be liable individually, as Lessee.

      . We note that Kahn also argues he should not be individually liable under article 14.09 because the Lease was signed by a DBA and not a corporation. As we have discussed above, signing on behalf of a DBA would also result in individual liability for Kahn.

      . . Imperial points to a September 8, 2005 letter from Steven Kahn to Bradford and charges the letter was written on CSI letterhead. But the letterhead did not use the corporation’s name; it used only the trade name, Condom Sense.


source: Caselaw Access Project

author: Opinion by Justice FILLMORE.

license: Public Domain

text:
    CITY OF CARROLLTON, Texas, Appellant, v. RIHR INCORPORATED, Appellee.
    No. 05-08-01715-CV.
    Court of Appeals of Texas, Dallas.
    March 18, 2010.
    Rehearing Overruled April 26, 2010.

      Fredrick Quast, Taylor, Olson, Adkins, Salla & Elam, L.L.P., Fort Worth, TX, for Appellant.
    Richard B. Schiro, Law Office of Richard B. Schiro, Dallas, TX, for Appellee.
    Before Justices MORRIS, O’NEILL and FILLMORE.
   OPINION

Opinion by Justice FILLMORE.

Appellee RIHR Incorporated, owner of two residential development lots in Car-rollton, Texas, applied to appellant The City of Carrollton for building permits to complete construction of houses on those lots. Carrollton refused to issue those permits, demanding instead that RIHR first reimburse Carrollton for a portion of the city’s cost to remediate a collapsed retaining wall on lots not owned by RIHR. Following a non-jury trial, the trial court signed a final judgment in favor of RIHR on its claim that Carrollton imposed an improper exaction as a condition to granting the requested building permits, thereby taking private property without providing adequate compensation. In three issues, Carrollton asserts the trial court erred in (i) concluding Carrollton engaged in an unlawful exaction, (ii) awarding damages to RIHR, and (iii) awarding attorney’s fees to RIHR. We affirm in part, and reverse and render in part.

Factual and Procedural Background

A 1993 plat recorded in Dallas County, Texas, depicts a subdivision known as Jo-sey Park Estates consisting of fifty-five lots located in Carrollton. Carrollton-Farmers Branch Independent School District (CFBISD) purchased seven lots in Josey Park Estates (the CFBISD Property). After acquisition of the CFBISD Property, CFBISD had a retaining wall constructed on two of those lots, lots 17 and 18, along the western and southern boundaries of the CFBISD Property. The retaining wall was not required by or referred to in the original plat for Josey Park Estates.

In December 2002, after construction of the retaining wall was completed, Josey Park, L.P. purchased six of the seven lots from CFBISD in order to build houses on those lots (the Josey Park Lots). In 2003, Josey Park, L.P. replatted those six lots, as shown on the replat entitled “Lots 16R, 17R, 18R, 19R, 20R and 21R, Block A Josey Park Estates” recorded in Dallas County. As replatted, lots 17 and 18 became lots 17R and 18R. The retaining wall originally built on lots 17 and 18 was not shown or mentioned on the replat and was not a condition of or related in any way to Josey Park, L.P.’s obtaining approval of the replat from Carrollton. Carrollton issued building permits, and in early 2004, Josey Park, L.P. began construction of houses on lots 19R and 20R.

The retaining wall partially collapsed in June 2004, and Carrollton notified Josey Park, L.P. that the wall had failed and was a threat to life, safety, and the environment. Carrollton requested Josey Park, L.P. take action to, among other things, repair or remove the collapsed wall. In July 2004, Carrollton issued an official notice ordering that work on the houses on lots 19R and 20R cease and stating that no other building permits would be issued for the Josey Park Lots until the collapsed wall was removed or repaired by Josey Park, L.P. In January 2005, Carrollton issued to Josey Park, L.P. a corrected notice and order stating that the wall had been found to be a dangerous structure under the 1994 Uniform Code for the Abatement of Dangerous Buildings as adopted by Carrollton Ordinance 2233 and giving Josey Park, L.P. official notice to start repairs or begin demolition of the structure within thirty days. That notice and order identified the retaining wall as “the structure and premises located at” lots 17R and 18R of Josey Park Estates.

In February 2005, Carrollton’s Construction Advisory and Appeals Board (CAAB) conducted a hearing regarding the collapsed retaining wall. At the hearing, an engineer employed by Carrollton stated that “the lots affected by the failure of the wall” were 17R, 18R, 19R, 20R and 21R. Following the hearing, CAAB issued an order stating that the wall was dangerous, substandard, dilapidated, and a hazard to the public health, safety, and welfare, and that it should be demolished or repaired. In reliance on the engineer’s report, the order further provided that in accordance with Carrollton City Code No. 150.100, the expense of demolition and stabilization performed under contract with Carrollton or by Carrollton would constitute a nontransferable lien against lots 17R, 18R, 19R, 20R, and 21R.

At a public foreclosure sale in April 2005, RIHR purchased lots 19R and 20R (RIHR Lots). In May 2005, RIHR applied for building permits to complete construction of the houses on the RIHR Lots, paid the required permit fees, and registered as a general contractor in Carrollton in order to obtain the building permits. Notwithstanding RIHR’s submission of proper applications and payment of the required fees, Carrollton refused to issue the requested building permits and informed RIHR that the permits would not be issued until the wall was repaired or removed by RIHR. In June 2005, RIHR attempted to appeal to CAAB, requesting an order for issuance of the building permits to complete the houses and directing Carrollton to assess the cost of repairing the wall only to those lots on which the wall had been constructed, Josey Park Lots 17R and 18R. Carrollton refused to accept RIHR’s application for appeal. In September 2005, Carrollton’s Director of Engineering communicated the following to Carrollton’s Assistant City Manager:

Staff plans to put liens on all 6 properties [of the Josey Park Lots] in hopes of recouping our cost. However, as I mentioned before and I believe I stated this to Council when they approved this item, it is likely that the property owner(s) will simply walk away from this and leave the property as is.... The only lots where the city may recoup some of its investment [the remediation expense] is [sic] the two lots that have homes [the RIHR Lots].

In 2006, Carrollton remediated the damage caused by the wall’s collapse by having the collapsed portions of the wall removed or replaced and having portions of some of the Josey Park Lots graded to eliminate the need for a retaining wall. None of this remediation occurred on the RIHR Lots. This remediation work was completed in May 2006 and was paid for by Carrollton.

RIHR contacted Carrollton in July 2006 to inquire whether Carrollton would issue the requested building permits for completion of the residential construction on the RIHR Lots. Carrollton responded that before it would issue permits, RIHR was required, among other things, to sign an agreement with Carrollton stating in part that the retaining wall was required as part of the platting process and to pay Carrollton the sum of $40,121, one-third of the remediation cost as allocated by Car-rollton to the RIHR Lots.

RIHR filed suit against Carrollton alleging an unconstitutional taking and seeking temporary and permanent injunctive relief, damages, and a declaratory judgment. After a hearing, the trial court signed an order for temporary injunction. The trial court found that the collapsed retaining wall was not on and did not affect the lots owned by RIHR, and Carrollton’s “existing and continuing refusal to issue the building permits unless and until RIHR reimburses or pays the City for remediation of the collapsed Wall is an unconstitutional taking.” The temporary injunction compelled Carrollton to approve RIHR’s application for building permits, issue those building permits, release by duly recorded instruments the liens filed by Carrollton against the RIHR Lots, and consider, without reimbursement by RIHR of remediation costs relating to the retaining wall, RIHR’s application for a permit to construct a driveway on the access easement adjacent to the RIHR Lots. Carroll-ton issued the building permits on May 7, 2007. The construction necessary to complete the houses on lots 19R and 20R commenced in June 2007 and was completed in November 2007.

The case was tried before the court without a jury. The trial court found in favor of RIHR and signed a final judgment awarding RIHR $119,200.15 in damages and $69,752.87 for attorney’s fees. The trial court filed findings of fact and conclusions of law. Carrollton appealed the judgment.

Exaction

In its first issue, Carrollton asserts the trial court erred in concluding there was an unconstitutional exaction resulting in a taking of RIHR’s property. Carroll-ton asserts no exaction occurred because (1) Carrollton abandoned the conditions about which RIHR complains and issued the requested building permits for lots 19R and 20R, and (2) RIHR did not ultimately pay Carrollton any portion of the cost of wall remediation.

Whether particular facts constitute an unconstitutional taking of property is a question of law subject to de novo review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 937 (Tex.1998). Accordingly, we will examine the trial court’s conclusions of law under a de novo standard. See Piazza v. City of Granger, 909 S.W.2d 529, 532 (Tex.App.-Austin 1995, no writ). We will uphold a trial court’s conclusion of law unless it is erroneous as a matter of law. See id.

A prohibition against taking private property for public use without just compensation is set forth in Article I, section 17 of the Texas Constitution, which provides that “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” Tex. Const, art. I, § 17. See Mayhew, 964 S.W.2d at 933. The Just Compensation Clause of the Fifth Amendment to the United States Constitution, applied to the individual states through the Fourteenth Amendment, contains similar language. It provides that “private property [shall not] be taken for public use, without just compensation.” U.S. Const, amends. V, XIV. As a result, Texas courts typically look to federal cases for guidance on the constitutionality of a taking. See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex.2004).

Takings are classified as either physical or regulatory. Mayhew, 964 S.W.2d at 933; Sefzik v. City of McKinney, 198 S.W.3d 884, 891 (Tex.App.-Dallas 2006, no pet.). A physical taking is an unwarranted physical appropriation or invasion of the property. Mayhew, 964 S.W.2d at 933. A compensable regulatory taking can occur when a governmental entity imposes restrictions that either deny a property owner all economically viable use of his property or unreasonably interfere ■with the owner’s right to use and enjoy the property. Id. at 935.

A distinct category of regulatory taking occurs when the government conditions the approval of a permit or some other type of governmental approval on an exaction from the approval-seeking landowner. See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 548, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) (referring to “land-use exaction” taking theory); Dolan v. City of Tigard, 512 U.S. 374, 377, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (permit to expand store and parking lot conditioned on dedication of portions of property for green-way and bicycle and pedestrian pathway); Nollan v. California Coastal Comm’n, 483 U.S. 825, 827, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) (permit to build larger residence on beachfront property conditioned on dedication of easement allowing public to traverse strip of property). Specifically, an exaction occurs if a governmental entity requires an action by a landowner as a condition to obtaining governmental approval of a requested land development. Town of Flower Mound v. Stafford Estates, L.P., 71 S.W.3d 18, 30 (Tex.App.Fort Worth 2002), aff'd, 135 S.W.3d 620, 630 (Tex.2004) (citing Dolan, 512 U.S. at 377, 114 S.Ct. 2309 and Nollan, 483 U.S. at 827, 107 S.Ct. 3141).

Here, Carrollton required RIHR to pay a portion of the wall remediation cost as a condition precedent to Carrollton’s approval of RIHR’s application for building permits for lots 19R and 20R. In its findings of fact, the trial court found that: lots 16R-21R of Josey Park Estates were platted before construction of a retaining wall running along the western and southern boundaries of lots 17R and 18R, and construction of the retaining wall was not a condition for the platting; the wall does not touch, abut or run along lots 19R and 20R; the wall and its failure had no effect on lots 19R and 20R; Carrollton’s basis for denying RIHR’s application for the building permits was RIHR’s not reimbursing or paying Carrollton for remediation of the collapsed wall; and, Carrollton imposed an exaction as a condition to obtain its approval of the building permits.

These findings establish there was an ultimatum by Carrollton that RIHR pay a portion of the collapsed wall’s remediation cost as a condition precedent to issuance of the requested building permits, even though the wall had no impact on or benefit to the RIHR Lots, either as the wall previously existed or as remediated. The wall was built prior to commencement of construction on the houses on the RIHR Lots and was not ever a condition precedent in any respect for that construction. Carrollton imposed the remediation cost and liens against lots 19R and 20R to recoup a portion of its expenses.

Based on the evidence, the trial court concluded that Carrollton’s refusal to issue the building permits unless and until RIHR reimbursed or paid Carrollton for remediation of the collapsed wall was an unconstitutional exaction. The trial court further concluded that the liens filed by Carrollton against lots 19R and 20R were an improper and unlawful attempt to enforce that unconstitutional exaction.

Carrollton contends it only threatened an exaction. It asserts that no exaction occurred because the condition for issuing building permits was not enforced and because the building permits for lots 19R and 20R were granted without a payment from RIHR for a portion of the wall remediation costs. The record indicates that without the temporary injunction order requiring Carrollton to issue the building permits, Carrollton would have continued to deny the building permits unless and until RIHR paid Carrollton a portion of the wall remediation cost. Contrary to Carrollton’s assertion, the record establishes that the condition was enforced; the building permits were issued by Carrollton only after and because the trial court’s mandatory injunction order required Carrollton to do so. See City of Houston v. Kolb, 982 5.W.2d 949, 955 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (record indicated city would continue to deny proposed subdivision plat until landowners agreed to give city a portion of their property for right-of-way).

Essentially Carrollton argues that because RIHR sought redress from the trial court prior to paying Carrollton’s demand for reimbursement of the wall remediation cost, no exaction occurred. Carrollton has pointed to no case requiring the landowner to acquiesce in the required action or condition prior to seeking redress in the trial court for an unlawful exaction. We have found no such controlling authority. Further, Carrollton’s argument ignores the definition of exaction as set out in Flower Mound. An exaction occurs if the governmental entity requires an action by the landowner as a condition to obtaining governmental approval of the requested land development. Flower Mound, 135 S.W.3d at 630. In accord, Black’s Law Dictionary defines an “exaction” as “1. The act of demanding more money than is due; extortion. 2. A fee, reward, or other compensation arbitrarily or wrongfully demanded.Blaok’s Law DICTIONARY 641 (9th ed.2009) (emphasis added). Here, Carroll-ton demanded that RIHR pay a portion of the wall remediation cost as a condition precedent to Carrollton’s approving RIHR’s application for building permits. Carrollton’s demand falls squarely within the definition of “exaction.”

The United States Supreme Court utilizes a two-prong test to determine whether a compensable taking has occurred when the government conditions the granting of permit approval, plat approval, or some other type of governmental approval on an exaction from the party seeking the approval. Dolan, 512 U.S. at 391, 114 S.Ct. 2309; see also Nollan, 483 U.S. at 837, 107 S.Ct. 3141 (applying the first prong of the two-prong test articulated in Dolan). The two prongs of this test, referred to as “essential nexus” and “rough proportionality,” were adopted, applied and explained by the Texas Supreme Court in Floiver Mound:

[Conditioning government approval of a development of property on some exaction is a compensable taking unless the condition (1) bears an essential nexus to the substantial advancement of some legitimate government interest and (2) is roughly proportional to the projected impact of the proposed development.

Flower Mound, 135 S.W.3d at 634.

The government must make an “individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” Id. at 633 (citing Dolan, 512 U.S. at 389-91, 114 S.Ct. 2309). Thus, the burden is on the government to prove that the condition imposed meets the test. Id. at 643-44; Sefzik, 198 S.W.3d at 891.

With regard to the first prong of the Dolan test, Carrollton did not demonstrate that an “essential nexus” existed between a legitimate government interest and the permit condition exacted. Even if the collapsed wall presented a condition adverse to public safety and Carrollton properly acted to eliminate the danger by remediat-ing lots in which RIHR had no interest, there is no connection between remediation of the collapsed wall and Carrollton’s exaction. The trial court found the collapsed wall was not on and did not affect the RIHR Lots. The record also reveals Carrollton’s Director of Engineering believed it would be difficult to recoup wall remediation costs from the owner of the lots on which the wall was located and the remediation efforts occurred. The Director concluded that “[t]he only lots where the city may recoup some of its investment is [sic] the two lots that have homes [the RIHR Lots].” Based on the record before us, the exaction at issue was not related to and justified by the anticipated construction on the RIHR Lots.

Our analysis properly concludes with the first prong of the Dolan test and the sole test applied in Nollan. In other words, having determined that the exaction imposed by Carrollton was not related to a legitimate government interest, we need not consider whether the exaction is roughly proportional to the projected impact of the proposed development. However, we note with regard to the “rough proportionality” prong of the Dolan test that Carrollton did not attempt to demonstrate a correlation between the wall remediation payment demanded from RIHR and the impact of the requested residential construction on lots 19R and 20R.

On this record, the trial court did not err in concluding that Carrollton’s refusal to issue building permits unless RIHR provided funding for wall remediation is an unconstitutional exaction. We overrule Carrollton’s first issue.

Damages Awarded

In its second issue, Carrollton asserts that the trial court applied an improper measure of damages. Whether the trial court applied an improper measure of damages is a question of law subject to a de novo review. Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).

Carrollton also contends there is no evidence of the reasonableness of payments RIHR made to third parties. An appellant attacking the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof must show there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). We view the evidence in the light favorable to the finding, crediting favorable evidence if a reasonable fact-finder could and disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Anything more than a scintilla of evidence is legally sufficient to support a challenged finding of fact. OAIC Commercial Assets v. Stonegate Village, L.P., 234 S.W.3d 726, 736 (Tex.App.-Dallas 2007, pet. denied).

The trial court concluded that RIHR was harmed by the exaction because it could not complete construction of the houses on lots 19R and 20R until the building permits were issued. Having concluded that a compensable injury occurred, the trial court further concluded that RIHR was entitled to recover necessary expenses associated with its ownership of the partially constructed houses for the exaction period (from Carrollton’s improper refusal to issue the building permits, mid-May 2005, through issuance of the building permits, May 7, 2007). Carrollton asserts the damages awarded by the trial court constituted an improper measure of damages. We disagree.

Carrollton concedes there are differing measures of damages depending on the circumstances of the temporary loss of use of property. See City of Austin v. Teague, 570 S.W.2d 389, 392 (Tex.1978); Hall v. Robbins, 790 S.W.2d 417, 418 (Tex.App.Houston [14th Dist.] 1990, no writ); United States v. Lee, 360 F.2d 449, 452 (5th Cir.1966). Carrollton also concedes there is authority for the proposition that “necessary expenditures” are appropriately recovered to compensate for loss of use. See Betts v. Reed, 165 S.W.3d 862, 872-73 (Tex.App.-Texarkana 2005, no pet.) (affirmed trial court’s award of out-of-pocket expenses based on denial of access and loss of use of real property, including deer lease, additional time for employees traveling longer route, and personal time for owner’s alternative route); San Antonio River Auth. v. Garrett Bros., 528 S.W.2d 266, 274 (Tex.Civ.App.-San Antonio 1975, writ ref'd n.r.e.) (for temporary taking or damage, landowner entitled to recover such sum as would compensate for loss of profits and necessary expenditures); see also Hart Bros. v. Dallas County, 279 S.W. 1111, 1112 (Tex. Comm’n App.1926, judgm’t adopted).

Carrollton relies on Hall for the argument that real estate taxes and accrued interest on a purchase money mortgage are not proper measures of damages for a temporary taking. In Hall, property owners brought an action to enjoin neighbors from interfering with access to their land and for compensation for the time the property owners were prevented from developing their property. Hall, 790 S.W.2d at 417. As here, the evidence the Hall plaintiffs presented related to accrued real estate taxes and accrued interest on the purchase money mortgage. Id. at 418. The trial judge determined that loss of the use of the property was the proper measure of damages under those circumstances. Id. The court of appeals affirmed, holding there was no evidence of loss of use before the court. Id. at 419.

Hall is distinguishable from the case at bar. In Hall, the land at issue was undeveloped, vacant land. Id. at 417, 419. Here, the property temporarily taken was not raw, undeveloped land. Each of the two lots at issue contained a residence on which construction was approximately ninety percent complete. After purchase of lots 19R and 20R, RIHR was unable to complete construction of the homes until the building permits were issued by Car-rollton. RIHR seeks compensation for time-related expenses incurred during the period the building permits were withheld by Carrollton. Based on the facts and circumstances of this case, we conclude that the trial court properly determined that RIHR’s out-of-pocket expenses incurred during the exaction period constituted an appropriate measure of damages.

Having concluded the trial court properly applied the measure of damages te the particular facts of this case, we next address Carrollton’s argument that there is no evidence of the reasonableness of the damages.

RIHR presented evidence concerning four categories of out-of-pocket expenditures it incurred during the exaction period: bank interest on notes collateralized by the houses on lots 19R and 20R, insurance premiums, real estate taxes, and miscellaneous maintenance items including mowing liens and repairs for the houses on lots 19R and 20R. The trial court found the following damages “reasonable and necessary as provided by the evidence and all reasonable inferences therefrom”: $30,449.24 for taxes and mowing liens paid by RIHR during the time building permits were withheld by Carrollton; $70,939.63 for interest paid on interest-only bank notes as shown on bank statements; and, $17,811.28 paid for insurance premiums for insurance on the houses on lots 19R and 20R. The trial court’s conclusions of law with regard to each of those damage amounts provide that RIHR met its burden of proof and that the trial court can take judicial notice with regard to each of those amounts. The trial court awarded RIHR $119,200.15 as damages for the unconstitutional exaction.

Michael Coker, president of RIHR, testified with regard to the damages sought by RIHR and to the spreadsheet and backup documents admitted in evidence at trial in support of RIHR’s damage claim. Carrollton acknowledges RIHR’s damage evidence contains “very thorough documentation.” Carrollton did not examine RIHR’s witness regarding the damages claimed or otherwise make an effort to disprove RIHR’s just compensation evidence. “To the extent evidence supporting the damage award was not controverted, it is sufficient.” Foust v. Estate of Walters, 21 S.W.3d 495, 509 (Tex.App.-San Antonio 2000, pet. denied).

The evidence conclusively established that RIHR was not able to complete construction of the houses of lots 19R and 20R for the period of the exaction. RIHR presented more than a scintilla of evidence regarding its expenditures incurred during the exaction period, and that evidence supports the trial court’s findings concerning damages. Property taxes, interest on the mortgage note, insurance premiums, and expenses associated with maintenance and repair while awaiting building permits to complete construction were all attendant to RIHR’s ownership of the RIHR Lots.

Having reviewed the record and arguments presented, we cannot conclude the trial court erred in finding these expenses reasonable and necessary. We overrule Carrollton’s second issue.

Attorney’s Fees

In this lawsuit, RIHR asserted entitlement to a declaratory judgment and to recovery of attorney’s fees under the Uniform Declaratory Judgments Act. See Tex. Civ. Prac. & Rem.Code Ann. §§ 37.003, .009 (Vernon 2008). In a declaratory judgment action, a “court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Id. at § 37.009. The trial court found that RIHR incurred reasonable and necessary attorney’s fees in the amount of $69,752.87 through April 7, 2007, the date of issuance of the temporary injunction, and concluded RIHR is entitled to recover attorney’s fees in that amount under a just and equitable standard.

In its third issue, Carrollton contends the trial court erred in awarding RIHR attorney’s fees. Carrollton does not contest the reasonableness of the attorney’s fees. Rather, Carrollton asserts the trial court’s award of attorney’s fees under the Uniform Declaratory Judgments Acts was error because, in an effort to obtain attorney’s fees, RIHR utilized a declaratory judgment action to seek the same relief requested under its cause of action against Carrollton for an unconstitutional taking.

We review for abuse of discretion a trial court’s award of attorney’s fees under the Uniform Declaratory Judgments Act. Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex.2004). “The trial court abuses its discretion if its ruling that attorney’s fees were recoverable was arbitrary or unreasonable.” Cadle Co. v. Harvey, 46 S.W.3d 282, 289 (Tex.App.-Fort Worth 2001, pet. denied).

A party cannot use the Uniform Declaratory Judgments Act to obtain an otherwise impermissible attorney’s fee. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex.2009). It is an abuse of discretion to award attorney’s fees under the Uniform Declaratory Judgments Act when the statute is relied upon solely as a vehicle to recover attorney’s fees. Tex. State Bd. of Plumbing Exam’rs v. Assoc. Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d 750, 753 (Tex.App.-Austin 2000, pet. dism’d); see also City of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 392 (Tex.App.Houston [14th Dist.] 2004, no pet.) (party may not use declaratory judgment action to seek same relief afforded under another of its causes of action to obtain otherwise impermissible attorney’s fees).

RIHR asserts its declaratory judgment claim is an appropriate remedy because RIHR has an actual, justiciable issue concerning whether its constitutional rights have been violated, and the trial court could resolve that issue with a declaration that Carrollton’s refusal to issue building permits unless RIHR paid for remediation of the collapsed wall was an unconstitutional exaction. Therefore, RIHR asserts the plea for declaratory relief has a purpose apart from seeking attorney’s fees.

RIHR’s amended petition was filed after the trial court signed the temporary injunction order requiring Carrollton to, among other things, approve RIHR’s application for building permits, issue those building permits, and release the liens against the RIHR Lots. In its amended petition, RIHR asserted a cause of action for damages resulting from an unconstitutional taking. RIHR also sought a declaratory judgment that Carrollton’s denying the building permits to RIHR until ordered to do so by the trial court was an unconstitutional taking and Carrollton’s liens against the RIHR Lots for the costs associated with remediating the collapsed wall were improper and unlawful. Here, the declaratory action had no greater ramifications than RIHR’s cause of action for a compensable taking and merely duplicated the issues already before the trial court. Other than attorney’s fees, RIHR sought no relief under the declaratory judgment pleading not associated with its cause of action alleging a compensable taking.

RIHR’s declaratory action claims were subsumed within its cause of action against Carrollton for a compensable taking, and RIHR’s use of the declaratory judgments statute was an improper vehicle for obtaining its attorney’s fees. We conclude the trial court abused its discretion in awarding RIHR attorney’s fees under the Uniform Declaratory Judgments Act. We sustain issue three as to RIHR’s attorney’s fees and reverse the trial court’s award of attorney’s fees to RIHR.

Conclusion

We reverse the award of attorney’s fees and render judgment that RIHR take nothing on its claim for attorney’s fees. In all other respects, the trial court’s judgment is affirmed.

      . There was no permanent injunction because Carrollton issued the requested building permits.

      . According to RIHR's January 17, 2008 trial brief, the houses were still for sale at the time of trial.

      . We disagree with Carrollton's assertion that this case is more appropriately analyzed under Penn Central Transportation Company v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). As was stated in Sefzik:

      The [Flower Mound ] court specifically distinguished cases involving the “unreasonable regulatory interference” analysis employed in Penn Central from cases like Nollan and Dolan, which involved "exac-tions imposed by the government as a condition of its approval of land development....” [T]his case is a development exaction takings case, not a regulatory interference takings case. Therefore, the tests stated in Penn Central and Mayhew do not apply here.

        Sefzik, 198 S.W.3d at 898-99.

      . Carrollton did not appeal the temporary injunction order.

      . In Flower Mound, the court disagreed with the town's argument that the court should “adopt a standard that requires developers to seek to strike down conditions that they believe are unconstitutional before accepting the conditions and irreparably changing the status quo.” Flower Mound, 135 S.W.3d at 628. The court stated, "[tjhere is nothing in the statutory framework [regarding municipal regulation of subdivisions and property development] to suggest that the time for bringing an action like this one is constrained by anything other than the applicable statute of limitations ....” Id. at 628-29.

      . Although the Dolan majority did not expressly address the argument that an exaction claim is not cognizable when the landowner refuses to agree to an improper request from the government resulting in denial of the permit, the argument was addressed by the dissent and, thus, implicitly rejected by the majority. Dolan, 512 U.S. at 408, 114 S.Ct. 2309 (Stevens, J., dissenting). The argument was also addressed and rejected in Parks v. Wat

        son, 716 F.2d 646 (9th Cir.1983), a case upon which the Supreme Court relied in deciding Nollan. See Nollan, 483 U.S. at 839, 107 S.Ct. 3141; Parks, 716 F.2d at 652.

      . Carrollton has not challenged the calculation of RIHR's damages.


author: Opinion by Justice MORRIS.

text:
    In re VICTOR ENTERPRISES, INC., Relator.
    No. 05-10-00217-CV.
    Court of Appeals of Texas, Dallas.
    March 24, 2010.
    Rehearing Overruled April 28, 2010.

      William L. Wolf, Lindsey K. Griffin, William L. Wolf, P.C., Dallas, TX, for Relator.
    Clifford Holland, Dallas, TX, for Real Party in Interest.
    Before Justices MORRIS, FRANCIS, and FILLMORE.
   OPINION

Opinion by Justice MORRIS.

On September 18, 2009, relator Victor Enterprises, Inc. filed a forcible detainer action against real party in interest Clifford Holland in a justice court because of real party in interest’s alleged failure to pay rent for the month of August. Relator received a judgment in its favor on October 2, 2009. The judgment was timely appealed to the County Court at Law No. 1, which is presided over by the Honorable D’Metria Benson. After several delays, Judge Benson scheduled the trial of the case on March 11, 2010.

Relator filed an additional forcible de-tainer action on December 29, 2009 because of real party in interest’s alleged failure to pay rent for the month of December. On January 13, 2010, the justice court granted judgment in relator’s favor in the second suit. Real party in interest did not appeal that judgment. Instead, he filed an emergency petition for writ of mandamus in Judge Benson’s court on January 19, 2010, which was granted the same day by signed order. Relator then filed a petition for writ of mandamus in this court complaining of the granting of the writ by Judge Benson. We conditionally granted the writ based on the petition filed with us and ordered Judge Benson to vacate her order. She did so, and the justice court reinstated its judgment, which became final and unappealable. Relator then obtained a writ of possession for the real property in question as well as a writ of execution. Within days of our order, and upon the motion of the real party in interest, Judge Benson again exercised jurisdiction over the justice court judgment and on February 19, 2010 signed an order suspending execution of the writ of possession.

Meanwhile, relator filed a third forcible detainer action based on real party in interest’s alleged failure to pay rent for the month of January. On February 22, 2010, the justice court issued a judgment in relator’s favor, which real party in interest did not appeal. On February 26, 2010, Judge Benson signed an order in the original suit granting real party in interest’s application for a writ of injunction. In the order, Judge Benson enjoined relator from “initiating, prosecuting, or executing any litigation, action or writ that seeks possession of or eviction of the defendant from his residence. ...” The order states that the writ was issued to protect the county court’s jurisdiction. No other reason was stated.

In response to Judge Benson’s February 19 and February 26 orders, relator filed a new petition for writ of mandamus with us. We requested a response from real party in interest. Real party in interest then requested additional time to make his response, which we granted. Nevertheless, no response was filed.

To obtain mandamus relief, relator must show both that the trial court has abused its discretion and that it has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex.2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). Relator has met this burden. The county court at law never obtained jurisdiction over the second or third forcible detainer actions because real party in interest did not appeal the judgments of the justice court. Moreover, contrary to Judge Benson’s repeated assertions, she is not authorized to interfere with the two final, unappealed justice court judgments that do not relate to the subject matter of real party in interest’s direct appeal pending before her. Neither prohibiting the enforcement of the justice court’s previously issued writ of possession nor restraining the execution of a future writ of possession supported by a final, unappealed judgment “protects” her jurisdiction over real party in interest’s pending direct appeal relating to a totally different justice court judgment. Therefore, it was error for Judge Benson to suspend execution of the justice court’s January 13 judgment and to enjoin the enforcement of the justice court’s two final judgments. Cf. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex.1989) (orig. proceeding) (holding appellate courts may not issue writs of prohibition to protect unap-pealed district court judgments). Additionally, relator has no adequate remedy at law because the justice court judgments of January 13, 2010 and February 22, 2010 have become final.

Relator generally complains about the entirety of Judge Benson’s February 26, 2010 order, which we note encompasses future litigation as well as the two final justice court judgments described above. Although we conclude relator has no adequate remedy by appeal with respect to the two final judgments, the record before us does not compel us to the same conclusion with respect to the remainder of Judge Benson’s order.

Accordingly, we conditionally grant, in part, relator’s petition for writ of mandamus. A writ will issue in the event the trial court fails to vacate promptly (1) its February 19, 2010 “Order Suspending Execution of Writ of Possession,” which relates directly to the justice court’s January 13, 2010 final judgment and (2) its February 26, 2010 “Order on Defendant’s Sworn Motion and Application for Writ of Injunction” to the extent such order enjoins relator, its employees, directors, attorneys, and agents from initiating, prosecuting, or executing any litigation, action, or writ associated with or related to the justice court’s judgments signed January 13, 2010 and February 22, 2010, respectively.


author: Justice RICHTER.

text:
    Ronald FUDGE, Individually, Ronald Fudge as Next Friend of J.L.F., and Bettye Fudge, Appellants, v. Kathryn WALL, Individually, and d/b/a Quest Counseling Services, Appellee.
    No. 05-08-01232-CV.
    Court of Appeals of Texas, Dallas.
    March 24, 2010.

      Eric L. Williams, Law Office of Eric Williams, Kaufman, TX, for Appellants.
    Wendy H. Hermes, The Berry Firm, P.L.L.C., B. Bowen Berry, Berry & Randall, L.L.P., Dallas, TX, for Appellee.
    Before Chief Justice WRIGHT and Justices BRIDGES and RICHTER.
   OPINION

Opinion By

Justice RICHTER.

Ronald Fudge, individually and as next Mend of J.L.F., and Bettye Fudge appeal the trial court’s order dismissing their claims against Kathryn Wall, individually and d/b/a Quest Counseling Services, for failure to comply with the expert report requirement of section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp. 2009). In three issues, appellants contend the trial court erred in granting appellee’s motion to dismiss because appellee is not a health care provider, appellants’ claims are not health care liability claims, and no expert report is required. We conclude the trial court properly dismissed appellants’ claims. We affirm the trial court’s order.

I. Factual and PROCEDURAL Background

Appellee Kathryn L. Wall (Wall) is licensed by the State of Texas as a Licensed Professional Counselor (LPC). She provided counseling to J.L.F., the minor son of Ronald Fudge and grandson of Bettye Fudge. On November 19, 2007, Wall sent a letter providing information regarding her treatment of J.L.F. to Belinda McLeod, a social worker conducting a court-ordered social study of Ronald Fudge. In her letter, Wall gave her professional opinion regarding behavior exhibited by J.L.F. and made recommendations with respect to custody and visitation. Appellants filed suit against Wall for libel, alleging she had shown reckless disregard for the truth, committed professional negligence, malpractice, and violated the rules of ethics and standards of practice for licensed professional counselors.

Wall filed a motion to transfer venue, arguing that venue was not mandatory in Kaufman County because the libel claims were actually recast health care liability claims. The trial court denied Wall’s motion to transfer venue. When appellants failed to file an expert report as required by section 74.351 of the Texas Civil Practice and Remedies Code, Wall moved to dismiss their claims. After hearing arguments of both parties, the trial court granted Wall’s motion to dismiss and dismissed all of appellants’ claims against Wall with prejudice. This appeal followed.

II. Motion To Dismiss For Failure To File Expert Report

A. Standard of Review

Generally, we review a trial court’s decision on a motion to dismiss a claim under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. Scientific Image Ctr. Mgmt., Inc. v. Brewer, 282 S.W.3d 233, 236 (Tex.App.-Dallas 2009, pet. denied); Christus Health v. Beal, 240 S.W.3d 282, 284 (Tex.App.-Houston [1st Dist.] 2007, no pet.). However, when resolution of the issue on appeal requires interpretation of a statute, the court applies a de novo standard of review. Vanderwerff v. Beathard, 239 S.W.3d 406, 408 (Tex.App.-Dallas 2007, no pet.); Groomes v. USH of Timberlawn, Inc., 170 S.W.3d 802, 804 (Tex.App.-Dallas 2005, no pet.). Therefore, we review de novo the determination of whether appellant’s claims are “health care liability claims” for purposes of applying chapter 74 of the Texas Civil Practice and Remedies Code. Lee v. Boothe, 235 S.W.3d 448, 451 (Tex.App.-Dallas 2007, pet. denied).

B. Applicable Law

Appellants claim the trial court erred in granting appellee’s motion to dismiss because appellee is not a health care provider, appellants’ claims are not health care liability claims, and, therefore, no expert report is required. Under section 74.351 of the Texas Civil Practice and Remedies Code, any person who brings suit asserting a health care liability claim must, within 120 days of filing their original petition, provide an expert report for each physician or health care provider against whom a claim is asserted. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). If the claimant does not provide an expert report as required, the trial court must, upon motion by the defendant, dismiss the claim with prejudice. Id. § 74.351(b). A health care liability claim is defined as:

a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.

Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13) (Vernon 2005). Here, applying chapter 74, we determine whether appellants’ claims are health care liability claims by analyzing whether their causes of action are against a “health care provider” and “for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety.” Id.

C. Appellants’ Claims

In their first issue, appellants argue that Wall is not a “health care provider” under chapter 74. A “health care provider” is defined as:

any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including: (i) a registered nurse; (ii) a dentist; (iii) a podiatrist; (iv) a pharmacist; (v) a chiropractor; (vi) an optometrist; or (vii) a health care institution.

Id. § 74.001(a)(12)(A). The list of health care providers in section 74.001(a)(12)(A) does not specifically include LPCs; however, the list is not exhaustive. Id.; see Tex. Gov’t Code Ann. § 311.005(13) (Vernon 2005) (“ ‘Includes’ and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.”); Beal, 240 S.W.3d at 287 (drug and alcohol treatment center is a health care provider); Pro Path Servs., L.L.P. v. Koch, 192 S.W.3d 667, 671 (Tex.App.-Dallas 2006, pet. denied) (pathology laboratory is a health care provider). Acknowledging the list of health care providers in section 74.001(a)(12)(A) is not exclusive, appellants nevertheless argue the statutory list should be used as a guide. They assert inclusion of LPCs is not reasonable because none of the existing entries in the current definition of “health care provider” deal primarily with mental health. To support this argument, appellants point out that legislative history for chapter 74 does not include the words “counseling,” “mental health,” “therapist,” or “therapy.” Appellants provide no other support or legal authority for their argument that LPCs are not health care providers.

Pursuant to section 74.001(a)(12)(A), in order to be a health care provider, a person must be duly licensed to provide health care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(12)(A). It is undisputed that Wall is licensed by the State of Texas as an LPC. See Tex. Occ.Code Ann. § 503.002(4) (Vernon Supp. 2009). Appellants suggest that “health care” for purposes of chapter 74 means physical health care only and does not include mental health care. We do not agree. Nothing in section 74.001 distinguishes between mental and physical health care. “Health care” is defined as “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Tex. Civ. Prac. & RfaCode Ann. § 74.001(a)(10). Health care includes the care and treatment of mental conditions. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex.2005).

Recently, two of our sister courts concluded that LPCs are health care providers under chapter 74. See Norgaard v. Pingel, 296 S.W.3d 284, 288 (Tex.App.Fort Worth 2009, no pet.) (claims filed against an LPC for negligent diagnosis, assessment, care, and treatment are health care liability claims against a health care provider); Skloss v. Perez, No. 01-08-00484-CV, 2009 WL 40438, at *6 (Tex. App.-Houston [1st Dist.] Jan. 8, 2009, no pet.) (mem. op.) (LPC is a health care provider and claims filed against LPC for negligence, breach of fiduciary duty, outrage, breach of privacy rights, fraud, and breach of contract are health care liability claims). Analyzing the definition of “practice of professional counseling” found in Texas Occupations Code section 503.003(a), the Norgaard and Skloss courts concluded LPCs may assess, evaluate, and treat persons with mental, emotional, or behavioral disorders and associated distresses that interfere with mental health. Norgaard, 296 S.W.3d at 287-88; Skloss, 2009 WL 40438, at *5; see also Tex. Occ.Code Ann. § 503.003(a) (Vernon 2004). In Norgaard, the court stated “[b]ecause LPCs are licensed to treat mental or emotional conditions that interfere with mental health, and are therefore licensed to provide health care, LPCs are health care providers under the statute.” Norgaard, 296 S.W.3d at 288.

We agree with the reasoning of our sister courts. Because Wall is a person licensed to treat mental or emotional conditions that interfere with mental health and is therefore licensed to provide health care, we conclude she is a health care provider under section 74.001(a)(12)(A). We resolve appellants’ first issue against them.

Turning to appellants’ second issue, we consider whether appellants’ claims are health care liability claims. Although we are not bound by appellants’ pleadings, a review of their allegations is helpful in evaluating whether their claims against Wall are health care liability claims recast as a libel action. See Scientific Image Ctr., 282 S.W.3d at 238. Appellants sued Wall for libel based on alleged defamatory statements made and published by Wall in her letter to McLeod. Appellants’ specific allegations of libel include: (1) Wall, with actual malice or reckless disregard for the truth, published information to a third party in an attempt to injure appellants’ reputations and expose them to public hatred, contempt, or ridicule; (2) Wall also published this information to the Child Protective Services Division (CPS) of the Texas Department of Family and Protective Services; and (3) Wall did not attempt to verify or investigate any of the allegations made in her letter to McLeod. Appellants also allege Wall “committed professional negligence, malpractice,” and “violated the rules of ethics and standards of practice for licensed professional counselors.” Notwithstanding them claim that Wall did not comply with accepted standards of practice for LPCs, appellants contend the claims asserted by Ronald and Bettye Fudge are not health care liability claims because Wall never treated or had direct contact with Ronald or Bettye Fudge. With respect to claims asserted by Ronald Fudge as next friend of J.L.F, appellants point out that Wall met with J.L.F. on only three occasions, the latest being almost eighteen months prior to the date on which the alleged defamatory statements were made. Therefore, according to appellants, any treatment Wall may have provided to J.L.F. does not form the basis for this suit because Wall’s letter to McLeod “is not based upon any treatment or lack of treatment of the Appellant/Plaintiffs.”

Wall asserts that appellants’ suit for libel is merely an attempt to recast a health care liability claim. Wall argues that the appropriateness of her communication to McLeod concerning J.L.F. necessarily implicates the condition of J.L.F., his mental health care, and his treatment. This, in turn, requires consideration of the duties and obligations of a licensed professional counselor to report suspected abuse and whether Wall departed from the accepted standard of care by participating in the CPS investigation or social study by authoring the letter in question. Wall contends that in order to show statements in her letter to McLeod were defamatory, appellants would be required to show, through expert testimony, that a reasonable and prudent LPC in the same or similar circumstances would have done something differently.

Artful pleading cannot avoid the requirements of section 74.351 when the essence of the suit is a health care liability claim. Diversicare, 185 S.W.3d at 851; Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.2004); Scientific Inmge Ctr., 282 S.W.3d at 237. To determine whether a claim is a health care liability claim subject to the requirements of chapter 74, we examine the nature and essence of the claim. Rose, 156 S.W.3d at 543; Lee, 235 S.W.3d at 451; Teyry v. Schiro, No. 01-07-00060-CV, 2007 WL 2132461, at *2 (Tex.App.-Houston [1st Dist.] July 26, 2007, pet. denied) (mem. op.). We consider the alleged wrongful conduct and the duties allegedly breached, rather than the injuries suffered or damages claimed. Diversicare, 185 S.W.3d at 851; Lee, 235 S.W.3d at 451. “A cause of action against a health care provider is a health care liability claim under the Act if it is based on a claimed departure from an accepted standard of medical care, health care, or safety of the patient, whether the action sounds in tort or contract.” MacPete v. Bolomey, 185 S.W.3d 580, 584 (Tex.App.-Dallas 2006, no pet.). One consideration in our determination may be whether expert testimony is necessary to show breach of a standard of care. Lee, 235 S.W.3d at 451. However, a claim may still be a health care liability claim even if expert testimony is not required to prevail at trial. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex.2005); Sloan v. Farmer, 217 S.W.3d 763, 768 (Tex.App.-Dallas 2007, pet. denied). If the act or omission alleged in appellants’ petition is an inseparable part of Wall’s rendition of treatment, or if it is based on a breach of a standard of care applicable to Wall, then the claim is a health care liability claim. See Rose, 156 S.W.3d at 544; Sloan, 217 S.W.3d at 767; Terry, 2007 WL 2132461, at *2.

The essence of appellants’ claims is that Wall negligently misdiagnosed J.L.F. as being sexually abused by his father, negligently published her opinion to McLeod and the Texas Department of Family and Protective Services, and failed to comply with accepted standards of care for LPCs. As noted above, we consider the wrongful conduct and duty allegedly breached and not the injury suffered or damages claimed. Diversicare, 185 S.W.3d at 851; Lee, 235 S.W.3d at 451. According to Wall’s letter, she provided counseling services to both J.L.F. and his mother. Wall wrote the letter in her capacity as LPC, to Belinda McLeod, a court-appointed social worker, at McLeod’s request. The letter details behavior by J.L.F. that was either observed by Wall during counseling sessions with J.L.F. or told to Wall during counseling sessions with J.L.F.’s mother. In the letter, Wall provides her professional assessment and evaluation of J.L.F.’s behavior, and states her professional concerns and recommendations with respect to the safety, custody, and visitation of J.L.F. The letter, and any diagnosis set forth therein, clearly relates to Wall’s assessment, evaluation, and treatment of J.L.F. We conclude that Wall’s letter to McLeod, and the statements contained therein, are inseparable from her treatment of J.L.F.

In the letter, Wall informed McLeod she had filed two reports with CPS regarding her concerns for the safety and welfare of J.L.F. The referenced reports are not part of the record before this Court, nor does the record indicate whether appellants have seen these reports. Nevertheless, appellants argue Wall’s statement that she filed two reports with CPS shows Wall published libelous information to a third party. Wall asserts that as an LPC, she is legally required to immediately report suspected child abuse. See Tex. Fam. Code Ann. § 261.101(b) (Vernon 2008). Whether Wall rightfully reported her concerns to CPS depends on standards of care applicable to LPCs, including the duty and obligation to report suspected abuse.

Finally, appellants’ contention that Wall “committed professional negligence, malpractice,” and “violated the rules of ethics and standards of practice for licensed professional counselors” is a claim, on its face, that Wall breached the standard of care applicable to LPCs. If the act or omission that forms the basis of the claim is an inseparable part of the rendition of health care treatment, or if it is based on a breach of the standard of care applicable to the health care provider, then the claim is a health care liability claim, no matter how it is labeled. Vanderwerff, 239 S.W.3d at 408; MacPete, 185 S.W.3d at 584. We conclude that appellants’ claims are health care liability claims governed by chapter 74. We resolve appellants’ second issue against them.

In their third issue on appeal, appellants contend the trial court abused its discretion in dismissing their claims for failure to provide an expert report under section 74.351 of the Texas Civil Practice and Remedies Code. According to section 74.351 of the Texas Civil Practice and Remedies Code, any person who brings suit asserting a health care liability claim must, within 120 days of filing their original petition, provide an expert report for each physician or health care provider against whom a claim is asserted. Tex. Civ. Prag. & Rem.Code Ann. § 74.351(a). If an expert report is not provided in accordance with section 74.351(a), the court, on the motion of the affected health care provider, shall enter an order that dismisses the claim against the health care provider. Id. § 74.351(b). It is undisputed that appellants did not provide an expert report as required by section 74.351(a).

Appellants argue the statutory requirements for qualification of an expert witness set forth in section 74.403 make it impossible to provide an expert report with respect to an LPC. See Tex. Civ. Prag. & Rem.Code Ann. § 74.403(a) (Vernon 2005). Appellants contend that because only physicians can qualify as expert witnesses on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm or damages claimed, appellants are precluded from presenting expert witness evidence by other licensed professional counselors, therapists, or social workers. While we agree that only qualified physicians may testify on the issue of causal relationship, other health care providers, such as LPCs, may qualify as expert witnesses on the issue of accepted standards of care. Tex. Civ. Prag. & Rem.Code Ann. § 74.402(b) (Vernon 2005); see Health-South Corp. v. Searcy, 228 S.W.3d 907, 909 (Tex.App.-Dallas 2007, no pet.). Wall suggests, and we agree, that appellants had the option of choosing a qualified physician, such as a psychiatrist, to present expert witness evidence regarding the causal link between the alleged breach of the standard of care and appellants’ alleged injuries. We are not persuaded that appellants were precluded from providing an expert report because of the expert witness qualification requirements of section 74.403.

Appellants failed to provide an expert report; therefore, the trial court did not abuse its discretion by dismissing their claims against Wall. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). We resolve appellants’ third claim against them.

III. Conclusion

We affirm the trial court’s order granting Wall’s motion to dismiss.

      . In accordance with an order to issue the same date as this opinion, the Court has restyled this case by substituting initials for the name of the minor child. Throughout this opinion we shall refer to the minor child by his initials, J.L.F.