source: Caselaw Access Project

author: ADELE HEDGES, Chief Justice.

license: Public Domain

text:
    Leonard PHILLIPS, Appellant v. AMERICAN ELASTOMER PRODUCTS, L.L.C., Appellee.
    No. 14-09-00164-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 17, 2010.

      Cory Daniel Itkin, Kurt B. Arnold, Houston, for appellant.
    Nicholas E. Zito, Jack McKinley, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices SEYMORE and BROWN.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant, Leonard Phillips, appeals from two summary judgments rendered against him in his personal injury suit against appellee, American Elastomer Products, L.L.C. (“AEP”). After sustaining a work-related injury, Phillips filed suit against AEP for negligence, gross negligence, and intentional torts. AEP filed two summary judgment motions, contending that (1) Phillips’s negligence claims were barred by the borrowed servant doctrine and the Texas Workers’ Compensation Act (“TWCA”), and (2) there was insufficient summary judgment evidence to support the intentional tort claims. The summary judgments were granted, and Phillips filed the instant appeal. In two issues, Phillips contends that the trial court improperly granted summary judgment because (1) AEP failed to establish as a matter of law that Phillips was not a borrowed servant, and (2) the summary judgment evidence was sufficient to raise genuine issues of material fact on the intentional tort claims. We affirm.

I. BACKGROUND

This personal injury case arises from a back injury Phillips sustained as a result of an autoclave explosion at AEP’s rubber manufacturing plant in Houston. About a year prior to the explosion, AEP was in the process of transporting new equipment to its Houston plant. To make room for the new equipment, AEP placed some of its older equipment outside the plant building. One of the pieces of equipment AEP decided to store outside was the autoclave in question. The autoclave — a vessel used to heat rubber — was taken out of commission and placed just outside the plant building. For the following year, the autoclave remained out of commission and was not inspected or maintained while out of service. About a year later, space inside the plant building became available, and AEP decided to move the autoclave back into the plant building and bring it back into service. AEP’s maintenance managers started a series of tests on the vessel to assure its safe re-commission. During the preliminary tests, the autoclave failed and exploded on March 8, 2007. Many people were injured, one fatally.

When the autoclave exploded, Phillips was operating a press machine nearby. Phillips came to work at AEP through a staffing agency, Staffing United (“Staffing”). Phillips was interviewed by Staffing, and AEP trained Philips at the plant. Upon hearing the explosion and feeling its concussion, Phillips attempted to flee the plant building. As he ran, he tripped and injured his back. Phillips claimed that he suffered from herniated discs and was later diagnosed with post-traumatic stress disorder. Phillips reported his back injury to Staffing. Staffing did not contest Phillips’s request for workers’ compensation, and the workers’ compensation insurance carrier paid Phillips statutory benefits.

Thereafter, Phillips filed suit against AEP, initially asserting negligence, gross negligence, and premises liability. AEP moved for summary judgment, claiming that the negligence claims were barred under the exclusivity provision of the TWCA because Phillips was a borrowed servant. Phillips amended his petition, adding intentional infliction of emotional distress (“IIED”). AEP moved for summary judgment on the IIED claim on both no-evidence and traditional grounds. Phillips amended his petition once again, removing the IIED claim and adding intentional assault and battery claims. The trial court granted the first summary judgment addressing the negligence claims.

AEP then moved for summary judgment on the remaining intentional tort claims, arguing that there was insufficient evidence on the assault, battery, and IIED claims. Upon objection, the trial court— in two separate orders — struck most of Phillips’s summary judgment evidence because the documents were either untimely filed or contained inadmissible hearsay. Phillips did not challenge the evidentiary rulings. The trial court granted AEP’s no-evidence and traditional summary judgments on the intentional tort claims, and this appeal ensued.

On appeal, Phillips raises two issues. In his first issue, in which he challenges the first summary judgment dismissing his negligence claims, Phillips contends that because he was not a borrowed servant, his common-law negligence claims were not subject to the TWCA’s exclusivity provision. In his second issue, challenging AEP’s second summary judgment on his intentional assault claims, Phillips contends he produced sufficient summary judgment evidence on the element of intent.

II. STANDARDS OF REVIEW

While AEP clearly moved for summary judgment under rules 166a(c) and 166a(i) — traditional and no-evidence grounds — on Phillips’s intentional tort claims, AEP did not specify whether it was making a traditional motion for summary judgment or a no-evidence motion on the negligence claims. Compare Tex. R. Civ. P. 166a(c), with Tex. R. Civ. P. 166a(i). Because the two forms of summary judgment are distinct and invoke different standards of review, we must make an initial determination regarding which type of summary judgment was filed on the negligence claims before we can reach the merits of the trial court’s ruling on these particular claims.

When a motion does not clearly and unambiguously state that it is being filed under rule 166a(i), the nonmovant has no notice that the movant is seeking a no-evidence summary judgment. Grimes v. Reynolds, 252 S.W.3d 554, 558 (Tex.App-Houston [14th Dist.] 2008, no pet.). Accordingly, we construe such summary judgment motion as a traditional motion under rule 166a(c). See id. (concluding that when a motion for summary judgment fails to unambiguously state it is filed under rule 166a(i), and does not strictly comply with the requirements of that rule, the motion will be construed as a traditional motion for summary judgment); see also Adams v. Reynolds Tile and Flooring, Inc., 120 S.W.3d 417, 419-20 (Tex.App.Houston [14th Dist.] 2003, no pet.). Because AEP’s first summary judgment motion — addressing Phillips’s negligence claims — is not clear on which basis it seeks summary judgment relief, we construe the motion as a traditional motion. Notwithstanding, the record reflects that AEP moved for summary judgment in its second motion — addressing the intentional tort claims — on both no-evidence and traditional summary judgment grounds.

We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A defendant who seeks a traditional summary judgment under rule 166a(c) must demonstrate that the plaintiff has no cause of action as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003); Cullins v. Foster, 171 S.W.3d 521, 530 (Tex.App.Houston [14th Dist.] 2005, pet. denied). A traditional summary judgment is proper when the defendant either negates at least one element of each of the plaintiffs theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Cullins, 171 S.W.3d at 530. When the defendant has carried its summary judgment burden, the burden shifts to the nonmovant to raise a material fact issue precluding summary judgment. Virginia Indonesia Co. v. Harris County Appraisal Dist., 910 S.W.2d 905, 907 (Tex.1995). In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference, and we resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Management Co., 690 S.W.2d 546, 549 (Tex.1985).

Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003); Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex.App.-Houston [14th Dist.] 2007, no pet.). We sustain a no-evidence summary judgment when (1) there is a complete absence of proof of a vital fact; (2) rules of law or evidence bar the court 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 scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Chapman, 118 S.W.3d at 751; Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 474 (Tex.App.-Houston [14th Dist.] 2006, no pet.). Less than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, and in legal effect is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions as to the existence of the vital fact. Id.

III. NEGLIGENCE CLAIMS: BORROWED SERVANT DOCTRINE

In the trial court, Phillips asserted three negligence claims against AEP: (1) negligence and gross negligence for failure to maintain a safe workplace, failure to warn of a dangerous workplace, and failure to inspect premises for latent defects; and (2) premises liability for failing to warn Phillips, an invitee, of a condition on the plant premises that posed an unreasonable risk of harm. AEP sought traditional summary judgment on these negligence claims, arguing that the claims were barred under the exclusivity provision of the TWCA and the borrowed servant doctrine.

A. TWCA’s Exclusivity Provision

Under the TWCA, a subscriber employer is protected by the Act’s exclusive remedy provision, which bars common-law causes of actions by its injured employees. Tex. Labor Code Ann. § 408.001(a) (Vernon 2006). Thus, an employer who pleads and proves TWCA subscriber status is immune from liability for common-law negligence, and the employee’s exclusive remedy lies within the TWCA. See id.; see also Exxon Corp. v. Perez, 842 S.W.2d 629, 630-31 (Tex.1992) (per curiam). When there is a question as to whether one is an “employer” under the TWCA, Texas courts turn to the borrowed servant doctrine. Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 595 (Tex.2000); Lockett v. HB Zachry Co., 285 S.W.3d 63, 75 (Tex. App.-Houston [1st Dist.] 2009, no pet.). As applied in workers’ compensation cases, the borrowed servant doctrine acts to protect those employers who have the right to control the manner and details of an employee’s work. Wingfoot Enter, v. Alvarado, 111 S.W.3d 134, 144 (Tex.2003); Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex.1990); Gibson v. Grocers Supply Co., 866 S.W.2d 757, 760 (Tex.App.-Houston [14th Dist.] 1993, no writ); Marshall v. Toys-R-Us Nytex, Inc., 825 S.W.2d 193, 195-96 (Tex.App.-Houston [14th Dist.] 1992, writ denied). Under the right-of-control test, an injured worker is held to be the employee of the employer who had the right of control over the details of the work at the time of the injury. Pederson v. Apple Corrugated Packaging, Inc., 874 S.W.2d 135, 137 (Tex.App.-Eastland 1994, writ denied); Hughes v. Compaq Computer Corp., No. 14-96-00025-CV, 1996 WL 711233, at *2 (Tex.App.-Houston [14th Dist.] Dec. 12, 1996, writ denied) (not designated for publication). An employer who had the right of control over the employee at the time of the injury is an “employer” for workers’ compensation purposes. If the details of the employee’s work are controlled by someone other than the employer, then the latter is not protected by the exclusive remedy under the TWCA.

To prevail on its affirmative defense of subscriber status, AEP was required to plead and prove: (1) Phillips was a borrowed servant, (2) Phillips was entitled to workers’ compensations benefits, and (3) AEP had workers’ compensation insurance that covered claims asserted by Phillips. See Perez, 842 S.W.2d at 630-31. On appeal, Phillips challenges only his status as a borrowed servant, i.e., whether AEP had the right of control over the details of his work. He does not challenge the latter two elements.

B. Right of Control Over Phillips

When, as here, the right of control is not expressed in a written agreement, right of control is inferred from the facts and circumstances of the work. Producers Chemical Co. v. McKay, 366 S.W.2d 220, 226 (Tex.1963); Marshall, 825 S.W.2d at 196. We consider the nature of the work to be performed, the length of the employment, the type of machinery furnished, the acts representing an exercise of actual control, and the right to substitute another operator on a machine. McKay, 366 S.W.2d at 226. The type of control normally exercised by an employer includes determining when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. Thompson, 789 S.W.2d at 278-79.

Phillips cites the following evidence to support his contention that Staffing, not AEP, had the right to control his work: (1) Phillips refused to operate a forklift when requested to do so by AEP because Staffing had instructed him not to operate unfamiliar equipment; (2) Staffing issued his payroll checks, paid his workers’ compensation benefits, and hired and fired him; (3) AEP did not furnish all of the tools necessary to perform his work; and (4) AEP did not provide safety training.

The trial court struck the evidence supporting the forklift allegations, and Phillips never challenged the trial court’s ruling. See Feagins v. Tyler Lincoln-Mercury, Inc., 277 S.W.3d 450, 455 (Tex.App.-Texarkana 2009, no pet.) (refusing to consider affidavit stricken in the trial court and not challenged on appeal); McClure v. Denham, 162 S.W.3d 346, 349 n. 2 (Tex.App.Fort Worth 2005, no pet.) (noting that appellate court may consider only evidence which is properly before the trial court when reviewing propriety of summary judgment). Because the trial court struck the evidence of forklift operation, and Phillips failed to challenge that ruling, there is no evidence that Phillips refused to perform work for AEP at Staffing’s instruction. Furthermore, the fact that Staffing issued payroll checks and paid workers’ compensation to Phillips does not necessarily establish that Staffing had the right of control over Phillips’s work at AEP’s rubber manufacturing plant. See Employers Cas. Co. v. Am. Employers Ins. Co., 397 S.W.2d 292, 296 (Tex.App.-Amarillo 1965, writ refd n.r.e.). Likewise, Staffing’s hiring and firing Phillips is not dispositive of the right of control over Phillips’s work at AEP’s plant.

AEP submitted undisputed evidence that Phillips reported to work at AEP, not Staffing. AEP set Phillips’s work hours and breaks. AEP’s employees trained Phillips on the work to be performed. AEP directed what work Phillips was to perform. AEP also provided the machines, tools, and raw materials for Phillips’s work. See Thompson, 789 S.W.2d at 278-79 (reasoning that the type of control normally exercised by an employer includes determining when and where to begin and stop work, the regularity of hours, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result).

The only feasible attempt by Phillips to dispute AEP’s evidence is his allegation that he used his personal tools — a socket set and screwdriver' — to operate one of the machines. Phillips testified that he “periodically” used his personal tools because the original tools, provided by AEP, would sometimes “come up missing.” Phillips made this particular statement in his stricken affidavit and twice in his deposition. AEP successfully moved to strike one of the deposition statements, but did not object to the other statement. Assuming we can review the one deposition statement, such statement is insufficient to demonstrate AEP’s lack of control over Phillips’s work. The general work to be performed was the operation of industrial equipment to heat rubber. Phillips alleged in the statement that he used the socket set and screwdriver to change the molds on a machine. Phillips acknowledged in his deposition that similar tools were provided by AEP, but “periodically” disappeared. Furthermore, AEP’s undisputed evidence reflects that the socket set and screwdriver were not required tools to change the molds or to operate the rubber-hearing machinery.

Phillips further challenges AEP’s borrowed servant designation because he, Phillips, did not know about the employee-lending agreement between AEP and Staffing. See Guerrero v. Standard Alloys Mfg. Co., 566 S.W.2d 100, 102 (Tex.Civ.App.-Beaumont 1978, writ refd n.r.e.) (“[I]n order to establish an employer-employee relationship between an employee and a borrowing employer, the employee must know or be charged with knowledge of the lending agreement.”). Putting aside for a moment that Guerrero is not binding authority, its requirement that a borrowed employee must know of a lending agreement runs counter to recent Supreme Court and court of appeals cases examining the borrowed servant doctrine. Texas courts determining whether an individual is borrowed servant have done so exclusively under the right-of-control test. See Alvarado, 111 S.W.3d at 144; Del Indus., 35 S.W.3d at 595 (courts determine whether a company is an employer under the right-of-control test); Thompson, 789 S.W.2d at 278; Gibson, 866 S.W.2d at 760; Marshall, 825 S.W.2d at 195-96. Furthermore, this Court has cautioned against the legal accuracy of Guerrero:

The court in Guerrero stated that “in order to establish an employer-employee relationship between an employee and a borrowing employer, the employee must know or be charged with knowledge of the lending agreement.” Even if this were a correct statement of law, our disposition of this case would not be affected. The recorded demonstrates [the employee’s] awareness that she was loaned [to the defendant company],

Mosqueda v. G & H Diversified Mfg., Inc., 223 S.W.3d 571, 580 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (citations omitted) (emphasis added). Applying the right-of-control rule, the record reveals that AEP pleaded and presented sufficient summary judgment evidence that Phillips was a borrowed servant. Furthermore, AEP provided undisputed evidence of its subscriber status in compliance with the TWCA, and Phillips was therefore subject to the Act’s exclusivity provision and possessed no common-law right of action. Accordingly, we conclude, as a matter law, appellant’s negligence claims are barred under the borrowed servant doctrine and the TWCA’s exclusivity provision. The trial court properly granted AEP’s traditional summary judgment on Phillips’s negligence claims. We overrule Phillips’s first issue.

IV. INTENTIONAL ASSAULT CLAIM: EVIDENCE OF INTENT

Although the exclusive remedy provision of the TWCA bars Phillips’s negligence claims, the TWCA does not bar recovery for intentional torts. See Tex. Labor Code Ann. § 408.001(a) (applying exclusivity provision only to accidental injuries); see also Tex. Const, art. I, § 13 (prohibiting statutory exemption from common law liability for intentional injuries). In his second issue, Phillips contends that summary judgment on his assault claim was improper because he presented sufficient evidence on AEP’s intent to injure. Phillips bases his intent argument on the proposition that only reckless conduct is needed, not specific intent, to commit assault. Phillips contends that because the criminal and civil definition of assault includes a reckless mental state, he need show only recklessness — that AEP was aware of, but consciously disregarded, a substantial and unjustifiable risk of harm — to recover for assault. While Phillips is correct on the statutory definition of criminal and civil assault, the cases relied upon by Phillips are distinguishable: none of the cases involves the intentional-tort exception to the TWCA. Phillips cites no authority to support his contention that the intentional-tort exception to the TWCA applies where the defendant acted recklessly. See Tex. R.App. P. 38.1(i); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Even if we assume that reckless conduct is sufficient to overcome the TWCA’s intentional-tort exception, the record before us does not raise a fact issue on intent.

Phillips contends that AEP was reckless because: (1) it failed to maintain the autoclave while it was out of commission; and (2) it failed to follow safety requirements in bringing the vessel back into service. Phillips relies on the following evidence to support his reckless-conduct allegations: Doug Efrid’s deposition, the OSHA citation, Skinner’s affidavit, and James Patterson’s deposition. The OSHA citation and Skinner’s affidavit were stricken below and those rulings are not challenged on appeal. Because evidence which has been excluded by written order or ruling of the trial court is not part of the summary judgment evidence to be considered, we cannot consider this evidence regarding intent. See Feagins, 277 S.W.3d at 455; see also McClure, 162 S.W.3d at 349 n. 2.

With respect to Efrid’s and Patterson’s depositions, Phillips contends that the testimony shows AEP’s recklessness in maintaining the vessel while out of service and in bringing the vessel back into service. Patterson was the plant manager, and Efrid was AEP’s maintenance manager. Phillips contends that AEP knew about specific explosion risks associated with high pressure levels and explosions when bringing a vessel back into service. The safety relief valve monitors pressure levels and relieves excess pressure from an autoclave. Phillips contends that because excess pressure is a known risk when re-energizing an autoclave, AEP acted recklessly when it did not inspect the safety relief valve to check if it were working properly. However, Phillips’s allegations are not supported by the cited depositions. Even accepting Phillips’s bald assertions as evidence, they tend to establish only negligent conduct, not intentional injury. See Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985) (concluding that the employer must have the specific intent to inflict injury to commit an intentional tort).

Efrid testified that he began the testing process to re-commission the vessel. He tested the pressure controllers and verified that they were working properly and checked the pressure levels. Subsequently, the autoclave failed during the tests. Efrid and Patterson both testified that AEP did not intend for the autoclave to fail, did not know it would fail, and did not know that the testing would result in the autoclave’s exploding. The evidence is uncontested that, upon re-commissioning the autoclave, AEP did not have a specific intent to inflict the injury. See id. at 407 (holding that an employer’s intentional failure to provide a safe workplace does not rise to the level of intentionally injuring its employees unless the employer believes its conduct is substantially certain to cause the injury).

Phillips further argues that Patterson conceded AEP’s recklessness in his deposition. We disagree. Read in its entirety, the deposition reflects Patterson’s agreement with the general idea that employees should adhere to safety requirements when working on industrial equipment. Because the hypothetical scenarios posed to Patterson were not similar to the facts of the instant case, Patterson’s deposition did not establish recklessness or intent to injure. The trial court properly granted summary judgment on the intentional tort claim of assault. We overrule appellant’s second issue.

We affirm the trial court’s judgment.

      . Phillips claims that after the blast, the Occupational Safety and Health Administration ("OSHA”) issued five citations to AEP: three citations for having performed a faulty inspection of the autoclave that caused the explosion; and two citations for having failed to provide sufficient protective lathes and grinders and eye protection for AEP’s workers.

      . Although Phillips removed his IIED claim in his fifth amended petition, out of caution, AEP moved for summary judgment on the IIED claim, along with Phillips’s assault and battery claims.

      . Phillips contends that Todd Brown, one of the workers who trained him, was not an employee of AEP. The evidence Phillips submitted to support this factual allegation was stricken. Further, AEP submitted undisputed evidence that Brown was an employee of AEP at the time Brown trained Phillips.

      . The facts of Guerrero are distinguishable: as detailed above, most of Phillips’s work interaction was with AEP. Accordingly, Phillips is charged with knowledge of the oral lending agreement between Staffing and AEP.


author: JOHN S. ANDERSON, Justice.

text:
    950 CORBINDALE, L.P., 950 Corbindale Management, L.L.C., 9041 Katy Freeway, Ltd., 9041 Katy Freeway Management, L.L.C., 9039 Holdings Management, L.L.C., Lester Allison, and Richard Plessala, Appellants v. KOTTS CAPITAL HOLDINGS LIMITED PARTNERSHIP and Kotts Capital Holdings, Inc., Appellees.
    No. 14-09-01046-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 22, 2010.

      E.F. Mano DeAyala, Corey Michael Weideman, David A. Furlow, Houston, for appellants.
    Thomas M. Farrell, Michael A. Mills, Bradley Wayne Hoover, Houston, for ap-pellees.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

JOHN S. ANDERSON, Justice.

This is an accelerated interlocutory appeal from the denial of a motion to stay litigation and compel arbitration. Appellants, 950 Corbindale, L.P., 950 Corbindale Management, L.L.C., 9041 Katy Freeway, LTD., 9041 Katy Freeway Management, L.L.C., 9030 Holdings, L.P., 9030 Holdings Management, L.L.C., Lester Allison, and Richard Plessala, contend the trial court abused its discretion by denying their motion to stay litigation and compel arbitration. We agree.

Factual and PROCEDURAL Background

I. The Partnership Agreements

In 2004, the parties entered into three limited partnerships for the purpose of acquiring, operating, managing, owning, selling, or otherwise disposing of real property. The three limited partnerships are “950 Corbindale, LP”, “9041 Katy Freeway, Ltd.”, and “9030 Holdings, LP”. Each of the three partnerships own a tract of real property in Hedwig Village near the Katy Freeway. The three partnerships are structured essentially the same way. Each partnership has as its general partner a limited liability company with the same name as the partnership. Richard Plessala is the president of each of the limited liability companies serving as general partners for the partnerships. The partnerships also each have three limited partners, which are divided into three classes based on their capital contributions and provide for different returns based on the amount of contribution. The Class I limited partner in each of the partnerships is Kotts Capital Holdings, LP, president John Kotts. The Class II limited partner is Lester Allison and the Class III limited partner is Richard Plessala. Because Kotts Capital Holdings, LP provided the majority of initial capital contribution, it was granted a preferential right of return. Kotts Capital Holdings, LP must receive a 10% return per annum on its capital contributions and a return on its capital contribution before the other limited partners receive a distribution.

The partnership agreements grant the general partners of the partnership broad powers and responsibilities to manage, operate, and control the business and affairs of the partnerships. If the general partners decide to sell the real property held by the partnership, the partnership agreements provide that the general partners must obtain the consent of the Class I and Class II limited partners in the aggregate of more than 50% of the interest in the partnership. The partnership agreements contain buy-sell procedures in the event there is a deadlock resulting from the failure of Kotts Capital Holdings, LP and Allison (Class I and Class II limited partners) to reach an agreement. This procedure allows one limited partner to make an offer to any of the other limited partners to either purchase all of the other partners’ aggregate interest or sell to the other partner all of his aggregate interest in order to resolve the deadlock.

Additionally, the partnership agreements all contain an agreement to arbitrate “any claim, dispute, claim [sic], controversy or disagreement (each a ‘Dispute’) between the parties or any of their respective subsidiaries, Affiliates, successors and assigns under or related to this Agreement or any document executed pursuant to this Agreement or any of the transactions contemplated hereby.” The agreement to arbitrate contains a clause providing that “[t]he arbitrators will have the authority to award compensatory damages only.”

II. The Offer

On August 20, 2009, the partnerships received an offer to purchase all three tracts of property for a lump sum. The offer was made by John Kotts, president of Kotts Capital Holdings, LP, the Class I limited partner. The general partner of each partnership rejected the offer because under the preferred return provisions only the Class I limited partner, Kotts Capital Holdings, LP, would receive any of the sale proceeds.

III. Request for Declaratory Relief

On October 2, 2009, Kotts Capital Holdings, LP and Kotts Capital Holdings, Inc. (appellees) filed a petition in Harris County district court against 950 Corbindale, LP; 950 Corbindale Management, LLC; 9041 Katy Freeway, Ltd.; 9041 Katy Freeway Management, LLC; 9039 Holdings, LP; 9039 Holdings Management, LLC; Lester Allison; and Richard Plessa-la (appellants) requesting declaratory relief. In their petition they asked the court to clarify the parties’ rights, status, and other legal relations under the partnership agreements. Appellees contended that appellants — specifically the general partners — had a conflict of interest and could not fairly evaluate the offer and rejected it out of self-interest. Appellees contend the offer should have been submitted to the Class I and Class II limited partners instead, and if a deadlock resulted, the buy-sell procedures could be invoked.

In response, appellants filed a general denial subject to a motion to stay litigation and compel arbitration. The appellants argued that each of the partnership agreements contained a valid arbitration agreement and that the dispute fell within the scope of the arbitration agreements. Ap-pellees responded with an opposition to appellants’ motion to stay litigation and compel arbitration. The appellees argued the partnership agreements (containing the arbitration agreements) entered into evidence were not properly authenticated and therefore were insufficient evidence of a valid agreement to arbitrate. Alternatively, appellees argued that if the court found a valid arbitration agreement existed, that the dispute did not fall within the scope of the arbitration agreement. Specifically, appellees contended their request for declaratory relief falls outside the scope of the arbitration agreement because the arbitration agreement provides that arbitrators may award “compensatory damages only”.

On November 13, 2009, the district court conducted a hearing to decide the arbitration issues. During the hearing, the parties entered into a Rule 11 agreement, providing that appellees waived any objections to authenticity of the partnership agreements. On November 18, 2009, the district court denied appellants’ motion to compel arbitration. In its order, the court found “[t]he contract, as a whole, does not support a finding that all remedies other than compensatory damages are waived. Defendant has not met its burden.” Appellants timely filed this interlocutory appeal.

Discussion

Appellants contend the only issue before this court is whether the trial court abused its discretion in determining the declaratory judgment action was outside the scope of the arbitration agreement. Appellants argue appellees conceded the validity of the arbitration agreement by way of a Rule 11 agreement. Appellees disagree. Appellees contend the validity of the arbitration agreement was not established in the Rule 11 agreement; they argue they conceded only the authenticity of the partnership agreements, including the arbitration agreement, entered into evidence. Furthermore, appellees contend their declaratory judgment action was outside the scope of the arbitration agreement and that the trial court properly denied appellants’ motion to stay litigation and compel arbitration.

I. Standard of Review

To enforce an arbitration agreement, a party must establish (1) the existence of an agreement to arbitrate, and (2) the claims asserted fall within the scope of the agreement. In re Prudential Sec., Inc., 159 S.W.3d 279, 282 (TexApp.—Houston [14th Dist.] 2005, no pet.). The court has no discretion but to compel arbitration if the answer to both questions is affirmative. Valero Energy Corp. v. Teco Pipeline Co., 2 S.W.3d 576, 581 (Tex.App.—Houston [14th Dist.] 1999, no pet.). The trial court’s determination of the arbitration agreement’s validity is a legal question subject to de novo review. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). In determining the validity of agreements to arbitrate, we generally apply principles governing the formation of contracts. In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex.2006).

Once a valid agreement to arbitrate has been established, the court must then determine whether the arbitration agreement covers the nonmovants’ claim. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex.2001). Under the Federal Arbitration Act, any doubts as to whether appellees’ request for declaratory relief falls within the scope of the arbitration agreement must be resolved in favor of arbitration. Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex.1995). The policy in favor of enforcing arbitration agreements is so compelling that a court should not deny arbitration “unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.” Marshall, 909 S.W.2d at 899 (quoting Commerce Park at DFW Freeport v. Mardian Constr. Co., 729 F.2d 334, 338 (5th Cir.1984)). The presumption of arbitrability is particularly applicable when the clause is broad; that is, it provides for arbitration of “any dispute arising between the parties,” or “any controversy or claim arising out of or relating to the contract thereof,” or “any controversy concerning the interpretation, performance or application of the contract.” Babcock & Wilcox Co. v. PMAC, Ltd,., 863 S.W.2d 225, 280 (Tex.App.—Houston [14th Dist.] 1993, writ denied). In such instances, absent any express provision excluding a particular grievance from arbitration, only the most forceful evidence of purpose to exclude the claim from arbitration can prevail. Id. In determining whether a claim falls within the scope of an arbitration agreement, we focus on the factual allegations of the complaint, rather than the legal causes of action asserted. Marshall, 909 S.W.2d at 900. The burden was upon appellees to show that their request fell outside the scope of the arbitration agreement. Id.

II. Analysis

A. Validity of the Arbitration Agreements

Appellees argue the arbitration agreements are invalid because they cause a waiver of substantive rights and remedies afforded by statute. Appellees claim because the arbitration agreements state “[t]he arbitrators will have the authority to award compensatory damages only,” the arbitrator does not have the authority to grant appellees the declaratory relief they seek or any of the statutory remedies prescribed by the Uniform Declaratory Judgments Act. Appellees rely on In re Poly-America, L.P. for the contention that the arbitration agreement at hand is unconscionable. See In re Poly-America, L.P., 262 S.W.3d 337, 349, 352-53 (Tex.2008) (holding arbitration agreement’s provisions expressly precluding remedies available under the Workers’ Compensation Act were substantively unconscionable and void under Texas law). Appellants argue appellees waived the un-conscionability argument by failing to present it to the trial court. An allegation that a provision in a contract is void, unenforceable, or unconscionable is a matter in the nature of avoidance and must be affirmatively pleaded. Tex.R. Civ. P. 94 (noting party must affirmatively plead any matter constituting an avoidance or affirmative defense); Parks v. Developers Sur. and Indent. Co., 302 S.W.3d 920, 924 (Tex.App.—Dallas 2010, no pet.). If a party fails to plead the affirmative defense, it is waived. Id. at 924. Because appellees failed to assert in the trial court that section 16.3(d) causes a waiver of rights under the Uniform Declaratory Judgment Act, we may not now consider their argument. See id.

The only argument appellees presented before the trial court regarding the validity of the arbitration agreements was that the agreements were not properly authenticated and therefore not sufficient evidence of an agreement. Because appel-lees conceded the authenticity of the agreements in the Rule 11 agreement, they waived the only argument they presented to the trial court regarding the validity of the arbitration agreements.

Accordingly, we see no evidence indicating the arbitration agreements appellants entered into evidence are not valid.

B. Scope

Appellants contend the provision giving the arbitrator authority to “award compensatory damages only” does not foreclose an arbitrator’s ability to grant declaratory relief. We agree.

The “dispute provision” in section 16.3(a) of the arbitration agreements at hand is broad, requiring that any dispute under or related to the partnership agreement or any document executed pursuant to the partnership agreement or any of the transactions contemplated by the partnership agreement shall be subject to arbitration. The only limitation in the arbitration agreements is the type of damages that may be awarded — compensatory only. The word “only” is a modifier. The rule concerning modifiers is:

The reader naturally assumes that the parts of a sentence which are placed next to each other are logically related to each other.... The rule which will guide you may be stated in two parts: (1) place all modifiers, whether words, phrases, or clauses, as close as possible to the words they modify; (2) avoid placing these elements near other words they might be taken to modify.

Samano v. Sun Oil Co., 621 S.W.2d 580, 582 (Tex.1981) (quoting Kierzek, THE MacMillan Handbook of English (3d ed.1954)). Another statement of the rule of grammar is: “[p]lace modifiers so that they will be connected immediately with the words they modify.” Id. (quoting Wooley & Scott, College Handbook of Composition 72 (4th ed.1944)). Because the word “only” directly follows the words “compensatory damages”, proper rules of grammar indicate “only” was intended to modify these words. If “only” had been placed next to the word “authority”, then it might indicate the arbitrator’s had authority only to grant compensatory damages; however, that is not the case. Appellees brought an action for declaratory relief, not damages. The arbitrator’s authority to grant declaratory relief was not limited. Along the same line, had appellees brought an action for damages other than compensatory damages, then the arbitrators would be without authority to award them.

Appellees’ claims fall within the broad provision of section 16.3(a), defining “disputes”. Consequently, appellees’ request for declaratory relief is within the scope of the arbitration agreement. The trial court abused its discretion by denying appellants’ motion to compel arbitration. Accordingly, we sustain appellants’ sole issue.

Conclusion

We hold the trial court erred in denying appellants’ motion to stay litigation and compel arbitration. We reverse the order denying the motion to stay litigation and compel arbitration and remand this cause with instructions to the trial court to enter an order compelling arbitration.

      . Appellees also contend appellant’s claims under the Federal Arbitration Act (FAA) are barred because appellants failed to bring those claims pursuant to a writ of mandamus. The legislature recently amended this requirement and now allows parties to take appeal of an interlocutory order in matters subject to the Federal Arbitration Act. See Tex. Civ. Prac. & Rem.Code Ann. § 51.016 (Vernon Supp.2009).

      . Whether a case is governed by the FAA or the TAA, many of the underlying substantive principles are the same. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex.2001). This opinion relies interchangeably on cases that discuss the FAA and TAA.


author: Justice FILLMORE.

text:
    Gregory NEWMAN, D.O., Appellant, v. Joel GRAHAM, Appellee.
    No. 05-09-01308-CV.
    Court of Appeals of Texas, Dallas.
    June 22, 2010.

      Charles Timothy Reynolds, Aaron D. Nadeau, Steed Flagg, L.L.P., Rockwall, for appellant.
    Marisa M. Schouten, Martin Walker P.C., Tyler, for appellee.
    Before Justices MORRIS, BRIDGES, and FILLMORE.
   OPINION

Opinion by

Justice FILLMORE.

This interlocutory appeal follows the trial court’s refusal to dismiss Joel Graham’s health care liability claims against Gregory Newman, D.O. In one issue, Dr. Newman complains the trial court erred by overruling his objections to the qualifications of Graham’s expert and denying his motion to dismiss Graham’s health care liability claims We affirm the trial court’s order.

Background

Graham sought treatment at the Limestone Medical Center emergency room due to erratic behavior and changes in his thought processes. Dr. Newman was Graham’s admitting physician in the emergency room. Although Dr. Newman noted that Graham did not have a preexisting psychiatric history, he diagnosed Graham with a psychiatric condition and placed Graham on medications for that condition. The following day, Graham was transferred to the Austin State Hospital. The record is unclear as to how long Graham remained hospitalized.

Graham alleges he took medication for a psychiatric condition for almost a year. Because his condition continued to deteriorate, Graham sought treatment at Green Oaks Behavioral Health Center, a psychiatric hospital. Graham was again discharged with a diagnosis of a psychiatric condition. Nine days later, Graham sought treatment at Navarro Regional Hospital. A CT scan performed during his treatment showed a large tumor deforming Graham’s brain. Dr. Stasha Go-minak, a neurologist, removed the tumor. In Dr. Gominak’s opinion, the tumor was the cause of Graham’s symptoms, and the delay in diagnosing and removing the tumor caused permanent damage to Graham’s vision and permanent changes in his thought processes and behavior.

Graham filed this health care liability claim alleging Dr. Newman was negligent in his treatment of Graham by failing to properly assess Graham’s abnormal behavior and render a proper diagnosis; failing to give Graham a CT scan to rule out an organic cau^ for his abnormal behavior; improperly treating Graham with psychiatric medications; failing to recognize, appreciate, and diagnose the brain tumor; and failing to immediately treat the brain tumor with referral to a neurologist or a neurosurgeon and surgery. Graham attached to his petition the expert report and curriculum vitae of Dr. Gominak. Dr. Newman objected to Dr. Gominak’s expert report, arguing it was insufficient under section 74.351 of the civil practice and remedies code because it failed to establish Dr. Gominak was qualified to opine about Dr. Newman’s treatment of Graham. Within 120 days of filing his petition, Graham filed a supplemental report from Dr. Gominak. Dr. Newman objected to the supplemental report, asserting it failed to correct the deficiencies in the original report, and requested that the trial court dismiss the case due to Graham’s failure to file an adequate expert report. The trial court denied Dr. Newman’s motion to dismiss, and Dr. Newman filed this interlocutory appeal.

Analysis

In his sole issue, Dr. Newman asserts the trial court erred by overruling his objections to Dr. Gominak’s qualifications and denying his motion to dismiss because Dr. Gominak was not qualified to render an expert opinion that Dr. Newman breached the applicable standard of care. Specifically, Dr. Newman argues Dr. Go-minak failed to show that the subject of diagnosis of a brain tumor is sufficiently developed in both the fields of neurology and emergency room medicine or that Dr. Gominak is familiar with the standard of care applicable to Dr. Newman’s treatment of Graham.

The trial court has broad discretion in determining the admissibility of expert testimony in a health care liability case. Larson v. Dowming, 197 S.W.3d 303, 304-05 (Tex.2006) (per curiam); Chester v. El-Ashram, 228 S.W.3d 909, 912 (Tex.App.Dallas 2007, no pet.). We will not reverse the trial court’s ruling absent a clear abuse of that discretion. Larson, 197 S.W.3d at 304-05; Chester, 228 S.W.3d at 912. A trial court abuses its discretion only if it acts arbitrarily or capriciously or without reference to any guiding rules or principles. Larson, 197 S.W.3d at 304-05; Chester, 228 S.W.3d at 912.

Within 120 days of filing a health care liability claim, a plaintiff must serve an expert report with the expert’s curriculum vitae on each defendant against whom a liability claim is asserted. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2009). An “expert report” is a:

written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Id. § 74.351(r)(6). The trial court is required to dismiss the lawsuit if, after a hearing, it determines the report does not constitute an objective good faith effort to comply with the statutory requirements. Id. § 74.351(b)(2), (l).

A person is qualified to render an opinion as an expert witness on the issue of whether a physician departed from accepted standards of medical care only if the person is a physician who: (1) is practicing medicine at the time the testimony is given or was practicing medicine at the time the claim arose; (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. Id. §§ 74.351(r)(5)(A); 74.401(a) (Vernon 2005). To assist the court in making a determination as to whether the expert is qualified on the basis of training or experience, the statute requires the trial court to “consider whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and (2) is actively practicing medicine in rendering medical care services relevant to the claim.” Id. § 74.401(c). Analysis of the expert’s qualifications is limited to the expert’s report and the expert’s curriculum vitae. Mosely v. Mundine, 249 S.W.3d 775, 779 (Tex.App.-Dallas 2008, no pet.).

Not every licensed doctor is automatically qualified to testify on every medical question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996). However, “expert qualifications should not be too narrowly drawn,” Larson, 197 S.W.3d at 305, and a proffered expert need not practice in the same specialty as the defendant physician to qualify as an expert in that case. Roberts v. Williamson, 111 S.W.3d 113, 122 (Tex.2003). Rather, the trial court should determine whether the proffered expert has “knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.” Broders, 924 S.W.2d at 153-54; see Chester, 228 S.W.3d at 912. The focus is on whether the expert’s expertise goes to the very matter on which she is to give an opinion. Broders, 924 S.W.2d at 153; see also Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex.App.-Dallas 2007, pet. denied) (op. on reh’g) (focus “is on the ‘fit’ between the subject matter at issue and^the expert’s familiarity” with it, “not on a comparison of the expert’s title or specialty with that of the defendant”).

A medical expert with a different specialty than the defendant physician may testify “so long as the ‘subject of inquiry is common to and equally recognized and developed’ in both fields.” Broders, 924 S.W.2d at 152 (quoting Hart v. Van Zandt, 399 S.W.2d 791, 797-98 (Tex.1965)); see Chester, 228 S.W.3d at 912-13; Carreras v. Trevino, 298 S.W.3d 721, 724 (Tex.App.-Corpus Christi 2009, no pet.) (expert qualified to testify if she has practical knowledge of what is customarily done by practitioners of different specialty under circumstances similar to those at issue in case). When the offering party shows a subject is “substantially developed in more than one field, testimony can come from a qualified expert in any of those fields.” Broders, 924 S.W.2d at 154; see Chester, 228 S.W.3d at 913; Keo v. Vu, 76 S.W.3d 725, 732 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

Graham’s expert, Dr. Gominak, has been licensed to practice medicine since 1983. She was board certified in psychiatry and neurology in 1989 and in electrodiagnostic medicine in 1990. Between 1989 and 2004, she was an assistant professor in the department of neurology at two different hospitals. Dr. Gominak has also been engaged in the private practice of neurology since 1991.

During her residency in neurology, Dr. Gominak received twelve weeks of training in the emergency room on the primary evaluation of patients presenting with abnormal behavior. From 1989 until 2004, she taught neurology residents about the diagnosis and treatment of neurology patients. Further, for twenty-four years, Dr. Gominak has seen patients in the emergency room, in the hospital, and in her private practice regarding questions of abnormal thought process, paranoia, manic behavior, memory disorders, head pain, walking difficulty, and other symptoms. According to Dr. Gominak, these symptoms are also seen by emergency room physicians on a regular basis.

On a daily basis, Dr. Gominak is called by emergency room physicians about the “cause and/or treatment of patients with complaints or behavior that could be either psychiatric or neurologic.” Since her residency training, she has been asked on a daily basis to see and admit patients from the emergency room for neurologic complaints. She is required to assess the patient’s history, ask for the necessary accompanying laboratory or scan results, and give advice to the physician about further treatment or investigation. Although Dr. Gominak admitted she was not trained in other emergency room diagnoses, she was “most certainly very familiar with the triage and examination of patients in the emergency room with abnormal behavior.”

According to Dr. Gominak:

The job of the emergency room physician is to triage and evaluate for possible admission. They make use of specialists for additional information but usually are asked to do the preliminary evaluation of the patient to decide which medical or surgical specialty should see the patient. As I see a patient in the emergency room I am subject to the same standard of care, and I require the same basic information that the emergency room physician must use to evaluate the patient. Therefore in this area our two specialties and our standard of care are identical.

In performing the evaluation, the emergency room physician is required to “eliminate all of the medical or neurologic causes of abnormal behavior before calling in the psychiatrist.”

The conduct allegedly causing Graham’s injuries related to the need to rule out an organic cause of his symptoms prior to diagnosing a psychiatric condition. Dr. Gominak’s expert report and curriculum vitae established she has knowledge, skill, training, and education in both her own field of neurology and Dr. Newman’s field of emergency medicine as it pertains to the treatment of a patient presenting with abnormal behavior. See Broders, 924 S.W.2d at 153; Mosely, 249 S.W.3d at 779-80; Simonson v. Keppard, 225 S.W.3d 868, 874-75 (Tex.App.-Dallas 2007, no pet.). Further, Dr. Gominak established that the subject of assessment and treatment of patients presenting with abnormal behavior was substantially developed in both neurology and in emergency medicine and that the standard of care was the same in both fields. See Romero v. Lieberman, 232 S.W.3d 385, 392 (Tex.App.-Dallas 2007, no pet.) (expert report and CV showed expert’s qualifications to testify about “the standard of care as to the evaluation and treatment of septicemia by all medical doctors”); Blan v. Ali, 7 S.W.3d 741, 746-47 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (expert qualified to give opinion based on offering testimony “clearly within his knowledge” and establishing standard of care applied to any physician treating patient for stroke).

Given the nature of Graham’s claims and the opinions proffered by Dr. Gominak, we conclude the trial court did not abuse its discretion by concluding Dr. Gominak was qualified to render those opinions or by denying Dr. Newman’s motion to dismiss Graham’s health care liability claims. We overrule Dr. Newman’s sole issue and affirm the trial court’s order.


author: Justice MURPHY.

text:
    In the Interest of C.A.T., a Child.
    No. 05-08-01293-CV.
    Court of Appeals of Texas, Dallas.
    June 22, 2010.

      Rande Herrell, John B. Worley, Michael D. Becker, Asst. Atty. Gen., Austin, TX, for Appellant.
    Stephen W. Shoultz, Law Offices of Stephen W. Shoultz, Dallas, TX, for Appellee.
    Before Justices RICHTER, LANG-MIERS, and MURPHY.
   OPINION

Opinion By

Justice MURPHY.

The Office of the Attorney General appeals the trial court’s order dissolving a writ of garnishment levied against the bank account of appellee Father. In dissolving the writ, the trial court concluded Father, as a self-employed carpenter, was his own employer and attachment of disposable earnings in his personal bank account violated section 157.312(g) of the Texas Family Code. See Tex. Fam.Code Ann. § 157.312(g) (Vernon 2008). The trial court also concluded the seizure of Father’s account violated the judgment on child-support arrears because Father was current on his agreed obligation. In four issues, the OAG contends the trial court erred in dissolving the writ and enjoining the OAG from further garnishment of Father’s bank accounts containing disposable earnings. Because we conclude section 157.312(g) does not prohibit garnishment of Father’s bank account and the OAG’s seizure did not violate the trial court’s order, we reverse and remand this cause for further proceedings consistent with this opinion.

BACKGROUND

On January 26, 2006, the trial court rendered a judgment on arrears against Father for $97,300 in unpaid child support plus interest. The order required Father to make periodic payments of $500 per month on the judgment until the arrearage was paid in full. The order further provided that “nothing herein shall prohibit the use of other collection methods authorized by law.” In the section of the order titled “Notice to Obligor,” the trial court notified Father that “should he fail to pay current child support, or toward the child support arrearage as ordered herein, the [OAG] may pursue an action to suspend any or all licenses he may have.” All parties signed the order.

Almost two years later, the OAG sent Father written notice on December 20, 2007 that a child-support lien had been placed on his bank account. The OAG’s letter stated that if Father did not respond within ten days of receiving the notice, his account would be liquidated and used “to satisfy the child support arrears in whole or in part.” After the OAG’s levy, Father contested the lien by filing a motion to dissolve. Arguing he was current on his $500 monthly obligation, Father asserted the OAG violated the January 2006 order. He also claimed that because he was self-employed, the OAG violated section 157.312(g) of the Texas Family Code. Under section 157.312(g), a child-support lien “may not be directed to an employer to attach to the disposable earnings of an obligor paid by the employer.” Tex. Fam. Code Ann. § 157.312(g). Claiming the OAG had seized 100% of his disposable earnings, Father alleged in his motion he was unable to pay his taxes, suppliers, and other business-related expenses. Father asked the trial court to dissolve the notice of lien and determine the money held in the seized account was his disposable earnings. He also requested that any money taken from the account be credited first to his $500 monthly payments. The associate judge denied Father’s motion, and Father appealed that ruling to the district judge.

At the hearing before the district judge, Father testified he was self-employed and the levied account was his only checking account, which he used “to pay personal bills and business related expenses.” The trial court granted the motion to dissolve the lien and ordered $2000 of the levied funds credited to Father’s monthly child-support payments. The trial court further ordered release of the remaining balance to Father and enjoined the OAG from garnishing “any of [Father’s] bank accounts ... if he [was] not in default of the Court’s order dated January 26, 2006.”

Thereafter, the trial court signed findings of fact and conclusions of law and heard argument on the OAG’s motion for new trial. The trial court denied the motion, with the exception of clarifying its finding that the garnished account contained disposable earnings was “critical” to the language in the order enjoining further garnishment by the OAG. As a result, the trial court amended the order, adding language preventing the OAG from garnishing only those bank accounts containing Father’s “disposable earnings.”

Upon the OAG’s request, the trial court also signed findings of fact and conclusions of law related to its amended order. With regard to the January 26, 2006 judgment on arrears, the trial court found the parties agreed to a repayment schedule; Father was current on his monthly arrearage payments; Father “had the right to rely upon the terms of the agreement entered into ... for repayment of the arrearage”; and the order contained language stating that “nothing herein shall prohibit the use of other collection methods authorized by law.” The trial court also found that Father was a self-employed carpenter; Father’s employer was Father; the funds seized were the proceeds from Father’s work as a self-employed carpenter; as a result of the OAG’s seizure, Father “lacked funds to pay [his] child support arrearage and his business suppliers”; and the OAG should have known Father’s account “contained only the disposable earnings of [Father] from his carpentry business” when it seized the funds. Based on its factual findings, the trial court concluded the OAG disregarded the January 26, 2006 order; no child-support lien attached to the money seized from Father’s account; the OAG’s actions violated Texas Family Code section 157.312(g); and the OAG “knew or should have known that attaching [Father’s] disposable earnings [was] prohibited by [section 157.312(g)].” Two days later, the trial court heard argument on the OAG’s second motion for new trial, which it denied. This appeal followed. Father did not file a brief on appeal.

DISCUSSION

Child-Support Liens

The Texas Family Code prescribes procedures for the enforcement of child-support obligations, including income withholding, lien enforcement, and suspension or revocation of certain licenses held by the obligor. See generally Tex. Fam.Code Ann. § 158.001 (Vernon 2008) (income withholding); id. § 157.312 (child support lien); id. § 232.003 (suspension of license). Sections 157.311 through 157.331 relate to child-support liens for past-due child support. Id. §§ 157.311-.331. Generally, a party may enforce a child-support order by lien for all amounts of child support due and owing, including interest, regardless of whether the amounts have been adjudicated or otherwise determined. Id. § 157.312(a), (d); see also In re R.C.T., 294 S.W.3d 238, 241 (Tex.App.-Houston [14th Dist.] 2009, pet. denied). A child-support lien attaches to all nonexempt real and personal property of the obligor on or after the date the lien notice or abstract of judgment is filed. Tex. Fam.Code Ann. § 157.317(a)(1), (a-1). Child-support liens, however, “may not be directed to an employer to attach to the disposable earnings of an obligor paid by the employer.” Id. § 157.312(g). Rather, chapter 158 of the family code governs the rights and duties of the obligor’s employer regarding income withholding to satisfy child-support obligations or arrearages. See generally id. §§ 158.001-.507; see also id. § 154.007 (Vernon 2008) (order to withhold child support from income).

Chapter 157 also expressly addresses execution and levy on “assets or funds owned by, or owed to, an obligor and subject to a child support lien” in the possession or control of financial institutions and allows delivery of a notice of levy to any such institution, “[njotwithstanding any other provision of law.” Id. § 157.327(a). If the property or right to property to which the child-support lien attached “does not produce money sufficient to satisfy the amount of child support arrearages,” a party also “may proceed to levy on other property of the obligor until the total amount of child support due is paid.” Id. § 157.331.

Texas Family Code Section 157.312(g)

In its first issue, the OAG challenges the trial court’s order dissolving the child-support lien, arguing the factual findings and legal conclusions are based on an erroneous interpretation of section 157.312(g) of the Texas Family Code. Specifically, the OAG contends the trial court misconstrued section 157.312(g) as prohibiting perfection of a child-support lien on a self-employed obligor’s bank account. Whether section 157.312(g) prohibits service of a notice of child-support lien on a financial institution in which a self-employed obligor deposits his disposable earnings is an issue of first impression in Texas, and our analysis requires that we first look to the meaning of the statute.

Statutory construction is a legal question we review de novo. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007). Our primary objective in construing a statute is to determine and give effect to the Legislature’s intent as expressed by the language of the statute. City of Rockwall, Tex. v. Hughes, 246 S.W.3d 621, 625 (Tex.2008); Burnett-Dunham v. Spurgin, 245 S.W.3d 14, 16 (Tex.App.-Dallas 2007, pet. denied). We use the Legislature’s definitions and consider any technical or particular meaning the words may have acquired. City of Rock-wall, 246 S.W.3d at 625 (citing Tex. Gov’t Code Ann. § 311.011(b) (Vernon 2005)). Otherwise, we construe the words of the statute according to their plain and common meaning, unless such a construction leads to absurd results. Id. at 625-26; see also Tex. Gov’t Code Ann. § 311.011(a) (“Words and phrases shall be read in context and construed according to the rules of grammar and common usage.”). We also presume the entire statute is intended to be effective. Tex. Gov’t Code Ann. § 311.021(2).

Our analysis also requires a review of the trial court’s findings and conclusions. We review a trial court’s fact findings for legal and factual sufficiency by the same standards applied to a jury’s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). In a legal sufficiency review, we consider the evidence in the light most favorable to the finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We review a trial court’s legal conclusions de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002).

The evidence from which the trial court made its fact findings was undisputed. The January 26, 2006 judgment on arrears required Father to pay $500 per month against the $97,300 debt until the child-support arrearage was paid in full. The order also stated that “nothing herein shall prohibit the use of other collection methods authorized by law.” Father was current on his monthly arrearage payments at the time the OAG served the notice of lien on the financial institution in which Father had his personal account. Father was a self-employed carpenter, and the funds seized included proceeds from his work. Father also paid both his business and personal expenses from the account, including his monthly child-support payments. The trial court found from this evidence that the account “contained only the disposable earnings” of Father, and concluded the OAG disregarded the January 26, 2006 order and violated Texas Family Code section 157.312(g).

Looking first to the plain language of the family code, we find nothing indicating the Legislature intended to prohibit service of a child-support lien on a financial institution possessing an account owned by a self-employed obligor. Section 157.312(g) prohibits directing a child-support lien “to an employer.” Tex. Fam.Code Ann. § 157.312(g). Nowhere in the family code has the Legislature defined “employer” to include the obligor as a self-employed individual. Section 101.012 defines “employer” to mean “a person, corporation, partnership, workers’ compensation insurance carrier, governmental entity ... or any other entity that pays or owes earnings to an individual.” Id. § 101.012 (Vernon 2008). The family code does not define “employee,” but the common meaning is “one employed by another ... and usu[ally] for wages.” Webster’s ThiRD New Int’l DictionaRY of the English Language Unabridged 743 (1981). In contrast, someone who is “self-employed” earns “income directly from one’s own business, trade, or profession,” not “as a specified salary or wages from an employer.” Id. at 2060. Similarly, “self-employment income” under the family code “includes benefits allocated to an individual from a business or undertaking in the form of a proprietorship, partnership, joint venture, close corporation, agency, or independent contractor, less ordinary and necessary expenses required to produce that income.” Tex. Fam.Code Ann. § 154.065(a). Thus, by definition, an individual who works for himself is not employed by another. Similarly, the employer pays wages, while the self-employed individual allocates earnings from the business he directs himself. This distinction makes a difference in comparing the lien provisions of chapter 157 with the withholding obligations of employers covered by chapter 158.

Chapter 158 of the family code mandates detailed procedures and rights and duties of the employer related to the employer’s withholding of income from an obligor’s disposable earnings. See id. §§ 158.001-.507. The employer and the obligor are distinct under those withholding provisions. By way of example, family code section 158.204 allows an employer to deduct an administrative fee from the obli-gor’s disposable earnings, section 158.209 prohibits an employer from using a writ of withholding as grounds to terminate or discipline the obligor, and section 158.202 requires an employer to continue to withhold income as long as the obligor is employed by the employer. See id. §§ 158.202, 158.204, 158.209. Applying these provisions to the facts of this case, where no separate entity pays or owes wages to Father, he would be tasked with charging a fee for his administrative services of withholding income from himself. He also would be required to withhold income from his own disposable earnings so long as he continued to employ himself. Thus, the obligor could avoid the withholding obligation by terminating himself, so long as he was not discriminating against himself by firing himself. It is doubtful the Legislature intended such an absurd result. See City of Rockwall, 246 S.W.3d at 625-26; City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 768 (Tex.1991) (orig. proceeding). The discrete requirements for individual obligors and employers support interpretation of the statute pursuant to the plain meaning of the language. Case law also recognizes the practical distinction between withholding obligations of employers and personal payments by self-employed obligors. See, e.g., Mathis v. State, 930 S.W.2d 203, 207-08 (Tex.App.-Houston [14th Dist.] 1996, no writ) (“[Obligor] has not shown good cause why he should be exempt from making periodic payments as a self-employed individual .... [T]he judgment applies to current and future employers, covering the contingency that [obligor] will not always be self-employed.”).

Applying the trial court’s fact finding that Father was Father’s employer in the context of the chapter 157 lien provisions further confirms the Legislature did not intend to blur that line. Under that finding, Father would be both an employer and an employee-obligor. Section 157.312(d) provides a child-support lien automatically arises when child support is “due and owing,” subject only to the perfection requirements of chapter 157. Tex. Fam.Code Ann. § 157.312(d) (providing child-support lien “arises by operation of law”); id. §§ 157.313-.316 (perfection provisions); see also Herzfeld v. Herzfeld, 285 S.W.3d 122, 127 (Tex.App.-Dallas 2009, no pet.). That lien attaches to all nonexempt and personal property of the obligor, including his bank account. Tex. Fam.Code Ann. § 157.317(a)(1); see also id. § 157.327(a). Section 157.3145 specifically addresses service of lien notice on the financial institution holding property in the name, or in behalf, of an obligor. Id. § 157.3145. The plain language of section 157.312(g), which is at issue in this appeal, prohibits perfection of a child-support lien when it is directed to an “employer” to attach to the disposable earnings of an obligor “paid by the employer.” Id. § 157.312(g). Notably, the levy against an obligor’s disposable earnings is not limited solely to those employed by others. See Mathis, 930 S.W.2d at 207-08. The writ of withholding directed to the employer in fact “has priority over any garnishment, attachment, execution, or other assignment or order affecting disposable earnings.” Tex. Fam.Code Ann. § 158.008.

By the express language of the above provisions, when a child-support lien is directed to a self-employed obligor’s personal bank account, the lien is not directed to an “employer” for purposes of attachment. Nor does the lien attach to the disposable earnings of the obligor paid or owed by an employer. Rather, the lien is directed to the obligor’s financial institution “possessing or controlling assets or funds owned by, or owed to” the obligor as permitted under section 157.327(a). Id. § 157.327(a). The lien attaches to the disposable earnings allocated by the obligor directly from his own business and subject to his control. Disposable earnings under the control of an obligor have never been protected from child-support liens that arise as a matter of law.

In the situation affected by section 157.312(g), a claimant’s lien against the disposable earnings paid by the employer does not arise by operation of law. Instead, the claimant is seeking income withholding. Under the procedures governed by chapter 158, an employer is required to deduct a specified amount from the obli-gor’s disposable earnings before the earnings are paid. See id. §§ 158.201, 158.203. When an obligor is self-employed, however, income withholding by the “employer” is typically unavailable because there is no such third party as that term is defined by the family code. The obligor is also already personally under an order to pay such amounts pursuant to the judgment rendered by the trial court under chapter 157. To hold otherwise would allow all self-employed obligors to shield their earnings, including those maintained in bank accounts, from a child-support lien.

Interpreting section 157.312(g) as exempting attachment of a lien to a self-employed obligor’s disposable earnings held in an account owned by the obligor would also render virtually meaningless those sections in the family code that provide a child-support lien arises by operation of law and attaches to all nonexempt personal property of the obligor, including bank accounts. Id. §§ 157.312(d), 157.317(a)(1), 157.327(a). Section 157.327(a) does not differentiate between financial assets or funds of obligors who are employed by another and obligors who are self-employed. The only limitation is that the funds or assets must be “owned by, or owed to” the obligor and “subject to a child support lien.” Id. § 157.327(a). Absent express language allowing self-employed obligors an exemption from the levy allowed against an obligor’s bank account, we cannot presume the Legislature intended to carve out self-employed obli-gors.

To expand the definition of “employer” to include a “self-employed obligor” on the record before us would strain the meaning of the plain language and common understanding of the statute as described above. Father’s evidence showed he used one, non-segregated account for all purposes. He offered no evidence of whether he established a separate entity for business purposes, whether he ever paid himself a salary or wage, or whether he believed he “owed” himself any money as earnings from his self-employment. Based on the record in this case, and given the plain language of the statute, we conclude section 157.312(g) does not prohibit service of a child-support lien on the financial institution in this case in which Father deposited all earnings and from which he paid all expenses, both personal and business.

Because self-employed Father here cannot be both an employer and employee-obligor under the family code, the trial court’s finding that Father’s employer was Father is not supported by legally sufficient evidence. Consequently, the trial court erred when it concluded (1) no child-support lien attached to the funds in Father’s bank account; (2) the OAG violated section 157.312(g); (3) self-employed persons are entitled to the protection of section 157.312(g); and (4) the OAG knew or should have known that attaching a lien to Father’s disposable earnings was prohibited by section 157.312(g). We sustain the OAG’s first issue and turn to the OAG’s related third issue.

The January 26, 2006 Order

In its third issue, the OAG contends the trial court erroneously concluded the OAG disregarded the January 2006 order and the agreement among the parties when it seized the funds in Father’s bank account. In its findings, the trial court found the January 2006 order represented an agreement among the parties. The OAG also acknowledged that “all parties agreed to the January 26, 2006 [order] .... ” When faced with an agreed order from the trial court, we interpret the order as if it were a contract between the parties; our interpretation of the order is governed by the usual rules of contract interpretation. McCray v. McCray, 584 S.W.2d 279, 281 (Tex.1979) (per curiam); Miller v. Miller, 700 S.W.2d 941, 951 (Tex.App.-Dallas 1985, writ ref d n.r.e.).

Our primary concern in interpreting a contract is to ascertain its meaning and interpret what obligations are imposed on Father. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). We examine and consider the entire writing as a whole to harmonize and give effect to all the provisions so that none will be rendered meaningless. Id. If the writing can be given a certain and definite meaning or interpretation, then it is not ambiguous and we will construe it as a matter of law. Id.; Broesche v. Jacobson, 218 S.W.3d 267, 271 (Tex.App.-Houston [14th Dist.] 2007, pet. denied).

The January 2006 order contains a section titled “Judgment on Arrears.” In that section, the trial court rendered judgment against Father for $97,300 in unpaid child support plus interest. The order required Father “to pay said child support judgment by paying $500.00 each month ... until the arrearage is paid in full.... ” The monthly payments were to begin on the first day of February 2006, and were thereafter due “on or before the same day of each month....” The last sentence in this section provided that “nothing herein shall prohibit the use of other collection methods authorized by law.” In a separate section following the judgment on arrears, the order provided notice to Father that “should he fail to pay current child support, or toward the child support ar-rearage as ordered herein, the [OAG] may pursue an action to suspend any or all licenses he may have.”

The OAG argues the trial court misinterpreted the January 2006 order to prohibit the pursuit of other remedies provided by law until Father defaults on his court-ordered payment schedule. We agree. Under the terms of the January 2006 order, Father had two obligations — to pay back the amount of the child-support arrearage and to be current on his court-ordered $500 monthly payments. The existence of the payout schedule in the January 2006 order did not preclude the OAG from utilizing any other available remedies, such as a child-support hen, to collect on the arrearage owed by Father. See, e.g., Tex. Fam.Code Ann. § 157.003(b) (motion for enforcement not an election of remedies; does not preclude or limit other available remedies); id. § 157.312(b) (“The remedies provided by this subchapter do not affect the availability of other remedies provided by law.”); In re R.C.T., 294 S.W.3d at 242-43 (payout schedule did not change “due and owing” nature of entire debt under section 157.312(d)); In re Dryden, 52 S.W.3d 257, 263 (Tex.App.-Corpus Christi 2001, orig. proceeding) (payout schedule does not prevent execution for arrearage). Nor does the payout schedule in the January 2006 order expressly condition the OAG’s use of other remedies available on a default by Father. See Attorney Gen. of Tex. v. Wilson, 878 S.W.2d 690, 691 (Tex.App.-Beaumont 1994, no writ) (per curiam) (trial court erred in prohibiting Attorney General from attempting to satisfy judgment so long as debtor timely made periodic payments).

This interpretation is consistent with the plain language of the order which provides “nothing herein” shall prohibit the use of other collection methods authorized by law. Cf In re Dryden, 52 S.W.3d at 263 (“As long as a judgment remains unsatisfied, a judgment creditor is not limited in the number or type of enforcement actions she may file and pursue.”) (citing Holtzman v. Holtzman, 993 S.W.2d 729, 734 n. 4 (Tex.App.-Texarkana 1999, pet. denied)). Contrary to rules of contract construction, this language would be rendered meaningless if the OAG were not allowed to use other collection methods so long as the $500 payments were current. See Coker, 650 S.W.2d at 393. Consistent with the family code, the unequivocal language allowed the OAG to collect on the judgment regardless of whether Father was current under the payout schedule. See Tex. Fam. Code Ann. § 157.003(b).

That the January 2006 order included a section notifying Father of a possible suspension of any of his licenses should he fail to pay current child support or toward the arrearage does not negate the language in the previous section giving the OAG the right to pursue other collection methods permitted by law. Rather, the notice section merely provided a warning to Father that in addition to “the use of other collection methods authorized by law,” his licenses could be suspended by the OAG if he failed to pay as ordered. See id. § 232.003. The notice provision did not place a limit on the various enforcement mechanisms and remedies available to the OAG. Rather, consistent with the family code, it conditioned the OAG’s use of this particular remedy on Father’s failure to submit court-ordered payments.

The trial court found that Father was current on his child-support monthly ar-rearage payments and he “had the right to rely upon the terms of the agreement entered into ... for repayment of the arrear-age.” Although the trial court observed the order also included the language allowing other collection methods, it concluded the OAG disregarded the “agreements reached among all parties.” No evidence was presented as to the agreement of the parties other than the order itself. Based on a plain reading of that order, we conclude the OAG’s levy on Father’s account was not prohibited. Consequently, the trial court erred when it concluded the OAG disregarded the January 2006 order and the parties’ agreements. We sustain the OAG’s third issue.

Issues Two and Four

The OAG’s second issue assigns error to the trial court’s conclusion of law that it “would violate the equal protection clause of the 14th Amendment if self-employed persons [were] not afforded the same protection as employed persons.” Based on our resolution of the OAG’s first issue, we do not reach this issue. Tex.R.App. P. 47.1. The trial court should also first have the opportunity to address the OAG’s issue, if necessary, in light of this opinion.

In its fourth issue, the OAG contends the trial court lacked jurisdiction to enjoin the OAG from the lawful pursuit of its statutory duties. In light of our reversal of the order dissolving the writ of garnishment in its entirety, we do not reach issue four. Id.

CONCLUSION

Family code section 157.312(g) does not prohibit service of a child-support lien on the financial institution in which all of Father’s earnings were maintained. The OAG’s actions also did not violate the January 26, 2006 order or the parties’ agreement. Accordingly, we reverse the trial court’s order dissolving the writ of garnishment and remand this cause for further proceedings consistent with this opinion.

      . The OAG also attempted to seize the funds in Father’s bank account in June 2006. Father contested the lien, filing a motion to dissolve the writ of garnishment. The OAG failed to appear at the hearing on Father’s motion, and an order dissolving the writ was entered by default.

      . Although the record contains references to two accounts at one financial institution, Father's testimony references only one account. Accordingly, references in this opinion are to that account.

      . “Earnings” means "a payment to or due an individual, regardless of source and how denominated” and includes “wages, salary, [and] compensation received as an independent contractor....” Tex Fam.Code Ann. § 101.011. “Disposable earnings” are “the part of the earnings of an individual remaining after the deduction from those earnings of any amount required by law to be withheld....” Id. § 101.010. The definitions of "employer,” “earnings," and “disposable earnings” apply to all suits affecting the parent-child relationship. Id. § 101.001(a).