source: Caselaw Access Project

author: SANDEE BRYAN MARION, Justice.

license: Public Domain

text:
    J.B. HUNT TRANSPORT, INC., Appellants, v. Terri HARTMAN, et al., Appellees. In re J.B. Hunt Transport, Inc.
    Nos. 04-09-00310-CV, 04-09-00369-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 20, 2010.

      E. John Gorman, Ronald L. Bair, Bair Hilty, P.C., Houston, TX, for Appellants.
    David T. Bright, Watts Guerra Craft, L.L.P., Corpus Christi, TX, Mikal C. Watts, Watts Law Firm L.L.P., Joseph M. Dunn, David L. Rumley, Dennis Richard, Wigington Rumley Dunn, L.L.P., San Antonio, TX, Chris Pearson, Lacy L. Leonard, Clark, Thomas & Winters, Austin, TX, Baldemar F. Gutierrez, Law Office of Baldemar Gutierrez, P.C., Alice, TX, for Appellees.
    Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

In these consolidated proceedings, J.B. Hunt Transport, Inc. (“J.B. Hunt”) complains of the trial court’s May 21, 2009 order denying its motion to compel arbitration. We dismiss J.B. Hunt’s interlocutory appeal for lack of jurisdiction and conditionally grant the petition for writ of mandamus.

BACKGROUND

The underlying dispute arose out of a wrongful death claim filed after Mr. Gary Pilat was killed in a car accident while driving a truck owned by J.B. Hunt, his employer. J.B. Hunt provided its employees a benefits plan, entitled “J.B. Hunt Texas Injury Benefit Plan Summary Plan Description” (hereinafter “Benefit Plan”). The Benefit Plan provides that in the event an employee dies as a result of an on the job injury, J.B. Hunt will pay the employee’s beneficiary $100,000 in death benefits and will reimburse funeral expenses up to $6,000 to any one who incurs them. On June 2, 2004, Mr. Pilat signed the Benefit Plan. Included in the Benefit Plan is an arbitration agreement which provides as follows:

All claims or disputes described below that cannot otherwise be resolved between the Company and you are subject to final and binding arbitration. This binding arbitration is the only method for resolving any such claim or dispute ....
This arbitration requirement applies to:
[Ajny legal or equitable claim by or with respect to you for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma....
These provisions also apply to any claims that may be brought by your spouse, children, beneficiaries, representatives, executors, administrators, guardians, heirs or assigns.

On June 1, 2007, Terri Hartman, individually and as next friend of Marissa Hartman, a minor child, filed suit in Bexar County against J.B. Hunt. The parties do not dispute that the only purpose of this first suit was to seek approval from the trial court for the payment of death benefits and funeral expenses under the Benefit Plan. The parties entered an agreed judgment, which ordered the death benefits to be paid to Mr. Pilat’s minor daughter, Marissa Hartman. Then, on February 7, 2008, Terri Hartman, as next friend of Marissa Hartman, a minor, and Marlene Hartman, as Executrix of the Estate of Gary Pilat, deceased, filed a second suit in Jim Wells County, which named as defendants Daimler Trucks North America, L.L.C., J.B. Hunt, and Claudio Barrera, III. Plaintiffs subsequently filed an amended petition, indicating that only Marissa Hartman (hereinafter “Hartman”) is seeking to recover damages for the wrongful death of her father and the Estate of Gary Pilat is not bringing any claims against J.B. Hunt in the lawsuit because of the signed arbitration agreement.

J.B. Hunt filed its original answer on May 12, 2008, indicating that it is “subject to, and without waiving, its right to compel arbitration of all or any part of this ease.” On June 3, 2008, J.B. Hunt filed a plea to the jurisdiction and motion to stay proceedings or discovery, which sought to have the case dismissed on the following grounds: (1) standing; (2) election of remedies; (3) estoppel; (4) mootness; (5) res judicata; and (6) an agreed settlement. On August 28, 2008, the trial court denied J.B. Hunt’s plea to the jurisdiction. Since the inception of the suit, various discovery has been conducted that we will address later in this opinion.

On December 5, 2008, all parties agreed to continue the April 2009 trial setting. Then on February 13, 2009, In re Labatt Food Service, L.P., 279 S.W.3d 640 (Tex.2009) issued, mandating arbitration of wrongful death claims brought by non-signatories against an employer. Shortly after In re Labatt issued, counsel for Hartman wrote an email to counsel for J.B. Hunt, proposing to enter into an agreement to jointly submit the disputes to arbitration and dismiss J.B. Hunt from the lawsuit. Counsel for J.B. Hunt responded in part that “the only viable arbitration claims that remain are JB Hunt’s action for attorney fees incurred in connection with the wrongful lawsuit and JB Hunt’s claim for subrogation.” A series of emails between counsel ensued on this issue. Then, on April 1, 2009, J.B. Hunt filed a motion to compel arbitration against plaintiffs and intervenors. The Estate of Gary Pilat has never contested arbitration, and only Hartman responded to the motion to compel arbitration. Therefore, the only issue before the trial court was whether Hartman was compelled to arbitrate her claims against J.B. Hunt. Hartman asserted the defense of waiver to the motion to compel arbitration, alleging J.B. Hunt had substantially invoked the judicial process. On May 4, 2009, the trial court held a hearing on the motion to compel arbitration, and on May 21, 2009 entered an order denying the motion. The trial court did not enter any findings of fact or conclusions of law. J.B. Hunt filed an interlocutory appeal and a petition for writ of mandamus.

Analysis

A. Mandamus or Interlocutory Appeal

As a preliminary matter, we first address whether this court has jurisdiction over the interlocutory appeal and petition for writ of mandamus. In its motion to compel arbitration, J.B. Hunt sought to compel arbitration under the Federal Arbitration Act (hereinafter “FAA”), and/or the Texas Arbitration Act (hereinafter “TAA”), and/or alternatively under Texas common law. However, the arbitration agreement upon which J.B. Hunt relies to compel arbitration provides that “the [FAA] will govern the interpretation, enforcement, and proceedings under this arbitration requirement.”

When there is an express agreement to arbitrate under the FAA, we have upheld such choice-of-law provisions regardless of whether the transaction at issue involves interstate commerce. See Teel v. Beldon Roofing & Remodeling Co., 281 S.W.3d 446, 449 (Tex.App.-San Antonio 2007, pet. denied). As a result, because J.B. Hunt and Mr. Pilat specifically agreed to arbitrate any claims under the FAA, we dismiss J.B. Hunt’s interlocutory appeal for lack of jurisdiction and only consider the petition for writ of mandamus.

B. Valid Arbitration Agreement

Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts, and a clear failure to analyze or apply the law correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840. When a motion to compel arbitration under the FAA has been erroneously denied, there is no adequate remedy at law and mandamus will issue. In re D. Wilson Const. Co., 196 S.W.3d 774, 780 (Tex.2006) (orig. proceeding).

A party seeking a petition for writ of mandamus to compel arbitration under the FAA must: (1) establish the existence of a valid arbitration agreement; and (2) show that the claims asserted are within the scope of the agreement. See In re AdvancePCS Health L.P., 172 S.W.3d 608, 607 (Tex.2005) (orig. proceeding). When, as here, a party resists arbitration, the trial court must determine whether a valid agreement to arbitrate exists. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). The trial court’s determination as to the validity of an arbitration agreement is subject to de novo review. Id. Although there is a strong presumption favoring arbitration, that presumption arises only after the party seeking to compel arbitration proves a valid arbitration agreement exists. Id. Under both the FAA and the TAA, we apply ordinary state contract law principles in order to decide whether a valid arbitration agreement exists. See In re D. Wilson Constr. Co., 196 S.W.3d at 781 (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)).

Following the Texas Supreme Court’s decision in In re Labatt, wrongful death claims brought by non-signatories against an employer must be arbitrated if there was an agreement to arbitrate between the employee and the employer. 279 S.W.3d at 643-46. In her response to the motion to compel arbitration filed in the trial court, Hartman acknowledged that in light of In re Labatt, “the Plaintiffs do not contest the validity of the respective arbitration clause as to Marissa Hartman.” However, in this court Hartman now contests the validity of the arbitration agreement as follows: (1) section 1 of the FAA exempts contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce; (2) section 406.033(e) of the Texas Labor Code renders the arbitration agreement void and unenforceable; and (3) the Benefit Plan was illusory and not supported by consideration.

1. FAA Exemption

Hartman asserts section 1 of the FAA exempts Mr. Pilat from the coverage of the FAA. See 9 U.S.C. § 1. Section 1 of the FAA provides that the Act does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Id. J.B. Hunt contends this issue was not preserved for our review because Hartman did not present it to the trial court. We agree. An order that denies a motion to compel arbitration must be upheld by this court if it is proper on any basis considered by the trial court. See In re Weeks Marine, Inc., 242 S.W.3d 849, 854 (Tex.App.-Houston [14th Dist.] 2007, orig. proceeding [mand. denied]); see also In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex.1998) (orig. proceeding) (holding that appellate review is limited to the record and issues the trial court considered when it ruled on the motion). The issue of whether section 1 of the FAA exempts Mr. Pilat from coverage was never presented to the trial court. Therefore, we conclude this issue was not preserved for our review.

2. Labor Code

Hartman further asserts that Texas Labor Code section 406.033(e), which prohibits pre-injury waivers of personal injury or death claims, renders the arbitration agreement void and enforceable. J.B. Hunt again asserts this issue was not preserved for our review because Hartman did not present it to the trial court. We agree. See In re Weeks Marine, Inc., 242 S.W.3d at 854; see also In re Bristol-Myers Squibb Co., 975 S.W.2d at 605.

3. Illusory and Not Supported by Consideration

Next, Hartman asserts the language in the “Funding” section of the Benefit Plan renders the entire Benefit Plan illusory. As the Court in In re Labatt provided, “[t]here are two types of challenges to an arbitration provision: (1) a specific challenge to the validity of the arbitration agreement or clause, and (2) a broader challenge to the entire contract, either on a ground that directly affects the entire agreement, or on the ground that one of the contract’s provisions is illegal and renders the whole contract invalid.” 279 S.W.3d at 647-48. The case at hand presents the second type of challenge: a broad challenge to the entire contract on the ground that the “Funding” provision is illusory, and, therefore, there is no binding contract. . “[U]nless a challenge is to the arbitration clause or arbitration agreement itself, ... the question of a contract’s validity is for the arbitrator and not the courts.” Id. at 649. Therefore, we do not address Hartman’s assertion that the funding section of the Benefit Plan is illusory because this issue must be decided by the arbitrator.

As a result of the foregoing, we conclude there was a valid arbitration agreement between Mr. Pilat and J.B. Hunt. In addition, the parties do not dispute the claims asserted by Hartman are within the scope of the arbitration agreement. Therefore, Hartman’s wrongful death claims against J.B. Hunt must be arbitrated unless Hartman establishes a valid defense to enforcing the arbitration agreement.

C. Waiver by Substantially Invoking the Judicial Process

Once a valid arbitration agreement has been established, a presumption attaches favoring arbitration and the burden shifts to the party resisting arbitration to establish a defense to enforcing arbitration. See In re AdvancePCS, 172 S.W.3d at 607; In re Hartigan, 107 S.W.3d 684, 687-88 (Tex.App.-San Antonio 2003, orig. proceeding [mand. denied]). The only defense to the arbitration agreement asserted by Hartman in the trial court was waiver.

A party waives arbitration by substantially invoking the judicial process to the other party’s detriment. Perry Homes v. Cull, 258 S.W.3d 580, 589-90 (Tex.2008). “Due to the strong presumption against waiver of arbitration, this hurdle is a high one.” Id. at 590. Up until Perry, the Texas Supreme Court had never found such a waiver. Id. The Court held that “a party who enjoys substantial direct benefits by gaining an advantage in the pretrial litigation process should be barred from turning around and seeking arbitration with the spoils.” Id. at 593. The Court concluded that “in close cases, the ‘strong presumption against waiver’ should govern.” Id. (quoting In re D. Wilson, 196 S.W.3d at 783). Whether a party has waived its right to arbitration is a question of law that we review de novo, giving no deference to the trial court’s ruling. Id. at 598.

The Texas Supreme Court has taken the federal court approach to waiver by adopting the “totality of the circumstances” analysis. Id. at 590-91. The Court acknowledged in Perry that like federal courts, it has considered factors such as:

(1) when the movant knew of the arbitration clause;
(2) how much discovery has been conducted;
(3) who initiated the discovery;
(4) whether it related to the merits rather than arbitrability or standing;
(5) how much of it would be useful in arbitration; and
(6) whether the movant sought judgment on the merits.

Id. at 591-92. “Merely taking part in litigation is not enough unless a party has substantially invoked the judicial process to its opponent’s detriment.” In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex.2006).

In the trial court, Hartman asserted J.B. Hunt substantially invoked the judicial process by: (1) filing multiple motions to quash the depositions of J.B. Hunt employees; (2) noticing and deposing a co-defendant, Claudio Domingo Barrera; (3) actively participating in at least thirteen depositions (producing seven J.B. Hunt employees, attending other depositions, and cross-noticing depositions); (4) participating in the submission of an agreed motion for continuance; (5) waiting fourteen months from the date the case was filed to file the motion to compel arbitration; (6) when plaintiff brought up the issue of arbitration at the plea to the jurisdiction hearing, J.B. Hunt stated that the issue of arbitration was not before the court; (7) requesting numerous extensions of written discovery deadlines; (8) actively participating in pushing back the trial date; (9) refusing to sign a confidentiality order and an order on plaintiffs’ discovery; (10) propounding requests for disclosure and a deposition on written questions to Texas Department of Transportation; (11) filing a plea to the jurisdiction which was denied following a hearing; and (12) failing to agree to arbitration when plaintiffs’ counsel emailed J.B. Hunt’s counsel. In addition, in her brief to this court, Hartman notes several times where J.B. Hunt filed motions to quash depositions, motions for protective orders, and objections to the notice of various oral depositions.

J.B. Hunt asserts it only propounded minimal discovery and at all times reserved its right to seek arbitration. J.B. Hunt agrees it knew of the arbitration provision, but because the Supreme Court had not yet ruled on In re Labatt, J.B. Hunt refrained from seeking to compel arbitration until after the Supreme Court issued its opinion. Other than answering discovery and cross-noticing depositions, J.B. Hunt has conducted little discovery of its own. Most of the discovery was initiated by plaintiffs. In addition, unlike the situation in Perry when the Supreme Court determined there was waiver, the case at hand is not one in which the parties have waited until the eve of trial after all or the majority of the discovery has been completed to compel arbitration. Perry, 258 S.W.3d at 595-596. We conclude J.B. Hunt did not waive its right to compel arbitration by substantially invoking the judicial process. Due to this finding, we do not reach the issue of whether Hartman was prejudiced.

Conclusion

We conclude the trial court erred in denying J.B. Hunt’s motion to compel arbitration. Accordingly, we dismiss J.B. Hunt’s interlocutory appeal for lack of jurisdiction and conditionally grant the petition for writ of mandamus. The writ will issue only if the trial court fails to withdraw its May 21, 2009 order denying J.B. Hunt’s motion to compel arbitration and enter an order compelling arbitration within ten days.

      . At the outset, the plea to the jurisdiction provided that it is "Subject to, and without waiving, its right to arbitrate." In addition, the plea contained a section entitled "J.B. Hunt Preserves its Arbitration Rights," which specifically provides: (1) "Far from substantially invoking the judicial process, J.B. Hunt seeks to avoid litigation altogether”; (2) "By pursuing dismissal, J.B. Hunt has not jeopardized its right to compel arbitration under the Federal Arbitration Act”; (3) "Nor can anyone prove an 'unequivocal' waiver, especially because J.B. Hunt has expressly reserved its right to arbitrate throughout.” Additionally, J.B. Hunt’s reply to plaintiffs' response to J.B. Hunt’s plea to the jurisdiction specifically asserts “Marissa must arbitrate her claim, a defense disputed by Plaintiffs,” and gives supporting arguments for such an assertion. Hartman contends that at the hearing on the plea to the jurisdiction, plaintiffs brought up the arbitration issue, but J.B. Hunt advised the court that the issue "may be reserved for another day.”

      . Section 51.016 of the Texas Civil Practice and Remedies Code provides that "[i]n a matter subject to the [FAA], a person may take an appeal or writ of error to the court of appeals from the judgment or interlocutory order of a district court, county court at law, or county court under the same circumstances that an appeal from a federal district court’s order or decision would be permitted by 9 U.S.C. Section 16." Tex Civ. Prac. & Rem.Code § 51.016 (Vernon Supp. 2009). However, section 51.016 only applies to an appeal initiated, on or after September 1, 2009. Id. Because the proceedings in this court were initiated prior to the effective date of section 51.016, this provision is not applicable to the case at hand, and the petition for writ of mandamus is the appropriate vehicle for this court to consider J.B. Hunt’s complaint.

      . However, even if this issue was preserved, on November 20, 2009 the Texas Supreme Court directly addressed the issue of whether section 406.033(e) renders an arbitration agreement void and held it does not. See In re Golden Peanut Co., LLC, 298 S.W.3d 629, 631 (Tex.2009) (orig. proceeding).

      . We acknowledge as a result of the In re Labatt opinion the law changed during the pendency of Hartman's case in the trial court. See 279 S.W.3d at 643-46. However, because we have concluded J.B. Hunt did not substantially invoke the judicial process we are unable to reach the issue of prejudice.


author: Justice O’NEILL.

text:
    Jamie Elizabeth KEE, Appellant, v. Roy Brian KEE, Appellee.
    No. 05-08-00013-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 4, 2010.
    Charles F. Holmans, III, Southlake, for appellant.

      Michelle May O’Neil, O’Neil Anderson, Dallas, Jeffrey Owen Anderson, Addison, for appellee.
    Before Justices MORRIS, O’NEILL, and FILLMORE.
   OPINION

Opinion by

Justice O’NEILL.

Jamie Elizabeth Kee (Wife) appeals from the trial court’s order terminating a writ of withholding income for alimony. In three issues, Wife contends generally that the trial court erred in terminating the writ of withholding income for alimony because (1) it is a debt only to the extent it exceeded the legal duty of Roy Brian Kee (Husband) to support a disabled spouse and (2) there is no evidence to support the implied finding that the alimony payments exceeded twenty percent of Husband’s net resources. We overrule Wife’s issues and affirm the trial court’s order.

On June 2, 2005, Husband and Wife entered into a Partition or Exchange Agreement. That Agreement included a provision that, if the parties separated, Husband would provide monthly financial support for Wife and their two children in the amount of $3,400. The Agreement also provided that Husband would pay alimony in accordance with the support provision if the parties divorced. The parties were divorced on January 5, 2006. The divorce decree ordered Husband to pay child support and alimony for a combined total of $3,400.

On September 7, 2006, Wife filed a notice of application for writ of withholding with regard to the alimony payments. The writ of withholding issued and Husband moved to abate it. The associate judge denied the motion to abate, and Husband appealed that ruling to the district court. The trial court terminated the writ of withholding. This appeal timely followed.

Whether a trial court may order income withholding for alimony payments is a question of law. We review questions of law de novo. Subaru of Am. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex.2002). When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998).

In her first and second issues, Wife contends that Husband had a legal duty to support her in addition to his contractual obligation to do so. The issue in this case turns on whether the alimony payments were ordered pursuant to chapter eight of the family code. See Tex. Fam.Code Ann. § 8.051 (Vernon 2006). A trial court may order spousal maintenance under chapter eight under certain circumstances such as when the parties have been married for at least ten years and one spouse is unable to support himself or herself due to a physical or mental disability. See Tex. Fam. Code Ann. § 8.051(2)(A). Chapter eight sets forth numerous factors for a trial court to consider in determining spousal maintenance. See Tex. Fam.Code Ann. § 8.052. Moreover, spousal maintenance under chapter eight must be of limited duration and must terminate on remarriage. See Tex. Fam.Code Ann. §§ 8.054, 8.056. Chapter eight also provides for income withholding for spousal maintenance payments ordered thereunder. See Tex. Fam.Code Ann. § 8.101.

At the hearing on the motion to abate the writ of withholding income for alimony, the trial court determined that the alimony payments under the divorce decree were not ordered pursuant to chapter eight. In the final divorce decree, the parties stipulated that it was a contract. The parties’ Agreement was incorporated into the divorce decree.

With respect to alimony, the parties’ Agreement stated as follows:

8.2 Support if the Parties are Separated
During any separation prior to the entry of a Decree of Divorce, Roy Brian Kee agrees to contribute $3,400.00 per month in two (2) equal payments of $1,700.00 on the 15th and 30th of each month beginning when this agreement is signed; these payments will be increased by [an] amount of five-tenths of one percent (.5%) each year; these payments are to be directly deposited in Jamie Elizabeth Kee’s bank account; and will continue for a period of seventeen (17) years beginning on the date this agreement is signed.
* * *
11.5 Alimony
When a Decree of Divorce is entered between the parties, the parties agree that the Decree of Divorce will require Roy Brian Kee will [sic] pay Jamie Elizabeth Kee alimony in accordance with paragraph 8.2 of this agreement; the terms of which will be the remaining portion of the sums agreed in paragraph 8.2.

The decree of divorce awarded alimony as follows:

Alimony
The Court finds that under the circumstances presented in this case, JAMIE ELIZABETH KEE is eligible for maintenance under the provisions of [the] Texas Family Code and the contractual agreement of the parties; and that this alimony obligation is contractual as well as statutory.
Accordingly, ROY BRIAN KEE IS ORDERED to pay as maintenance the following sums per month to JAMIE ELIZABETH KEE, in two equal payments of one-half of the monthly amount, with the first payment being due on the 15th day of January, 2006, and a like amount being due on the 1st and 15th days of each consecutive month thereafter until the earliest of one of the following events occurs:
1. June 2, 2022; or
2. death of either JAMIE ELIZABETH KEE or ROY BRIAN KEE.
Payment shall be made by ROY BRIAN KEE directly to JAMIE ELIZABETH KEE by cash, cashier’s check, or money order at the last known address provided to ROY BRIAN KEE by JAMIE ELIZABETH KEE.
IT IS ORDERED AND DECREED that JAMIE ELIZABETH KEE shall include the amounts paid to her as alimony by ROY BRIAN KEE in accordance with this decree in her gross income for Federal Income Tax purposes as periodic payments within the meaning of section 71 of the Internal Revenue Code of 1954, as amended.
IT IS ORDERED that the amount of alimony payments shall be equal to $1,900.00 per month; increased by the amount of any reduction of child support so that the amount of spousal and child support equals to $3,400.00 per month plus a further increase of five tenths of one percent (.5%) annually (of the base amount of $3,400.00) on the anniversary of the signing of the Agreement on June 2, 2005.

In their Agreement, the parties agreed to a total support for Wife and the two children of $3,400. The divorce decree ordered that exact amount of support.

Chapter eight does not apply to an alimony provision in a divorce decree that restates a parties’ contractual agreement for alimony. See McCollough v. McCol lough, 212 S.W.3d 638, 648 (Tex.App.-Austin 2006, no pet.). In McCollough, the husband sought to modify an alimony provision in a divorce decree. He argued that modification was permissible under chapter eight. Id. at 640. Wife obtained summary judgment on the ground that chapter eight did not apply to the alimony provision because it was based on a contract between the parties. Id. The court of appeals noted that the decree did not contain any reference to chapter eight of the family code. Id. at 646. Also, the agreed-to alimony was in violation of chapter eight because it allowed for payments for over ten years and the payments were greater than allowed under chapter eight. The court concluded that, under those circumstances, the parties created a contractual alimony obligation that is permitted outside of the context of chapter eight. Id. As such, the court concluded, the alimony provision is governed by contract law and not chapter eight of the family code. Id. at 648.

We agree with the court’s analysis in MeCollough and apply it to the facts of this case. As in MeCollough, the alimony provision in the divorce decree was consistent with the parties’ Agreement. In the parties’ 2005 Agreement, Husband agreed to provide support to his family in the amount of $3,400 monthly if the parties separated. Husband further agreed in the Agreement to continue that support upon divorce. The trial court set child support at $1,500 per month. Alimony payments were set at $1,900. Together, those two amounts equal $3,400, the amount of support the parties contractually agreed to. Moreover, the decree provided that the alimony payments would continue not in accordance with the limitations of chapter eight, but pursuant to the terms in the parties’ Agreement.

Although there is a general reference to the family code in the decree’s alimony provision, there is no specific reference to chapter eight which contains the requirements for spousal maintenance. There is no finding in the decree that Wife was disabled or lacked sufficient earning capacity. Although Husband does not contest the assertion in Wife’s appellate brief that she is physically disabled, there is nothing in the record before this Court to support that assertion. The decree failed to set forth any of the criteria of chapter eight and failed to follow that chapter’s guidelines with respect to the amount of support and the duration of the support payments. As in MeCollough, the spousal support provision in the divorce decree in this case falls outside of chapter eight and does not create a legal duty under chapter eight on the part of Husband to support Wife.

We have concluded that the alimony provision in the parties’ divorce decree is not a legal duty arising under chapter eight. The supreme court has held that a court order to pay spousal support is unenforceable by contempt if it merely “restates a private debt rather than a legal duty imposed by Texas law.” In re Green, 221 S.W.3d 645, 646 (Tex.2007). In Green, the wife sought enforcement of the contractual spousal support provisions referenced in the divorce decree. Id. at 646. The trial court ordered the husband confined to jail until he paid the spousal support arrearage. Id. at 647. The supreme court held that failure to pay a private alimony debt is not contempt punishable by incarceration. Id. A legal obligation to support a spouse is enforceable by contempt, but a promise to pay contractual alimony creates nothing more than a debt. Id. at 648.

As in Green, the alimony provision in this case is nothing more than a debt. Husband did not have a legal duty under chapter eight of the family code to support Wife. The parties’ Agreement did not provide for enforcement by income withholding. Accordingly, such remedy is not available to Wife. We overrule Wife’s first two issues.

In her third issue, Wife contends there is no evidence to support the trial court’s implied finding that the amount of alimony awarded in the decree exceeded twenty percent of Husband’s net resources. Wife cites to the trial court’s statement at the hearing that the court could not have ordered the amount of alimony that Husband agreed to pay. In light of our holding that the alimony provision is strictly contractual, the parties were not restricted to the amount set forth in the family code. Accordingly, we overrule Wife’s third issue.

We affirm the trial court’s order.

      . The general reference to the family code in the divorce decree could have been to section 7.006. See Tex. Fam.Code Ann. § 7.006 (Vernon 2006). That section provides that spouses may enter into an agreement incident to divorce that provides for the maintenance of either spouse.


author: ANNE GARDNER, Justice.

text:
    WOOD CARE CENTERS, INC., Appellant, v. EVANGEL TEMPLE ASSEMBLY OF GOD OF WICHITA FALLS, TEXAS, Appellee.
    No. 2-08-300-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 18, 2010.
    Rehearing Overruled April 1, 2010.
    Reconsideration En Banc Overruled April 1, 2010.

      Leonard, Key & Key, PLLC and Thomas Key, Wichita Falls, for appellant.
    John M. Lane, Wichita Falls, for appel-lee.
    PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

This breach of contract case concerns a facility that Appellant Wood Care Centers, Inc. (“Wood Care”) leased to Appellee Evangel Temple Assembly of God of Wichita Falls, Texas (“Evangel Temple”) in fall 2005 for the immediate purpose of housing Hurricane Katrina evacuees. Evangel Temple terminated the parties’ lease agreement (the “Agreement”) after the last hurricane evacuees left the facility. Wood Care later sued Evangel Temple and argued Evangel Temple was obligated to find other uses for the facility before terminating the Agreement. The trial court entered a take-nothing judgment against Wood Care after a bench trial.

In two issues, Wood Care argues the trial court improperly considered parol evidence in its interpretation of the Agreement and the evidence is legally and factually insufficient to support the trial court’s conclusion that Evangel Temple did not breach the Agreement. We affirm.

II. Factual and procedural background

Mike Wood testified for Wood Care at trial. He said Wood Care originally owned and operated as many as eleven nursing homes. Wood Care previously sold its other nursing home facilities but was unable to sell the facility at issue because it was closed and no longer licensed to operate as a nursing home.

After Hurricane Katrina made landfall on August 29, 2005, Evangel Temple contacted Wood Care to lease the facility to assist Katrina evacuees. Wood testified that after the parties reached an initial agreement, Evangel Temple retained an attorney to finalize the Agreement. Wood testified Evangel Temple’s attorney drafted the document, but Evangel Temple’s business administrator said Wood provided the initial draft to Evangel Temple.

The parties exchanged several drafts of the proposed agreement and signed the final version of the twenty-year lease on September 6, 2005. Evangel Temple’s monthly lease payment was $10,997, although Wood Care made a charitable contribution to Evangel Temple during the initial term in the form of a reduced monthly lease payment. The Agreement contained a “ten-percent termination clause” that stated:

Tenant, however, shall have the option of terminating this lease at any time by giving Landlord written notice of its election to do so and payment to Landlord of a sum of money equal to 10% of the balance of the rental payments then owed under the terms of this lease.

The Agreement also contained a “tax-exemption termination clause” that stated:

Both parties agree to cooperate with each other to achieve any available property tax exemption. In the event a property tax exemption for the leased premises is denied or suspended, Tenant shall have the option to terminate this lease. If, notwithstanding, the denial of such property tax exemption, Tenant elects to continue the lease, then Tenant shall be responsible for the payment of all property taxes and assessments and shall timely pay such taxes or assessments.

The original draft of the Agreement did not include the tax-exemption termination clause. Wood testified that although he did not specifically remember, he thought Evangel Temple added the tax-exemption termination clause because a church is traditionally tax-exempt. Wood also testified he understood Evangel Temple would initially use the facility to house Hurricane Katrina evacuees.

After signing the Agreement, Evangel Temple sought a tax exemption for the facility, stating in the application that the primary use was “to house victims of natural disasters.” The appraisal district granted the exemption and informed Evangel Temple in writing that if the use ever changed, the church must notify the appraisal district.

For the first nine months, Evangel Temple paid reduced rental payments to Wood Care while receiving financial assistance from FEMA, but the last evacuees left the facility in approximately May 2006. In late June 2006, several Evangel Temple representatives met with Wood and gave Wood Care notice that Evangel Temple would soon move out of the facility. Evan-gel Temple sent a termination letter to Wood Care on June 30, 2006, and Wood Care sent a response the same day making demand for payment of ten percent of the remaining lease payments under the ten-percent termination clause.

Evangel Temple vacated the facility in approximately July 2006. According to Wood, Wood Care was unable to sell or lease the facility after Evangel Temple vacated, and he testified Wood Care’s damages totaled $256,279.90 in lost rent, ad valorem taxes, insurance premiums, and maintenance costs. Wood testified he believes Evangel Temple breached the Agreement because it had a duty to implement other tax-exempt uses at the facility and could have easily done so.

Kile Bateman testified that he is the lead pastor of Evangel Temple and that Chad Sykes was the business administrator, outreach pastor, and director of “Called To Compassion.” Bateman testified that Evangel Temple had a few tax-exempt properties and that, typically, tax exemptions are available if property. is used for non-profit purposes. Evangel Temple’s tax-exempt properties included undeveloped property next to the church and a facility that housed Masters Commission students, drug and alcohol counseling, a college and career ministry, and flood victims.

Bateman testified that the Agreement did not limit Evangel Temple’s use of the facility and that the parties contemplated future tax-exempt uses for the facility when negotiating the Agreement. However, Bateman testified that he understood Evangel Temple’s right to terminate the Agreement was dependent on Evangel Temple having a program in place that could operate in a self-sustaining manner at the facility. Bateman believed that if the facility lost its tax exemption, Evangel Temple had a choice to terminate the Agreement without liability or continue with the Agreement in the hope that something arose in the future.

Bateman agreed it would have been possible to use the facility for the Masters Commission ministry, “very limited” worship services, or bible study groups. He also said Evangel Temple “could have” submitted a new application for tax-exempt status citing “religious purposes” as the primary use of the facility and conducted some type of activity on the property that would have allowed the property to remain tax-exempt. Although Bateman agreed that “[ajnything is possible,” he testified that “not everything is reasonable.”

Bateman testified that if there were another possible use for the facility, Evangel Temple would have maintained the tax-exempt status, but that there were no other reasonable uses for the facility. He explained that Evangel Temple considered using the property for a children’s home, a women’s shelter, and a Sudanese refugee center. After the lawsuit was filed, Evan-gel Temple considered using the facility to house at-risk teenagers or as a Life Challenge ministiy. Ultimately, Bateman believed Evangel Temple did not have any reasonable uses available for the facility. He testified he believed Evangel Temple did not breach the Agreement because Evangel Temple did not have any needs that were not being fulfilled by another facility and because Evangel Temple did all it could to locate another tax-exempt use.

The trial court conducted a bench trial over two days in January and April 2008 and rendered a take-nothing judgment against Wood Care on June 18, 2008. Wood Care requested and the trial court signed findings of fact and conclusions of law.

III. The Trial Court’s Interpretation of the Agreement

A. Applicable law

When construing contracts and other written instruments, our primary concern is to ascertain the true intent of the parties as expressed in the instrument. NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 (Tex.App.-Fort Worth 2007, no pet.). We must examine and consider the entire contract in an effort to harmonize and give effect to all provisions so that none are rendered meaningless. Id.; see also J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). “We construe contracts 'from a utilitarian standpoint bearing in mind the particular business activity sought to be served’ and ‘will avoid when possible and proper a construction which is unreasonable, inequitable, and oppressive.’ ” Frost Nat’l Bank v. L & F Dist., Ltd., 165 S.W.3d 310, 312 (Tex.2005) (quoting Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987)).

Lack of clarity or a disagreement among the parties does not necessarily create an ambiguity. Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex.2003). Rather, whether “a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered.” Id. “If, after the pertinent rules of construction are applied, the contract can be given a definite or certain legal meaning, it is unambiguous and we construe it as a matter of law.” Frost Nat’l Bank, 165 S.W.3d at 312 (citing Webster, 128 S.W.3d at 229).

B. Conflicting Termination Clauses

Wood Care contends in part of its first issue that the trial court improperly considered parol evidence because the conflict between the tax-exemption termination clause and the ten-percent termination clause could be resolved by applying rules of contract construction and did not create an ambiguity. In response, Evangel Temple argues the conflict between the tax-exemption termination clause and the ten-percent termination clause created an ambiguity and the trial court properly considered parol evidence.

The Agreement included both a ten-percent termination clause and a tax-exemption termination clause. The ten-percent termination clause required Evangel Temple to pay Wood Care “10% of the balance of the rental payments then owed under the terms of [the Agreement]” if Evangel Temple terminated the Agreement before the twenty-year lease expired. The tax-exemption termination clause, however, allowed Evangel Temple to terminate the Agreement without liability “[i]n the event a property tax exemption for the leased premises [was] denied or suspended.”

Wood Care correctly asserts that, if possible, the Agreement must be construed in a way that neither the ten-percent termination clause nor the tax-exemption termination clause are rendered meaningless. See Potter, 230 S.W.3d at 463 (stating courts must examine and consider the entire contract “in an effort to harmonize and give effect to all provisions so that none are rendered meaningless”). Interpreting the Agreement to require Evangel Temple to pay a ten-percent penalty for terminating the Agreement when the property was no longer tax-exempt renders the tax-exemption termination clause meaningless. Therefore, the tax-exemption termination clause controls over the ten-percent termination clause in the event the property loses its tax-exempt status, as it did in this case, and there is no ambiguity. See RSI Int’l, Inc., 291 S.W.3d at 106 (stating contract ambiguous only if still susceptible to more than one reasonable meaning after applying rules of construction).

Because the conflict between the ten-percent termination clause and the tax-exemption termination clause does not create an ambiguity, the trial court erred by admitting parol evidence on this issue. See Carbona v. CH Med., Inc., 266 S.W.3d 675, 681 (Tex.App.-Dallas 2008, no pet.) (recognizing “courts do not consider extrinsic evidence in interpreting [an] agreement” when it is not ambiguous). But Wood Care has not shown the trial court’s consideration of parol evidence led to an improper judgment or prevented Wood Care from properly presenting the case to this court. See Tex.R.App. P. 44.1(a). The trial court admitted only brief testimony concerning the parties’ intent for the tax-exemption termination clause to control over the ten-percent termination clause. Also, the trial court’s ultimate interpretation of the Agreement, that Evangel Temple could terminate the Agreement without a ten-percent penalty if the facility was no longer tax-exempt, was correct. Therefore, the trial court’s erroneous consideration of parol evidence does not constitute reversible error. See Sadoskas v. Sadoskas, No. 13-02-216-CV, 2003 WL 21666115, at *2 (Tex.App.-Corpus Christi July 17, 2003, no pet.) (mem. op.) (finding no reversible error in admitting a party’s subjective intent testimony where “the trial court’s final ruling regarding the contract was correct”); see also Orix Credit Alliance, Inc. v. Omnibank, N.A., 858 S.W.2d 586, 594 (Tex.App.-Houston [14th Dist.] 1993, no writ) (holding admission of parol evidence of intent of parties was irrelevant because the agreement alone showed defendant was entitled to judgment as a matter of law). We therefore overrule this portion of Wood Care’s first issue.

C. The Tax-Exemption Termination Clause

In the remainder of its first issue, Wood Care contends the trial court incorrectly-interpreted the tax-exemption termination clause. Specifically, Wood Care argues the trial court erred by (1) considering parol evidence to interpret the tax-exemption termination clause and (2) interpreting the tax-exemption termination clause in a manner that permitted Evangel Temple to cause the facility to lose its tax exemption and then terminate the Agreement without liability because the facility was no longer tax-exempt.

We do not agree the trial court improperly considered parol evidence to interpret the tax-exemption termination clause. As discussed above, the trial court admitted parol evidence of the parties’ intentions, but the parol evidence all concerned the conflict between the ten-percent termination clause and the tax-exemption termination clause, not the meaning of the tax-exemption termination clause itself. Thus, the trial court did not consider parol evidence when it interpreted the tax-exemption termination clause. We overrule this portion of Wood Care’s first issue.

Wood Care also argues the trial court incorrectly interpreted the tax-exemption termination clause to permit Evangel Temple, through its own conduct, to cause the facility to lose its tax exemption and then use the loss of tax-exempt status to terminate the Agreement without liability. To support its contention, Wood Care cites several cases for the proposition that Texas law generally prevents a party from invoking a termination clause if that party brings about the circumstances giving rise to the right to terminate. See Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744, 749 (Tex. Comm’n App.1937, opinion adopted); II Deerfield Ltd. P’ship v. Henry Bldg., Inc., 41 S.W.3d 259, 265-66 (Tex.App.-San Antonio 2001, pet. denied); Heritage Life Ins. Co. v. Heritage Group Holding Corp., 751 S.W.2d 229, 234 (Tex.App.Dallas 1988, writ denied); Rich v. McMullan, 506 S.W.2d 745, 747 (Tex.Civ.App.-San Antonio 1974, writ ref'd n.r.e.); Sargent v. Highlite Broadcasting Co., 466 S.W.2d 866, 867 (Tex.Civ.App.-Austin 1971, no writ). These cases are distinguishable, however, because they each involved circumstances where the breaching party either wilfully refused to perform its own obligations under the contract or made performance by the other party impossible. See Sanderson, 109 S.W.2d at 749; II Deerfield Ltd. P’ship, 41 S.W.3d at 265-66; Heritage Life Ins. Co., 751 S.W.2d at 234; Rich, 506 S.W.2d at 747; Sargent, 466 S.W.2d at 867. In this case, the trial court heard evidence that Evangel Temple took steps to find other uses for the property before it terminated the Agreement. Further, the sufficiency of Evangel Temple’s effort to maintain the tax exemption presents an evidentiary issue rather than an issue of contract construction. See, e.g., Sargent, 466 S.W.2d at 867 (holding a fact question is present where the evidence showed the seller’s president refused to execute the documents necessary to obtain FCC approval for the sale). We overrule the remainder of Wood Care’s first issue.

IV. Legal and Factual Sufficiency

In its second issue, Wood Care challenges the legal and factual sufficiency of the trial court’s findings that Evangel Temple did not breach the Agreement. Wood Care argues the evidence at trial conclusively established that Evangel Temple breached the Agreement and that the trial court’s finding to the contrary is against the great weight and preponderance of the evidence.

Wood Care specifically challenges the sufficiency of the evidence supporting the following findings of fact:

(16) After considering all the evidence presented at trial, on [Wood Care’s] claims of Breach of Contract and other related allegations concerning the Agreement, [Wood Care] failed to prove by a preponderance of the evidence that [Evangel Temple] breached the Agreement.
(18) [Evangel Temple] made reasonable and good faith efforts to find another use for the premises that would satisfy the legal requirement that the property was being used for a tax exempt purpose.

Wood Care also challenges the following conclusions of law:

(6) Under the facts of this case, termination of the Agreement by [Evangel Temple] without further liability is allowed for the loss of the tax exempt status of the Property;
(7) Termination by [Evangel Temple] under the facts of this case does not trigger the 10% termination clause in the Agreement;
(10) [Evangel Temple] did not breach the Agreement by terminating said Agreement due to loss of tax exempt status;
(11) All relief requested by [Wood Care] should be denied.

A. Standard of Review

Findings of fact entered in a case tried to the court have the same force and dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The trial court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury’s answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Conclusions of law may not be challenged for factual sufficiency, but they may be reviewed to determine their correctness based upon the facts. AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 519 (Tex.App.-Fort Worth 2009, no pet.) (op. on reh’g); Dominey v. Unknown Heirs & Legal Representatives of Lokomski, 172 S.W.3d 67, 71 (Tex.App.-Fort Worth 2005, no pet.).

We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (8)the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfin-der could and disregard evidence contrary to the finding unless a reasonable factfin-der could not. Cent. Ready Mix Concrete Co. v. Mas, 228 S.W.3d 649, 651 (Tex.2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex.2005).

When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

B. Analysis

To prevail on a breach of contract claim, a party must establish the following elements: (1) the existence of a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff sustained damages as a result of the defendant’s breach. Harris v. Am. Prot. Ins. Co., 158 S.W.3d 614, 622-23 (Tex.App.-Fort Worth 2005, no pet.).

Wood Care correctly asserts that the' essential question in this case is whether Evangel Temple breached the provision of the Agreement that states: “Both parties agree to cooperate with each other to achieve any available property tax exemption.” Wood Care argues the evidence conclusively established Evangel Temple’s breach of this provision because Bateman “admitted” that it would have been “possible” to have the Master’s Commission education program, worship services, or a bible study moved to the facility.

Wood Care contends Bateman’s “admission” is the type the trial court could not disregard. However, Bateman’s alleged “admission” is contradicted by his other testimony that the Master’s Commission and its leadership moved to the Houston area in January 2006 before the evacuees left the facility in May 2006. Bateman’s testimony is also contradicted by Bate-man’s and Sykes’s testimony that the church did not have a bible study group it could send to the facility, that any use of the facility for worship services would be “very limited,” and that Evangel Temple did not have any programs that needed additional space. On balance, we do not believe that Bateman’s “admission” was the type that prevents reasonable people from differing in their conclusions. See City of Keller, 168 S.W.3d at 815-16. Thus, we do not believe Bateman’s testimony conclusively established that Evan-gel Temple breached the Agreement.

Other evidence supports the trial court’s findings. Sykes described the facility’s limited uses and how its layout prevented Evangel Temple from using the facility for just any purpose. When asked about Wood Care’s suggestion of a bible study group at the facility, Sykes explained that a bible study would not be suitable there because the facility’s primary use was a “residential-type ministry.” Sykes stated that the facility was “not a gathering place, ... or something that you could just throw something in[;] it had a special purpose.” Sykes testified that the facility was not suitable for Evangel Temple’s other charitable project, “Angel Food ministry,” because it involved receiving and storing large food pallets that were delivered by a semi-trailer truck.

Although Bateman agreed Evangel Temple “could have” submitted another exemption application for the facility after the evacuees left, he also testified about Evangel Temple’s many efforts to find another use and its resulting inability to finalize an agreement with any of the potential organizations for any of the potential tax-exempt uses. Evangel Temple’s efforts to find other tax-exempt uses for the facility included meeting with CPS about an interim facility for children, speaking with the county’s veteran’s office about a veteran’s home, communicating with Dallas representatives about a Sudanese refugee facility, speaking with a representative about an annex for women, consulting with a director of the Dallas Dream Center about a place for at-risk teenagers, and providing a tour of the building for a prison-aftercare expert. Concerning Evangel Temple’s cooperation with Wood Care to achieve an exemption, Sykes testified that Wood Care suggested a youth bible study group be placed at the vacant building. Sykes stated that Wood Care did not suggest any other uses and did not make any further attempt to cooperate after the evacuees left the facility. Bateman stated that he did not personally have any conversations with Wood Care about a continued use of the property.

The evidence at trial supported the trial court’s findings of fact that Evangel Temple did not breach the Agreement and that it “made reasonable and good faith efforts” to find another use for the facility. The trial court’s findings are not negated by the evidence; the evidence at trial established that Evangel Temple tried to cooperate by pursuing other tax-exempt uses but could not find a tax-exempt use that fit the facility’s layout and size. Furthermore, the trial court drew the correct legal conclusions from the facts that Evangel Temple could terminate the Agreement without further liability under the facts of this case, that Evangel Temple’s termination did not trigger the ten-percent termination clause, that Evangel Temple did not breach the Agreement, and that Wood Care’s requested relief should be denied.

Based on the foregoing, after reviewing all of the evidence in the light most favorable to the trial court’s findings, crediting favorable evidence if a reasonable factfin-der could, and disregarding contrary evidence unless a reasonable factfinder could not, we hold that there is legally sufficient evidence to support the trial court’s findings that Evangel Temple did not breach the Agreement. Likewise, after considering and weighing all of the evidence pertinent to the trial court’s findings, we cannot say that the evidence supporting the trial court’s findings is so weak or contrary to the overwhelming weight of all the evidence that it should be set aside and a new trial ordered. We overrule Wood Care’s second issue.

V. Conclusion

Having overruled both of Wood Care’s issues, we affirm the trial court’s judgment.

      . Sykes gave similar testimony but added that Evangel Temple was always aware the evacuees would eventually go back home.

      . Wood Care states in its brief that it will "assume” that the question of terminating the Agreement for loss of tax-exempt status presents a patent ambiguity, but then states that the rules of construction resolve the ambiguity, so the "Agreement is not rendered ‘ambiguous’ in the sense that the Court may consider extrinsic evidence" to determine its meaning. See RSI Int'l, Inc. v. CTC Transp., Inc., 291 S.W.3d 104, 106 (Tex.App.-Fort Worth 2009, no pet.) ("A contract is ambiguous only if, after the application of established rules of construction, an agreement is still susceptible to more than one reasonable meaning.”).

      . The Agreement had other termination clauses that are not relevant to this appeal.

      . Bateman testified he understood that if Evangel Temple lost its exempt status, the church had a choice to "remove [itjself from [the] property” or "continue to make the pay-merits and hope something comes along,” and Sykes testified he understood the tax-exemption termination clause meant Evangel Temple could terminate the Agreement without liability if the tax-exemption was not initially granted or subsequently sustained.

      . We will address whether Evangel Temple’s inability to implement a subsequent tax-exempt use for the facility constitutes a breach of contract in our analysis of Wood Care's second issue.

      . Bateman confirmed it was "hypothetically” possible to run the Masters Commission program at the building, but he testified it was not reasonable to do so.

      . Reviewing courts "cannot disregard undisputed evidence that allows of only one logical inference” because "reasonable jurors can reach only one conclusion from it.” City of Keller, 168 S.W.3d at 814 (citations omitted). However, "[e]vidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on the facts of each case." Id. at 816 (citations omitted).


author: Justice MYERS.

text:
    Landon PERRY, M.D., Appellant, v. Diane SAMUELS and Phillip Samuels, Appellees.
    No. 05-09-00785-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 24, 2010.
    Edward P. Quillin, Quillin Law Firm, P.C., Wesley David Raff, Dallas, for Appellant.
    Coury Matthews Jacocks, The Law Offices of Coury M. Jacocks, Dallas, for ap-pellee.
    Before Justices FITZGERALD, MURPHY, and MYERS.
   OPINION

Opinion By

Justice MYERS.

Landon Perry, M.D. brings this interlocutory appeal of the trial court’s order denying his motion to dismiss the suit brought by Diane Samuels and Phillip Samuels for their failure to serve an expert report as required by section 74.351 of the Texas Civil Practice & Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon 2008), § 74.351(b) (Vernon Supp. 2009). We reverse the trial court’s order, render judgment dismissing appellees’ claims with prejudice, and remand the case to the trial court for determination of appellant’s attorney’s fees and costs of court.

BACKGROUND

In their third amended petition, appel-lees pleaded that Ms. Samuels underwent a cosmetic procedure from a doctor other than appellant. She then sought treatment from appellant for a complication from that procedure. Later, Ms. Samuels sought treatment from appellant for a possible hernia. Appellant told Ms. Samuels her pain and reduced mobility and flexibility were due to her abdominal muscles coming apart and that an abdominoplasty (also called a “tummy-tuck”) would alleviate her condition. Ms. Samuels told appellant she would not consent if the surgery would result in scarring visible when wearing a bikini, and appellant told her that would not occur. Appellant also offered to perform liposuction on her hips in the same procedure, and Ms. Samuels agreed. Appellees alleged the surgery appellant performed resulted in numerous visible scars, as well as pain, swelling, discoloration, and bruising. Appellant prescribed painkillers and antibiotics to Ms. Samuels for several months. Appellant performed a second surgery “to correct and conceal the extensive and residual” damage from the first surgery. Appellees also alleged appellant omitted the prescriptions for painkillers and antibiotics from Ms. Samu-els records and that he made numerous false entries in the medical and progress notes.

In their live pleading, appellees’ only cause of action under these alleged facts was common-law fraud. Appellees alleged:

Defendant made multiple, material, false and knowing misrepresentations representations [sic] previously identified throughout this instrument, of false statements and knowing misrepresentations of material facts by Defendant. Specifically, Defendant made the representation to Plaintiff that the aforesaid surgical procedure was necessary to alleviate the current physical symptoms experienced by, and adversely affecting Plaintiff, further induced with the representation of Defendant’s ability to improve the appearance of the physical area where the “tummy tuck” was to be performed. Further, Defendant fabricated and falsified the aforesaid entries in the progress notes of Plaintiffs medical records.
The Plaintiffs factual allegations support Defendant intended Plaintiff to rely as evidenced by the intentional omission of relevant care from Plaintiffs medical records during Defendant’s fraudulently procured course of treatment lasting near a year, for which Plaintiff did rely to her damage evidenced by the numerous months of fraudulently concealed treatment by Defendant, as [sic] and the numerous months since.

Appellees sought damages for Ms. Sam-uels’s past and future mental pain and anguish, past and future conscious pain and suffering, past and future medical expenses, and for having been “deprived of the attention, love, companionship, affection, consortium and marital relationship of’ Mr. Samuels. They also sought damages because Mr. Samuels was “deprived of the attention, love, companionship and affection” of Ms. Samuels. Appellees also alleged they were entitled to exemplary damages.

When appellees did not serve appellant with an expert report within 120 days of filing suit, appellant moved for dismissal of their suit with prejudice and an award of his attorney’s fees and costs pursuant to section 74.351 of the civil practice & remedies code. Appellees responded that they filed a fraud claim, not a health care liability claim, and so were not subject to the expert-report requirement. The trial court denied appellant’s motion to dismiss.

MOTION TO DISMISS UNDER SECTION 74.351

In his sole issue, appellant asserts the trial court erred in denying his motion to dismiss. Section 74.351(a) requires that a claimant bringing a health care liability claim must, not later than the 120th day after filing suit, serve on each defendant of the health care liability claim an expert report defined by section 74.351(r)(6). Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a), (r)(6) (Vernon Supp. 2009). If the claimant does not serve an expert report within the 120-day period, the trial court must enter an order that:

(1) awards to the affected physician or health care provider reasonable attorney’s fees and costs incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.

Id. § 74.351(b).

Whether a claim is a health care liability claim is a question of law we review de novo. Dual D Healthcare Operations, Inc. v. Kenyon, 291 S.W.3d 486, 488 (Tex.App.-Dallas 2009, no pet.); Lee v. Boothe, 235 S.W.3d 448, 451 (Tex.App.-Dallas 2007, pet. denied). The statute defines “health care liability claim” 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.

Id. § 74.001(a)(13) (Vernon 2005). The statute defines “health care” 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.” Id. § 74.001(a)(10).

Artful pleading cannot avoid the requirements of section 74.351 when the essence of the suit is a health care liability claim. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex.2004). To determine whether a cause of action falls under the definition of a health care liability claim, we examine the underlying nature of the claim. Id. “If the factual allegations are related to the medical treatment provided by the defendant and constitute ‘an inseparable part of [the defendant’s] rendition of medical services,’ then the plaintiffs claim is a health care liability claim subject to the requirements of chapter 74.” Lee, 235 S.W.3d at 451 (quoting Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995)). When proof of a claim requires expert medical testimony, it is usually a health care liability claim. Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex.App.-Dallas 2005, no pet.).

Appellees’ petition alleged appellant committed fraud by making misrepresentations that:

(1) Abdominoplasty was necessary to alleviate Ms. Samuels’s symptoms;
(2) the procedure would improve Ms. Samuels’s appearance;
(3) the procedure could be performed without leaving scarring visible when Ms. Samuels wore a bikini; and
(4) appellant had the necessary knowledge and skill to perform the procedure.

Appellees also alleged appellant committed fraud by making false statements in Ms. Samuels’s medical and progress notes. To prove these representations were false, ap-pellees would have to present expert medical testimony. Furthermore, all of these allegations “are related to the medical treatment provided by the defendant and constitute ‘an inseparable part of [the defendant’s] rendition of medical services.’ ” Lee, 235 S.W.3d at 451 (quoting Walden, 907 S.W.2d at 448). Thus, they are health care liability claims and are subject to the expert-report requirement. Cf. Gormley v. Stover, 907 S.W.2d 448, 449-50 (Tex.1995) (per curiam) (DTPA claim that dentist represented he could perform procedure “with no problems” and that pain and numbness would cease in several months was health care liability claim); Lee, 235 S.W.3d at 451 (fraud claim against doctor who represented that Interlasik procedure would be “absolutely free” if patient’s vision was not corrected to 20/20 was health care liability claim subject to expert-report requirement).

Because appellees’ fraud claim is a health care liability claim, appellees had to serve appellant with an expert report within 120 days of filing suit. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Appel-lees did not serve appellant with an expert report. Accordingly, appellant was entitled to have his motion for dismissal of the cause with prejudice granted and to an award of his reasonable attorney’s fees. See id. § 74.351(b). We conclude the trial court erred in denying appellant’s motion.

We reverse the trial court’s order denying appellant’s motion to dismiss, we render judgment in appellant’s favor dismissing appellees’ claims with prejudice, and we remand the cause to the trial court solely for a determination of an award of appellant’s reasonable attorney’s fees and costs of court.