author: LEE ANN DAUPHINOT, Justice.

text:
    WAFFLE HOUSE, INC., Appellant, v. Cathie WILLIAMS, Appellee.
    No. 2-05-373-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 1, 2007.

      Fulbright & Jaworksi L.L.P., W. Wendell Hall, Mark Emery, San Antonio, for Appellant.
    Foreman, Lewis & Hutchison, P.C., Susan Hutchison, Kern Lewis, Grapevine, for Appellee.
    PANEL B: DAUPHINOT, GARDNER, and McCOY, JJ.
   MEMORANDUM OPINION

LEE ANN DAUPHINOT, Justice.

Waffle House, Inc. appeals from a jury verdict finding that its employee sexually harassed Appellee Cathie Williams, a former Waffle House employee, that Waffle House’s negligence in “supervising and/or retaining” the employee proximately caused damage to Williams, and that Waffle House constructively discharged Williams by an official action. In four issues, Waffle House argues that the jury’s findings of negligent supervision and retention cannot support the judgment; that Williams’s alternative trial theories have been abandoned, or, alternatively, the evidence is legally and factually insufficient to support the jury’s findings of sexual harassment and constructive discharge; that Waffle House is entitled to a new trial because the trial court abused its discretion by excluding evidence and because of newly discovered evidence; and that there is no legally or factually sufficient evidence to support the jury’s findings that Waffle House acted maliciously or with reckless indifference toward Williams. We affirm.

Facts and ProceduRal History

Williams began working at Waffle House Unit 206 on July 5, 2001. She worked the third shift, from 9 p.m. to 7 a.m. During Williams’s employment with Waffle House, she had a number of different managers. Ossie Ajene was the store manager at the time of her hiring, and T. J. Marshall was the district manager. In December 2001, Kevin Love replaced Ajene as the store manager. Allen Conley replaced Marshall as the district manager in January 2002. Kevin Ross was the division manager (manager over the district managers) at that time. Managers did not usually work the third shift but were available by telephone at all hours and regularly came in during the night to handle problems.

Within Williams’s first week of work, employee Eddie Davis, a cook, began making sexual comments to her. Davis looked her up and down and then told her that she “looked like [his] baby’s mama” and that she “had a fine ass for a white woman.” When Williams walked by Davis, he would push her into counters and into the grill. Davis asked Williams if she “ever had the flavor of a black man.” Williams testified that when Davis made the remark, he had his hands down his pants. At one point, while Williams waited on customers, Davis came up behind her, held her arms, held his whole body against hers close enough to breathe on her neck, and said, “Isn’t she great? Isn’t she wonderful?,” to the customers. Davis cornered her on several other occasions as well. When Williams would reach up to put plates on a shelf above head level, Davis would put his arm up and rub against her breast. On one occasion, Williams went to the back room, where the lights were off, to get salad supplies. As she began to leave, Davis stood in front of her with his arm up on the freezer door, blocking her exit. When she requested that he move, he just chuckled. She had to duck under his arm to leave the room. On another occasion, when Davis was at the restaurant after his shift, he showed Williams a condom and laughed. He would frequently stare at her when he was in the restaurant while off duty.

There were no complaints from other employees about sexual remarks or behavior by Davis. No other employee witnessed the incidents with Williams.

Williams told store manager Ajene of Davis’s behavior. Williams testified that when she told Ajene about Davis’s conduct, he laughed and told her that “it doesn’t sound like Eddie.” Waffle House claimed that Ajene first heard of the complaint from coworker Bobbie Griffith, who had heard about it from Williams but had not witnessed the behavior. Ajene spoke to Davis, who denied the allegations. Ajene testified at trial that when he spoke to Davis, he was not sure specifically what Williams’s complaint against Davis consisted of because Williams would not talk about it with him. Ajene nevertheless moved Davis to the second shift. Ajene testified that he then kept his eyes open for any problems between Davis and Williams during the shift change. During the nearly eight months after Davis moved shifts, Williams and Davis rarely worked together, with shift overlaps totaling approximately 18.5 hours during that time. But Davis was still at the restaurant many times when not on the clock, eating meals and picking up his pay. Davis’s replacement on the third shift was his roommate, with whom Davis shared a car, and Davis often spent time at the restaurant after his shift.

Williams also discussed the issue with district manager Marshall. Marshall spoke with Davis about Williams’s allegations, and again Davis denied them. Waffle House provides an employee complaint hotline as part of its sexual harassment policy. The hotline allows employees to report complaints to corporate management without going through lower-level managers. Marshall attempted to call the hotline for Williams, who said that she had tried to use the hotline before but worried she had not dialed correctly. The parties dispute whether Marshall accidentally called the wrong number and left a message on the company’s workers’ compensation hotline, or whether the complaint was made to the correct number but not acted upon by corporate management.

Williams reported the harassment to Love after he replaced Ajene. Love told Davis that he would not tolerate sexual harassment, and he told Griffith to report back to him if she saw any incident between Williams and Davis. District manager Conley, who had replaced Marshall, told Williams to write him a letter documenting her claims, which she did. Conley reported Williams’s claim to Ross, the divisional manager. Waffle House corporate management denies ever receiving Williams’s letter, and Conley could not remember exactly to whom he gave the letter.

Williams claimed that Waffle House did nothing to determine if the behavior was ongoing or if Davis was retaliating against her. Williams’s last day of work was February 24, 2002; the next week, when Williams was scheduled to work, her husband called and resigned for her. Williams then filed complaints with the Equal Employment Opportunity Commission and the Texas Commission on Human Rights (“TCHR”), seeking permission to sue. The EEOC and the TCHR each issued a right to sue notice.

Williams filed suit in Tarrant County alleging sexual harassment under the Texas Labor Code, as well as common law claims of assault and battery, ratification, and negligent supervision and retention. She further alleged that Waffle House acted with reckless indifference with respect to the statutory sexual harassment claim and willfully or maliciously with respect to the common law claims. She also claimed exemplary damages.

Davis could not be found at the time of trial, and he was nonsuited. At trial, Waffle House attempted to introduce a chart that summarized the number of hours that Williams and Davis worked together during Williams’s time at Waffle House. The trial court excluded the chart. The trial court also granted Williams’s motion in limine prohibiting Griffith from testifying about any sexual comments that Williams made in the workplace and excluded portions of Griffith’s deposition testimony from evidence.

Williams testified that Davis’s harassment caused her to have shortness of breath and to feel afraid and helpless. She said that she could not sleep and had trouble eating, and her hair started falling out. She stated that she had to take medication to help with her anxiety and depression.

Williams’s husband testified that after she started working at Waffle House, she became sleepless and restless, began having nightmares, and began grinding her teeth. Williams’s attorneys referred her to Dr. C. Ewing Cooley, a psychologist and therapist, who began treating Williams and who testified about her mental condition. He testified that Williams had recurring anxiety and was experiencing fear and anger. Dr. Cooley testified that Williams’s experiences with Davis exacerbated the posttraumatic stress disorder she suffered from as a result of her stepfather sexually abusing her as a child. Waffle House argued that Williams’s emotional and physical symptoms resulted from a series of events that she experienced in a short period of time: her stepfather had recently been released from prison and had previously threatened to kill Williams and her stepsister for testifying against him; Williams’s son had ongoing heart problems that had required multiple surgeries, and he had been having problems at school; because of her son’s difficulties, Williams had been home-schooling him while working at Waffle House and she and her husband were engaged in another lawsuit, in which they were suing for emotional distress, due to problems with their mobile home.

In a 10-2 verdict, the jury found Waffle House liable on some of Williams’s claims. The jury found that Davis had sexually harassed Williams, that Davis had assaulted Williams, and that Waffle House’s negligence in supervising Davis, retaining him, or both proximately caused damage to Williams. The jury also found that Waffle House constructively discharged Williams by an official action. The jury did not find that Waffle House ratified Davis’s assault or that Waffle House retaliated against Williams for making her sexual harassment complaint. The jury awarded her $400,000 in past compensatory damages, $25,000 in future compensatory damages, and $3,460,000 in punitive damages. The trial court entered a final judgment for Williams for $400,000 in past compensatory damages, $53,201.09 in prejudgment interest, $25,000 in future compensatory damages, $425,000 in punitive damages (lowered due to the general cap on punitive damages), $4,728.60 in costs, and post-judgment interest at five percent.

After trial, a former Waffle House employee, Lisa Stone, called the Waffle House legal department after reading a newspaper article about the verdict and disclosed conversations she had had with Williams at work in which Williams allegedly openly discussed her sexual preferences and sexual conduct.

Waffle House filed a motion for a new trial and, alternatively, a suggestion of re-mittitur of damages, and a motion for judgment notwithstanding the verdict, and after these motions were denied, a notice of appeal.

Analysis

Negligent Supervision and Retention Claim

The first issue on appeal is whether the jury’s findings of negligent supervision and retention can support the judgment. Waffle House first argues that there is no legally or factually sufficient evidence to support the jury’s finding of negligent supervision and retention. Alternatively, Waffle House argues that the trial court erred by failing to instruct the jury on “damages.” A legal sufficiency challenge may only be sustained when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. 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 factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not.

An assertion that the evidence is factually insufficient to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. We are required to consider all of the evidence in the case in making this determination, not just the evidence that supports the finding.

A claim of negligent supervision or negligent retention is based on the employer’s direct negligence, not the employer’s vicarious liability. An employer is therefore not liable for an employee’s conduct under a negligent supervision or a negligent retention theory unless the employer owed a duty to the injured party, the employer’s negligence proximately caused the injury, and the employee committed an actionable tort. Waffle House does not dispute that its employer-employee relationship with Davis created a duty on its part to control Davis’s conduct or that it had a duty to adequately hire, train, and supervise its employees. Nor does Waffle House dispute that the negligent performance of those duties imposes liability on Waffle House if Williams’s injuries resulted from Waffle House’s failure to take reasonable precautions to protect her from Davis’s misconduct. Waffle House does contend that Williams failed to produce legally or factually sufficient evidence of a breach of duty or of causation.

We first consider whether the evidence presented at trial was legally and factually sufficient to support a finding of breach of duty. Williams testified that within her first week of work, Davis began making unwanted sexual comments to her. Ajene learned of Williams’s problems with Davis and spoke to Davis, who denied the allegations. Ajene moved Davis to the second shift but did not call the company hotline and did not take any steps to ensure that Davis did not interact with Williams in the restaurant when Davis was not working. Ajene testified that he then kept his eyes open for any problems between Davis and Williams during the shift change, but Ajene did not conduct an investigation of Williams’s complaints, other than his initial conversation with Davis. Williams testified that Ajene told her he wanted to handle the situation in-house and did not want her to call the hotline.

District manager Marshall spoke with Davis about Williams’s allegations, and again Davis denied them. Marshall attempted to call the hotline for Williams. He did not conduct an investigation of Williams’s complaints, did not follow up with Williams to determine if any investigation had been made by Waffle House’s corporate management, and did not ensure that Davis and Williams would have no interaction in the restaurant.

When Love replaced Ajene, Williams made her complaints to him. Love told Davis that he would not tolerate sexual harassment. He did not investigate the complaints and did not investigate as to whether problems were continuing. He also did not attempt to ensure that Davis did not interact with Williams in the unit. In fact, when Williams complained to him that she was still encountering Davis at work, he told her that there was no way to structure their shifts so as to avoid her coming into contact with Davis as long as they were both employed at the same restaurant. He did not call the hotline as required under Waffle House policy. He did report to Marshall, his district manager. Marshall told Love that he (Marshall) would look into the matter, but Love never followed up to determine if Marshall had investigated the matter or what he was doing to take care of the situation. When Conley replaced Marshall as Love’s district manager, Love did not talk to him about the situation.

Conley also did not attempt to ensure that Williams and Davis had no interaction in the restaurant. In his deposition, he stated that he believed that he had called the hotline, but at trial he stated that he did not remember calling the hotline. He did not interview Davis or ask him for a statement. In his testimony, Conley could not be sure what he did with the letter he asked Williams to write or whom he gave it to.

Although a call was made to a Waffle House hotline, no investigation was ever made of Williams’s complaints. Even if Williams called the wrong number, she had reported her complaint to four different managers — once in writing — and the evidence shows that none of the managers conducted a sufficient investigation of her complaints, ascertained whether Waffle House corporate management was investigating the complaints, followed up with Williams as to whether the complaints were being investigated or whether the problems were ongoing, or ensured that Williams and Davis would have no interaction on the work premises. No attempt was made by the managers to supervise Davis when he was in the store off-duty to prevent the type of behavior that Williams reported. Waffle House retained Davis as an employee despite Williams’s complaints and without sufficiently investigating to determine whether her complaints had merit.

Under Texas law, an employer may be liable to a plaintiff for negligent supervision if the plaintiffs injuries result from the failure of the employer to take reasonable precautions to protect the plaintiff from the misconduct of its employees. Waffle House urges us to apply Mackey v. U.P. Enterprises, Inc. and cites that case for the proposition that because Waffle House had corporate policies regarding sexual harassment, it took reasonable precautions to prevent Williams from the misconduct of its employees, and therefore as a matter of law there is no evidence of breach of duty. Waffle House thus claims that an employer cannot be held liable if it puts in place a policy to prevent the kind of harm Williams suffered but then fails to follow the policy. We do not read Mackey for the proposition that an employer’s duty to its employees ends with putting in place reasonable precautions to prevent harm, such that an employer can escape liability when it learns that an employee is engaging in the kind of behavior the precautions were designed to prevent, yet the employer fails to act. Such an interpretation would fly in the face of the law on negligent retention, under which an employer is liable if it retains an incompetent employee whom the employer knows was incompetent or unfit, “thereby creating an unreasonable risk of harm to others,” and the plaintiffs injuries are the result of the employer’s continued employment of the incompetent or unfit employee.

We also find Mackey to be distinguishable from this case. In Mackey, the plaintiff employee sued her employer, U.P. Enterprises, owner of the Taco Bell franchise where she worked, on grounds that her managers sexually harassed her. Mackey alleged that UPE failed to monitor the supervisory practices of the managers who sexually harassed her, “failed to detect or take action to deter the alleged sexual harassment,” and “failed to implement and monitor procedures for handling grievances.” UPE moved for summary judgment and presented evidence that it had a written policy against sexual harassment, that it trained its managers on the policy twice a month, and that corporate supervisors visited each store daily. The trial court granted summary judgment, and Mackey appealed. The court of appeals held that in order to avoid summary judgment, Mackey would have had to present evidence specifying UPE acts or omissions that supported her allegations or that otherwise controverted UPE’s summary judgment evidence. Because Mackey presented no such evidence, the summary judgment was affirmed.

In the instant case, Williams alleged that (1) Waffle House managers negligently supervised and negligently retained an employee that Waffle House had reason to know was violating its company policies and (2) Waffle House did not follow its own policies regarding sexual harassment and the investigation of sexual harassment complaints. Specifically, Williams’s petition alleged that it was foreseeable that she would be harmed if Waffle House retained Davis and if Waffle House failed to properly supervise Davis. She alleged that Waffle House knew or should have known that Davis was incompetent or unfit for retention, that he would continue to come into contact with Williams during her working hours and, based upon Williams’s complaints, that this would create a risk of harm to her. She further alleged that Waffle House would have made such a determination had it performed an investigation in keeping with its own corporate policies. Williams then presented evidence supporting these claims at trial. Mackey is therefore distinguishable from this case.

The evidence presented at trial showed that Waffle House did not conduct a sufficient investigation given the gravity of Williams’s complaints, did not follow its own procedures for investigating such complaints, did not take reasonable precautions to prevent interaction between Williams and Davis in the restaurant, and retained an employee it had reason to know was unfit, all of which was some evidence of breach of duty by Waffle House. We therefore hold that the evidence was legally sufficient on this element. Additionally, we hold that the evidence was factually sufficient because we cannot say that the evidence supporting a finding of breach of duty was so weak or the evidence to the contrary so overwhelming that the jury’s answer should be set aside. Waffle House also argues that the evidence was insufficient to support a finding of proximate cause. We disagree. Proximate cause consists of both cause in fact and foreseeability. Cause in fact is an act or omission that is a substantial factor in bringing about the injury, without which the injury would not have occurred. The element of foreseeability is met if “a person of average intelligence should have anticipated” that the act or omission would create a danger to others. Proximate cause is a question of fact “particularly within the province of a jury”; “a jury finding on proximate cause will be set aside only in the most exceptional circumstances.”

According to Williams’s testimony at trial, because of her experiences at Waffle House, she began having nightmares about Waffle House management. She has trouble sleeping at night because she “hears things,” and she has to get up to check on her children out of fear that something is going to happen to them. She began grinding her teeth at night, causing them to chip, and she now must wear an occlusal guard at night. Her hair started falling out, and she testified that she had never experienced hair loss before her experience at Waffle House. She testified that because of Davis’s conduct, she cannot be alone in a dark room and becomes panicked in crowds and elevators. She began taking medication to cope with her anxiety and depression. She has been in therapy for several years now to deal with her anxiety resulting from her experience at Waffle House.

Waffle House contends that the presence of other stressors in Williams’s life is fatal to her claim because Williams presented no testimony as to what percentage of her stress was caused by any acts of Waffle House. Waffle House attempts to characterize Dr. Cooley’s testimony as an admission that Williams’s damages were caused by other stressors rather than by any acts or omissions of Waffle House. Dr. Cooley did state that he could not specify what exact percentage of her stress was caused by her stepfather’s sexual abuse and what exact percentage was caused by her treatment at Waffle House. But Dr. Cooley further testified that he was not aware that anyone could specifically parcel out into percentages the cause of mental anxiety and the accompanying physical injuries. He also further testified that he understood that she had been coping with her childhood experiences until her experiences at Waffle House. Accordingly, we do not regard Dr. Cooley’s testimony as an admission that Waffle House’s negligence did not cause injury to Williams. Further, the jury apparently did not find credible Waffle House’s arguments that Williams’s injuries resulted from other stressors in her life. The jury did believe Williams’s evidence that she was capably dealing with other stressors in her life and that it was her experience at Waffle House that triggered her negative reactions.

Texas law is well settled that a tortfeasor takes a plaintiff as he finds her. Williams was therefore entitled to recover the damages resulting to her from Waffle House’s breach, “conditioned as [she] was at the time of the injury, and not such damages as [she] might have been entitled to had [her] condition been different.” Even if other stressors in Williams’s life made her more susceptible to injury from Waffle House’s negligence, that fact “cannot affect the question of right to or measure of damages.”

We note that Waffle House appears to be asking us to hold that a plaintiff must present expert testimony proving sole proximate cause when alleging damages from negligence. Such a rule is clearly not the law in Texas. Rather, Texas law allows that there may be more than one proximate cause of an injury, and “all persons whose acts contributed to the injury are liable therefor, and the negligence of one does not excuse the negligence of the other.” We therefore are unpersuaded by Waffle House’s arguments.

Waffle House cites Castillo v. Cared, Inc., for the proposition that an act that may furnish a condition that makes an injury possible does not constitute proof of causation. Castillo does not control our holding. In Castillo, a security company provided security services for a motel. The company’s policy permitted the security guard to enter a guest’s room to investigate a disturbance without being accompanied by another person, which the court held furnished a condition that made rape possible but did not make it foreseeable. The company did not know and had no reason to anticipate that the security guard in question would rape a guest. In this case, Waffle House did more than assign two employees to the same shift, furnishing a condition that made possible the assault of one employee by the other. After Waffle House was notified multiple times of problems between the two employees, it failed to sufficiently investigate or take adequate steps to prevent the kind of harm it knew or should have known could result from the continued interaction of the two employees. This is at least some evidence, more than a scintilla, of negligent supervision and retention.

We believe that the evidence presented to the jury was legally sufficient to support the jury’s answer as to causation; there was ample evidence that at least some of the damage to Williams was caused by Waffle House’s negligence and that her existing problems were exacerbated by her experiences at the restaurant. Further, we hold that the evidence was factually sufficient because we cannot say that the evidence that Williams suffered damages from the negligence of Waffle House was so weak or the evidence to the contrary so overwhelming that the jury’s. answer on damages should be set aside and a new trial ordered. Accordingly, because the evidence is legally and factually sufficient and we find no exceptional circumstances in this case, we uphold the jury’s finding on proximate cause.

Alternatively, Waffle House argues that the trial court erred by failing to instruct the jury that “damages” in negligence cannot arise from conduct that amounts to statutory sexual harassment. Williams counters that Waffle House failed to preserve this argument for appeal. We agree.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. If a party fails to do this, error is not preserved, and the complaint is waived. When complaining of an error in the jury charge, the objecting party must timely and plainly make the trial court aware of the complaint and obtain a ruling.

During the charge conference, Waffle House did object that “damage” needed to be defined, but in an ambiguous manner. Waffle House did not plainly make the trial court aware of Waffle House’s complaint on appeal that the jury needed to be instructed that it could not base damages for negligent supervision and retention on a finding of sexual harassment by Davis. When discussing the compensatory damages jury question, the parties argued as follows:

[COUNSEL FOR WAFFLE HOUSE]: But it needs to be defined.
THE COURT: What, damage?
[COUNSEL FOR WAFFLE HOUSE]: I believe it does under the Pattern Jury Charge there’s a definition as to damage, what damage means.
THE COURT: Yeah. Damages are defined as a host of things, loss of consortium, loss of earning capacity, loss of household services — that’s—they’re economic damages.
[COUNSEL FOR WILLIAMS]: Well, I think the damages are defined in Question No. 9, your Honor.
THE COURT: Yeah.
[COUNSEL FOR WILLIAMS]: The damages that she’s entitled to. If the jury found that she was damaged by Waffle House’s negligent supervision, they would then turn to Question No. 9 and determine the amounts of her damages for those categories listed that are available.
THE COURT: And you’re saying the damages are defined as back pay, compensatory—
[COUNSEL FOR WAFFLE HOUSE]: Compensatory damages.
THE COURT: —damages past, compensatory future. How do I know that the jury knows that, to refer to a definition of damages, see — but see, I have a problem doing that because I mean you’re telling the jury these are the damages that she suffered. I’m not going to define damages. I’m going to leave it alone. Okay.
Anything else as to that question?
[COUNSEL FOR WILLIAMS]: Not as to that question, Your Honor.
THE COURT: All right.

The discussion in the conference clearly indicated that the trial court understood Waffle House’s objection to be that Waffle House wanted a definition on damages, generally.

Waffle House contends that it preserved error on the trial court’s failure to include a definition on damages because it submitted in writing separate damages questions for the sexual harassment and tort claims. But there is a difference between objecting on the ground that jury questions were not asked separately and objecting that instructions were not given. Waffle House needed only to object to the absence of an instruction in such a way that the trial court understood its objection, but it did not do so. Further, when Williams’s counsel stated that the jury would answer the compensatory damages question if the jury found that Williams was damaged by Waffle House’s negligent supervision, Waffle House did not then notify the trial court of its contention that the jury should not answer the compensatory damages question so as to allow a finding of sexual harassment to be the basis of damages from Waffle House’s negligent supervision and retention of Davis. Later in the charge conference, Waffle House specifically objected that the question did not contain a mitigation instruction as in the charge that Waffle House had submitted, but it made no such complaint with respect to a damages instruction. Neither the objections made nor Waffle House’s proposed jury questions informed the trial court of Waffle House’s argument that damages needed to be defined in a way that would make the jury understand that it could not base damages for negligent supervision and retention on a finding of sexual harassment by Davis. We therefore hold that the complaint is waived.

Because we hold that the evidence is legally and factually sufficient to support the jury’s findings on breach of duty and proximate cause and that Waffle House did not preserve its complaint on the damages instruction, we overrule Waffle House’s first issue. We therefore do not address Waffle House’s second issue of whether Williams’s alternative trial theories can support the judgment.

Whether Waffle House is Entitled to a New Trial

We now consider Waffle House’s third issue, whether it is entitled to a new trial. Waffle House maintains that it is entitled to a new trial because the trial court abused its discretion by excluding the testimony of Bobbie Griffith, a Waffle House employee, and by excluding an exhibit, specifically a chart summarizing the number of hours Williams and Davis worked together during Williams’s employment at Waffle House. Waffle House also maintains it is entitled to a new trial based on the newly discovered evidence from Lisa Stone, Williams’s former coworker.

Whether to grant a new trial based on newly discovered evidence is within the discretion of the trial court. To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. An abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court’s decision.

A trial court’s rulings in admitting or excluding evidence are also reviewable under an abuse of discretion standard. An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis in the record for the ruling.

We first decide whether the trial court’s exclusion of Griffith’s testimony entitles Waffle House to a new trial. Waffle House argues that the trial court abused its discretion by excluding Griffith’s testimony, which it contends demonstrates that Williams regularly injected sexual discussions into the work environment. According to Waffle House, the evidence goes to the “ ‘welcomeness’ of sexual chats or conduct in the workplace” and the specific question of whether Davis’s conduct was unwelcome to Williams. Williams argues that Waffle House did not preserve this issue for appeal and that Griffith’s testimony was properly excluded.

If a proponent offers evidence that the trial court excludes, to preserve error the proponent must present a formal bill of exception to the trial court unless the substance of the excluded evidence was apparent from the context within which the questions were asked. A party cannot rely on a ruling on a motion in limine to preserve error. There is, however, a distinction between a motion in limine and a pretrial ruling on admissibility. A trial court may conduct a pretrial hearing to consider written trial objections to a party’s exhibits and “such other matters as may aid in the disposition of the action.” At the hearing, the court can issue an order that controls “the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” The rule “does not suggest that it is necessary to go through the same procedure during the course of the trial.”

Waffle House had designated portions of Griffith’s video deposition that it intended to show at trial. The trial court’s scheduling order had required Williams to submit her objections to Waffle House’s video designations pretrial, and Williams accordingly filed her objections on April 7, 2005. Williams also filed a motion in limine seeking to keep out the conversations that Williams had with Griffith about Williams’s sexual conduct. After Williams submitted her objections, the court requested that a copy of the deposition be attached to her objections. On the first day of trial, the trial court informed the parties of its ruling that the video deposition testimony at question was inadmissible:

THE COURT: I still have to rule on the videotape deposition, and I’ve ruled on that, but I’ve got to change and so ... my coordinator is going to come in and get a copy of the objections and I’ll just affix my rulings.
To be truthful, yesterday I ruled that technically — I don’t mind saying that— technically Ms. Griffith could talk about all that, but after sitting here reading this case law, there is a distinction, and I caught that. I’m smart enough. I think I caught that distinction where I now — I believe she can’t, I’ve got to scribble through all my markings. Okay? All right.

At the end of that day, the court gave the parties a copy of his ruling on the video deposition designations. In the order, the court granted each of Williams’s objections to Griffith’s testimony — the same testimony that she sought to keep out through the motion in limine.

Williams contends that because an adverse ruling on a motion in limine preserves nothing for review, Waffle House’s failure to offer Griffith’s testimony during trial prevents it from arguing error in its exclusion. The trial court did grant Williams’s motion in limine. But the trial court also separately ruled on Williams’s pretrial objections to the admissibility of the deposition testimony at issue. Prior to trial, Waffle House designated which portions of Griffith’s deposition it intended to offer at trial. In accordance with the trial court’s scheduling order, Williams submitted written objections to specific portions of the deposition. In a pretrial conference, the court requested and received a copy of the deposition at issue, and Waffle House requested and was granted the opportunity to respond. We do not believe that Waffle House was required to offer the objected-to testimony during the trial by again offering the video deposition. Nor was Waffle House required to offer the testimony by questioning Griffith on the subject while she was on the stand, because Waffle House could not have circumvented the court’s ruling by offering in live testimony what could not be offered by the deposition. Additionally, no further offer of proof was necessary because the trial court was given a copy of and looked at the deposition testimony at issue and heard Waffle House’s basis for admitting the testimony prior to its ruling, and consequently this evidence was already in the record. The deposition transcript was further made a part of the appellate record by its inclusion as an exhibit in Waffle House’s motion for a new trial. Accordingly, we hold that Waffle House has preserved this complaint.

We must therefore consider whether the trial court abused its discretion by excluding the testimony. The comments allegedly made by Williams in this case were never made to Davis, and Davis was not at trial to testify as to whether he overheard any of the comments or what effect they had on his belief as to the welcomeness of his behavior to Williams. The trial court excluded the testimony on the basis that it would only be relevant in a suit against Davis, and because, in this case, admitting the testimony would serve no purpose except to prejudice the jury. After reviewing case law on the issue, the trial court further stated that it believed that under the controlling authority, in this particular case, Griffith could not testify on the matter.

Evidence must be relevant to be admissible, and evidence that is relevant may nonetheless be excluded when the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Evidence of a plaintiffs “sexually provocative speech or dress” are not per se inadmissable, but a trial court “must carefully weigh the applicable considerations in deciding whether to admit evidence of this kind.” The trial court’s belief that the testimony had no relevance other than to unfairly prejudice the jury was not, in this case, arbitrary or unreasonable, considering the lack of evidence as to whether Davis even knew of or heard the comments Williams made to Griffith, that no evidence suggested that Williams made such comments to Davis or established that she made such comments in a manner such that she knew he would hear her, and no evidence suggested that any of the other Waffle House employees testifying at trial knew anything about or had ever heard these conversations. We therefore hold that the trial court did not abuse its discretion in excluding the testimony.

We next determine whether the trial court abused its discretion by excluding Waffle House’s graph summarizing the amount of time that Williams and Davis worked together. The trial court sustained Williams’s objection to the graph’s admittance because Waffle House’s sponsoring witness did not create the graph herself, did not know who did, and was not sure whether it was created before or after trial began.

The Texas Rules of Evidence generally require evidence to be authenticated or identified as a condition precedent to its admissibility. A trial court does not abuse its discretion by excluding evidence that has not been authenticated. Because Waffle House’s sponsoring witness could not authenticate the graph and the graph was not otherwise authenticated, we hold that the trial court did not abuse its discretion in excluding the graph.

We next consider whether Waffle House is entitled to a new trial based on the newly discovered evidence from Lisa Stone. A party seeking a new trial on the ground of newly discovered evidence must show the following: (1) the evidence has come to light after trial; (2) it was not owing to want of due diligence that the evidence did not come to light sooner; (3) the new evidence is not cumulative; and (4) the evidence is so material that it would likely produce a different result if a new trial were granted. The newly discovered evidence should “bring to light a new and independent truth” that is “so decisive as to show that justice has not been obtained.”

Stone is a former Waffle House employee. During her employment at Waffle House, she worked with Williams. In Waffle House’s attorney’s affidavit in support of the motion for a new trial, he states that in the records of and interviews with people identified as persons with knowledge of relevant facts, Stone’s name was never mentioned as a person who would have knowledge of relevant facts. He states that her name does not show up in time records for unit 206 until week 43 of 2001. He also states that Waffle House was unaware of Stone’s new address in Mineóla, Texas, where she moved after her employment with Waffle House ended.

In Stone’s affidavit in support of the motion for a new trial, she stated that she never saw Davis have inappropriate conversations or contact with Williams or any other employee, that Williams was habitually late to work, and that Williams had regular conversations with her about Williams’s sexual conduct. She also states that she contacted Waffle House after reading about the jury verdict in a newspaper.

Waffle House claims that Stone’s evidence is not cumulative. But Stone’s affidavit simply recites more instances of Williams’s allegedly discussing her sexual conduct with a coworker. Like Griffith’s deposition testimony, nowhere in Stone’s affidavit does she say that Williams discussed anything of a sexual nature with Davis or in any way indicated to Davis that his comments to her or his touching her were welcome. In its reconsideration of the motion for a new trial, the trial court stated, “I believe that to allow that Bobbie Griffith information in was nothing but an attempt to prejudice the jury and I still believe that.” Thus, if Waffle House had been aware of Stone’s evidence prior to trial, the trial court most likely would have excluded it, just as it excluded Griffith’s testimony. Because the trial court did not abuse its discretion in excluding Griffith’s testimony, it likewise would not have been an abuse of discretion for the trial court to exclude Stone’s testimony on the same grounds.

Although Stone’s affidavit corroborates Griffith’s deposition testimony that Williams discussed her sexual conduct with others, we cannot say that Stone’s testimony is so material that it would probably cause a different result or that it brings to light a new and independent truth because it does not shed light on whether Davis knew of these discussions or whether the discussions affected his behavior toward Williams or her reaction to his behavior. Accordingly, we hold that the trial court did not abuse its discretion in not granting a new trial based on Stone’s testimony.

Because the trial court did not abuse its discretion by excluding portions of Griffith’s deposition testimony or Waffle House’s graph summary or by not granting a new trial based on Stone’s evidence, we overrule Waffle House’s third issue.

Whether Waffle House is Entitled to Reversal of the Punitive Damages Award

In its final issue, Waffle House argues that the award of punitive damages must be reversed because there is no legally or factually sufficient evidence to support the jury’s findings that Waffle House acted maliciously or with reckless indifference toward Williams. Punitive damages awards must be supported by clear and convincing evidence. Clear and convincing evidence is that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. This intermediate standard falls between the preponderance standard of civil proceedings and the reasonable doubt standard of criminal proceedings. While the proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed.

This higher burden of proof elevates the appellate standard of legal sufficiency review. In reviewing the evidence for legal sufficiency, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that its finding was true. We must review all the evidence in the light most favorable to the finding. This means that we must assume that the factfinder resolved any disputed facts in favor of its finding if a reasonable factfinder could have done so. We must also disregard all evidence that a reasonable factfinder could have disbelieved. We must consider, however, undisputed evidence even if it is contrary to the finding. That is, we must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not.

This higher burden of proof also elevates the appellate standard of factual sufficiency review. On appeal, we cannot view a finding that must be based on clear and convincing evidence the same as one that may be sustained on a mere preponderance In considering whether the evidence rises to the level of being clear and convincing, we must determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that its finding was true. We must consider whether disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction in the truth of its finding, then the evidence is factually insufficient. Whether reversing or affirming an award of punitive damages, our opinion must state the reasons for reversing or upholding the jury’s finding and must detail the evidence or lack of evidence relating to the liability for punitive damages, in light of the requirements of chapter 41 of the Texas Civil Practice and Remedies Code.

Under the statute in effect at the time Williams filed her lawsuit, to be awarded punitive damages, a claimant had to prove by clear and convincing evidence that the harm suffered by the claimant resulted from malice. Malice as defined by the applicable statute and under the jury charge submitted is either (1) a specific intent to cause substantial injury to the claimant, or (2) an act or omission that “when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others,” and “of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.” The second definition incorporates the elements of the Texas Supreme Court’s gross negligence standard.

A corporation can only act through an agent or agents. Consequently, Waffle House is liable for punitive damages only if (1) an agent of Waffle House acted with malice and Waffle House ratified the act, (2) Waffle House maliciously hired an unfit agent, or (3) Waffle House acted with malice through a vice principal.

Waffle House does not dispute that the unit managers and district managers are vice principals. But Waffle House argues that, given that the jury failed to find ratification of Davis’s conduct or retaliation by Waffle House, there is no legally or factually sufficient evidence that Waffle House’s vice principals acted with the specific intent to cause harm to Williams or with an awareness of an extreme degree of risk. We agree that there is no evidence that vice principals acted with specific intent to harm Williams, but we disagree that there is no evidence that such vice principals acted — or failed to act — with an awareness of an extreme degree of risk. We conclude that the jury could have reasonably found by clear and convincing evidence that the Waffle House managers had actual, subjective awareness of the risk involved and that their conduct amounted to conscious indifference toward Williams’s rights, safety, or welfare.

Given the complaints made to them, the evidence shows that the managers had actual awareness of the risk posed by Davis’s conduct. Waffle House trained its managers on its sexual harassment policy and on the type of conduct that constitutes sexual harassment. The Waffle House managers were therefore aware of Waffle House’s policy regarding sexual harassment and of their duty to administer and follow the policy, which they breached. Given their training, and given that Williams made several complaints on multiple occasions of repeated violations of company policy, the managers “necessarily had to have actual, subjective awareness of the risk involved in conduct prohibited by such policy and the attendant necessity to conduct an investigation commensurate with the seriousness of’ the allegations of sexual harassment.

The Waffle House managers, however, failed to follow company policy, failed to conduct their own investigations, failed to determine if any investigation was made, and failed to ensure that Williams did not come into contact with Davis during her working hours, as detailed above. Given the managers’ conduct and the seriousness of Williams’s allegations to them, we believe that the evidence is legally and factually sufficient to support the jury’s award of punitive damages. That is, the evidence presented is such that the jury could have reasonably formed a firm belief or conviction that the failure to act by Waffle House managers created an extreme degree of risk to Williams and showed a conscious indifference to Williams’s rights, safety, or welfare. Accordingly, we overrule Waffle House’s final issue.

Conclusion

Having disposed of all of Waffle House’s issues, we affirm the trial court’s judgment.

      . See Tex.R.App P. 47.4.

      . Tex. Lab.Code Ann. §§ 21.051, 21.055 (Vernon 2006).

      . 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).

      . City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).

      . Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

      . Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

      . Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex.App.-Fort Worth 2002, no pet); Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App.-Tyler 1979, writ ref’d n.r.e.).

      . NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 953-54 (Tex.1996).

      . Dieter v. Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex.App.-Corpus Christi 1987, writ denied).

      . Gonzales v. Willis, 995 S.W.2d 729, 739 (Tex.App.-San Antonio 1999, no pet.).

      . See Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 459 (Tex.App.-Tyler 1996, no writ); Garcia v. Allen, 28 S.W.3d 587, 592 (Tex.App.-Corpus Christi 2000, pet. denied); Castillo v. Gared, Inc., 1 S.W.3d 781 (Tex. App.-Houston [1st Dist.] 1999, pet. denied).

      . See Garcia, 28 S.W.3d at 592.

      .See Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 474 (Tex.App.-Austin 2000, pet. denied) (holding that the jury could reasonably infer from the evidence that a manager's investigation was pretextual, or at least insufficient, given the gravity of the plaintiff's allegations, where the manager's investigation consisted of talking to the plaintiff, the object of her complaints, and two other employees, after which manager did not believe he had enough facts but did not conduct any further investigation).

      . Mackey, 935 S.W.2d at 459; see also Dieter, 739 S.W.2d at 408.

      . Leake v. Half Price Books, Records, Magazines, Inc., 918 S.W.2d 559, 563 (Tex.App.-Dallas 1996, no writ); Estate of Arrington, 578 S.W.2d at 178.

      . Leake, 918 S.W.2d at 563; Estate of Airington, 578 S.W.2d at 178; Dieter, 739 S.W.2d at 408.

      . Mackey, 935 S.W.2d at 459.

      . Id. at 459-60.

      . Id. at 460.

      . Id.

      . See Loram Maint. of Way, Inc. v. Ianni, 2006 WL 1791692, *2 (Tex.2006) (stating that the employer-employee relationship can give rise to a legal duty on the part of the employer to control the conduct of its employee and as such an employer may be liable for off-duty torts of its employees that are committed on the employer’s premises); see also Otis Bng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983).

        .Compare Kendall v. Whataburger, Inc., 759 S.W.2d 751, 757 (Tex.App.-Houston [1st Dist.] 1988, no pet.) (holding evidence was sufficient to support jury’s finding that the employer was not negligent where the employee "had never given [the employer] any indication of one day becoming a problem employee”).

      . Clark v. Waggoner, 452 S.W.2d 437, 439 (Tex.1970); Lawrence v. City of Wichita Falls, 122 S.W.3d 322, 329 (Tex.App.-Fort Worth 2003, pet. denied).

      . Morris, 78 S.W.3d at 50.

      . Waggoner, 452 S.W.2d at 439; Lawrence, 122 S.W.3d at 329.

      . Tex. Dep’t of Transp. v. Olson, 980 S.W.2d 890, 893 (Tex.App.-Fort Worth 1998, no pet.) (quoting Potter v. Anthony Crane Rental of Tex., Inc., 896 S.W.2d 845, 850 (Tex.App.Beaumont 1995, writ denied)).

      . Coates v. Whittington, 758 S.W.2d 749, 752-53 (Tex.1988); Driess v. Friederick, 73 Tex. 460, 462, 11 S.W. 493, 494 (1889).

      . See Driess, 11 S.W. at 494.

      . See id.

      . Strakos v. Gehring, 360 S.W.2d 787, 794 (Tex.1962); see also Olson, 980 S.W.2d at 893.

      . 1 S.W.3d 781 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

      . Id. at 783.

      . Id. at 786.

      . Id. at 787.

      . See Olson, 980 S.W.2d at 893.

      . Tex.R.App. P. 33.1(a); see also Tex.R. Evid. 103(a)(1).

      . Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh’g).

      . State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992) (op. on reh'g).

      . See Diamond Offshore Mgmt. Co. v. Guidry, 171 S.W.3d 840, 844 (Tex.2005) (noting that the Appellant “does not complain that questions about course of employment were not asked separately; it complains that no such questions were asked at all.").

      . See id. (“While the trial court could certainly have inquired about the separate issues of negligence, causation, and course of employment in a single question with proper instructions, [Appellant] was not obligated to request such a question. It was required only to object to the absence of any inquiry, which the trial court acknowledged [Appellant] had done with its requested questions.” Emphasis added).

      . See TexJR.App. P. 47.1.

      . Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex.2003); Marvelli v. Alston, 100 S.W.3d 460, 483 (Tex.App.-Fort Worth 2003, pet. denied).

      . Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

      . Id.

      . Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002).

      . Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000).

      . Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).

      . Tex.R.App. P. 33.2; Tex.R. Evid. 103(a)(2).

      . Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 204 (Tex.App.-Texarkana 2000, pet. denied).

      . Id. at 204; see also Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex.App.-Houston [1st Dist.] 1996), aff'd, 972 S.W.2d 35 (Tex.1998).

      . Tex.R. Civ. P. 166(m), (p); see also Huckby, 20 S.W.3d at 205.

      . Tex.R. Civ. P. 166.

      . Huckaby, 20 S.W.3d at 205.

      . See Huckaby, 20 S.W.3d at 204.

      . Tex.R. Evid. 402.

      . Tex.R. Evid 403.

      . Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 69, 106 S.Ct. 2399, 2406-07, 91 L.Ed.2d 49 (1986).

      . See Howard v. Historic Tours of Am., 177 F.R.D. 48, 51 (D.D.C.1997) (applying Meritor but stating that "that the plaintiffs may have engaged in sexual behavior with their coworkers other than the harassing employees might be construed as welcoming the harassing conduct complained of only if the harassing employees knew of it").

      . Tex.R. Evid. 901(a).

      . ESIS, Inc., Servicing Contractor v. Johnson, 908 S.W.2d 554, 561 (Tex.App.-Fort Worth 1995, writ denied) (holding that the trial court abused its discretion in admitting an unauthenticated copy of a commission appeals panel opinion).

      . See Tex.R. Evid. 901; see also ESIS, Inc., 908 S.W.2d at 561.

      . Marvelli, 100 S.W.3d at 483.

      . In re Marriage of Yarbrough, 719 S.W.2d 412, 415 (Tex.App.-Amarillo 1986, no writ); see also New Amsterdam Cas. Co. v. Jordan, 359 S.W.2d 864, 867-68 (Tex.1962) (holding that trial court did not abuse its discretion by denying a new trial when new evidence did not “bring to light a new and independent truth”).

      . Tex Civ. Prac. & Rem.Code Ann § 41.003 (Vernon Supp.2006).

      . Id. § 41.001(2); Tex. Fam.Code Ann. § 101.007 (Vernon 2002); Transp. Ins. Co. v. Morid, 879 S.W.2d 10, 31 (Tex.1994).

      . In re G.M., 596 S.W.2d 846, 847 (Tex.1980); State v. Addington, 588 S.W.2d 569, 570 (Tex.1979).

      . Addington, 588 S.W.2d at 570.

      . Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 170 (Tex.2005); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622, 625 (Tex.2004).

      . Hall, 168 S.W.3d at 170; Garza, 164 S.W.3d at 627.

      . Hall, 168 S.W.3d at 170; Garza, 164 S.W.3d at 627.

      . Hall, 168 S.W.3d at 170; Garza, 164 S.W.3d at 627.

      . Hall, 168 S.W.3d at 170; Garza, 164 S.W.3d at 627.

      . Wilson, 168 S.W.3d at 817; Hall, 168 S.W.3d at 170.

      . Wilson, 168 S.W.3d at 827.

      . In re C.H., 89 S.W.3d 17, 25 (Tex.2002).

      . Id.

      . Id. at 28.

      . In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002).

      . Id.

      . Tex Civ. Prac. & Rem.Code Ann. § 41.013(a) (Vernon 1997).

      . Act of Apr. 12, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Gen. Laws 110 (amended 2003) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 41.003(a)).

      . See Tex. Civ. Prac. & Rem.Code Ann. § 41.001(7) (Vernon 1997).

      . Dillard Dep't Stores, Inc. v. Silva, 148 S.W.3d 370, 373 (Tex.2004); see also Moriel, 879 S.W.2d at 23.

      . Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998).

      . See Qwest Int'l Commc'ns, Inc. v. AT & T Corp., 167 S.W.3d 324, 326 (Tex.2005).

      . See Itz, 21 S.W.3d at 478.

      . See id. at 478.

        .Id.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 41.001(7).


source: Caselaw Access Project

author: SANDEE BRYAN MARION, Justice. MARIALYN BARNARD, Justice, concurring.

license: Public Domain

text:
    Linda L. SHARP, Appellant, v. Tracy M. SHARP, Appellee.
    No. 04-08-00921-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 14, 2009.
    Rehearing Overruled April 20, 2010.

      Gary A. Beahm, Gary A. Beahm, P.C., San Antonio, TX, for Appellant.
    Patricia Wueste, Attorney at Law, Jo Chris G. Lopez, Robinson C. Ramsey, Langley & Banack, Inc., San Antonio, TX, for Appellee.
    Sitting: SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

This is an appeal from an order denying appellant’s motion to enforce and clarify a divorce decree. We affirm.

BACKGROUND

On September 21, 1990, the trial court signed a Decree of Divorce, which awarded as follows:

[to appellee, Tracy M. Sharp] All right, title, and interest in and to Fifty Percent (50%) of the United States Air Force disposable retired or retainer pay to be paid as a result of [Tracy’s] service in the United States Air Force.
[to appellant, Linda L. Sharp] All right, title, and interest in and to Fifty Percent (50%) of the monthly amount of the United States Air Force disposable retired or retainer pay to be paid as a result of [Tracy’s] service in the United States Air Force, and Fifty Percent (50%) of all increases in the United States Air Force disposable retirement or retainer pay due to cost of living or other reasons, if, as, and when received.

At the time of the divorce, Tracy was retired from the Air Force, and, as a Viet Nam veteran, he later received a 100% disability rating from the Veteran’s Association (“VA”). There is no dispute Tracy’s injuries qualified him to receive Combat-Related Special Compensation pursuant to a federal statute effective January 2004. See 10 U.S.C. § 1413a. Under this statute, veterans, such as Tracy, may receive Combat-Related Special Compensation (“CRSC”) in lieu of full retirement pay and Concurrent Retirement Disability Pay. In 2007, Tracy applied for and began receiving CRSC. Because such pay is in lieu of retirement pay, Linda’s share of Tracy’s retirement benefits decreased substantially. Linda then filed a Motion for Enforcement and Clarification as to Military Retirement Pay, in which she sought clarification of the decree and asked that Tracy be held in contempt. The trial court denied the motion, and this appeal by Linda ensued.

DISCUSSION

In her motion, Linda alleged Tracy violated the terms of the decree by failing to pay Linda her share of his military retired pay. On appeal, Linda concedes Tracy is entitled to elect to receive CRSC in lieu of his retirement pay. However, she argues that if he does so, he is obligated to reimburse her for her loss. We disagree.

Recently, in Hagen v. Hagen, 282 S.W.3d 899 (Tex.2009), the Texas Supreme Court considered a similar issue as that presented here, but in that case, the court considered Veterans’ Administration (“VA”) disability pay rather than CRSC. The Court first noted that language of a divorce decree is interpreted in the same manner as language contained in other court judgments. Id. at 901. “We construe the decree as a whole to harmonize and give effect to the entire decree.” Id. “If the decree is unambiguous, the Court must adhere to the literal language used.” Id. “If the decree is ambiguous, however, the decree is interpreted by reviewing both the decree as a whole and the record.” Id. “Whether a divorce decree is ambiguous is a question of law.” Id. at 901-02. The Court also noted that the Texas Family Code provides that trial courts may enter orders of enforcement and clarification to enforce or specify more precisely a decree’s property division. Id. at 902; see Tex. Fam.Code Ann. § 9.006(a) (Vernon 2006) (“[T]he court may render further orders to enforce the division of property made in the decree of divorce or annulment to assist in the implementation of or to clarify the prior order.”). But courts may not “amend, modify, alter, or change the division of property” originally set out in the decree. Tex. Fam.Code § 9.007(a). “Attempting to obtain an order that alters or modifies a divorce decree’s property division is an impermissible collateral attack.” Hagen, 282 S.W.3d at 902.

The Hagen Court stated that “only military disability pay that was an earned property right [may] be divided upon divorce, and VA disability compensation [is] not an earned property right.” Id. at 903. Because military retirement pay is characterized differently than VA disability benefits, id. at 903, military retirement pay does not include VA disability benefits, id. at 906. The Court held that, because the Hagens’ decree did not award Doris amounts “calculated on” Raoul’s gross, or even total, retirement pay before deductions, the decree “plainly entitled Doris only to part of the Army or military retirement pay Raoul received, if, as, and when he received it. As discussed previously, such military retirement pay did not include YA disability benefits.” Id. at 907. Thus, the Hagen Court concluded that the trial court “did not modify the Hagens’ decree; it only clarified that the decree did not divide VA disability pay that was or might become payable to Raoul because of disability resulting from service-connected personal injury or disease.” Id.

The language contained in the Ha-gens’ divorce decree is substantially similar to that contained in the Sharps’ divorce decree. Following Hagen, we likewise conclude the Sharps’ divorce decree unambiguously awards Linda a percentage of Tracy’s military retirement pay if, as, and when he received it. The federal statute authorizing the payment of CRSC provides that such payments are to any “member of the uniformed services who — (1) is entitled to retired pay ...; and (2) has a combat-related disability.” 10 U.S.C. § 1413a(c). This statute specifically states that “[payments under this section are not retired pay].” Id. § 1413a(g). Therefore, because CRSC is not retirement pay, the Sharps’ decree does not divide CRSC that was or might become payable to Tracy based on a combat-related disability.

CONCLUSION

We recognize, as did the Hagen Court, that Tracy’s “election to receive VA [disability] benefits has worked an inequity on” Linda. “But the language used in divorce decrees is important, and we must presume the divorce court chose it carefully, especially given the frequency of attempts to enforce decrees — as was the case here — through contempt orders.” Hagen, 282 S.W.3d at 908. We therefore conclude the trial court did not err in denying Linda’s requested relief. Accordingly, we overrule Linda’s issue on appeal and affirm the trial court’s order.

Concurring opinion by: MARIALYN BARNARD, Justice.

MARIALYN BARNARD, Justice, concurring.

Based on the precedent of the Texas Supreme Court’s decision in Hagen v. Ha-gen, 282 S.W.3d 899 (Tex.2009), I reluctantly concur in the result reached by the majority in this case. Although the majority recognizes Tracy’s election to receive Combat-Related Special Compensation (“CRSC”) “has worked an inequity on Linda,” I write separately to emphasize how grossly unfair the result actually is in this case.

The divorce decree in this case was signed in 1990. The federal statute authorizing the election made by Tracy did not take effect until 2004-fourteen years after the divorce decree was signed. Now, seventeen years after the divorce decree was signed, Tracy makes the election to receive CRSC. Because the federal statute expressly provides that CRSC is not retirement pay, see 10 U.S.C. § 1413a(g), the amount of pay Tracy receives that is classified as “retirement” pay is significantly reduced. As a result, the amount Linda is entitled to be paid under the divorce decree also significantly decreases by 86% from $1,300 per month to $180 per month. Thus, the federal statute enables Tracy to unilaterally make an election seventeen years after the parties negotiated a property division that necessarily changes that division. Although both parties were required to agree to the terms of the division at the time of the divorce, Tracy is permitted to unilaterally change that division seventeen years after the deal was made.

While the federal statute is helpful to a service person having a combat related disability, it is extremely detrimental to the service person’s former spouse. In adopting the law, I do not believe it was Congress’s intent to undermine the property division made in existing divorce decrees. In order to prevent this from occurring, however, Congress will need to revisit the wording of this statute. Otherwise, “a just-and-right division of retirement benefits may be rendered neither just nor right by allowing one party to cut off the other’s share of those benefits.” Hagen, 282 S.W.3d at 912 (Brister, J, dissenting).


author: MICHAEL MASSENGALE, Justice.

text:
    Phillipe J. BREJON, Appellant, v. Lia JOHNSON, Appellee.
    Nos. 01-08-00642-CV, 01-08-00897-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 31, 2009.

      Ned Gill III, Gill, Revack & Samaan, Bellaire, TX, for Appellant.
    Kate Hilton McConnico, Looper Reed & McGraw, P.C., Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.
   OPINION

MICHAEL MASSENGALE, Justice.

In two appeals, appellant Phillipe J. Bre-jon appeals the trial court’s orders modifying his child-support obligation (No. 01-08-00642-CV) and awarding attorney’s fees to appellee Lia Johnson (No. 01-08-00897-CV). With respect to the modification of child support, Brejon argues that the trial court abused its discretion by increasing his financial obligation because neither legally nor factually sufficient evidence supports a finding of a material or substantial change in the parties’ circumstances. As to the attorney’s-fees order, Brejon contends that the trial court lacked jurisdiction to enter that order because its plenary power had expired.

We conclude that the evidence was legally and factually sufficient to support the trial court’s order increasing Brejon’s child-support obligations, and we thus affirm the order of the trial court in cause number 01-08-00642-CV. We further conclude that the trial court had authority under Family Code section 157.001(a) to enforce its prior order granting attorney’s fees, but the court lacked authority to grant additional attorney’s fees pursuant to Johnson’s untimely request for temporary orders pending appeal under Family Code section 109.001(a). We thus modify the order of the trial court in cause number 01-08-00897-CV and, as modified, affirm.

Background

Brejon and Johnson divorced on April 3, 2007. They have one child, R.B., and they share custody in accordance with an Agreed Final Decree of Divorce. In January 2008, Johnson filed a petition to modify the parent-child relationship, and she amended her petition in April 2008. Johnson sought an increase in child-support payments from $1,200 per month to $1,500 per month, in accordance with statutory guidelines. Johnson argued that the circumstances of a party to the original order had materially and substantially changed and that the child-support payments previously ordered did not substantially comply with the guidelines in the Texas Family Code, which the Texas legislature had recently changed. See Act of May 22, 2007, 80th Leg., R.S., ch. 620 §§ 2-9, 2007 Tex. Gen. Laws 1188, 1188-90 (now Tex. Fam. Code Ann. § 154.125(a) (Vernon 2008)).

At trial, Johnson testified that Brejon did not consistently exercise his periods of possession of R.B. Johnson also testified that she had been promoted at work and that her promotion included increased responsibilities and longer working hours, Johnson said that these two circumstances required her to hire babysitters or pay to fly her mother to Houston to care for R.B. while Johnson worked. Johnson also testified to the high price of gas, generally increased costs of living, and medical expenses she had incurred. Finally, she testified that she knew that Brejon’s child-support obligation was less than that required by the Family Code child-support guidelines.

Brejon contended that child-care expenses were Johnson’s responsibility regardless of whether they arose during his periods of possession because “she wanted to have custody.” He testified that he had no regular babysitters who cared for R.B. during his periods of possession. He testified that increases in the cost of living affected him as well. However, he noted that his annual salary remained at approximately $160,000. He argued that Johnson had not proved a change in circumstances, because he had been inconsistent in exercising his right to possession of R.B. even before the divorce decree was finalized. Brejon contended that a change in the Family Code guidelines alone was insufficient to warrant a modification of child support.

After a bench trial, the trial court granted Johnson’s petition to modify and increased Brejon’s monthly child-support obligation to $1,500. On July 15, 2008, the trial court signed its order to that effect. The order also required Brejon to pay Johnson’s attorney’s fees in the amount of $7,830 plus post-judgment interest. The order further stated that all relief requested in the case and not expressly granted was denied. A week later, on July 21, Brejon filed his notice of appeal. The trial court later filed findings of fact and conclusions of law, in which the court concluded that there had been “a material and substantial change since the rendition of the Court’s last order.” The trial court found “that evidence existed of late paid educational and medical sums, of changes in Lia Johnson’s job duties and requirements, of unused visitation by Phillipe Brejon that required Lia Johnson to spend extra, unforeseen sums on babysitters and of the increased cost of living.”

On October 13, 2008, the trial court entered another order requiring Brejon to pay the previously ordered attorney’s fees plus interest. The October 13 order also awarded Johnson additional attorney’s fees incurred to enforce the July 15 order and to defend Brejon’s appeal. Brejon filed a second notice of appeal, challenging the trial court’s authority to enter the October 13 order.

Motion to Modify Child Support

Standard of Review

In general, a trial court’s ruling on child support will not be reversed on appeal unless there is a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); McLane v. McLane, 263 S.W.3d 358, 362 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). The test is whether the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles. McLane, 263 S.W.3d at 362. The reviewing court must review the evidence in the light most favorable to the trial court’s actions and indulge every legal presumption in favor of the order. Id. There is no abuse of discretion if some probative and substantive evidence supports the order. Id.

Brejon contends that the evidence is both legally and factually insufficient to show a material and substantial change in circumstances. However, under an abuse of discretion standard, legal and factual insufficiency are not independent, reversible grounds of error; rather, they are relevant factors in assessing whether the trial court abused its discretion. Patterson v. Brist, 236 S.W.Sd 238, 240 (Tex.App.-Houston [1st Dist.] 2006, pet. dism’d).

In an appeal of a judgment rendered after a bench trial, the trial court’s findings of fact have the same weight as a jury’s verdict. In re K.R.P., 80 S.W.3d 669, 673 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). When challenged, however, a trial court’s findings of fact are not determinative unless they are supported by the record. Id. We review the sufficiency of the evidence supporting the challenged findings to determine whether the trial court abused its discretion in making such findings. Id.

Our review of a legal sufficiency issue requires us to consider only the evidence and inferences that tend to support the finding, disregarding all evidence and inferences to the contrary. Vannerson v. Vannerson, 857 S.W.2d 659, 666 (Tex.App-Houston [1st Dist.] 1993, writ denied). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the issue. Id. In reviewing a factual sufficiency issue we must consider, weigh, and examine all of the evidence that supports and contradicts the finding. Id. We will set aside the finding only if the evidence standing alone is too weak to support it or if it is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Id.

Statutory Grounds for Modification

The Family Code provides that a court may modify a child-support order if: (1) the movant shows that the circumstances of the child or a person affected by the order have materially and substantially changed or (2) it has been three years since the order was rendered or last modified and the monthly child support obligation differs from the amount that would be awarded under the statutory child-support guidelines by 20 percent or $100. Tex. Fam.Code Ann. § 156.401(a), (a-1) (Vernon 2008). Paramount to the trial court’s determination of child support is the best interest of the child. McLane, 263 S.W.3d at 362 (citing Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex.2002)). “In determining whether a modification in child-support payments is appropriate, the trial court should examine the circumstances of the child and parents at the time the prior decree was rendered, in relation to the circumstances existing at the time modification of the prior order is sought.” Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

Family Code section 156.402(a) states that the trial court “may consider the child support guidelines ... to determine whether there has been a material or substantial change of circumstances ... that warrants a modification of an existing child support order....” Tex. Fam.Code Ann. § 156.402(a) (Vernon 2008). In addition, “if the amount of support contained in the order does not substantially conform with the guidelines ... the court may modify the order to substantially conform with the guidelines....” Id. § 156.402(b). A court may also consider other relevant evidence in ruling on a motion to modify child support. Id. Thus, a court’s consideration of the child-support guidelines in a modification proceeding is discretionary, not mandatory. See, e.g., Friermood, v. Friermood, 25 S.W.3d 758, 760 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Accordingly, a child-support order that does not comply with statutory guidelines does not in and of itself establish a material and substantial change in circumstances requiring modification. See id.

Material and Substantial Change

Because three years have not yet passed since the original order was rendered, Johnson had the burden to prove a material and substantial change in the circumstances of the child or a person affected by the order. Tex. Fam.Code Ann. § 156.401(a)(1) (Vernon 2008). Brejon argues that she did not do so.

Johnson argues that a change in the Family Code was itself a material and substantial change in circumstances sufficient to warrant a modification of the child-support order. Specifically, the legislature increased the amount of net resources to be considered in calculating a parent’s child-support obligation. In her brief, Johnson explains that earlier amendments to the Family Code included enabling language that specified that the change in the law was not a change of circumstance sufficient to warrant a child-support modification. See Act of June 1, 2003, 78th Leg., R.S., ch. 1262, § 5(c), 2003 Tex. Gen. Laws 3572,3573 (“The enactment of the amendments made by this Act does not affect the validity or obligations, terms, and conditions of an order in a suit affecting the parent-child relationship made before the effective date of this Act, and this Act does not constitute a change of circumstances under Section 14.08, Family Code.”); Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § 11(e), 1993 Tex. Gen. Laws 2989, 2999 (“The change in law made by this Act does not by itself constitute a material and substantial change of circumstances under Section 156.401, Family Code, sufficient to warrant modification of a court order or a portion of a decree that provides for the support of a child rendered before the effective date of this Act.”). However, the most recent amendment, which increased the amount of the child-support obligor’s resources that are subject to the guidelines, did not include enabling language stating that the statutory change was not a change of circumstances for the purpose of child-support modification. See Act of May 22, 2007, 80th Leg., R.S., ch. 620 § 2, 2007 Tex. Gen. Laws 1188, 1189. We decline Johnson’s invitation to consider this argument, however, because we conclude that she presented other evidence that supports the trial court’s finding of a material and substantial change.

The trial court found a material and substantial change in circumstances in “late paid educational and medical sums, changes in Lia Johnson’s job duties and requirements, of unused visitation by Phil-lipe Brejon that required Lia Johnson to spend extra, unforeseen sums on babysitters and of the increased cost of living.” Johnson testified that an increase in child support was in R.B.’s best interest. She testified, “I’ve had substantial increase in costs since our settlement due to issues of [Brejon’s] noncompliance with our decree, as well as inconsistent exercising of the visitation which have really caused a lot of unexpected child care expenses.” Johnson said that she had two primary issues with inconsistent child care. In addition to Brejon’s inconsistent exercise of visitation, she stated, “I’ve had a significant increase in the responsibilities through my job, which means I have to have predictability.” Johnson also testified that additional child-support money could “help create a more predictable and consistent child care situation for our son.” Johnson introduced a log that showed when Brejon had missed, canceled, or arrived late for weekday visitation from before their divorce was final and continuing through the week before trial. Johnson also testified to increased living expenses, generally, saying, “I’m paying more for things than I was last year, absolutely,” and “I know that a gallon of gas costs me about $5.00 right now.” Johnson also testified that her promotion, which increased her job responsibilities, came with a raise of approximately $10,000, to approximately $74,000 per year.

Brejon testified that he earned an annual salary of $160,000. He testified that increased living costs were affecting him as well, and that R.B.’s health insurance premiums had increased $60 per month. Nevertheless, Brejon said that he believed Johnson should bear the cost of unexpected child care due to his inconsistent exercise of visitation because “she wanted to have custody.” Brejon did not dispute Johnson’s testimony about her increased job responsibilities, increased need for child care, his inconsistent exercise of visitation, or the increased cost of living.

We conclude that the evidence was both legally and factually sufficient to support the trial court’s findings of fact that evidence existed as to “changes in Lia Johnson’s job duties and requirements, of unused visitation by Phillipe Brejon that required Lia Johnson to spend extra, unforeseen sums on babysitters and of the increased cost of living.” Therefore, we hold that there was probative and substantive evidence to support the trial court’s order for increased child support. See McLane, 263 S.W.3d at 362. We overrule Brejon’s issue regarding the child-support order, appellate cause number 01-08-00642-CV.

Attorney’s Fees Motions

In his sole issue in appellate cause number 01-08-00897-CV, Brejon challenges the trial court’s October 13, 2008 order that he pay certain trial and appellate attorney’s fees incurred by Johnson. In the July 15, 2008 order modifying Brejon’s child-support obligations, the trial court ordered Brejon to pay both an increased amount of child support and Johnson’s attorney’s fees in the amount of $7,830, plus post-judgment interest to accrue at the statutory rate. At that time, Johnson did not request and the trial court did not order any contingent attorney’s fees for appeal. Brejon filed his notice of appeal from the July 15 order on July 21, 2008.

On August 8, 2008, Brejon had not yet paid the attorney’s fees, and Johnson filed a motion to enforce the July 15 award of attorney’s fees. See Tex. Fam.Code Ann. § 157.001(a)-(d) (Vernon 2008) (providing authority and procedure for enforcement of final order in suits affecting the parent-child relationship). Johnson also filed a second motion on September 30, 2008 — 77 days after the trial court had entered the child-support modification order. This second motion requested the entry of temporary orders during the pendency of the appeal. See Tex. Fam.Code Ann. § 109.001 (Vernon 2008) (providing authority and procedure for temporary orders “to preserve and protect the safety and welfare of the child during the pendency of the appeal”). In the motion for temporary orders, which Johnson requested to be heard at the same time as the August 8 motion to enforce, she again sought to enforce the trial court’s prior order for payment of $7,830 plus post-judgment interest. In the written motion filed with the trial court, Johnson invoked Family Code section 109.001(a)(5) to request $4,654 in additional attorney’s fees which had been incurred responding to Brejon’s appeal and seeking enforcement of the July 15 judgment.

A hearing on the two motions was held on October 13, 2008. Johnson offered evidence that the total amount of additional incurred attorney’s fees and expenses, which she was requesting that the trial court award to her, had increased from $4,654 to $6,691.90. After hearing evidence of the additional incurred attorney’s fees and argument from counsel, the trial court granted the relief requested by Johnson. The trial court ordered Brejon to pay directly to Johnson’s lawyers the sum of $7,926.53, which represented the July 15 award of attorney’s fees plus post-judgment interest. The trial court further ordered Brejon to pay to Johnson’s lawyers the additional requested amount of $6,691.90 in incurred attorney’s fees, to be held in trust during the pendency of the appeal. The trial court did not indicate which motion was being granted, or by what authority Brejon was being ordered to pay the additional fees.

On appeal, Brejon characterizes the October 13, 2008 order as a modification of the July 15, 2008 order. He argues the later order is void in its entirety, and we should reverse and render judgment in his favor, because the motion for temporary orders was untimely filed and the trial court’s plenary power had expired. Jurisdiction

First, we consider our jurisdiction. We are authorized by statute to consider an appeal from a “final order” rendered under Title 5 of the Family Code. Tex. Fam.Code Ann. § 109.002(b) (Vernon 2008). Johnson initiated an enforcement proceeding as authorized by Family Code chapter 157, and the trial court’s October 13, 2008 order disposed of all pending parties and claims in the record with respect to that proceeding. Johnson also filed a motion for temporary orders pursuant to Family Code section 109.001(a), and part of the relief granted by the trial court was premised solely upon that motion. We lack jurisdiction to consider an interlocutory appeal of a temporary order rendered under section 109.001(a). Tex. Fam.Code Ann. § 109.001(c) (Vernon 2008); Marcus v. Smith, 313 S.W.3d 408,-(Tex.App.-Houston [1st Dist.] 2009, no pet. h.). However, in light of our conclusion below that the trial court had no authority to enter a temporary order pursuant to section 109.001(a), this appeal is not within the scope of orders carved out of our jurisdictional reach by section 109.001(c). We thus conclude that the trial court’s October 13 order granting Johnson’s requests for attorney’s fees is a final order rendered under Title 5 of the Family Code, and accordingly we have appellate jurisdiction. Cf. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001) (“A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree.”).

Analysis of Trial Court’s Order

Brejon contends on appeal that the trial court completely lacked authority to enter its October 13 order compelling him to pay Johnson’s attorney’s fees. Bre-jon characterizes the order as a modification of the July 15 child-support modification order, and he argues that by October 13 the trial court had lost its plenary power to enter such an order. This argument mischaracterizes the procedural history of the October 13 order. Johnson never requested a modification of the July 15 order, nor did the October 13 order purport to do so.

Instead, over the course of two separate motions, Johnson made two discrete requests for relief. In both the August 8 motion to enforce and the September 30 motion for temporary orders, Johnson sought enforcement of the July 15 order’s award of attorney’s fees. The trial court had express statutory authority to grant this relief in order to enforce its own prior order. See Tex. Fam.Code Ann. § 157.001(a) (Vernon 2008) (“A motion for enforcement as provided in this chapter may be filed to enforce a final order for conservatorship, child support, possession of or access to a child, or other provisions of a final order.”).

In the September 30 motion for temporary orders, Johnson made the additional request for an award of attorney’s fees incurred in seeking to enforce the July 15 order and in responding to Brejon’s appeal. This request was expressly premised on the statute providing for temporary orders during the pendency of an appeal. See Tex. FamCode Ann. § 109.001(a)(5) (Vernon 2008) (authorizing temporary orders which “require payment of reasonable attorney’s fees and expenses” pending appeal). However, a motion for temporary orders pending appeal must be filed “[n]ot later than the 30th day after the date an appeal is perfected,” id. § 109.001(a), which Johnson failed to do. The trial court thus had no authority under Family Code section 109.001 to enter temporary orders requiring Brejon to pay additional attorney’s fees.

Accordingly, the portion of the October 13, 2008 order that refers to the motion for temporary orders and orders Brejon to pay $6691.90 to Johnson’s attorneys is void. However, because the trial court retains its power to enforce its prior orders, the portion of the October 13 order requiring Brejon to comply with the trial court’s earlier order, and pay Johnson’s trial attorney’s fees as ordered therein, is valid. Therefore, we sustain Brejon’s issue in part and reform the October 13, 2008 order to eliminate any reference to temporary orders or attorney’s fees other than those previously awarded in the July 15, 2009 child-support modification order.

Conclusion

We affirm the order of the trial court in cause number 01-08-00642-CV. We modify the order of the trial court in cause number 01-08-00897-CV, and we affirm as modified. All pending motions are denied as moot.


author: Opinion by Justice CARTER.

text:
    Michael KENNEDY, Appellant, v. James T. WORTHAM [sic], et al., Appellees.
    No. 06-10-00012-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted: May 14, 2010.
    Decided: May 21, 2010.
    Rehearing Overruled June 29, 2010.

      Michael Kennedy, Livingston, pro se.
    Allan K. Cook, Asst. Atty. Gen., Austin, for appellees.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by Justice CARTER.

In the district court of Anderson County, Michael Kennedy (Kennedy), a Texas prison inmate, filed a lawsuit against all three justices of the Texas Court of Appeals for the Twelfth Appellate District, all four district court judges in Anderson County, and William M. House, the counsel formerly appointed to represent him, alleging various discriminatory acts taken by the justices and judges, as well as the false and prejudicial actions taken by House in prosecuting one of Kennedy’s prior appeals. The trial judge, the Honorable Deborah Oakes Evans, was a named party in the lawsuit. Acting on its own motion, the trial court dismissed the suit without a hearing, finding that the suit was frivolous or malicious and that Kennedy failed to satisfy the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code.

On appeal, Kennedy argues that the trial court erred in that Judge Evans could not preside over his case because, as a named defendant, she was disqualified to act. We affirm the order of dismissal because we find Judge Evans did not have a direct personal or pecuniary interest in the case.

In his petition, Kennedy specifically accused the justices and judges of discriminating against him by: (1) allowing Danielle Simpson to dismiss his (Simpson’s) appeal and be executed, (2) wrongly dismissing a court action he filed, (3) refusing to allow him to represent himself, and (4) appointing “false counsel” to represent him. He also accused House of filing “false, malice, prejudicial errors” in the course of Kennedy’s appeal, cause number 12-08-00246-CR.

On its own motion, under the provisions of Chapter 14 of the Texas Civil Practice and Remedies Code, the trial court dismissed Kennedy’s lawsuit without a hearing, finding that the suit was frivolous or malicious, that Kennedy failed to “state the civil cause of action[,]” and that he also failed to file an affidavit of indigency and statement of previous filings with his lawsuit.

Judge Evans did not have a direct pecuniary or personal interest in the case

Disqualification cannot be waived and can be raised at any time. Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex.1982). As a general rule, a judge who is a party to a suit, even though he or she has not been served with process, may not preside over that case, decide any matters requiring judicial discretion, or approve the minutes of the court. Hawpe v. Smith, 22 Tex. 410 (1858). Article V, Section 11 of the Texas Constitution provides that no judge shall sit in any case wherein he or she may be interested. See Tex. Const, art. V, § 11. Likewise, Rule 18b(l) of the Texas Rules of Civil Procedure provides that the judges shall disqualify themselves in all proceedings in which they have an interest in the subject matter in controversy. See Tex.R. Civ. P. 18b(l)(b). The interest that disqualifies a judge is an interest, however small, which rests on a direct pecuniary or personal interest in the result of the case. Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex.1979) (per curiam). If a judge is disqualified, the judge is without jurisdiction to hear the case, and therefore, any judgment rendered is void and a nullity. Glaser, 632 S.W.2d at 148; Gulf Mar. Warehouse Co. v. Towers, 858 S.W.2d 556, 560 (Tex.App.Beaumont 1993, writ denied); Lone Star Indus., Inc. v. Ater, 845 S.W.2d 334, 336 (Tex.App.-El Paso 1992, no writ). However, under certain circumstances, a judge may preside over a case despite being named as a defendant. See Cameron, 582 S.W.2d at 776; see also Hidalgo County Water Con. & Imp. Dist. No. 1 v. Boysen, 354 S.W.2d 420, 423 (Tex.Civ.App.-San Antonio 1962, writ ref'd).

In Cameron, 582 S.W.2d at 776, an attorney sued the nine justices of the Supreme Court of Texas complaining of the supreme court’s order setting a special fee assessment against members of the state bar association. The trial court dismissed the case, and the court of civil appeals affirmed. Id. at 776. Upon reaching the supreme court, the attorney argued that the justices were disqualified or required to recuse because they were all named as defendants in the suit. Id. at 775-76. The supreme court held that the members were not disqualified because they had no more direct or pecuniary interest in the case than any other member of the bar association. Id. at 776. Regarding disqualification, the court stated:

In applying the rule of disqualification, we should endeavor to follow the spirit and intent of the Constitutional rule. The Constitution does not contemplate that judicial machinery shall stop. If this is threatened, the doctrine of necessity will permit the judge to serve. Boysen, 354 S.W.2d at 423. Respondents are parties only because they are named as parties. To hold that merely naming a judge as a party would disqualify him would put power in the hands of litigants to frustrate our judicial system.

Id.

Here, the issue is whether Judge Evans had a direct pecuniary or personal interest in this case. Kennedy’s petition did not seek money damages; therefore, Judge Evans has no pecuniary interest in this case. Instead, Kennedy sought injunctive relief prohibiting “all judges from discriminating.”

Judges in Texas are prohibited from discriminating by constitutional mandate. “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.” Tex. Const. art. I, § 3a. Additionally, the ethical code for Texas judges prohibits discrimination based upon “race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status,_” TexCode Jud. Conduct, Canon 3(B)(6), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. B (Vernon 2005). A violation of that code could result in the judge or justice being censured, suspended, or ultimately removed from office. Tex. Const, art. V, 1-a. Even if Kennedy obtained a judgment prohibiting all judges, including Judge Evans, from discriminating, it would not add one additional burden or duty that Judge Evans does not already have imposed by law.

Further, the facts of this case are similar to those of Cameron, in that Judge Evans’ personal interest in the outcome and subject of this case is no more than that of every other jurist in the State of Texas, as evidenced by the requirements of the Texas Constitution and the Code of Judicial Conduct. Judge Evans did not have a direct interest in the case that would require her disqualification. We overrule Kennedy’s point of error and affirm the trial court’s order of dismissal.

      . The trial court also ordered Kennedy to pay court fees and costs in the amount of $229.00.

      . Kennedy does not contest the trial court’s findings that his pleadings failed to meet the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code.

      .The trial court dismissed Kennedy’s lawsuit without prejudice.