author: FELIPE REYNA, Justice.

text:
    Christopher JONES, Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE—INSTITUTIONAL DIVISION, et al. Appellees.
    No. 10-09-00060-CV.
    Court of Appeals of Texas, Waco.
    April 14, 2010.

      Christopher Jones, Gatesville, pro se.
    David P. Weeks, Madison County Crim. Dist. Atty., Huntsville, for appellees.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

FELIPE REYNA, Justice.

Christopher Jones brings this interlocutory appeal from the granting of a motion to dismiss filed by the Texas Department of Criminal Justice and a plea to the jurisdiction filed by TDCJ and four TDCJ employees. He contends in five issues that: (1) the court abused its discretion by granting TDCJ’s motion to dismiss his suit against the individual appellees under section 101.106 of the Tort Claims Act even though he also filed claims under title 42, section 1983 of the U.S.Code; (2) the court abused its discretion by granting the plea to the jurisdiction without first reviewing his petition and the proceedings to determine in which capacity the individual ap-pellees were sued; (8) the court erred by dismissing his suit before ruling on his pending motions for discovery and for summary judgment; (4) the court erred by dismissing his suit “without understanding or paying attention to the actual facts and legal theories” alleged; and (5) he has been prejudiced by the district clerk’s failure to provide complete records to himself and to this Court. We will affirm in part and dismiss in part.

Background

Jones’s “Second Amended Complaint Original Petition” names seven defendants: the Texas Department of Criminal Justice — Institutional Division, TDCJ Director Nathaniel Quarterman, Correctional Officer Captain Smith, Security Staff Sergeant Emertson, Grievance Coordinator C. McGilbra, Assistant Warden Gary Hunter, and Assistant Administrator Veronica Brisher.

Jones’s legal claims arise from five factually distinct incidents. In essence, Jones complains about several instances of misconduct by two prison employees and further complains about the failure of supervisors to discipline these employees and the handling of grievances he filed regarding these claims of misconduct.

Jones alleges in his second amended complaint that:

• Smith “maliciously sadisticly [sic] and wantonly” handcuffed Jones without provocation or just cause after strip searching him and then, with Emert-son, “marched [him] from one end of the Ferguson Unit Prison Facility to the other completely naked, needlessly, in front of numerous inmates and male and female prison staff”;
• Smith and Emertson “acted wantonly, maliciously and sadisticly [sic] began punching [Jones] in the back of his head and began ramming his face and forehead into the wall while he was handcuffed,” causing him to suffer physical injuries and to be “terrified, outraged, humiliated, and fearfful] for his life”;
• he was “maliciously sadisticly [sic] placed in a solitary cell handcuffed without any of the basic human necessities for 12 hours” by Smith and Emertson;
• Smith and Emertson “sadisticly [sic], wantonly” failed to follow TDCJ policy regarding securing, collecting and storing inmate property and committed theft by failing to return his property to him; and
• the remaining defendants failed to properly handle the grievances he filed with regard to these incidents.

Before Jones filed his second amended complaint, TDCJ filed a motion to dismiss his claims against Quarterman, McGilbra, Hunter and Brisher under section 101.106(e) of the Texas Tort Claims Act. Several months after he filed the second amended complaint, TDCJ, Quarterman, McGilbra, Hunter and Brisher filed a plea to the jurisdiction.

After a hearing, the court granted the plea to the jurisdiction and the motion to dismiss in separate written orders. After reviewing a post-trial motion filed by Jones and the defendants’ response to that motion, the court granted a new trial only •with respect to Jones’s claims under section 1983 against Quarterman, McGilbra, Hunter and Brisher in their individual capacities.

Dismissal of State Law Claims

Jones contends in his first issue that the court abused its discretion by granting TDCJ’s motion to dismiss his suit against the individual appellees under section 101.106(e) even though he also filed claims under section 1983. He contends in his third and fourth issues respectively that the court erred by dismissing his suit: (a) before ruling on his pending motions for discovery and for summary judgment and (b) “without understanding or paying attention to the actual facts and legal theories” alleged.

Appellees’ motion to dismiss relies solely on section 101.106(e) as a basis for dismissal. See Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e) (Vernon 2005). We first must determine whether this Court has jurisdiction to address an interlocutory appeal from the granting of a motion to dismiss under section 101.106(e). See Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex.2007) (“Courts always have jurisdiction to determine their own jurisdiction.”).

Section 51.014 of the Civil Practice and Remedies Code establishes our jurisdiction for most interlocutory appeals. Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon 2008). Subsections (5) and (8) of this statute expressly permit the appeal of an interlocutory order which:

denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state; or
grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.

Id. § 51.014(a)(5), (8).

Several courts have concluded that they have jurisdiction under subsection (5) to review the denial of a motion to dismiss under section 101.106. See City of Arlington v. Randall, 301 S.W.3d 896, 902 n. 2 (Tex.App.-Fort Worth 2009, pet. filed); Escalante v. Rowan, 251 S.W.3d 720, 727 (Tex.App.-Houston [14th Dist.] 2008, pet. filed); Lanphier v. Avis, 244 S.W.3d 596, 598-99 (Tex.App.-Texarkana 2008, pet. dism’d w.o.j.); Walkup v. Borchardt, No. 07-06-00040-CV, 2006 WL 3455254, at *1 n. 1 (Tex.App.-Amarillo Nov. 30, 2006, no pet.); contra Hudak v. Campbell, 232 S.W.3d 930, 931 (Tex.App.-Dallas 2007, no pet.).

Here, however, because the trial court granted TDCJ’s dismissal motion and subsection (5) permits an appeal only from the denial of a pleading raising immunity, jurisdiction would have to lie under subsection (8) which permits an appeal from an interlocutory order which “grants or denies a plea to the jurisdiction by a governmental unit.” Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8).

The reference to “plea to the jurisdiction” is not to a particular procedural vehicle but to the substance of the issue raised. Thus, an interlocutory appeal may be taken from a refusal to dismiss for want of jurisdiction whether the jurisdictional argument is presented by plea to the jurisdiction or some other vehicle, such as a motion for summary judgment. By the same token, an interlocutory appeal cannot be taken from the denial of a plea to the jurisdiction that does not raise an issue that can be jurisdictional.

Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.2004) (citing Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004)); accord Dallas County v. Autry, 251 S.W.3d 155, 159-60 (Tex.App.Dallas 2008, pet. denied). Thus, our jurisdiction to review the granting of the motion to dismiss rests on whether the motion raises jurisdictional grounds for dismissal. See id.

Section 101.106(e) provides, “If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). The Supreme Court has construed a prior version of this statute as conferring “an unequivocal grant of immunity.” Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex.1997). However, the Court did not specify in Newman what type of immunity was granted by the statute.

In subsequent cases, the Supreme Court has characterized the immunity conferred by section 101.106 as immunity from liability. Sykes, 136 S.W.3d at 640; Dallas County MHMR v. Bossley, 968 S.W.2d 339, 344 (Tex.1998); accord Snelling v. Mims, 97 S.W.3d 646, 648 (Tex.App.-Waco 2002, no pet.); see also Escalante, 251 S.W.3d at 727 (“immunity defense”); Klein v. Hernandez, 260 S.W.3d 1, 21 (Tex.App.-Houston [1st Dist.] 2008, pet. granted) (Taft, J., concurring). Several intermediate courts of appeal have characterized this statutory immunity as immunity from suit. See Saade v. Villarreal, 280 S.W.3d 511, 521 (Tex.App.-Houston [14th Dist.] 2009, pet. filed); Bailey v. Sanders, 261 S.W.3d 153,157 (Tex.App.-San Antonio 2008, no pet.); Tex. Dep’t of Agrie, v. Calderon, 221 S.W.3d 918, 922 (Tex.App.-Corpus Christi 2007, no pet.); Meroney v. City of Colleyville, 200 S.W.3d 707, 715 (Tex.App.-Fort Worth 2006, pet. granted, judgm’t vacated w.r.m.); City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 703 n. 7 (Tex.App.-Austin 2005, no pet.).

We will follow the plain language of the Supreme Court’s decisions in Sykes and Bossley and in our own decision in Snell-ing and treat the statutory immunity conferred by section 101.106 as immunity from liability.

“[I]mmunity from liability is an affirmative defense that cannot be raised by a plea to the jurisdiction.” State v. Lueck, 290 S.W.3d 876, 880 (Tex.2009). Therefore, the immunity conferred by section 101.106 is not jurisdictional. An order granting a motion to dismiss under section 101.106(e) cannot be appealed under section 51.014(a)(8) of the Civil Practice and Remedies Code. See Simons, 140 S.W.3d at 349; Autry, 251 S.W.3d at 159-60.

Accordingly, we dismiss Jones’s first, third and fourth issues for want of jurisdiction. See Matis v. Golden, 228 S.W.3d 301, 305 (Tex.App.-Waco 2007, no pet.).

Plea to the Jurisdiction

Jones contends in his second issue that the court abused its discretion by granting the plea to the jurisdiction without first reviewing his petition and the proceedings to determine in which capacity the individual appellees were sued. In particular, he claims that the court erred by failing to consider “the totality of the complaint.” He argues that his “complaint alleged fact[s] that affirmatively demonstrated the district court’s jurisdiction.”

Section 1983

We begin with Jones’s federal claims under section 1983, which establishes liability for:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.

42 U.S.C.S. § 1983 (LexisNexis 2002). “[N]either a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989).

Thus, the court properly granted the plea to the jurisdiction on Jones’s federal claims against TDCJ and against Quarterman, McGilbra, Hunter and Brisher in their official capacities. McLane Co. v. Strayhom, 148 S.W.3d 644, 652 (Tex.App.-Austin 2004, pet. denied); Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274, 282 (Tex.App.-Texarkana 2003, no pet.).

State Law Claims

When a plea to the jurisdiction challenges the pleadings, we determine if the plaintiff has alleged facts that affirmatively demonstrate the trial court’s jurisdiction to hear the cause. We construe the pleadings liberally in favor of the plaintiff and look to his intent. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex.2009).

Jones claims that Smith and Emertson: (1) “negligently used handcuffs on [him]” “by using physical force sadisticly [sic] maliciously and wantonly which amounted to assault, battery, and cruel unusual treatment”; and (2) committed civil theft under Chapter 134 of the Civil Practice and Remedies Code by taking his property without due process and “may have acted under eminent domain.”

Jones alleges that Quarterman, Hunter and Brisher violated his right to due process by failing to discipline Smith and Emertson. He alleges that these three defendants and McGilbra violated his right to due process by failing to provide him a meaningful grievance procedure, and by failing to enforce TDCJ policies regarding treatment of inmates.

Jones alleges that TDCJ is liable for negligently: (1) permitting Smith and Emertson to handcuff him and march him through the prison unit naked; (2) permitting Smith and Emertson to lock him in solitary confinement while still handcuffed without providing for his basic necessities; and (3) permitting the other defendants to engage in the conduct alleged in the previous paragraph.

Under section 101.021(2) of the Texas Tort Claims Act, Jones can establish a waiver of immunity from suit and liability only by establishing that he sustained personal injury proximately caused by “a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2) (Vernon 2005). Jones’s claims do not allege any injury caused by a condition of property. Thus, we focus on whether he has alleged that his injuries were proximately caused by a defendant’s use of tangible personal property.

Jones’s state law claims all flow from his complaints regarding his alleged treatment by Smith and Emertson. To the extent Jones alleges that they “negligently used handcuffs on [him]” “by using physical force sadisticly maliciously and wantonly which amounted to assault, battery, and cruel unusual treatment,” he has alleged an intentional tort. See Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex.2001); Cameron County v. Ortega, 291 S.W.3d 495, 498-99 (Tex.App.-Corpus Christi 2009, no pet.); City of Garland v. Rivera, 146 S.W.3d 334, 337-38 (Tex.App.-Dallas 2004, no pet.); City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex.App.-San Antonio 1990, writ denied). The Texas Tort Claims Act does not waive immunity from suit for intentional torts. See Tex. Civ. Prac. & Rem.Code Ann. § 101.057(2) (Vernon 2005); Petta, 44 S.W.3d at 580; Ortega, 291 S.W.3d at 497-98; Rivera, 146 S.W.3d at 338; Dunn, 796 S.W.2d at 261.

To the extent Jones alleges that the handcuffs were used to restrain him in solitary confinement without basic necessities, the use of handcuffs was not a proximate cause of any injuries allegedly sustained in solitary confinement. See Hardin County Sheriffs Dep’t v. Smith, 290 S.W.3d 550, 553-54 (Tex.App.-Beaumont 2009, no pet.); Ordonez v. El Paso County, 224 S.W.3d 240, 244 (Tex.App.-El Paso 2005, no pet.); see also Bossley, 968 S.W.2d at 343 (“Property does not cause injury if it does no more than furnish the condition that makes the injury possible.”).

Jones’s theft claim plainly does not allege a personal injury. Assuming without deciding that it constitutes an allegation of property damage, such facts do not allege a claim for which immunity has been waived under section 101.021(2), which provides a waiver of immunity only for “personal injury and death.” See Tex. Civ. PRAC. & Rem.Code Ann. § 101.021(2).

Jones’s state law claims against Quarterman, McGilbra, Hunter and Brisher do not allege any use of property on their part which proximately caused him injury. However, these claims may be characterized as the negligent implementation on their part of TDCJ policies regarding grievance procedures and the treatment of inmates. “[A] plaintiff has to state a waiver of immunity under some provision of section 101.021 of the Civil Practice and Remedies Code before she can invoke a claim of negligent implementation of policy.” Rivera, 146 S.W.3d at 338; see Petta, 44 S.W.3d at 580-81; Ordonez, 224 S.W.3d at 245. Because Jones has failed to plead facts which would constitute a waiver of immunity under section 101.021(2), he has failed to plead facts constituting a waiver of the immunity from suit of Quarterman, McGilbra, Hunter and Brisher.

Because Jones has failed to plead facts waiving any of the individual defendants’ immunity from suit, he has failed to plead facts waiving TDCJ’s immunity from suit. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995); Moneada v. Brown, 202 S.W.3d 794, 803 (Tex.App.-San Antonio 2006, no pet.); Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex.App.-Texarkana 2004, pet. denied).

The trial court properly granted the plea to the jurisdiction. We overrule Jones’s second issue and do not reach his fifth issue. See Tex.R.App. P. 47.1 (court’s opinion must address “every issued raised and necessary to final disposition of the appeal”).

We do not have jurisdiction to review the trial court’s interlocutory order granting the motion to dismiss under section 101.106(e). We affirm the order granting the plea to the jurisdiction.

      . Jones alleged only the defendants' last names with the exception of Quarterman. Where other first names or initials are indicated, those were obtained from the defendants’ pleadings.

        . Based on statements Jones made at the hearing on the motion to dismiss and plea to the jurisdiction, it appears that Smith and Emertson have not been served and are no longer TDCJ employees.

      . The previous version of the statute provided, "A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.” Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, sec. 101.106, 1985 Tex. Gen. Laws 3242, 3305 (amended 2003) (current version at Tex Civ. Prac. & Rem.Code Ann. § 101.106 (Vernon 2005)).

      . "[I]mmunity from liability is an affirmative defense.” State v. Lueck, 290 S.W.3d 876, 880 (Tex.2009).

      . Regarding Jones's complaint that the trial court failed to determine in which capacity the individual appellees were sued before granting the plea to the jurisdiction, that complaint has been rendered moot by the court's ruling in its order partially granting Jones’s motion for new trial as to his section 1983 claims against Quarterman, McGilbra, Hunter and Brisher in their individual capacities.

      . Jones cannot establish a waiver of immunity under subsection (1) of the statute because he does not claim that his alleged injuries "arise[ ] from the operation or use of a motor-driven vehicle or motor-driven equipment.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1) (Vernon 2005).

      . From our reading of Jones’s second amended complaint, he does not allege that the prison cell itself proximately caused his alleged injuries. Nevertheless, the same result would obtain even if he had. See Dallas County MHMR v. Bossley, 968 S.W.2d 339, 343 (Tex.1998); Hardin County Sheriffs Dep’t v. Smith, 290 S.W.3d 550, 553-54 (Tex.App.Beaumont 2009, no pet.); Ordonez v. El Paso County, 224 S.W.3d 240, 244 (Tex.App.-El Paso 2005, no pet.).


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    MEMC ELECTRONIC MATERIALS, INC. and MEMC Pasadena, Inc., Appellants, v. ALBEMARLE CORPORATION, Lexington Insurance Company, and Travelers Property Casualty Group, Appellees.
    No. 01-08-00770-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 13, 2010.

      Alan Brandt Daughtry, Richard E. Griffin, Ryan Chadwick, Jackson Walker L.L.P., Houston, TX, for Appellants.
    Lyle R. Rathwell, Teresa L. De Ford, Rathwell De Ford & Wallison, The Woodlands, TX, for Appellees.
    Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
   OPINION

ELSA ALCALA, Justice.

This appeal concerns whether a party to an indemnification agreement can obtain indemnification for a dispute regarding the scope and meaning of the indemnification agreement, specifically, whether the agreement provides for indemnification of another matter. Appellants, MEMC Electronic Materials, Inc., and MEMC Pasadena, Inc. (collectively “MEMC”), appeal the trial court’s rendition of summary judgment in favor of appellees Albemarle Corporation, Lexington Insurance Company, and Travelers Property Casualty group (collectively “Albemarle”).

In this appeal following remand of an earlier appeal concerning the same agreement between these two parties, MEMC raises two issues. MEMC contends that the trial court erred by rendering summary judgment in favor of Albemarle by determining that MEMC was not entitled to indemnity or damages for breach of contract and by denying MEMC’s motion for summary judgment for indemnity and breach of contract damages. MEMC makes two contentions concerning these two issues. First, MEMC contends it is entitled to damages in the form of attorney’s fees for its defense of this suit in which Albemarle sought indemnity from MEMC for Albemarle’s indemnification of Ethyl Corporation. Second, MEMC asserts it is entitled to damages for attorney’s fees for its defense of the Damewood litigation. We conclude that Albemarle does not owe indemnity to MEMC because the indemnity agreement with Albemarle does not provide for attorney’s fees in this situation and the request for attorney’s fees for MEMC’s defense of the Dame-wood litigation was not made in a motion for summary judgment. We affirm.

Background

Ethyl Corporation (“Ethyl”) designed and built a polysilicon manufacturing plant located in Pasadena, Texas. In 1994, Ethyl created Albemarle as a separate company and transferred various businesses, including the plant, to Albe-marle’s ownership and control. The transfer was under a “Reorganization and Distribution Agreement.” Ethyl and Al-bemarle also entered into an “Indemnification Agreement,” under which Albe-marle agreed to “indemnify, defend and hold harmless Ethyl ... from and against any and all Indemnifiable Losses of the Ethyl Indemnitees arising out of or due to the failure or alleged failure of Albemarle or any of its Affiliates to pay, perform, or otherwise discharge in due course any of the Albemarle Liabilities.”

In 1995, Albemarle sold the plant to MEMC pursuant to an “Asset Purchase Agreement.” The closing date for the agreement was July 31, 1995. Under a separate agreement, MEMC and Albe-marle agreed that Albemarle would continue to operate the plant.

The Asset Purchase Agreement describes the transfer of the plant and other assets and liabilities in Sections 3.3 and 3.4. Some assets and liabilities were specifically excluded from the transfer, and only certain liabilities were assumed by MEMC. Section 3.4(b) specifies that MEMC “shall not assume any other Liabilities of Seller whatsoever” except “those Liabilities specifically assumed” in Section 3.4(a). Section 3.4(a) does not mention the agreement between Ethyl and Albemarle, nor was that agreement a contract that was assumed by MEMC in the accompanying Schedule 3.4(a)(i). The agreement further specified that MEMC did not assume any liability resulting or arising from the operation of the plant prior to the closing date.

Albemarle made certain representations and warranties to MEMC. Under Section 4.16, labeled “Contracts and Commitments,” Albemarle represented that, except as set forth in Schedule 4.16, it was “not a party to” and the transferred assets “are not bound by” and the Assumed Obligations “shall not include, any written or oral, formal or informal ... agreements between or among Seller and any Affiliate of Seller_” Schedule 4.16 did not mention the indemnity agreement between Ethyl and Albemarle.

The Asset Purchase Agreement between Albemarle and MEMC included an indemnity provision. Generally speaking, depending on whether the damages arose out of the operation of the plant “prior to the closing date” or “on or after the closing date,” MEMC would indemnify Albemarle for the damages, or Albemarle would indemnify MEMC for the damages. In Section 7.3, Albemarle agreed to indemnify MEMC from and against all damages incurred by MEMC directly or indirectly by reason of or resulting from liabilities, obligations or claims, with respect to the plant arising out of operations of the plant prior to the Closing Date. Similarly, Section 7.4 provided that MEMC would indemnify Al-bemarle from and against all damages asserted against, resulting to, imposed upon or incurred by Albemarle, directly or indirectly by reason of or resulting from liabilities, obligations or claims with respect to the plant arising out of the operations of the plant on or after the Closing Date.

In 1996, three Albemarle employees were injured when a fire broke out at the plant. The employees, collectively referred to as the Damewood, plaintiffs, filed a lawsuit against a number of parties, including Ethyl and MEMC. Albemarle, which carried worker’s compensation coverage, was not subject to suit. MEMC settled with the Damewood plaintiffs. Of the parties relevant to the present case, only Ethyl went to trial in the underlying litigation. Pursuant to the agreement between Ethyl and Albemarle, Albemarle defended Ethyl in the Damewood litigation. At the close of the trial, Ethyl was the only remaining defendant, and a jury rendered a verdict in excess of six-and-a-half million dollars against Ethyl. Ethyl appealed, and while the appeal was pending, it set-tied with the Damewood plaintiffs for approximately five million dollars. Ethyl sought indemnification from Albemarle under the terms of their agreement. Albe-marle indemnified Ethyl for its losses, which is the amount that Albemarle now seeks from MEMC in this lawsuit.

MEMC filed for summary judgment, which was denied. Albemarle then filed a motion for partial summary judgment on the issue of whether MEMC was obligated to indemnify Albemarle, and MEMC re-urged its motion as a cross-motion for partial summary judgment. The trial court ruled in Albemarle’s favor. The trial court severed the summary judgment order, which was the subject of the prior appeal.

In the prior appeal, this Court held that Albemarle’s contractual obligation to indemnify Ethyl was an undisclosed contractual obligation in existence prior to the closing date and not identified in the Asset Purchase Agreement and, therefore, MEMC was not required to indemnify Al-bemarle for its payment to Ethyl. This Court reversed the trial court, rendering judgment that Albemarle take nothing in its suit against MEMC. MEMC Elec. Materials, Inc. v. Albemarle Corp., 241 S.W.3d 67, 76 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).

In the instant suit, MEMC seeks attorney’s fees and expenses from Albemarle for Albemarle’s prosecution of an Excluded Obligation. MEMC and Albemarle filed cross-motions for summary judgment on the issue. The trial court denied MEMC’s motion for summary judgment and granted Albemarle’s motion. Due to confusion regarding the submission date for the motions, the trial court vacated its order and reconsidered the motions for summary judgment. The trial court reached the same decision, again denying MEMC’s motion and granting Albemarle’s motion.

Issues Presented in this Appeal

In two issues, MEMC contends the trial court erred by granting Albemarle’s motion for summary judgment and by denying MEMC’s motion. As an initial matter, however, Albemarle contends that MEMC did not raise certain issues in its motion for summary judgment to the trial court and may not, therefore, raise them on appeal. See Tex.R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (summary judgment motion “must stand or fall on the grounds expressly presented in the motion”). MEMC counters that the issues were raised before the trial court, either in its motion for summary judgment or in its motion for reconsideration. A ground for summary judgment included in a motion for reconsideration may be considered on appeal when the trial court granted the motion for reconsideration. John R. Ray & Sons, Inc. v. Stroman, 923 S.W.2d 80, 88 n. 4 (Tex.App.-Houston [14th Dist.] 1996, writ denied). Here, the trial court granted MEMC’s motion for reconsideration, specifically noting that, due to confusion concerning the submission date, it had ruled without receiving complete briefing from the parties. Therefore, to the extent the grounds MEMC discusses on appeal were raised in its motion for summary judgment or its motion for reconsideration, we will consider these on appeal. See id.

Albemarle’s Suit on the Ethyl Contract

MEMC contends the trial court erred by refusing to find Albemarle liable for fees and costs that MEMC incurred in defending against “Albemarle’s invalid claim to enforce the Ethyl contract.” Within its two issues, MEMC asserts the trial court erred by denying its motion for summary judgment and granting a take-nothing summary judgment in favor of Albemarle. MEMC asserts that the trial court erred because this Court held Albemarle’s claim for its indemnification under the Ethyl contract was a pre-Closing Date obligation and an Excluded Obligation, and “[t]his Court also found that Albemarle had breached its contractual warranties by suing on the undisclosed Ethyl Contract, which had not been assumed by MEMC.” Concerning an award of attorney’s fees, MEMC also contends the trial court erroneously stated that fees for a breach of contract were discretionary.

A. Applicable Law

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Traditional summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). The motion must state the specific grounds relied upon for summary judgment. Id. In reviewing a traditional summary judgment, we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence, 164 S.W.3d at 661. When reviewing cross-motions for summary judgment, we consider both motions and render the judgment that the trial court should have rendered. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001).

In construing a written contract, our primary concern is to ascertain the true intentions of the parties as expressed in the instrument. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). We must consider the entire writing “to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” Id. All the provisions of the contract must be considered with reference to the whole instrument and no single provision, taken alone, can be given controlling effect. Id.

B. Terms of the Asset Purchase Agreement

Section 7.3 of the Asset Purchase Agreement states,

[Albemarle’s] Agreement to Indemnify. Subject to the terms and conditions of this Article 7, [Albemarle] agrees to indemnify, defend and hold harmless MEMC and MEMC Pasadena from and against all Damages, asserted against, resulting to, imposed upon or incurred by MEMC or MEMC Pasadena, directly or indirectly (collectively, “MEMC/MEMC Pasadena Claims”), by reason of or resulting from:
(a) liabilities, obligations or claims, with respect to the Transferred Business or the Transferred Assets (whether absolute, accrued, contingent or otherwise) arising out of operations of the Transferred Business or the Transferred Assets prior to the Closing Date;
(b) liabilities with respect to Excluded Obligations;
(c) a breach of any representation, warranty or agreement of [Albemarle] contained in or made pursuant to this Agreement;
(h) any and all reasonable costs and expenses (including reasonable attorneys’, accountants’ and other professional fees and expenses) incurred by MEMC or MEMC Pasadena in connection with any Action, demand, claims, assessment or judgment incident to any of the matters indemnified against under (a) through (g) above.

In addition to Section 7.3, the Asset Purchase Agreement contains Section 3.4(b) defining Excluded Obligations and Section 3.4(a) defining Assumed Obligations. Section 3.4(b) states, “Nothing herein, however, shall be deemed to prohibit [Albemarle] from contesting in good faith whether the claim, demand or Liability is an Excluded Obligation, Assumed Obligation, or otherwise.” Section 3.4(a) provides, “MEMC Pasadena shall assume and agree and undertake in writing to pay, perform and discharge as and when due (although nothing herein shall be deemed to prohibit MEMC Pasadena from contesting in good faith any such item) the following Liabilities of [Albemarle] (collectively, “Assumed Obligations

Section 3.4, which allows the parties to contest in good faith whether an obligation is an Excluded Obligation or an Assumed Obligation, does not provide for attorney’s fees or costs for the prevailing party in the event of a lawsuit. Similarly, the Asset Purchase Agreement does not contain a section providing for attorney’s fees or costs in the event of a suit concerning the scope of the agreement or in the event of a breach of the agreement. The only section providing for attorney’s fees and costs is Section 7.3(h) within the indemnification provision.

C. Analysis of the Indemnification Agreement

MEMC contends that the trial court erred by rendering summary judgment for Albemarle because subsections (a), (b), and (c) of Section 7.3 of the Asset Purchase Agreement require Albemarle to indemnify MEMC. MEMC contends that it is entitled to attorney’s fees for defending this suit under 7.3(h) of the Asset Purchase Agreement, which provides for “any and all reasonable costs and expenses (including reasonable attorneys’, accountants’ and other professional fees and expenses)” in connection with defending a claim under subsections (a), (b), and (c) of Section 7.3.

1. Section 7.3(a) — Pre-Closing Date Obligation

MEMC contends that Section 7.3(a) applies and requires Albemarle to indemnify MEMC for Albemarle’s bringing suit for indemnification of its payment under the Ethyl contract. Specifically, Section 7.3(a) applies to “liabilities, obligations or claims, with respect to the Transferred Business or the Transferred Assets ... arising out of operations of the Transferred Business or the Transferred Assets prior to the Closing Date.” MEMC contends that this Court “found that the Ethyl Contract was a pre-Closing Date obligation” and, therefore, Albemarle must indemnify MEMC for bringing this suit for a pre-Closing Date obligation.”

MEMC misstates the applicable portion of this Court’s opinion in the prior appeal. In the prior appeal, this Court specifically stated, “We conclude that the payment made to indemnify Ethyl was not a liability, obligation or claim arising out of the operations of the plant, but rather a payment that arose out of the prior contractual relationship between Albemarle and Ethyl.” MEMC Elec. Materials, Inc., 241 S.W.3d at 76 (emphasis added). Section 7.3(a) applies to claims “arising out of operations of the Transferred Business or the Transferred Assets.” Because this Court concluded the Ethyl contract did not arise out of operations of the plant, Section 7.3(a) does not apply. The trial court properly rendered summary judgment in favor of Albemarle on this ground. We overrule this portion of MEMC’s issues.

2. Section 7.3(b) — Excluded Obligation

MEMC also contends that Section 7.3(b) applies and requires Albemarle to indemnify MEMC for Albemarle’s bringing suit for indemnification of its payment under the Ethyl contract. Section 7.3(b) requires Albemarle to indemnify MEMC for “liabilities with respect to Excluded Obligations.” In the opinion in the prior appeal, this Court did state that the Ethyl contract is an Excluded Obligation. Therefore, read in isolation, Section 7.3(b) appears to support MEMC’s contention.

However, as stated above, we cannot read a provision of a contract in isolation; we must consider the whole instrument to harmonize the provisions and ascertain the parties’ intent. See J.M. Davidson, Inc., 128 S.W.3d at 229. Here Section 3.4 of the contract specifically allows either party to contest, “in good faith,” whether a particular obligation is an Excluded Obligation or an Assumed Obligation. Albemarle expressly raised this contract provision in the summary judgment proceedings before the trial court. MEMC did not respond or otherwise address the good faith contest provisions of Section 3.4. In its order granting Albemarle’s motion, the trial court stated that both MEMC and Albe-marle had a “good faith basis” for their claims.

On appeal, MEMC contends, without citation to any relevant authority, that the Asset Purchase Agreement “afforded no excuse for Albemarle’s ‘good faith’ lawsuit,” and that “[t]o read such a ‘good faith dispute’ clause into the Asset Purchase Agreement effectively renders [the indemnity] clause meaningless.” First, we note that the Asset Purchase Agreement expressly provides for a good faith contest of whether an obligation is an Assumed Obligation or Excluded Obligation; neither the trial court nor this Court are “reading” it into the contract. Furthermore, MEMC’s arguments concerning the “good faith” provisions of the Asset Purchase Agreement are raised for the first time in its brief in this appeal. Because MEMC did not assert these arguments in its motion for summary judgment or its response to Albemarle’s motion for summary judgment, it cannot serve as a basis to reverse the trial court’s judgment. See Tex.R. Civ. P. 166a(c); McConnell, 858 S.W.2d at 341. We overrule this portion of MEMC’s issues.

3. Section 7.3(c) — Breach of Representation or Warranty

MEMC contends that Section 7.3(c) applies and requires Albemarle to indemnify MEMC for Albemarle’s bringing suit for indemnification of its payment under the Ethyl contract. Specifically, MEMC contends that the trial court “ignored the First Court’s findings that Albe-marle breached its representations and warranties.” MEMC similarly states that “this Court concluded that Albemarle had breached its contractual representations and warranties by failing to disclose the Ethyl Contract.” However, this Court did not hold that Albemarle breached any warranties under the Asset Purchase Agreement. In construing the entire Asset Purchase Agreement, this Court looked to Section 4.16 concerning Albe-marle’s representations and warranties concerning existing contracts. We noted that the Assumed Obligations did not include any undisclosed contract. In concluding the discussion concerning Section 4.16, this Court stated,

We also conclude that Albemarle failed to disclose in Section 4.16 the indemnity agreement it had with its affiliate, Ethyl. Albemarle’s failure to disclose its indemnity agreement with Ethyl suggests that MEMC was not aware of that agreement and did not obligate itself to cover any liability imposed under that agreement. We conclude that terms of Section 4.16 support MEMC’s position that it is not obligated for the indemnity agreement between Albemarle and Ethyl-

241 S.W.3d at 73. Contrary to MEMC’s assertion in this appeal, this Court did not hold Albemarle had breached a warranty, but concluded that Section 4.16 supported the conclusion that the Ethyl contract was not an Assumed Obligation. We did not address in our prior opinion whether the failure to disclose that the Ethyl contract was an existing obligation violated the agreement between MEMC and Albe-marle. Because this is the only ground asserted on the breach of warranty issue, the trial court did not err by rendering summary judgment for Albemarle on this ground. We overrule this portion of MEMC’s issues.

Having concluded the trial court properly rendered summary judgment on Section 7.3, subsections (a), (b), and (c), MEMC was not entitled to attorney’s fee under Section 7.3(h). We hold the Asset Purchase Agreement does not provide for indemnification of “good faith” claims between MEMC and Albemarle concerning the scope and meaning of the agreement. See MG Bldg. Materials, Ltd. v. Moses Lopez Custom Homes, Inc., 179 S.W.3d 51, 63 (Tex.App.-San Antonio 2005, pet. denied) (stating indemnity agreements generally relate to claims brought by third-parties and “do[ ] not apply to claims between the parties to the agreement”).

D. Breach of Contract

As noted in the discussion of Section 7.3(c) above, MEMC contends that the trial court erred by rendering summary judgment in favor of Albemarle when it “ignored the First Court’s findings that Albemarle breached its representations and warranties.” As discussed above, MEMC misstates the opinion in the prior appeal. Therefore, the trial court did not err by rendering summary judgment for Albemarle on this ground.

MEMC also contends that trial court erred because it stated the award of attorney’s fees for breach of contract under section 38.001 of the Civil Practice and Remedies Code is discretionary. See Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8) (Vernon 2008). Section 38.001 provides for attorney’s fees for a prevailing party in a breach of contract case. See id.; see also Hassell Constr. Co. v. Stature Commercial Co., 162 S.W.3d 664, 668 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (holding award of attorney’s fees to party prevailing on contract claim is mandatory under section 38.001 if there is proof of the reasonableness of the fees). Because we conclude the trial court properly denied MEMC’s motion for summary judgment on its breach of contract claim, MEMC was not entitled to attorney’s fees. See Stevens v. Anatolian Shepherd Dog Club of Am., Inc., 231 S.W.3d 71, 77 (Tex.App.Houston [14th Dist.] 2007, pet. denied) (stating to obtain attorney’s fees party must both prevail and recover damages). Therefore, the error, if any, in the trial court’s treating attorney’s fees under section 38.001 as discretionary is harmless.

Damewood Litigation

In the second portion of its appellate brief, MEMC contends the trial court erred in refusing to award MEMC the fees and costs incurred in defending against the Damewood litigation as well. Specifically, MEMC contends it is entitled to indemnity for the Damewood litigation because Section 3.4(b)(vii) of the Asset Purchase Agreement provides that “any Liabilities of Seller relating to Employees” are Excluded Obligations. We have reviewed both MEMC’s motion for summary judgment and its motion for reconsideration and this ground is not mentioned in either motion. Therefore, it may not serve as a basis to reverse the trial court’s judgment. See Tex.R. Civ. P. 166a(c); McConnell, 858 S.W.2d at 341.

Conclusion

We overrule MEMC’s two issues. We affirm the judgment of the trial court.

      . In Larry Damewood, Gary Woodard, and Roy Moss v. Ethyl Corporation, Cause No. 96-38521, in the 189th District Court of Harris County, Texas, three injured Albemarle employees sued Ethyl, Albemarle’s parent corporation and MEMC, among others, for injuries sustained in a fire at Albemarle’s plant.


author: GEORGE C. HANKS, JR., Justice.

text:
    Ramona BLACK, Appellant, v. WASHINGTON MUTUAL BANK, Servicing Agent, Appellee.
    No. 01-09-00151-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 13, 2010.
    Rehearing Overruled July 27, 2010.

      L. Mickele’ Daniels, L. Mickele’ Daniels & Associates, Houston, TX, for Appellant.
    John J. O’Boyle Jr., Dallas, TX, William D. Kee III, Sugar Land, TX, for Appellee.
    Panel consists of Justices KEYES, HANKS, and HIGLEY.
   OPINION

GEORGE C. HANKS, JR., Justice.

Appellee, Washington Mutual Bank (“Washington Mutual”), brought a forcible detainer action in justice court seeking possession of property located at 15921 Stone Oak Estates Court, Cypress, Texas (“property”). The justice court issued a judgment in favor of the defendant, the occupant of the property, Ramona Black, denying Washington Mutual possession of the property. On de novo review in County Civil Court of Law N umber 3, Washington Mutual received a writ of possession in its favor.

In her single issue on appeal, Black argues that the justice court and the county court of law lacked subject-matter jurisdiction to decide the issue of immediate possession because the issue necessarily required the determination of ownership of the property, which was outside the courts’ jurisdiction. We affirm.

BACKGROUND

Jon Lundy was the title owner of the property. On September 29, 2006, Lundy executed a deed of trust for the benefit of lien holder, Washington Mutual, to secure a note for a principal amount of $1,040,000. Pursuant to the agreement, Lundy was to make monthly payments on the lien.

On November 16, 2006, Lundy conveyed the property by quitclaim deed to Black. Black testified that in exchange for the quitclaim deed, she paid Lundy a down payment of $100,000 and monthly payments of $8,500. Black testified that she was not aware that there was a lien on the property. About a year after entering into the agreement to purchase the property, Black received a phone call from Lundy telling her that he “need[ed] to do something with the lender or bank” and “he needed [her] to go and release the property but he would give it back to [her].” Black signed the deed giving the property back to Lundy. Lundy did not transfer the property back to Black, and Black never heard from Lundy again.

After Lundy’s purported default on the note, Washington Mutual foreclosed on the property. Pursuant to the deed of trust securing the note, a substitute trustee was appointed to sell the property. Black testified that she received notice of the foreclosure. On November 4, 2008, the property was sold to Washington Mutual for $1,262,706.20. On November 11, 2008, Washington Mutual notified the occupants of the property that it had acquired title at the foreclosure sale, that any occupants were tenants-at-sufferance pursuant to the deed of trust originally signed by Lundy, and that it intended to obtain possession by a forcible detainer suit.

SUBJECT-MATTER JURISDICTION

In her sole issue, Black argues the justice and county courts lacked subject-matter jurisdiction over the suit because resolution of the issue of the right to immediate possession necessarily required determination of the title to the property.

A. Standard of Review

Whether a court has subject-matter jurisdiction is a question of law, subject to de novo review. Graber v. Fuqua, 279 S.W.3d 608, 681 (Tex.2009), cert. denied, — U.S. -, 180 S.Ct. 288, 175 L.Ed.2d 136 (2009) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)). Subject-matter jurisdiction is fundamental and may be raised for the first time on appeal. Tex. Assoc. of Bus. v. Tex. Air Control BcL, 852 S.W.2d 440, 445 (Tex.1993).

B. Applicable Law

A justice court in the precinct in which real property is located has jurisdiction over a forcible detainer suit. See Tex. Prop.Code Ann. § 24.004 (Vernon 2000); Tex. Gov’t Code Ann. § 27.031(a)(2) (Vernon Supp.2009). The sole issue to be determined in a forcible detainer action is the entitlement to actual and immediate possession, and the merits of the title shall not be adjudicated. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex.App.-Houston [1st Dist.] 2007, no pet.); Dass, Inc. v. Smith, 206 S.W.3d 197, 200 (Tex.App.-Dallas 2006, no pet.). A justice court is expressly deprived of jurisdiction to determine or adjudicate title to land. See Tex. Gov’t Code Ann. § 27.031(b).

A forcible detainer suit may be appealed to the county court for a de novo review. Tex.R. Civ. P. 749; Hong Kong, 229 S.W.3d at 433-34. The appellate jurisdiction of the county court is confined to the jurisdictional limits of the justice court. Hong Kong, 229 S.W.3d at 434. Accordingly, when a county court conducts a de novo review of a forcible detainer action, the court is restricted to the jurisdictional limits that existed in the justice court, regardless of other statutory grants of jurisdiction to the county court.

Although a justice court has subject-matter jurisdiction over a forcible de-tainer action, the justice court, and a county court on appeal, lack jurisdiction to resolve any questions of title beyond the immediate right to possession. See Merit Mgmt. Partners I, L.P. v. Noelke, 266 S.W.3d 637, 643 (Tex.App.-Austin 2008, no pet.). On the other hand, a justice court is not deprived of jurisdiction merely by the existence of a title dispute; rather, it is only deprived of jurisdiction if the right to immediate possession necessarily requires the resolution of a title dispute. Rice v. Pinney, 51 S.W.3d 705, 712 (Tex.App.-Dallas 2001, no pet.). Courts have specifically addressed whether a justice court has jurisdiction over a forcible detainer .suit where the case also involves a dispute .over a trustee’s deed conveying property purchased at a foreclosure sale. Courts have explained:

“[A] judgment of possession in a forcible detainer action is a determination only of the right to immediate possession of the premises, and does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question.... [Parties] have the right to sue in the district court to determine whether the trustee’s deed should be cancelled, independent of [the] award of possession of the premises in the forcible detainer action [.]

Id. at 710 (quoting Martinez v. Beasley, 572 S.W.2d 83, 85 (Tex.Civ.App.-Corpus Christi 1978, no writ.)) (emphasis in original). “To prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession.” Id. at 709. The Rice court held that there was an “independent basis on which the trial court could determine the issue of immediate possession without resolving the issue of title to the property,” where a deed of trust established a landlord and tenant-at-sufferance relationship between the purchaser at the foreclosure sale and the previous owners or those holding under them. Id. at 712.

In determining whether a lawsuit involves the adjudication of title, we are not limited to the plaintiff’s framing of the causes of action in his pleadings but, instead, look to the “gist” of the case after reviewing the plaintiffs pleadings, the answer, and the presentation of evidence. Merit Mgmt., 266 S.W.3d at 647 (citing Galley v. Hedrick, 127 S.W.2d 978, 982 (Tex.Civ.App.-Amarillo 1939, no writ)).

C. Analysis

Here, the claim of right to immediate possession was based on Washington Mutual’s purchase of the property at a foreclosure sale. The foreclosure was based on Lundy’s default on a note secured by a deed of trust on the property in question. The Deed of Trust executed pursuant to the lien agreement provides:

If the property is sold pursuant to [a power of sale after acceleration following default], Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession.

(Emphasis added.)

As in Rice, the terms of the deed of trust expressly create a landlord and tenant-at-sufferance relationship between Black (the person holding possession through the borrower) and Washington Mutual. See Rice, 51 S.W.3d at 712. Like Rice, the court had evidence before it, including the deed of trust, the substitute trustee’s foreclosure sale deed, and related documents establishing default on the note, a notice of eviction, the foreclosure pursuant to the deed of trust, and the sale of the property to Washington Mutual. See id. at 711. Based on this evidence, it was unnecessary for the trial court to determine the issue of title to the property. See id. The trial court merely determined that Washington Mutual was entitled to immediate possession, as grantee in the trustee’s deed. Id.

Black argues that the granting of a quitclaim deed from Lundy granted her “equitable title” and a greater right of possession than Washington Mutual. However, a quitclaim deed, by its very nature, only transfers the grantor’s right in that property, if any, without warranting or professing that the title is valid. Geodyne Energy Income Prod. P’ship I-E v. Newton Corp., 161 S.W.3d 482, 486 n. 12 (Tex.2005). Thus, Black took the property subject to the terms of the deed of trust, which allow foreclosure. Further, Black admitted at trial that she did not have title at the time of sale because she conveyed her interest back to Lundy. Black fails to include in her analysis how her conveyance of the property back to Lundy affected her claimed “equitable title.” While Black may seek recourse against Lundy independent of the forcible detainer suit, her argument has no bearing on the determination of immediate right of possession.

Accordingly, the justice court, and the county court on appeal, had subject-matter jurisdiction to determine the right to immediate possession of the property. We overrule Black’s sole issue.

CONCLUSION

We affirm the judgment of the county court at law.

      . For instance, the Government Code statutorily provides county courts of law in Harris County with jurisdiction to decide the issue of title to real property. Tex. Gov't Code Ann. § 25.1032(c)(1) (Vernon 2004). However, when exercising its appellate jurisdiction over a civil case from justice court, the county courts of law are limited to the jurisdiction of the justice court. See Hong Kong, 229 S.W.3d at 434.

      . Black argues that the justice court, or county court on appeal, cannot rely on Washington Mutual’s warranty deed alone to determine who is entitled to immediate possession. However, Black misrepresents the record to the extent that she asserts that the warranty deed was the sole piece of evidence supporting the right to possession.

      . "Forcible detainer actions are cumulative of any other remedy that a party may have in the courts of this state.” Salaymeh v. Plaza Centro, L.L.C., 264 S.W.3d 431, 436 (Tex.App.Houston [14th Dist.] 2008, no pet.) (citing Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 818-19 (1936)).


author: JAMES T. CAMPBELL, Justice.

text:
    Jon JONES, Appellant, v. Amado Z. MORALES, Appellee.
    No. 07-08-00367-CV.
    Court of Appeals of Texas, Amarillo, Panel B.
    May 21, 2010.
    Rehearing Overruled Aug. 2, 2010.

      Gary M. Bellair, Craig, Terrill, Hale & Grantham, L.L.P., Lubbock, TX, for Appellant.
    Paul E. Mansur, Attorney at Law, Denver City, TX, for Appellee.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

In this appeal of an election contest, appellant and contestee below Jon Jones asks us to reverse the trial court’s judgment finding appellee and contestant below Amado Morales the winner of the November 2006 general election for Floyd County commissioner precinct four, and render judgment declaring Jones the winner. Finding the trial court did not abuse its discretion in adjudging Morales the winner, we will affirm its judgment.

Background

The outcome of the commissioner’s race between Jones and Morales was close. The initial canvas showed Jones the winner by three votes. Morales requested a recount which tallied Jones the winner by four votes. Morales then filed the underlying election contest in December 2006. According to Morales’s petition, the county’s early voting ballot board wrongly rejected “5-7 mail-in ballots.” The issues for Morales at trial devolved to whether the ballot board incorrectly rejected the mail-in ballots of voters Maldonado, De Los Santos, Castillo, Olivo, and Vargas and whether two voters were wrongly denied precinct four ballots. Each of the uncounted voters voted for Morales. Trial began in June 2008 but was recessed until September because Vargas was hospitalized. Judgment was for Morales as the court concluded the votes of the uncounted voters should have been included in the total and this omission materially affected the outcome of the election. Thus Morales was adjudged winner of the election by one vote. This appeal followed.

Issue

Jones argues the trial court abused its discretion by rendering judgment for Morales. Through multiple sub-issues he contends the uncounted voters did not properly execute documents required for voting by mail, Maldonado received improper assistance voting by mail, the ballot of De Los Santos was improperly transported to the early voting clerk, and his motion to dismiss for want of prosecution was improperly denied. By cross-issue, Morales argues the trial court abused its discretion by failing to find two voters were improperly denied precinct four ballots.

Analysis

Appellate Jurisdiction

In the trial court, Jones filed a motion to dismiss the case for want of prosecution. The clerk’s record contains an “Order Granting Motion to Dismiss” signed December 20, 2007, a judgment signed September 19, 2008, and Jones’s notice of appeal filed on September 19. If the case was dismissed for want of prosecution on December 20, we lack appellate jurisdiction. See Tex.R.App. P. 26.1 & 26.3. Therefore, on our own motion, we first consider our jurisdiction of this appeal. See Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex.App.Amarillo 1995, no writ) (appellate court required to consider its jurisdiction sua sponte if necessary).

In the course of discovery, Morales filed a motion to compel the county clerk to produce the ballots rejected by the ballot board. Jones responded with a motion to dismiss the case for want of prosecution. On December 20, 2007, the trial court heard the motion. The court was presented an order containing language granting the motion and ordering that Morales take nothing. By pen and ink, the trial court struck out the word “granted” and wrote “denied” immediately above. But the court left undisturbed the sentence ordering that Morales take nothing, and signed the order. Thus the order purports to deny the motion to dismiss but concludes with language ordering the relief requested. Given this conflict in the order’s language, we must determine whether the order is ambiguous and if so the intention of the trial court.

“The same rules of interpretation apply in construing the meaning of court orders as in ascertaining the meaning of other written instruments.” Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 474 (Tex.App.-Fort Worth 2007, no pet.). A court may consider on its own motion whether a document is ambiguous. In re Golden Peanut Co., LLC, 269 S.W.3d 302, 313-14 (Tex.App.-Eastland 2008, orig. proceeding). Whether a document is ambiguous is a question of law. Tuthill v. Southwestern Public Service Co., 614 S.W.2d 205, 211 (Tex.Civ.App.-Amarillo 1981, writ ref'd n.r.e.). A document is not ambiguous if as worded it can be given a definite or certain legal meaning. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). But a document is ambiguous if its meaning is reasonably susceptible to two or more reasonable interpretations. Id.

We find the December 20 order ambiguous. On one hand, it denies the underlying motion to dismiss for want of prosecution. But on the other, it contains language finally disposing of the case.

Further, because the order was not produced following a conventional trial on the merits, we do not presume its finality. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199 (Tex.2001). Rather, following summary disposition when finality is not clear we look to the order and the record to determine finality. Id. at 195. And from the record our inquiry is satisfied. At the hearing on the motion to dismiss, after the parties’ presentations and in open court, the trial judge orally rendered an order denying Jones’s motion to dismiss. It then took up the motion to compel, which was granted by an order signed some twenty days later. On April 25, the court set the case for trial and trial began on June 24. The case proceeded to final judgment without recorded comment by the court or the parties regarding the effect of the December 20 order. The only reasonable interpretation of the December 20 order is denial of Jones’s motion to dismiss. The notice of appeal Jones filed following final judgment was timely. We have jurisdiction of the appeal.

Whether Voting Irregularities Materially Affected the Election Results.

“To overturn an election, the contestant has the burden of proving by clear and convincing evidence that voting irregularities materially affected the election results.” Tiller v. Martinez, 974 S.W.2d 769, 772 (Tex.App.-San Antonio 1998, pet. dism’d w.o.j.) (citing Alvarez v. Espinoza, 844 S.W.2d 238, 242 (Tex.App.-San Antonio 1992, writ dism’d w.o.j.), and Guerra v. Garza, 865 S.W.2d 573, 576 (Tex.App.-Corpus Christi 1993, writ dism’d w.o.j.)). “To prove that the outcome was materially affected, the contestant must show that illegal votes were counted or an election official prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud, illegal conduct, or mistake.” Tiller, 974 S.W.2d at 772 (citing Tex. Elec. Code Ann. § 221.003 (Vernon 1986) and Alvarez, 844 S.W.2d at 242).

“The standard of review in an appeal from a judgment in an election contest is a determination whether the trial court abused its discretion.” Tiller, 974 S.W.2d at 772. A trial court abuses its discretion when it acts “without reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

The sufficiency of evidence supporting a trial court’s finding of fact may be a relevant factor in determining whether the court abused its discretion. In re C.J.H., 79 S.W.3d 698, 702 (Tex.App.-Fort Worth 2002, no pet.) (citing Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex. 1991)). In a non-jury case, when the appellate record includes both findings of fact and conclusions of law and a reporter’s record, we review the sufficiency of the evidence under the same standards applied in cases tried by jury. Slusher v. Streater, 896 S.W.2d 239, 241 (Tex.App.Houston [1st Dist.] 1995, no writ). In reviewing the legal sufficiency of the evidence under a clear and convincing standard, we look at all the evidence, in the light most favorable to the judgment, to determine if the trier of fact could reasonably have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.2002). We presume that the trier of fact resolved disputed facts in favor of its findings if a reasonable trier of fact could do so. Id. We disregard any contrary evidence if a reasonable trier of fact could do so, but we do not disregard undisputed facts. In re J.L., 163 S.W.3d 79, 85 (Tex.2005).

Irregularity of Signatures

Voting early by mail requires a voter to apply in writing for a ballot and then mail the completed ballot to the election clerk in an official carrier envelope bearing the signature of the voter. Alvarez, 844 S.W.2d at 244; Tex. Elec.Code Ann. § 86.005(c) (Vernon 2010). The ballot board may accept a ballot voted early by mail “only if: ... neither the voter’s signature on the ballot application nor the signature on the carrier envelope certificate is determined to have been executed by a person other than the voter, unless signed by a witness;.... ” Tex. Elec.Code Ann. § 87.041(b)(2) (Vernon 2010). The law thus requires those who vote early by mail to sign both the application and the carrier envelope. Alvarez, 844 S.W.2d at 245.

When a contestant challenges a ballot board’s rejection of a ballot, the ballot board is presumed to have acted properly and it is the contestant’s burden to show by clear and convincing evidence the board erred. Alvarez, 844 S.W.2d at 244-45; see Tiller, 974 S.W.2d at 773-74 (when contestant contends election judge rejected votes that should have been accepted, rule has long presumed that each rejected ballot was cast by an illegal voter). Discharging this burden requires the contestant to show the challenged voter was legally qualified to vote, and the ballot was properly cast. Tiller, 974 S.W.2d at 774; Alvarez, 844 S.W.2d at 244. But if a ballot was rejected for a reason unrelated to the voter’s qualification, it is unnecessary for the contestant to prove the qualification of the challenged voter. Tiller, 974 S.W.2d at 774; Alvarez, 844 S.W.2d at 244.

The ballot board acts on the basis of the signatures before it. Alvarez, 844 S.W.2d at 245. The Election Code does not require the board to make inquiry of voters whose signatures do not match. Id. But in an election contest based on ballots the ballot board rejected on the ground of signature deficiency, the district court may receive oral testimony from the voter or other witnesses regarding the similarity of the signatures and may compare the signatures. Tiller, 974 S.W.2d at 777; Alvarez, 844 S.W.2d at 245. The court may rely on its own comparison without the aid of expert testimony. Tiller, 974 S.W.2d at 777; Alvarez, 844 S.W.2d at 245.

Here, each of the uncounted voters testified. Each averred they signed the application and carrier envelope, or in the case of Maldonado, marked the required signatory lines with a witnessed “X.” As the trial court candidly told counsel at closing argument, the question of signature legitimacy presented a classic fact issue between the uncounted voters’ testimony and Jones’s expert who found a signature discrepancy in the case of each uncounted voter. The trial court resolved the issue in favor of Morales. In so doing, it was the exclusive judge of the credibility of the witnesses, and the weight to be given their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005). It observed and was free to take into account the candor and demeanor of the witnesses. It also was free to make its own evaluation of the signatures on the voters’ applications and ballot envelopes in light of the testimony. Tiller, 974 S.W.2d at 777; Alvarez, 844 S.W.2d at 245 During its oral rendition of judgment, the trial court noted that “due to their infirmities,” he doubted most of the uncounted voters “would sign their signature[s] the same twice.” Implicit in the judgment of the trial court is the determination that each of the uncounted voters properly signed the application for ballot by mail and carrier envelope. The court heard testimony that, if believed, permitted it to form a firm belief or conviction that its finding was trae. The law does not allow us to disturb the trial court’s credibility determinations. City of Keller, 168 S.W.3d at 819. We conclude the trial court did not abuse its discretion in sustaining Morales’s contest as to the votes of the uncounted voters.

Improper Voter Assistance

We turn now to Jones’s affirmative claim that illegal ballots were cast for Morales and these ballots should be excluded from the final count. Jones argues that Maldonado received illegal assistance from Morales.

A voter who is unable to write or see due to a physical disability or who is unable to read the language of the ballot is eligible for assistance marking the ballot. Tex. Elec.Code Ann. § 64.031, 86.010(a) (Vernon 2010). A voter may be assisted in marking the ballot by a person of the voter’s selection other than the voter’s employer, an agent of the voter’s employer, or an officer or agent of a labor union to which the voter belongs. Tex. Elec.Code Ann. § 64.032(c) (Vernon 2010). A person voting by mail may receive no greater assistance than a person voting at a polling place. Tex. Elec.Code Ann. § 86.010(b) (Vernon 2010). For purposes of § 86.010, assisting a voter with a mail-in ballot, in the presence of the ballot or carrier envelope, includes reading the ballot to the voter, directing the voter to read the ballot, marking the ballot, or directing the voter to mark the ballot. Tex. Elec.Code Ann. § 64.0321 (Vernon 2010). A person assisting the voter to prepare a ballot must provide his name, address and signature on the carrier envelope. Tex. Elec.Code Ann. § 86.013(c) (Vernon 2010). The assistant must also sign the oath prescribed in § 64.034 included on the carrier envelope. Tex. Elec.Code Ann. § 86.010(c), 86.013(f) (Vernon 2010).

In its findings of fact, the trial court found each uncounted voter “was either of advanced age or exhibited an obvious impediment or infirmity.” Each testified briefly. Maldonado, age eighty-eight, testified through an interpreter. Maldonado testified she signed the application for ballot by mail and the ballot with an “X.” Her son witnessed her sign the application and her daughter witnessed her sign the ballot. On cross-examination, Maldonado was uncertain whether Morales or one of Maldonado’s daughters helped her complete the application. When asked what role Morales played in assisting her to vote she responded, “Well, he — the role is that he came to my house, and my daughters were there and they helped me, but he also helped me.” Neither party questioned Maldonado further and Morales did not testify. Thus it is impossible to ascertain what assistance Morales provided Maldonado. Maldonado’s carrier envelope does not identify Morales as her assistant.

Jones points out that in Tiller the court found the trial court abused its discretion by validating the ballot of assisted voter Trevino whose carrier envelope certificate was not properly executed. 974 S.W.2d at 775. According to Tiller, “If the person assisting the voter fails to sign the carrier envelope certificate, the ballot shall not be counted. See Tex. Elec.Code Ann. § 86.005, 86.010(b), 86.012, 86.013(c) (Vernon Supp. 1998).” Tiller, 974 S.W.2d at 775. After review of the cited sections of the Election Code, including the 2003 amendments to those sections, we find ourselves in disagreement on this point with our sister court. Neither in the cited sections nor elsewhere in the Election Code can we see a legislative determination that a failure of a voter’s assistant to complete the required information on the carrier envelope requires rejection of the voter’s ballot. As noted, statute expressly provides that the ballot of a voter who is assisted in violation of subsections (a) or (b) of § 86.010 may not be counted, but the legislature has not disqualified the ballot of a person whose assistant fails to sign the oath, or provide his name and address, on the carrier envelope. Tex. Elec.Code Ann. § 86.010(d) (Vernon 2010).

Long-settled rules of statutory construction restrain us from reading words into the language chosen by the legislature:

[Ejvery word of a statute must be presumed to have been used for a purpose. Likewise, we believe every word excluded from a statute must also be presumed to have been excluded for a purpose. This rule complements another general statutory construction principle that courts should not insert words in a statute except to give effect to clear legislative intent.

In re Bell, 91 S.W.3d 784, 790 (Tex.2002) (citations omitted). See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981) (additional language is read into a statute “only when it is necessary to give effect to the clear legislative intent”). The legislature expressly has provided that some actions require a voter’s ballot to be excluded, and we decline to add to the legislature’s expressed list.

That it was Morales, a candidate, who provided some assistance to Maldonado does not require a different conclusion. The legislature has prescribed the class of individuals a voter may not select to assist the voter in marking the ballot, and the excluded individuals does not include a candidate. See § 64.032(c) (providing on voter’s request, voter may be assisted by any person selected by voter other than the voter’s employer, an agent of the voter’s employer, or an officer or agent of a labor union to which the voter belongs); § 86.010(a) (limiting persons who may assist voter casting ballot by mail to those provided by § 64.032(c)).

Our review of the Election Code requires the conclusion Morales’s failure to provide the required information and sign on the carrier envelope does not alone exclude Maldonado’s ballot from the count of votes cast. Maldonado was entitled to no greater assistance than had she voted at the polling place. Tex. Elec.Code Ann. 86.010(b) (Vernon 2010). The trial court did not abuse its discretion by not rejecting Maldonado’s ballot for assertedly improper assistance.

Improper Transport of Ballot

Jones next argues the mail-in ballot of uncounted voter De Los Santos was improperly transported to the early voting clerk. Thus, he continues, the trial court abused its discretion in validating the ballot.

On direct examination of De Los Santos, age sixty-seven, the following exchange occurred:

Q. Did you [cast your vote] by mail-in ballot, sir?
A. I don’t remember. I think I got it in the mail, and then I sign it and someone pick it up, I think. I think that’s the way it happened.

A voter voting by mail must place the marked ballot in the official ballot envelope, seal the ballot envelope, place the ballot envelope in the official carrier envelope, seal the carrier envelope, and sign the certificate on the carrier envelope. Tex. Elec.Code Ann. § 86.005(c) (Vernon 2010). A person other than the voter who deposits the carrier envelope in the mail or with a common or contract carrier must provide the person’s signature, printed name, and residence address on the reverse side of the envelope. Tex. Elec.Code Ann. § 86.0051 (Vernon 2010). The carrier envelope may be transported and delivered to the early voting clerk only by mail or common or contract carrier. Tex. Elec. Code Ann. 86.006(a) (Vernon 2010). A ballot returned in violation of § 86.006 may not be counted. See Tex. Elec.Code Ann. § 86.006(h) (Vernon 2010).

County Clerk Marilyn Holcomb testified she was overseer of the 2006 general election. Addressing the procedure applied to mail-in ballots, Holcomb testified that the ballots rejected by the ballot board were each returned by mail. On this record, we see no abuse of discretion in the trial court’s refusal to reject the ballot of De Los Santos for its asserted improper transport.

Motion to Dismiss for Want of Prosecution

Jones next argues the trial court abused its discretion by denying his motion to dismiss the case for want of prosecution.

A trial court is empowered to dismiss a case for want of prosecution either under Texas Rule of Civil Procedure 165a or its inherent power to control its docket. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999). We review a trial court’s ruling on a motion to dismiss for want of prosecution by the abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.1997).

Citing Rule 6 of the Texas Rules of Judicial Administration, Jones argues public policy favors prompt disposition of civil non-jury cases. In non-jury cases, district court judges “should, so far as reasonably possible, ensure that all” non-family law civil “cases are brought to trial or final disposition ... [w]ithin 12 months from appearance date.” Tex.R. Jud. Admin. 6(b)(2), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F-Appendix (Vernon Supp. 2009). According to Rule 1 of the rules of judicial administration, the rules are promulgated pursuant to § 74.024 of the Government Code. Id. at Rule 1. Section 74.024 provides “the supreme court may consider the adoption of rules relating to: (1) nonbinding time standards for pleading, discovery, motions, and dispositions; (2) nonbinding dismissal of inactive cases from dockets, if the dismissal is warranted;.... ” Tex. Gov’t Code Ann. § 74.024(c)(1),(2) (Vernon Supp. 2009). Thus, the application of Rule 6 is discretionary and non-binding. See In re S.D.W., 811 S.W.2d 739, 746 (Tex.App.Houston [1st Dist.] 1991, no writ) (juvenile case). Moreover, circumstances may preclude adherence to the standards under especially complex cases or those presenting special circumstances. Tex.R. Jud. Admin. 6(e), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F-Appendix (Vernon Supp. 2009). Thus, Rule 6 does not fix a bright line demarking the outward limit of a trial court’s discretion to control its docket.

In the trial court, Morales argued delay sprang in part from assignment of the case to an appointed judge. But we find no record support for the claim. Rather, the record shows limited pretrial activity. Jones served requests for disclosure with his original answer on December 14, 2006. Morales deposed Holcomb in February 2007 but she refused to produce rejected ballots without an order of the court. In June, Holcomb, her counsel, and counsel for the parties reviewed documents in Holcomb’s possession. She again refused to produce the rejected ballots. On December 11, Morales filed a motion to compel production of the rejected ballots. Jones responded and moved for dismissal for want of prosecution under the court’s inherent authority. By written response, Morales argued he did not receive advance notice of the trial court’s intention to dismiss for want of prosecution and because the contest was not of a primary election or a general or special election requiring a runoff, the Election Code did not require an accelerated schedule. See Tex. Elec. Code Ann. § 282.012 (Vernon 2010). At the hearing, the trial court expressed its cognizance of Jones’s contention and indicated the case probably should have been brought to trial more quickly. But it resolved the issue in favor of allowing the case to proceed. Jones reurged his motion on the first day of trial and it was again denied.

A trial court abuses its discretion when it acts without reference to any guiding rules or principles, not when it exercises that discretion in a manner different than a reviewing appellate court might. Urbanczyk v. Urbanczyk, 278 S.W.3d 829, 836 (Tex.App.-Amarillo 2009, no pet.) (citing Downer, 701 S.W.2d at 241-42). Under the standard by which we must review the trial court’s decision, we cannot say it abused its discretion by denying Jones’s motion to dismiss for want of prosecution.

Conclusion

Finding the trial court did not abuse its discretion in sustaining Morales’s contest and denying Jones’s motion to dismiss, we affirm the judgment of the trial court. Because of our disposition, it is unnecessary to consider Morales’s cross-issue that two voters were improperly denied precinct four ballots. See Tex.RApp. P. 47.1.

      . The Election Code requires creation of an early voting ballot board and empowers it to screen early voting ballots. See Tex. Elec. Code Ann. § 87.001-.005 & 87.041 (Vernon 2010). We will cite the current version of the Election Code unless otherwise indicated.

      . In its findings of fact and conclusions of law, the trial court collectively identified Maldonado, De Los Santos, Castillo, Olivo, and Vargas as "the uncounted voters.” We also refer to them collectively in that manner.

      . A "qualified voter” is a voter who: (1) is age 18 years or older; (2) is a United States citizen; (3) has not been finally adjudged by a court exercising probate jurisdiction totally mentally incapacitated or partially mentally incapacitated without the right to vote; (4) has not been finally convicted of a felony, or if so has satisfied enumerated requirements; (5) is a resident of this state; and (6) is a registered voter. Tex. Elec. Code Ann. § 11.002 (Vernon 2010).

      . On appeal, Jones argues Morales failed to proffer clear and convincing proof that the uncounted voters were legally qualified to vote. However, there is no record indication that this issue was raised and joined for trial. The record does not indicate the ballot board rejected any uncounted voter for lack of qualification. The trial court and parties tried the case with the burden of proof allocated to Morales to establish that each of the uncounted voters signed their mail-in ballot application and ballot carrier envelope.

      . Maldonado’s carrier envelope contains the following printed oath for a person assisting the voter:
      I swear (or affirm) that I will not suggest by word, sign, or gesture how the voter shall vote; I will confine my assistance to answering the voter’s questions, to stating propositions on the ballot, and to naming candidate (sic) and, if listed, their political parties; and I will prepare the voter’s ballot as the voter directs.


author: Justice MYERS.

text:
    In re CLASSIC OPENINGS, INC., Relator.
    No. 05-10-00421-CV.
    Court of Appeals of Texas, Dallas.
    May 24, 2010.

      Kent F. Brooks, Law Office of Kent F. Brooks, J. Richard Tubb, Dallas, for Relator.
    Michael Barrett Jones, The Wolf Law Firm, P.C., Southlake, for Real Party in Interest.
    Before Justices BRIDGES, LANG, and MYERS.
   OPINION ON REHEARING

Opinion By

Justice MYERS.

On the Court’s own motion, by order dated May 12, 2010, we withdrew our opinion of May 11, 2010 and vacated our order of that date. The following is now the opinion of the Court.

This mandamus proceeding involves a suit brought by real party in interest Gary Sayre against relator Classic Openings, Inc. for breach of contract, deceptive trade practices, and breach of express and implied warranties after Classic Openings replaced windows and doors in Sayre’s residence. Classic Openings claims the trial court abused its discretion by failing to abate the case under the Residential Construction Liability Act (RCLA). See Tex. PROP.Code Ann. § 27.004(d) (Vernon Supp. 2009). We conditionally grant the writ.

Although Sayre contends the RCLA does not apply to his claims because he is not seeking damages under that act, section 27.002 of the Texas Property Code provides that the RCLA applies to “any action to recover damages or other relief arising from a construction defect, except a claim for personal injury, survival, or wrongful death or for damage to goods.” Tex. Prop.Code Ann. § 27.002(a)(1) (Vernon Supp. 2009). A “construction defect” includes “an alteration of or repair or addition to an existing residence ... on which a person has a complaint against a contractor.” Tex. Prop.Code Ann. § 27.001(4) (Vernon Supp. 2009). In his second amended petition, Sayre alleged Classic Openings overcharged for improper windows and the incorrect configuration of three doors. These allegations are a complaint against a contractor regarding the alteration or repair of an existing residence. Thus, Sayre’s allegations fall within the RCLA. Consequently, Sayre was required to give Classic Openings written notice of the defect sixty days before filing suit. See Tex. Prop.Code Ann. § 27.004(a). Sayre’s notice of deceptive trade practices does not suffice to provide Classic Openings with the specific notice required under the RCLA. Therefore, we conclude the trial court abused its discretion in ruling otherwise. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

When, as here, an act contains a notice provision that is a mandatory prerequisite to filing suit, and the trial court fails to abate the suit, an appeal is inadequate and review by mandamus is appropriate. See In re Kimball Hill Homes Texas, Inc., 969 S.W.2d 522, 525 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding).

We conditionally grant Classic Openings’s petition for writ of mandamus. A writ will issue only in the event the trial court fails to vacate its April 7, 2010 order denying Classic Openings’s motion to abate and to enter an order granting the motion.