source: Caselaw Access Project

author: Justice FILLMORE.

license: Public Domain

text:
    Martin Rodriguez SANCHEZ, Individually and d/b/a Martin Used Cars and Trucks, Appellant, v. AMERICREDIT FINANCIAL SERVICES, INC., Appellee.
    No. 05-09-00081-CV.
    Court of Appeals of Texas, Dallas.
    March 30, 2010.

      Aubrey D. Pittman, The Pittman Law Firm, P.C., Kristin Kay Schroeder, Dallas, TX, for appellant.
    Donald L. Turbyfill, Deboi-ah C.S. Ri-herd, Devlin, Naylor & Turbyfill, P.L.L.C., Houston, TX, for appellee.
    Before Justices O’NEILL, LANG-MIERS and FILLMORE.
   OPINION

Opinion by

Justice FILLMORE.

In three issues appellant Martin Rodriguez Sanchez, individually, and doing business as Martin Used Cars and Trucks, contends the trial court erred in (1) granting appellee AmeriCi-edit Financial Services, Inc.’s no-evidence motion for summary judgment, (2) denying Sanchez’s motion for summary judgment and recovery of attorney’s fees, and (3) denying Sanchez’s motion to disqualify opposing counsel. We affirm the trial court’s judgment.

Background

AmeriCredit sued Sanchez for conversion of a truck and for declaratory judgment relating to AmeriCredit’s security interest in the vehicle. Sanchez filed an answer and counterclaims against Ameri-Credit for declaratory judgment and for malicious prosecution. AmeriCredit non-suited its claims against Sanchez without prejudice. AmeriCredit filed a no-evidence motion for summary judgment as to Sanchez’s claims for declaratory judgment and malicious prosecution. Sanchez filed a traditional motion for summary judgment as to his counterclaim for declaratory judgment. Sanchez filed a non-suit of his claim for malicious prosecution, leaving his counterclaim for declaratory judgment as the only remaining claim in the lawsuit. Sanchez also filed a motion to disqualify Amer-iCredit’s counsel. The trial court entered a final summary judgment, and without stating the grounds, granted AmeriCre-dit’s no-evidence motion for summary judgment and denied Sanchez’s motion for summary judgment. Sanchez filed this appeal.

Discussion

In his first issue, Sanchez argues the trial court erred in granting AmeriCredit’s no-evidence motion for summary judgment. Sanchez also contends he was entitled to a declaratory judgment through his summary judgment motion and asserts in his second issue that the trial court erred in denying his motion for summary judgment.

The standards for reviewing summary judgments are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the non-mov-ant will be taken as true. Nixon, 690 S.W.2d at 548-49. Further, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982); Ling v. BDA & K Bus. Servs., Inc., 261 S.W.3d 341, 345 (Tex.App.-Dallas 2008, no pet.).

In a no-evidence motion for summary judgment, the non-movant has the burden of presenting evidence that raises a genuine issue of material fact on the challenged elements. Tex.R. Civ. P. 166a(i). We review a no-evidence motion for summary judgment under the same legal sufficiency standard used to review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). Our inquiry focuses on whether the non-movant produced more than a scintilla of probative evidence to raise a fact issue on the challenged elements. Id. at 751; Preston Gate, LP v. Bukaty, 248 S.W.3d 892, 895-96 (Tex.App.-Dallas 2008, no pet.).

Where, as here, both sides move for summary judgment and the trial court grants one motion and denies the other, the appellate court should review both parties’ summary judgment evidence and determine all questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). In the event of trial court error, the appellate court should render the judgment that the trial court should have rendered. Id.

In its petition, AmeriCredit sought a declaratory judgment to determine the nature, extent and priority of conflicting rights asserted in the motor vehicle. Am-eriCredit contended it holds a perfected, first-priority purchase money security interest in the vehicle, that it is in possession of the original Texas Certificate of Title to the vehicle, and that defendants, including Sanchez, took possession of the vehicle without transfer of title as required by Texas law. AmeriCredit sought declarations that its security interest in the vehicle is valid and enforceable and superior to any interests asserted by the defendants, any vehicle title issued to any defendant is void, and it is entitled to immediate possession of the vehicle. AmeriCredit also asserted a cause of action for conversion of the vehicle.

In his answer, Sanchez specifically denied AmeriCredit’s claims and asserted affirmative defenses. He also asserted counterclaims for malicious prosecution and for declaratory judgment. He requested declarations that AmeriCredit lacked standing to bring a claim under the Texas Property Code, the Certificate of Title Act, or the Texas Transportation Code, that Sanchez is not a party to a mechanic’s lien or an application for certificate of title relating to the vehicle, and there was a failure of consideration. These requests for declarations were also included in Sanchez’s answer as defenses to AmeriCredit’s claims.

AmeriCredit filed a no-evidence motion for summary judgment, asserting Sanchez failed to create a genuine issue of material fact that he is entitled to a declaratory judgment. See Tex.R. Civ. P. 166a(i). Sanchez filed a traditional motion for summary judgment on his declaratory judgment action and a request for attorney’s fees under the declaratory judgment act. AmeriCredit contends Sanchez’s counterclaim is an improper use of the declaratory judgment act, and as it is contingent upon AmeriCredit’s non-suited claims, it is moot. See Tex.R. Civ. P. 166a(c); Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008).

A counterclaim for declaratory judgment is improper if it is nothing more than a mere denial of the plaintiffs claims and the counterclaim fails to have greater ramifications than the original suit. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 842 (Tex.1990) (orig. proceeding). To have “greater ramifications” than the original suit, the counterclaim should seek some sort of affirmative relief. HECI Exploration Co. v. Clajon Gas Co., 843 S.W.2d 622, 638-39 (Tex.App.-Austin 1992, writ denied); see also Tex.R. Civ. P. 96; Heritage Life v. Heritage Group Holding, 751 S.W.2d 229, 235 (Tex.App.-Dallas 1988, writ denied) (declaratory judgment act not available to settle disputes already pending before court). “To qualify as a claim for affirmative relief, a defensive pleading must allege that the defendant has a cause of action, independent of the plaintiffs claim, on which he could recover benefits, compensation or relief, even though the plaintiff may abandon his cause of action or fail to establish it.” Gen. Land Office of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990) (quoting Weaver v. Jock, 717 S.W.2d 654, 657 (Tex.App.-Waco 1986, writ ref'd n.r.e.)).

Sanchez’s assertion of a counterclaim in the form of a request for declaratory judgment did not relieve him of his burden to comply with the requirement to assert a claim for affirmative relief. See BHP Petroleum, 800 S.W.2d at 841 n. 8. The matters on which Sanchez sought a declaratory judgment were nothing more than affirmative defenses to claims on which the parties had already joined issue and had no greater ramification than the defenses that were presented when Sanchez’s counterclaim for declaratory action was filed. In none of Sanchez’s requested declarations did he seek affirmative relief; he sought only to avoid liability. In fact, Sanchez’s requested declarations were identical to affirmative defenses set forth earlier in the same pleading. See HECI Exploration, 843 S.W.2d at 639. Thus, the declaratory-judgment counterclaim duplicated other parts of the pleading in every respect. The allegations pled in Sanchez’s counterclaim are not averments of fact upon which affirmative relief could be granted. They are denials of AmeriCre-dit’s cause of action. See OXY U.S.A., 789 S.W.2d at 570. Sanchez could not recover any relief once AmeriCredit abandoned its causes of action. See BHP Petroleum, 800 S.W.2d at 842; HECI Exploration, 843 S.W.2d at 639. We therefore conclude that Sanchez asked for no greater relief in his declaratory-judgment counterclaim than he asked for without that counterclaim. See HECI Exploration, 843 S.W.2d at 639.

Sanchez contends his summary judgment declaratory judgment should have been granted because of the potential that AmeriCredit’s claims might be brought in another lawsuit. However, the potential that another suit might be filed or that judicial economy would be better served by granting Sanchez’s summary judgment are irrelevant and should not be considered by the trial judge when ruling on the motions for summary judgment. See BHP Petroleum, 800 S.W.2d at 840 n. 6.

We conclude the trial court did not err in granting summary judgment in favor of AmeriCredit. We overrule Sanchez’s first issue. We further conclude the trial court did not err in denying Sanchez’s motion for summary judgment. We overrule Sanchez’s second issue to the extent he complains the trial court erred in denying him summary judgment.

In his second issue, Sanchez further contends the trial court erred in denying his motion for attorney’s fees incurred in prosecuting his own claim for declaratory relief and defending against AmeriCre-dit’s claim for declaratory relief. The trial court’s grant or denial of attorney’s fees will not be reversed on appeal unless the complaining party can show an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). The abuse of discretion test is whether the trial court’s ruling was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

The Uniform Declaratory Judgments Act authorizes the granting of attorney’s fees in declaratory judgment actions in the discretion of the trial court. Tex. Crv. Prao. & Rem.Code Ann. § 37.009 (in any proceeding under Uniform Declaratory Judgments Act, court may award reasonable and necessary attorney’s fees as are equitable and just). Under the Uniform Declaratory Judgments Act, although a trial court may award attorney’s fees, it is not required to do so. Roberson v. City of Austin, 157 S.W.3d 130, 137 (Tex.App.Austin 2005, pet. denied). A trial court may conclude that it is not equitable or just to award even reasonable and necessary fees. Bocquet, 972 S.W.2d at 21.

We do not know the basis of the trial court’s denial of attorney’s fees to Sanchez. Significantly, it is Sanchez’s burden to bring a record showing that the trial court abused its discretion. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987). We must presume that a trial court acted within its discretion unless the record discloses the contrary. Navistar Int'l Corp. v. Valles, 740 S.W.2d 4, 6 (Tex.App.-El Paso 1987, no writ). Here, the record reflects neither findings of fact nor a request for such findings with regard to the trial court’s ruling on attorney’s fees. This Court has held that without findings of fact establishing the basis for the trial court’s exercise of discretion, an appellate court cannot conclude as a matter of law that the trial court abused its discretion in declining to award attorney’s fees. Marion v. Davis, 106 S.W.3d 860, 868 (Tex.App.-Dallas 2003, pet. denied); see also Unified Loans, Inc. v. Pettyjohn, 955 S.W.2d 649, 654-55 (Tex.App.Austin 1997, no pet.) (no abuse of discretion for failure to award attorney’s fees in declaratory judgment case when record does not reveal basis for denial).

Sanchez has not demonstrated any abuse of discretion by the trial’court in denying recovery of his attorney’s fees. The Uniform Declaratory Judgments Act does not mandate an award of attorney’s fees or costs, even to a prevailing party. Such determination is within the trial court’s discretion. See Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997). Without knowing the basis for the trial court’s denial, we cannot conclude as a matter of law that the trial court abused its discretion in declining to award attorney’s fees. See Marion, 106 S.W.3d at 868-69; Pettijohn, 955 S.W.2d at 654-55.

We overrule Sanchez’s second issue to the extent he complains the trial court abused its discretion in failing to award him attorney’s fees.

In his third issue Sanchez asserts the trial court erred in denying his motion to disqualify opposing counsel. The relief requested by Sanchez on appeal is that in the event this matter is remanded for trial, this Court should instruct the trial court to grant Sanchez’s motion to disqualify opposing counsel. In light of our disposition of Sanchez’s first and second issues, we need not address Sanchez’s third issue.

Conclusion

We affirm the trial court’s judgment.

      . Sanchez's co-defendants were non-suited by AmeriCredit and are not parties to this appeal.

        . AmeriCredit also moved for summary judgment on Sanchez’s malicious prosecution claim. Sanchez non-suited his claim for malicious prosecution prior to the trial court's consideration of the motions for summary judgment.

      . The trial court did not enter an order denying Sanchez’s request for attorney's fees. However, the final summary judgment provides that it is a final judgment, disposing of all claims and all parties.

      . Our record does not contain an order on Sanchez's motion to disqualify, although the docket sheet contains the entry that the motion to disqualify was mooted by the trial court’s rulings on the parties’ respective motions for summary judgment. See Bailey-Mason v. Mason, 122 S.W.3d 894, 897 (Tex.App.Dallas 2004, pet. denied) (docket sheet entry is memorandum made for convenience of trial court and court clerk).


author: Justice FITZGERALD.

text:
    CITY OF DALLAS, Appellant, v. Phil HILLIS, Individually and as Personal Representative of the Estate of Taylor Hillis, Deceased, and Buffy Hillis, Appellees.
    No. 05-08-01644-CV.
    Court of Appeals of Texas, Dallas.
    March 30, 2010.
    Rehearing Overruled April 29, 2010.

      Patricia M. Medrano, City of Dallas Attorney’s Office, Dallas, for appellant.
    Jeffrey Simon, Sean R. Cox, Simon, Ed-dins & Greenstone, L.L.P., Randy Isen-berg, Dallas, for appellees.
    Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion By

Justice FITZGERALD.

Appellees sued the City of Dallas on claims arising from the death of Taylor Hillis. The City filed a plea to the jurisdiction based on governmental immunity. The trial court signed an order granting the plea in part and denying it in part. The City timely perfected this interlocutory appeal from that order. Appellees cross-appealed the order to the extent the trial court granted the plea. We conclude that all of appellees’ claims are barred by governmental immunity, so we affirm in part and reverse in part.

I. Background

Phil and Buffy Hillis sued the City of Dallas. Their live pleading at the time of the order now on appeal was their first amended petition. In the first amended petition, they allege the following facts. On October 6, 2006, Dallas police officer Fernando Perez attempted to initiate a routine traffic stop of Taylor Hillis, who was operating a motorcycle. When Hillis did not stop, Perez pursued in his police car at speeds exceeding 110 miles per hour. Perez followed Hillis onto South Central Expressway. At the “High Five” overpass, Hillis entered the eastbound ramp to Interstate 635. Hillis lost control of his motorcycle on the ramp, causing him and his passenger to fall off the overpass and to sustain fatal injuries.

The Hillises assert wrongful-death and survival claims against the City for the death of Taylor Hillis. They invoke several legal theories of liability. First, they allege that Perez’s negligently caused Hil-lis’s death by his conduct. In connection with this claim, they allege that Perez violated the Dallas Police Department’s own “no-chase policy” governing high-speed chases. Second, they allege that the City negligently hired, retained, and assigned Perez. Third, they allege that the City negligently supervised, trained, and directed Perez. Fourth, they allege that the City negligently entrusted the patrol car to Perez. Fifth, they allege that the City negligently failed to discipline Perez for prior instances of negligent or reckless conduct. The Hillises also assert globally that “[a]ll of the allegations in this Petition address the negligent implementation of policy.”

The City filed a plea to the jurisdiction attacking all of the claims pleaded in the Hillises’ original petition. After the Hillis-es amended their pleadings, the City filed a supplemental plea to the jurisdiction to address the new allegations in the first amended petition. The trial court held an evidentiary hearing on the City’s plea to the jurisdiction. At the hearing, the court admitted into evidence the video recording made by the dashboard camera in Perez’s patrol car during the incident in question.

The trial court signed an order granting the City’s plea in part and denying it in part. The court granted the plea as to the Hillises’ claims for (1) negligent hiring, retention, and assignment; (2) negligent supervision, training, and direction; and (3) negligent failure to discipline. The court denied the plea as to the claims for (1) negligent implementation of policy; (2) negligent entrustment; and (3) wrongful death and survival. The City appealed the court’s order, and the Hillises filed a notice of cross-appeal. We have jurisdiction pursuant to section 51.014(a)(8) of the civil practice and remedies code.

II. Motion to Dismiss CROSS-Appeal

The City has moved to dismiss the Hillises’ cross-appeal because their notice of cross-appeal was untimely. The trial court signed the relevant order on December 3, 2008. The City timely filed its notice of appeal on December 10, 2008. The Hillises filed their notice of cross-appeal on January 5, 2009. Under Texas Rule of Appellate Procedure 26.1(d), the notice of cross-appeal was due on December 24, 2009. The Hillises acknowledge that their notice of cross-appeal was late, but they point out that they filed the notice within the fifteen-day grace period provided by rule 26.3. Under Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997), we imply a motion to extend time to file notice of appeal under these circumstances. The inquiry then becomes whether the Hillises have furnished a reasonable explanation for the untimely filing. Tex.R.App. P. 10.5(b)(1)(C). Under this standard, any conduct short of deliberate or intentional noncompliance qualifies as a reasonable explanation. Hone v. Hanafin, 104 S.W.3d 884, 886-87 (Tex.2003) (per curiam). The Hillises’ attorney has explained that he misinterpreted the appellate rules and mistakenly believed he had timely cross-appealed by filing the notice of cross-appeal within thirty days of the interlocutory order in question. We accept this as a reasonable explanation and deny the City’s motion to dismiss. See Christus Health Se. Tex. v. Broussard, 267 S.W.3d 531, 533-34 (Tex.App.-Beaumont 2008, no pet.) (“A party’s mistaken belief that no extension was required because the notice of appeal was timely reasonably explains the failure to file a motion for an extension of time.”).

III. Analysis

The City argues in three issues that the trial court erred to the extent it denied the City’s plea to the jurisdiction. The Hillis-es argue in a single issue in their cross-appeal that the trial court erred to the extent it granted the City’s plea to the jurisdiction.

A. Standard and scope of review

If the plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must consider relevant evidence submitted by the parties. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004). If the evidence creates a fact question regarding the jurisdictional issue, the trial court must deny the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. But if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 227-28. “[Tjhis standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).... By requiring the [political subdivision] to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to ‘put on their case simply to establish jurisdiction.’” Id. at 228. Our standard of review is de novo. Id.

B. The law of governmental immunity

A municipality enjoys governmental immunity from suit and from liability for its governmental functions. Gipson v. City of Dallas, 247 S.W.3d 465, 469 (Tex.App.-Dallas 2008, pet. denied); accord City of Dallas v. Heard, 252 S.W.3d 98, 103 (Tex.App.-Dallas 2008, pet. denied). Police protection is a governmental function. Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(a)(1) (Vernon 2005). The Texas Tort Claims Act provides a limited waiver of governmental immunity if certain conditions are met. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). The relevant section of the Act provides:

A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005).

The Hillises argue that section 101.0215 of the civil practice and remedies code is an independent waiver provision that waives municipalities’ governmental immunity for all damages arising from all “governmental functions,” including police services. See generally id. § 101.0215. They further argue that we embraced their interpretation of section 101.0215 in footnote 2 of our opinion in City of Celina v. Blair, 171 S.W.3d 608 (Tex.App.-Dallas 2005, no pet.). The City argues that the Hillises misinterpret City of Celina and that Texas courts have uniformly held that section 101.0215 is not an independent waiver of governmental immunity. See, e.g., Sanders v. City of Grapevine, 218 S.W.3d 772, 778 (Tex.App.-Fort Worth 2007, pet. denied) (“[Section 101.0215] does not provide an independent basis for a waiver of governmental immunity.”); City of Kemah v. Vela, 149 S.W.3d 199, 203-04 n. 1 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (same); accord City of Houston v. Rushing, 7 S.W.3d 909, 914 (Tex.App.Houston [1st Dist.] 1999, pet. denied); City of Garland v. Jezari, No. 05-99-02188-CV, 2000 WL 707289, at *2 (Tex.App.-Dallas June 1, 2000, no pet.) (not designated for publication).

We agree with the City that footnote 2 in our City of Celina opinion does not support the Hillises’ interpretation of section 101.0215. That footnote states, in its entirety:

The City’s participation in the functions of constructing, designing, and maintaining roads is governmental in nature, rather than proprietary. Thus the City is civilly liable for damages pursuant to those functions only where the legislature has waived its sovereign immunity in the Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)(3), (4).

171 S.W.3d at 610-11 n. 2. Section 101.0215 is not a free-standing waiver of governmental immunity. We hold that section 101.0215 does not provide an independent basis for a waiver of governmental immunity.

C. Application of the law to the facts

1. Waiver by judicial admission

The Hillises make a threshold argument that the City waived the defense of governmental immunity by a judicial admission in the City’s live pleading (its original answer). The relevant passage from the City’s answer follows:

For further answer, Defendant, City of Dallas, invokes the defense of governmental immunity. The City would show that the allegations against it herein concern a governmental function, police protection, and that the limited waiver of governmental immunity set forth in Chapter 101 of the Texas Civil Practice and Remedies [Code] is applicable. In the unlikely event that Plaintiffs can prove a cause of action against the City, then Plaintiffs’ monetary recovery would be governed by the limits set forth therein.

The Hillises argue that the second sentence in the foregoing passage constitutes an unequivocal admission that the statutory “waiver of governmental immunity ... is applicable.”

Assertions of fact, not pleaded in the alternative, in the live pleadings of a party are regarded as formal judicial admissions. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex.2001). “A judicial admission must be a clear, deliberate, and unequivocal statement.” Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex.1996) (per curiam). Reading the City’s pleading as a whole, we conclude that the City did not judicially admit that its governmental immunity was waived as to the Hillises’ claims. The second sentence in the above quotation is contradicted by the assertion in the preceding sentence that the City “invokes the defense of governmental immunity.” Even if we determined the paragraph to be equivocal, it nevertheless would not be a judicial admission. See Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 349 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (“Because the statement made by MKI’s attorney was, at best, equivocal, it cannot constitute a judicial admission.”).

We reject the Hillises’ contention that the City judicially admitted that governmental immunity is inapplicable.

. 2. Liability for Perez’s negligence

The first liability theory pleaded by the Hillises is that the City is liable because Perez negligently and directly caused Taylor Hillis’s death by initiating and continuing a high-speed chase contrary to the no-chase policy of the Dallas Police Department. In its second issue on appeal, the City argues that it is immune as to this claim because Hillis’s death did not arise from the use of a motor vehicle. The Hillises argue that there is a sufficient causal nexus between Perez’s use of the patrol car and Taylor Hillis’s death to satisfy section 101.021(1)(A). We agree with the City.

Under section 101.021(1)(A), governmental immunity is waived if several elements are met, one of which is that the injury or death sued upon must “arise[] from the operation or use of a motor-driven vehicle or motor-driven equipment.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(A) (Vernon 2005); see also LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992) (holding that the “operation or use” in question must be operation or use by the governmental employee). The supreme court has construed the “arises from” requirement to mean that the vehicle’s use “must have actually caused the injury.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex.2003) (internal quotations omitted). The causal nexus is not satisfied by the mere involvement of a vehicle, nor by an operation or use that “does no more than furnish the condition that makes the injury possible.” Id. (internal quotations omitted). When an alleged cause is geographically, temporally, or causally attenuated from the alleged effect, that attenuation will tend to show that the alleged cause did no more than furnish the condition that made the effect possible. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998) (escaped mental patient’s death on a freeway was “distant geographically, temporally, and causally” from the unlocked doors through which he escaped).

The only evidence admitted at the hearing on the City’s plea to the jurisdiction was the video taken by the camera mounted in Perez’s patrol car. The video shows the following sequence of events. At about 2:30 a.m. on October 6, 2006, Perez parked his patrol car on the street near an apartment complex. A few moments later, a motorcycle emerged from the complex, turned right without stopping, and proceeded down the street away from Perez. Perez immediately began to follow the motorcycle in his patrol car. About 45 seconds later, the video shows that the motorcycle was traveling about 51 miles per hour in a 35-mile-per-hour zone. At that point, Perez activated his vehicle’s emergency lights. The motorcyclist (Hillis) accelerated and attempted to flee, thereby committing another traffic violation. See Tex. Transp. Code Ann. § 545.421(a) (Vernon Supp. 2009) (forbidding a motorist from fleeing a police vehicle after being signaled to stop). Perez followed at speeds reaching 78 miles per hour during this phase of the pursuit. A passenger on the motorcycle looked back at Perez at least once during this part of the pursuit. Less than a minute after Perez activated his emergency lights, Hillis entered southbound Central Expressway. His speed is unknown, but despite Perez’s speed of 92 miles per hour, Hillis quickly pulled so far ahead of Perez as to be out of sight for a short time. Only by accelerating to over 100 miles per hour was Perez able to bring the motorcycle back into view as the two vehicles approached the exit ramp from Central Expressway to Interstate 635.

The vehicles entered the exit ramp leading to Interstate 635, both eastbound and westbound. Traffic entering the ramp passes a yellow traffic sign posting a speed limit of 45 miles per hour for the ramp. When Perez reached this point, his speed was about 107 miles per hour, but he made slight progress in catching up to Hillis. As traffic approaches the fork in the exit ramp for . eastbound and westbound Interstate 635, it passes a second yellow traffic sign, illegible in the video, where the eastbound fork curves sharply to the left. As Hillis entered the left curve of the eastbound fork, he lost control of the motorcycle. He was still so far ahead of Perez that the video shows no details of the accident except for several flashes of sparks. Although Perez’s speed was about 105 miles per hour at the moment of the accident, it still took Perez about ten seconds to reach the approximate area where Hillis had lost control of his motorcycle. There Perez stopped his car and got out to investigate.

The parties attached some documents to their filings relating to the City’s plea to the jurisdiction, but they do not shed any additional light on the pivotal question of whether Perez’s use of the patrol car caused the accident and the death of Taylor Hillis. In particular, the Hillises attached an expert report by a retired police officer to their response, and they point out that the expert stated in his report that the City’s gross deficiencies in retaining, supervising, and disciplining Perez “were a direct causal factor in [Perez’s] pursuit of Taylor Hillis and the subsequent fatal traffic accident.” But this assertion is a bare conclusion and in any event has no bearing on whether Perez’s use of the patrol car actually caused Hillis’s death or merely furnished a condition that made his death possible. In sum, the video of the accident is the only relevant and competent evidence in the record.

We have found little Texas authority closely on point. The City brings several cases to our attention, but they are not very similar to this case factually and give us little guidance on the use-causation issue we must confront. See, e.g., Whitley, 104 S.W.3d at 541 (DART immune from claims by bus passenger who was ejected from bus and assaulted by others after ejection); Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 869-70 (Tex.2001) (TNRCC immune from claims for property damage allegedly caused by nonuse of motorized pump); Gipson, 247 S.W.3d at 471 (city immune from claims for injuries allegedly caused by failure to timely send ambulance in response to 911 call).

Some Texas cases do indicate, however, that the chain of causation can be broken when the injury most directly results from the injured person’s own decisions. One such case is City of Sugarland v. Ballard, 174 S.W.3d 259 (Tex.App.-Houston [1st Dist.] 2005, no pet.). In that case, police officers had arrested Mark Ballard and were transporting him in a patrol car when he escaped from the car and was killed shortly thereafter when hit by another car. Id. at 263. The court held that Ballard’s death was not caused by the use of the patrol car: “The actual cause of Mark’s death was his deliberate decision to flee into freeway traffic and a separate car’s hitting him there; the failure to secure Mark in the first place merely furnished the condition that made it possible for him to escape and then run into oncoming traffic.” Id. at 266. Ballard thus shows that a person’s deliberate decision to flee from police can undercut the claim that resulting injuries are “caused” by the police. We also take note of Texas Department of Public Safety v. Grisham, 232 S.W.3d 822 (Tex.App.-Houston [14th Dist.] 2007, no pet.). In that case, a policeman parked his car on the right shoulder with its emergency lights flashing, and passing motorist Grisham was injured when he switched to the left lane and struck a disabled vehicle on the left shoulder that partially obstructed his lane. Id. at 824. Although Gris-ham argued that the police car caused the accident by “funneling” him into the disabled vehicle, the court of appeals held that the use of the police car merely furnished the condition that made the injury possible; it did not actually cause the injury. Id. at 827. “In the end, Grisham’s decision to change lanes and the collision with [the disabled] vehicle which followed actually caused his injuries.” Id. In our view, this case is like Ballard and Grisham in that the only actual cause of Hillis’s accident was his own decision to attempt to exit to eastbound Interstate 635 at a reckless rate of speed. At most, Perez’s use of his police car only furnished the condition that made Hillis’s accident possible.

A case from the Michigan Supreme Court is also instructive. In Robinson v. City of Detroit, the court considered two consolidated cases in which police pursuits ended in injuries to passengers in the fleeing vehicles. 462 Mich. 439, 613 N.W.2d 307, 312-13 (2000). Michigan had a similar statute waiving governmental immunity for injuries “resulting from” the negligent operation of a government-owned motor vehicle. Id. at 315. Observing that waivers of immunity should be narrowly construed, the court held that the plaintiff passengers could not “satisfy the ‘resulting from’ language of the statute where the pursuing police vehicle did not hit the fleeing car or otherwise physically force it off the road or into another vehicle or object.” Id. at 316. Thus, the city of Detroit’s immunity was not waived. Id. at 322. Using similar logic, we conclude that the claimants in this case cannot satisfy the causation standard applicable in Texas. Perez did not hit Hillis’s motorcycle with his patrol car. He did not physically force Hillis off the road or into another vehicle or object. At the time of the accident, Perez’s operation of his vehicle was so physically and temporally separated from Hillis’s motorcycle-that, as a matter of law, Perez’s operation of his vehicle did not actually cause Hillis’s accident.

The Hillises rely on the plurality opinion in Travis v. City of Mesquite, 830 S.W.2d 94 (Tex.1992). In that case, two off-duty police officers were working at a truck stop as late-night security guards. Id. at 96. Suspicious that the occupants of a car in the back parking lot were involved in prostitution, the officers obtained the driver’s identification and asked him to drive to the front parking lot and wait for them there. Id. Instead, the driver fled the scene, and the off-duty police officers followed him as he drove the wrong way down a one-way highway access road. Id. The fleeing driver then crashed head-on into another motorist’s car, killing one person and injuring others. Id,. The victims of the crash sued the city and the police officers for negligence, among other liability theories. Id. at 96-97. The defendants sought summary judgment on several theories including the absence of proximate cause, and the trial court granted summary judgment for the defendants. Id. at 97. The court of appeals affirmed based on the absence of proximate cause, but the supreme court reversed based on the following causation analysis:

The ... summary judgment evidence raises the inference that [the fleeing motorist] drove down the access road at excessive speed because of the police decision to give chase. There was summary judgment evidence that the conduct of the police officers was a cause in fact of the accident in question, and of the injuries for which the plaintiffs seek recovery.

Id. at 98.

We conclude that Travis is distinguishable. First, the defendants in Travis actually conceded “that fact issues remain[ed] requiring reversal and remand for trial.” Id. at 99. The City has made no such concession in this case. Second, it appears the defendants in Travis did not argue immunity as a separate defense on appeal because the Travis court analyzed the case only as a general proximate-cause case, not an immunity case. See id. at 99-100. Thus, the Travis court considered only the broad question of whether general police negligence caused the accident in question; it did not consider the narrower issue of whether the use of a police car was the actual cause of the accident in question. By contrast, this case squarely presents the question of what constitutes a sufficient causal nexus between the use of a police vehicle and a subsequent accident.

For the foregoing reasons, we conclude as a matter of law that Perez’s use of his patrol car was too attenuated from Hillis’s conduct for that use to constitute a cause of Hillis’s injuries. The trial court erred by failing to dismiss the Hillises’ claim based directly on the alleged negligence of Perez.

3. Liability for negligent implementation of policy or entrustment

In its first issue on appeal, the City argues that it is immune from the Hillises’ claims based on the City’s allegedly negligent implementation of policy and negligent entrustment of a vehicle to Perez. We address each theory in turn.

The Hillises argue as a general proposition that a governmental unit is not immune if an injury is caused by a negligent implementation of a governmental policy. This is not a correct statement of the law. There is no general waiver of immunity for claims that an officer negligently carried out governmental policy. Perez v. City of Dallas, 180 S.W.3d 906, 911 (Tex.App.-Dallas 2005, no pet.); City of Garland v. Rivera, 146 S.W.3d 334, 338 (Tex.App.-Dallas 2004, no pet.). That is, unless the plaintiffs negligent-implementation-of-policy claim comes within some statutory waiver of immunity, immunity is not waived as to that claim. Rivera, 146 S.W.3d at 338. The Hillises rely on judicial statements like the following: “If ... an officer or employee acts negligently in carrying out [government] policy, government liability may exist under the Act.” State v. Terrell, 588 S.W.2d 784, 788 (Tex.1979) (emphasis added). The point of statements such as these, however, is not to recognize a new category of waiver of governmental immunity for “negligent implementation of policy,” but rather to distinguish negligent-implementation claims, for which immunity is waived if some other waiver provision applies, from claims for negligent formulation of policy, for which immunity is retained. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056 (Vernon 2005) (retaining immunity for a governmental unit’s discretionary decisions); Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex.2007) (construing section 101.056). In this case, this means that the Hillises’ negligent-implementation claim must satisfy section 101.021, including a causal nexus between the use of the patrol car and Taylor Hillis’s death. The City has refuted that causal nexus as a matter of law. Accordingly, the trial court erred by failing to dismiss the Hillises’ claim for negligent implementation of policy.

As to negligent entrustment, the City argues that immunity is never waived for such claims because the act of entrusting a motor vehicle does not constitute the operation or use of a motor vehicle. The City relies on two Texas appellate decisions for support. See Los Fresnos Consol. Indep. Sch. Dist. v. Rivas, No. 13-04-168-CV, 2005 WL 1981494, at *6 (Tex.App.-Corpus Christi Aug. 18, 2005, pet. denied) (mem. op.); Waldon v. City of Longview, 855 S.W.2d 875, 880 (Tex.App.-Tyler 1993, no writ). We need not decide whether this general proposition of law is correct. A claim against a municipality arising from the performance of a governmental function is barred by immunity unless a statutory waiver of immunity applies. See City of Dallas v. Blanton, 200 S.W.3d 266, 271 (Tex.App.-Dallas 2006, no pet.). We have already concluded that there was not a sufficient causal nexus between Perez’s operation of his patrol car and Taylor Hillis’s death to satisfy the only statutory waiver in play, section 101.021. Accordingly, the City has established that its governmental immunity was not waived as to the Hillises’ negligent-entrustment claim, and the trial court erred by failing to dismiss that claim for lack of jurisdiction.

4. Cross-appeal

In their cross-appeal, the Hillises argue that the trial court erred by dismissing their claims for negligent hiring, retention, and assignment; negligent supervision, training, and direction; and negligent failure to discipline. They contend that section 101.021 waives immunity as to these liability theories because the negligent conduct alleged under each theory “ultimately resulted in the negligent operation of the motor vehicle that caused the death of Taylor Hillis.” We have already concluded that the evidence conclusively refutes the causal nexus between Perez’s operation of his patrol car and Hillis’s death. Accordingly, the trial court correctly determined that governmental immunity was not waived as to these theories of liability, and it properly dismissed those claims for lack of jurisdiction.

5. Duty

In light of the foregoing, we need not address the City’s third issue, in which it argues that it owed no legal duty to Hillis as a suspect fleeing from a police officer. We express no opinion on that issue.

IY. Conclusion

The City established that governmental immunity defeats every claim asserted by the Hillises. Thus, the trial court lacks subject-matter jurisdiction over this lawsuit.

We affirm the trial court’s order to the extent the court granted the City’s plea to the jurisdiction and dismissed the Hillises’ claims for negligent hiring, retention, and assignment; negligent supervision, training, and direction; and negligent failure to discipline. We reverse the trial court’s order to the extent the court denied the City’s plea to the jurisdiction, and we render judgment dismissing the case for lack of subject-matter jurisdiction.

      . The Hillises do not contend that the clerk's office was closed on December 24 for the Christmas holiday, but their notice of cross-appeal was untimely even if the holiday extended their deadline to Monday, December 29, 2008.


author: Justice RICHTER.

text:
    Fidae KASSIM d/b/a Kassim Auto, Inc. and Samar Chehab d/b/a Kassim Auto, Inc., Appellants, v. CARLISLE INTERESTS, INC., Appellee.
    No. 05-09-01200-CV.
    Court of Appeals of Texas, Dallas.
    March 30, 2010.

      Rod Khavari, Mohamad Said, Shahin Shamseddin Modjarrad, Modjarrad & Abusaad, P.C., Richardson, for appellant.
    Richard M. Dooley, Dooley & Associates, Dallas, for appellee.
    Before Justices RICHTER, LANG-MIERS, and MURPHY.
   OPINION

Opinion by

Justice RICHTER.

This is an accelerated appeal from the trial court’s interlocutory order granting Carlisle Interests Inc.’s (“Carlisle”) motion to dissolve a temporary injunction. In four issues, Fidae Kassim d/b/a Kassim Auto Inc. (“Kassim”) and Samar Chehab d/b/a Kassim Auto Inc. (“Chehab”) (together, “KAI”) argue the trial court erred in dissolving the temporary injunction because there was no default under the lease agreement, the dissolution resulted in irreparable injury, and the underlying dispute involved a breach of contract rather than a forcible entry and detainer. Concluding KAI’s arguments are without merit, we affirm the trial court’s order.

BACKGROUND

Kassim owns a business known as Pro Quick Lube (“PQL”) and operated the business on commercial property (the “Property”) leased in Plano, Texas pursuant to a lease agreement (the “Lease”). Carlisle is the owner of the Property. The Lease initially listed PQL as the tenant and Carlisle as the landlord, but PQL assigned the Lease to Ahmed Buzzi (“Buz-zi”), who in turn assigned the subleased estate to Chehab. When Chehab assumed the obligations of tenant under the Lease, she also executed and delivered a guaranty of all sums payable under the Lease.

The Lease provides, in pertinent part, that the tenant is obligated to pay the landlord any amount paid by a sublessee that exceeds the rental payable under the Lease. In March 2008, KAI rented the PQL business, including the Property, to Ignacio Vargas (“Vargas”) and Alfonso Garcia (“Garcia”). The agreement is memorialized in a document entitled “Commercial Sublease” (the “Sublease”). The Sublease identifies KAI as the sublessor, Garcia and Vargas as the sublessees, and Carlisle as the landlord. Carlisle did not sign or otherwise consent to the Sublease.

By letter dated June 30, 2009, Carlisle demanded payment of all excess rentals paid to KAI by the sublessors under the Sublease. Because the demand was not honored, on July 14, 2009, Carlisle notified Chehab, KAI, PQL, and Buzzi that the Lease was terminated. Three days later, Carlisle changed the locks on the Property and advised Kassim that he no longer had the right to enter the Property.

KAI filed an original petition and application for a temporary restraining order (“TRO”) in the district court and asserted claims for breach of contract, negligent misrepresentation, negligence, fraud, and conversion. The petition requested a declaratory judgment that the monies collected from the sublessees do not constitute excess rentals payable under the Lease. The petition further requested that the court enter a temporary injunction requiring Carlisle to reinstate the Lease and cease any further interruption of the business as operated by the sublessees. A visiting judge issued a TRO ex parte. Carlisle subsequently answered the petition and asserted a counterclaim for breach of contract. Carlisle also requested sanctions because the actions KAI sought to restrain occurred sixteen days before the TRO was issued. Following a hearing, the visiting judge signed a temporary injunction restraining Carlisle from terminating the Lease, interfering with the Sublease, and locking KAI out of the Property. Carlisle moved to modify and dissolve the temporary injunction. The motion pointed out that the termination of the Lease and locking KAI out of the Property occurred before the grant of injunctive relief. Carlisle also argued that the district court had no jurisdiction because the justice court has exclusive jurisdiction over forcible entry and detainer actions.

After a hearing, the trial court issued an order modifying the temporary injunction, and then issued an order dissolving it. The order dissolving the temporary injunction does not state the basis for the dissolution. This interlocutory appeal of the court’s order on dissolution followed.

Discussion

The determination of whether to dissolve a temporary injunction lies within the sound discretion of the trial court, and we will not overrule its determination absent an abuse of discretion. See Universal Health Srvs. Inc. v. Thompson, 24 S.W.3d 570, 580 (Tex.App.-Austin 2000, no pet.); Murphy v. McDaniel, 20 S.W.3d 873, 877 (Tex.App.-Dallas 2000, no pet.). A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner or when it acts without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). When, as here, the interlocutory appeal is from an order granting a motion to dissolve, and the initial order granting temporary injunctive relief was not appealed, we do not consider the propriety of the trial court’s decision granting the initial injunctive relief. Murphy, 20 S.W.3d at 877. Our limited review of the dissolution of the temporary injunction does not allow us to consider whether the evidence supports the initial award of in-junctive relief. See id. Instead, our review is limited to the narrow question of whether the trial court’s action in dissolving the injunction constituted a clear abuse of discretion. Id.

The purpose of a motion to dissolve is “to provide a means to show changed circumstances or changes in the law that require modification or dissolution of the injunction; the purpose is not to give an unsuccessful party an opportunity to relitigate the propriety of the original grant.” Tober v. Turner, 668 S.W.2d 831, 836 (Tex.App.-Austin 1984, no writ). Thus, a trial court generally has no duty to dissolve an injunction unless fundamental error has occurred or conditions have changed. See Cellular Mktg., Inc. v. Houston Cellular Tel. Co., 784 S.W.2d 734, 735 (Tex.App.-Houston [14th Dist.] 1990, no writ).

Because of the narrow scope of our review in this interlocutory appeal, we begin our analysis by determining which of KAI’s issues are properly before us. RAI’s issues can be broadly categorized to advance three principal arguments: (1) that it will be irreparably injured without the injunction; (2) that it did not default under the Lease; and (3) that the trial court erred in concluding the underlying suit was one involving possession of property and therefore exclusively within the jurisdiction of the justice court. The first two issues appear to also have been argued in support of the initial order granting injunctive relief. The parties do not assert, nor does the record reflect, any changed circumstances or conditions. Because KAI’s issues concerning irreparable harm and default under the Lease pertain to the propriety of the initial award of injunctive relief, they are outside the scope of our review. See Murphy, 20 S.W.3d at 877. Therefore, we are constrained from reviewing KAI’s issues concerning irreparable harm and default under the Lease.

The third issue, however, concerns jurisdiction. Fundamental error exists when the record shows the court lacked jurisdiction. See Universal Health Srvs., 24 S.W.3d at 580. Although this issue was also before the court at the time the injunctive relief was awarded, the existence of subject matter jurisdiction may be raised for the first time on appeal by the parties or the court on its own motion. It’s The Berrys, LLC, v. Edom Corner, LLC, 271 S.W.3d 765, 769 (Tex.App.-Amarillo 2008, no pet.). Thus, our review is confined to whether the trial court erred in determining that the underlying issue involved the right to immediate possession and was therefore within the exclusive jurisdiction of the justice court.

The justice court has original jurisdiction in cases of forcible entry and detainer. Tex. Gov’t Code Ann. § 27.031(a)(2) (Vernon Supp. 2009); Tex. Prop.Code Ann. § 24.004 (Vernon Supp. 2009); Dass, Inc. v. Smith, 206 S.W.3d 197, 200 (Tex.App.-Dallas 2006, no pet.). The only issue to be decided in a forcible detainer action is which party has the right to immediate possession of the property. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex.App.-Dallas 2001, no pet.); Hong Kong Development, Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Where a claimed right of possession necessarily requires resolution of a title dispute, the justice court lacks subject matter jurisdiction. Rice, 51 S.W.3d at 709, Tex.R. Civ. P. 746.

A forcible detainer action is cumulative of, not exclusive of, other remedies that a party may have. McGlothlin v. Kliebert, 672 S.W.2d 231, 233 (Tex.1984); Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 558 (Tex.App.-San Antonio 2001, pet. dism’d w.o.j.). “If all matters between the parties cannot be adjudicated in the justice court ... then either party may maintain an action in a court of competent jurisdiction for proper relief.” McGlothlin, 672 S.W.2d at 233. For these reasons, a forcible detainer suit may run concurrently with another action in another court — even if the other action adjudicates matters that could result in a different determination of possession from that rendered in the forcible detainer suit. See Villalon v. Bank One, 176 S.W.3d 66, 70-71 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). Matters relating to possession may overlap in the two proceedings because “a judgment of possession in a forcible detainer action is a determination only of the right to immediate possession and does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question.” Lopez v. Sulak, 76 S.W.3d 597, 605 (Tex.App.-Corpus Christi 2002, no pet.).

KAI argues the underlying dispute involves contractual interpretation rather than the right to actual possession of the premises, and further asserts that it has always timely paid all base rent under the Lease. We are not persuaded by this argument. The issues to be determined by the district court on adjudication of the merits are distinct from the scope of the injunctive relief. The injunction concerned the right of immediate possession under the Lease, and restrained Carlisle from terminating the Lease, locking KAI out of the Property, interfering with the Sublease, and locking sublessees out of the Property. The injunction also prohibited Carlisle from “interfering” with KAI’s or the sublessees’ business. In addition, because the lock out had already occurred, the injunctive relief sounded in the nature of a writ of reentry. A writ of reentry must be filed in the justice court. See Tex. Prop.Code Ann. § 93.003(b) (Vernon 2007). Although the district court’s final adjudication of KAI’s claims on the merits may ultimately result in a determination of the parties’ rights and obligations under the Lease, including the right of possession, determination of the right to immediate possession or reentry was within the exclusive jurisdiction of the justice court. Consequently, the district court did not err by dissolving the temporary injunction. KLAI’s third issue is overruled. The trial court’s order is affirmed.

      . The order modifying the temporary injunction allowed Carlisle to accept rent and other payments under the Lease without waiving its right to terminate the Lease and demand excess rentals.

      . Our presumption concerning the arguments that were made in support of injunctive relief is based on the pleadings in the record before us. The record does not include a transcription of any of the hearings in this matter or any evidence that may have been adduced at these hearings.


author: Justice BRIDGES.

text:
    RANDALL NOE CHRYSLER DODGE, LLP, Randall Noe Chrysler Dodge Jeep, and Randall Noe Ford Mercury, LLP, Appellants, v. OAKLEY TIRE COMPANY and Kyle Oakley, Appellees.
    No. 05-08-00032-CV.
    Court of Appeals of Texas, Dallas.
    March 31, 2010.

      Scott W. MacLaren, Byrne, Cardenas & Smitherman, LLP, Dallas, TX, Rex W. Dwyer, Dwyer Law Firm, Rockwall, TX, Appellants
    Kelly M. Crain, Gregory R. Ave, Riann C. Moore, Walters, Balido & Crain, LLP, Dallas, TX, for Appellees.
    Before Justices BRIDGES, O’NEILL, and FITZGERALD.
   OPINION

Opinion By

Justice BRIDGES.

Randall Noe Chrysler Dodge, LLP, Randall Noe Chrysler Dodge Jeep, and Randall Noe Ford Mercury LLP appeal the trial court’s summary judgment in favor of Oakley Tire and Kyle Oakley. In eight points of error, Randall Noe argues the trial court erred in granting summary judgment in favor of Oakley on Randall Noe’s negligence, trespass, nuisance, negligence per se, and trespass per se claims. In addition, Randall Noe argues summary judgment was improperly granted in favor of Kyle Oakley in his individual capacity. We affirm the trial court’s judgment.

Randall Noe and Oakley own adjacent business properties. In August 2005, Oakley hired Bobby Howard Isget to paint the front of Oakley’s building. Isget had worked as a painter for twenty-five years, and Oakley had hired Isget to paint “three, maybe four” commercial properties and “six or ten” residential projects. Oakley considered Isget’s work “good and reliable.” In 1997, Oakley had hired another independent contractor to paint the entire exterior of his building. Oakley advised Randall Noe in 1997 when the contractor was painting the rear of the building adjacent to Randall Noe’s parking lot to keep from interfering with Randall Noe’s business. The 2005 painting involved only the front of Oakley’s building, and Oakley did not inform Randall Noe. Randall Noe subsequently filed the underlying lawsuit, alleging its vehicles were damaged by the spray painting Isget performed at Oakley’s building. Randall Noe asserted causes of action against Oakley under various negligence, nuisance, and trespass theories and alleged causes of action against Kyle Oakley individually. Oakley filed traditional and no-evidence motions for summary judgment in which he argued, among other things, that Isget was an independent contractor and Oakley was therefore not liable for Isget’s negligence. The trial court granted summary judgment in favor of Oakley without specifying the grounds on which the motion was granted. This appeal followed.

Initially, we note that all of Randall Noe’s arguments assert the trial court erred in granting summary judgment. The standards for reviewing a summary judgment are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether a disputed material fact issue exists, precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d at 548-49. Further, every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id. When both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). We review the summary judgment evidence presented by both parties and determine all questions presented. Id. The reviewing court should render the judgment that the trial court should have rendered, or remand if neither party has met its summary judgment burden. Id.

In its first issue, Randall Noe argues Oakley was responsible for Isget’s actions or, alternatively, fact issues preclude summary judgment on Randall Noe’s claims against Oakley for Isget’s actions as a contractor working for Oakley. Generally, an employer has no duty to ensure that an independent contractor performs its work in a safe manner. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex.2006). However, an employer can be held vicariously liable for the actions of an independent contractor if the employer retains some control over the manner in which the contractor performs the work that causes the damage. Id. A right of control requires more than a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Id at 791-92; Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.1999). Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work or as to operative detail. Ramirez, 196 S.W.3d at 792; Chapa, 11 S.W.3d at 155. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Ramirez, 196 S.W.3d at 792; Chapa, 11 S.W.3d at 155. Employers can direct when and where an independent contractor does the work and can request information and reports about the work, but an employer may become liable for the independent contractor’s tortious acts only if the employer controls the details or methods of the independent contractor’s work to such an extent that the contractor cannot perform the work as it chooses. Ramirez, 196 S.W.3d at 792; Chapa, 11 S.W.3d at 155.

Factors used to determine whether one is an independent contractor include: (1) the independent nature of the contractor’s business; (2) his obligation to supply necessary tools, supplies, and materials; (3) his right to control the progress of the work except as to final results; (4) the time for which he is employed; and (5) the method by which he is paid, whether by the time or by the job. Ross v. Texas One P’ship, 796 S.W.2d 206, 210 (Tex.App.-Dallas 1990), writ denied per curiam, 806 S.W.2d 222 (Tex.1991). When the controlling facts are undisputed and only one reasonable conclusion can be inferred from those facts, the question of whether a party is an independent contractor is a question of law. Id.

In this case, there was no evidence Oakley gave more than general directions to Isget or that it retained the right to control the manner in which Isget performed his job. In Randall Noe’s brief, it argues Oakley “had the right to tell Isget,” among other things, what kind of paint to use, how to apply the paint, when to apply the paint, and how to prepare before painting. Randall Noe cites Isget’s deposition testimony to support this argument. However, Isget’s testimony that Oakley “had the right” to direct his actions or “could have told” him what to do is no evidence Oakley actually retained such a right of supervision or that Isget was not entirely free to do the painting job in his own way. Ramirez, 196 S.W.3d at 792; Chapa, 11 S.W.3d at 155. Oakley’s actions in telling Isget to “tape off all the windows, doors and concrete” before he began painting did not rise to the level of directing how the work was to be performed because Isget retained the right to perform the painting job by whatever method he chose. See Ramirez, 196 S.W.3d at 792. Based on the evidence and reasonable inferences, we determine Isget was an independent contractor as a matter of law.

Randall Noe further argues the work and activities performed by Isget were nondelegable duties because they were inherently dangerous and because they violated section 382.085 of the health and safety code. Therefore, Randall Noe argues, Oakley remained liable for Isget’s acts and omissions. In Texas, business owners and employers alike are generally held liable for an independent contractor’s tortious acts only if the employer maintains detailed control over the independent contractor’s acts or if the work itself involves a nondelegable duty, whether inherently dangerous or statutorily prescribed. Ramirez, 196 S.W.3d at 795. A duty is nondelegable when it is imposed by law on the basis of concerns for public safety, and the party bearing the duty cannot escape it by delegating it to an independent contractor. Id. (citing MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 153 (Tex.1992)).

Randall Noe cites no Texas cases holding that using a spray apparatus to apply paint is an inherently dangerous activity. Though appellant argues section 382.085 of the Texas Clean Air Act prohibits the painting activity at issue in this case, we decline to hold that merely painting a building with a spray apparatus constitutes the “emission of any air contaminant or the performance of any activity that causes or contributes to, or that will cause or contribute to, air pollution” as contemplated by the Act. See Tex. Health & Safety Code Ann. § 382.085(a) (Vernon 2001). Appellants argue we should expand by judicial edict the premise that every house painter in Texas is subject to the Texas Health and Safety Code by the use of outdoor spraying equipment and every time paint is sprayed it violates the Act. We decline to do so. Accordingly, summary judgment was proper on Randall Noe’s claims that Oakley was responsible for Isget’s actions, and fact issues did not preclude summary judgment on Randall Noe’s claims against Oakley for Isget’s actions as a contractor working for Oakley. See Nixon, 690 S.W.2d at 548. We overrule Randall Noe’s first issue.

In its sixth issue, Randall Noe argues Oakley’s alleged violation of section 382.085 of the Texas Health and Safety Code constituted trespass, trespass per se, negligence, and negligence per se. However, we have concluded the painting activity in this case did not violate section 382.025. Accordingly, there is no violation of section 382.025 to support Randall Noe’s claims of trespass, trespass per se, negligence, and negligence per se. Thus, summary judgment was proper on these claims. See Nixon, 690 S.W.2d at 548. We overrule Randall Noe’s sixth issue.

In its second issue, Randall Noe argues the trial court erred in granting summary judgment as to all of its claims of independent negligence on the part of Oakley. Specifically, Randall Noe argues Oakley was independently negligent in failing to warn of the spray painting activities, failing to maintain insurance on Isget, and failing to conduct a sufficient inquiry into Isget’s qualifications as a painter.

To prevail on a negligence cause of action, a plaintiff must establish the existence of a duty, a breach of that duty, and damages proximately caused by the breach. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). Proximate cause has two elements: cause in fact and foreseeability. Id. at 551. These elements cannot be satisfied by mere conjecture, guess, or speculation. IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798-99 (Tex.2004). The test for foreseeability is satisfied if a person of ordinary intelligence should have anticipated the danger caused by his negligent conduct. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Randall Noe argues Oakley was aware of the substantial number of vehicles on Randall Noe’s property, knew Is-get’s work might cause overspray, and knew the overspray might get paint on the vehicles. Randall Noe argues Oakley knew it had a duty to notify neighboring property owners of spray painting activities because Oakley had provided such notice in 1997 when it painted the rear of its building. On that occasion, Oakley provided notice so that Randall Noe could move its vehicles out of the way.

The summary judgment evidence included Oakley’s affidavit that he had previously hired Isget, who completed previous painting jobs in an acceptable manner. Oakley hired Isget to paint only the front of his building. Isget was not instructed to spray paint the front of the building. Randall Noe’s property and vehicles were all located on the opposite side of the building from where the painting was being done. The closest vehicle on Randall Noe’s property was thirty to fifty feet away from where Isget was painting. In 1997, Oakley notified Randall Noe of the painting because it was necessary to interrupt Randall Noe’s business at that time, and the painting was on the back of the building next to Randall Noe’s property. Oakley did advise Isget to be aware that the parking lot near the front of Oakley’s building would fill up with cars on Sunday morning after church with customers of a nearby restaurant. On Sunday, Isget stopped painting for approximately two and a half hours and waited until the parking lot at the front of the Oakley building cleared.

Thus, the circumstances under which Isget painted involved a different location than the painting job Oakley warned Randall Noe about in 1997. Further, Oakley did not instruct Isget to use a spray paint apparatus, and Isget was left to complete the job on his own. Under these circumstances, we conclude it was not foreseeable that Isget would use a spray paint apparatus and cause overspray to contact Randall Noe’s cars on the other side of Oakley’s building. See Mason, 143 S.W.3d at 798-99; Travis, 830 S.W.2d at 98. Because the overspray was not foreseeable, Oakley was not negligent in failing to obtain insurance to cover losses resulting from the overspray or further inquire into Isget’s qualifications as a painter. It was only foreseeable that the front of Oakley’s building would be damaged by a lack of insurance or a lack of qualification on the part of Isget. Accordingly, summary judgment was proper as to all of Randall Noe’s claims of independent negligence on the part of Oakley. See Nixon, 690 S.W.2d at 548. We overrule Randall Noe’s second issue.

In its third issue, Randall Noe argues the evidence establishes Oakley and Isget were engaged in a negligent activity, and summary judgment was inappropriate on its negligent activity claim. Specifically, Randall Noe argues it raised a viable claim that it was injured “as a contemporaneous result of the negligent spray painting activities.” However, we have already concluded Isget operated as an independent contractor in painting Oakley’s building. Thus, whether or not Isget was negligent in performing the work, Isget operated independently of Oakley, and Oakley did not participate in Isget’s alleged “negligent activity.” See Ramirez, 196 S.W.3d at 792. Summary judgment was therefore proper on Randall Noe’s negligent activity claim. See Nixon, 690 S.W.2d at 548. We overrule Randall Noe’s third issue.

In its fourth and fifth issues, Randall Noe argues Oakley committed a common law trespass and common law nuisance, making summary judgment inappropriate on Randall Noe’s trespass and nuisance claims. To recover damages for trespass to real property, a plaintiff must prove that (1) the plaintiff owns or has a lawful right to possess real property, (2) the defendant entered the plaintiffs land and the entry was physical, intentional, and voluntary, and (3) the defendant’s trespass caused injury to the plaintiff. Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex.App.-Fort Worth 2006, pet. denied). Concerning the intent element of the tort, trespass requires only proof of interference with the right of possession of real property; the only relevant intent is that of the actor to enter the property. Id. Generally, for an actionable nuisance to arise, a defendant must engage in one of three types of conduct: (1) intentional invasion of another’s interests; (2) negligent invasion of another’s interests; or (3) other conduct, culpable because abnormal and out of place in its surroundings, that invades another’s interests. Hicks v. Humble Oil & Ref. Co., 970 S.W.2d 90, 96 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). Common to both trespass and nuisance is a requirement of intentional or negligent action on the part of the actor. See id.; Wilen, 191 S.W.3d at 798. Here, Isget, operating independently, caused the overspray. As discussed above, Oakley and Oakley Tire did not participate in Is-get’s painting activities and did not act intentionally or negligently in causing the overspray and resulting damages to Randall Noe. Accordingly, the trial court correctly granted summary judgment on Randall Noe’s claims of trespass and nuisance. See Nixon, 690 S.W.2d at 548. We overrule Randall Noe’s fourth and fifth issues.

In its seventh issue, Randall Noe complains the trial court erred in entering summary judgment on its trespass and trespass per se claims based on Oakley’s alleged violation of section 75.002(h) of the civil practice and remedies code. Section 75.002(h) provides that an owner, lessee, or occupant of real property in this state is liable for trespass as a result of migration or transport of any air contaminant, as defined in section 382.003(2), Health and Safety Code, other than odor, only upon a showing of actual and substantial damages by a plaintiff in a civil action. Tex. Civ. PRAC. & Rem.Code Ann. § 75.002(h) (Vernon Supp.2009). However, section 75.003(d) provides that chapter 75 does not create any liability. Tex. Civ. Prac. & Rem.Code Ann. § 75.003(d) (Vernon 2005). We have already concluded painting is not an “emission of any air contaminant or the performance of any activity that causes or contributes to, or that will cause or contribute to, air pollution” as contemplated by the Texas Clean Air Act. See Tex. Health & Safety Code Ann. § 382.085(a) (Vernon 2001). Under these circumstances, summary judgment was appropriate on Randall Noe’s claims based on a violation of section 75.002(h). See Nixon, 690 S.W.2d at 548. We overrule Randall Noe’s seventh issue.

In its eighth issue, Randall Noe argues Oakley’s assertion that he acted solely in his corporate capacity as president of Oakley Tire should not support summary judgment relieving him of individual liability. Because we have already concluded Oakley was not liable in his individual capacity, we need not further address Randall Noe’s eighth issue.

We affirm the trial court’s judgment.

      . We note the cases cited by Randall Noe on this issue involve the spraying of poisonous herbicides, not paint. Foust v. Estate of Walters, 21 S.W.3d 495, 507-08 (Tex.App.-San Antonio 2000, pet. denied) (aerial application of herbicide); Gragg v. Allen, 481 S.W.2d 452, 453 (Tex.Civ.App.-Waco 1972, writ dism’d) (spraying poisonous herbicides); Leonard v. Abbott, 357 S.W.2d 778, 781 (Tex.Civ.App.-Texarkana 1962), rev'd on other grounds, 366 S.W.2d 925 (Tex.1963) (aerial spraying of herbicides).


author: DAVID GAULTNEY, Justice.

text:
    Ex parte Geoffrey T. WOOD.
    No. 09-09-00551-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted March 17, 2010.
    Decided March 31, 2010.

      Jarrod L. Walker, Aduddell, Walker, Owen & Finch, PLLC, Conroe, for appellant.
    Brett W. Ligón, Dist. Atty., Michael C. Young, Robert Freyer, Asst. Dist. Attys., Conroe, for state.
    Before McKEITHEN, C.J, GAULTNEY and KREGER, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Geoffrey T. Wood appeals the denial of his pretrial habeas corpus application requesting bail reduction. Wood is charged by indictment with two counts of aggregate theft that, under the facts of this case, are first degree felonies. See Tex. Pen. Code Ann. § 31.09 (Vernon 2003); Tex. Pen.Code Ann. §§ 12.32, 31.03(e)(7) (Vernon Supp.2009). The trial court set bail at $375,000 on each of the two counts. Wood argues the bail is excessive. We interpret his argument to include constitutional and statutory bases. After a review of the record, existing bonds, and the factors a trial court considers in setting bail, we conclude the bail is excessive. See Tex. Code Crim. Prog. Ann. art. 17.15 (Vernon 2005); see also Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App.1981). We set bail at $50,000 on each count of aggregate theft; these two bonds are in addition to the existing bonds.

Background

Wood was initially indicted on multiple counts of theft. The charges revolved around an alleged theft operation arising out of a car consignment business. Wood and his father stand accused of not paying owners whose cars were sold through the consignment business, and of not delivering cars to buyers after the Woods took the buyers’ money. The amounts allegedly stolen total approximately $1.4 million.

The record indicates that bail was initially set at $110,000, and additional bail of $260,000 was later set, as more theft cases were added. The total of the bonds at that point was $370,000. The State then re-indicted the offenses, aggregating all the theft counts into two first degree felony cases. At the habeas proceeding, the prosecutor explained:

[Prosecutor]: Judge, you know, when I inherited this case when I came up here back in January, I realize that it would be much more expedient to file these cases as first degree felonies. I can’t speak to the motives of a previous prosecutor as to why he filed, 30 or 40 separate state jail and first — third degree theft cases on this defendant and on the codefendant.
[Defense Counsel]: If I remember correctly, there was — at first there were maybe a half dozen or so.
[Defendant]: Three on my behalf.
[Defense Counsel]: Three on your behalf. And then it went up to 26 vehicles — yeah. That’s where the number 260 comes from. And then the State lumped them all together in two counts, two first degree counts.
[Prosecutor]: That each, each count separately just based upon what I have charged, is in the neighborhood of $400,000. And that doesn’t include numerous witnesses or victims that live overseas that were the perfect people to steal from because getting them here would be very difficult. We’re over a million and a half dollars. And it’s much more convenient and expedient and makes more sense to aggregate these cases because this was part of a scheme that they ran up until the middle of August of 2008.

Ruling on the State’s motion to set bail on the re-indicted cases, the trial court set the amount for two new bonds at $375,000 on each aggregate theft count, for a total of $750,000 in additional bonds.

Bail

The right to a reasonable bail is protected by the United States and Texas constitutions. Ex parte Sabur-Smith, 73 S.W.3d 436, 439 (Tex.App.-Houston [1st Dist.] 2002, no pet.). An appearance bond secures the presence of a defendant in court for trial. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App.1980). The trial court should set bail sufficient to provide reasonable assurance the defendant will appear at trial, but not so high as to be oppressive. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex.Crim.App.1980).

The defendant has the burden to show the bail is excessive. Ex parte Rodriguez, 595 S.W.2d at 550. An appellate court reviews a trial court’s decision in setting the amount of a bond under an abuse of discretion standard. See Ex parte Rubac, 611 S.W.2d at 850. The trial court’s ruling will not be disturbed if it is within the zone of reasonable disagreement. Clemons v. State, 220 S.W.3d 176, 178 (Tex.App.-Eastland 2007, no pet.) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991)).

Both the United States and Texas constitutions prohibit excessive bail. U.S. Const, amends. VIII, XIV; Tex. Const, art. I, §§ 11, 13. Article 17.15 of the Code of Criminal Procedure sets out a framework for the trial court’s consideration in setting bail:

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be considered.

Tex.Code Crim. Prog. Ann. art. 17.15. Other factors and circumstances that may be considered in determining the amount of bail include family and community ties, length of residency, aggravating factors involved in the offense, the defendant’s work history, prior criminal record, and previous and outstanding bail. Ex parte Rubac, 611 S.W.2d at 849.

Article 17.09 of the Texas Code of Criminal Procedure provides that a bond is valid and binding upon the defendant and any sureties for the defendant’s personal appearance before the court and “for any and all subsequent proceedings had relative to the charge[.]” Tex.Code Crim. Proc. Aun. art. 17.09, § 1 (Vernon Supp. 2009). Subject to certain exceptions, when a defendant has once given bail on a criminal charge, he shall not be required to give another bond in the course of the same criminal action. TexCode CRIM. Proc. Ann. art. 17.09, § 2 (Vernon Supp.2009).

Article 17.08 provides in part that a bad bond must reflect that “in no event shall the sureties be bound after such time as the defendant ... is ... dismissed from the eharge[.]” TexCode Crim. Proc. Ann. art. 17.08(5) (Vernon 2005). A re-indictment may, however, be a subsequent proceeding under article 17.09 relating to the original charge. See generally Euziere v. State, 648 S.W.2d 700, 708 (Tex.Crim.App.1983) (finding that re-indictment for possession of marihuana as an habitual offender was the same criminal action for which bond was initially posted); Garcia v. State, 292 S.W.3d 146, 149-51 (Tex.App.San Antonio 2009, no pet.) (New indictment adding an enhancement paragraph was a subsequent proceeding related to original indictment.).

Section 3 of article 17.09 contains an exception to section 2: although the defendant generally is not required to give another bond in the course of the same criminal action, the trial court in its discretion may conclude the bond is insufficient and require the accused to give another bond. Tex.Code Crim. Proc. art. 17.09, § 3 (Vernon Supp.2009). The trial court granted the State’s motion to set new bonds for Wood after re-indictment. We conclude that the re-indictments (aggregating the thefts) are “subsequent proceedings had relative to the [original] charge[s],” and that the trial court’s authority to increase the bonds is governed by section 3 of article 17.09. See TexCode Crim. Proc. Ann. art. 17.09 §§ 1, 3. We therefore consider the existing bonds in our review of Wood’s excessive-bail claim in the re-indicted cases.

Facts

To determine whether the trial court abused its discretion, we consider the rules found in article 17.15 of the Code of Criminal Procedure, as well as the factors set out in Rubac. See Tex. Code Crim. Proc. Ann. art. 17.15; Ex parte Rubac, 611 S.W.2d at 849.

A. Sufficient Bail to Assure Appearance

The evidence shows Wood is a resident of Montgomery County; he lives with his wife and mother-in-law in The Woodlands. Previously, he lived with his parents in Conroe and worked with his brother-in-law. He no longer has a vehicle. Wood traveled extensively with the car consignment business, and much of the $1.4 million that was allegedly taken is still missing. Detective Grasshoff of the Montgomery County Auto Theft Task Force considered Wood to be a flight risk.

B. Not to Be used as an Instrument of Oppression

The record shows the different theft amounts have been aggregated to make first degree felonies. Wood testified that he is unable to make bail on the new charges because he exhausted his resources in making bail on the original charges.

C. Nature of the Offense

Wood was indicted for two counts of aggregate theft. The amount allegedly defrauded, $1.4 million, made the two charges first degree felonies. The punishment range for a first degree felony is five to ninety-nine years or life and a maximum fine of $10,000. Tex. Pen.Code Ann. § 12.32.

The alleged offenses involved at least twenty-six cars and forty to fifty complainants. Alleging they relied on Wood’s misrepresentations, complainants purportedly paid Wood and his father thousands of dollars to buy and sell cars. There were some vehicles whose owners, at the time of the November 2009 habeas hearing, had not been determined. Apparently, the forty to fifty complainants were from many different countries and states. Some complainants alleged they never received a car for their money although they paid money to purchase it; other complainants allegedly never received money for the cars they had sold. Detective Grasshoff explained that in reviewing the records, “I see all the money coming into the accounts, but I see a lot of hot checks.” He did not know where all the money went. Grasshoff testified Wood had been driving an expensive car, was looking to purchase an expensive home, and was “living a lifestyle of basically just having fun, travel, parties.”

The alleged theft crimes are serious offenses and carry a substantial penalty. The alleged crimes are non-violent offenses.

D. Ability to Make Bail

A person’s inability to make the bail set by the trial court does not automatically render the bail excessive. See Ex parte McCullough, 993 S.W.2d 836, 838 (Tex.App.-Waco 1999, no pet.). Nonetheless, inability to make bail is a factor to be considered. Golden v. State, 288 S.W.3d 516, 519 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd). The record contains evidence that Wood’s financial circumstances will not allow him to make the additional $750,000 bail set by the trial court. His mother-in-law, Evelyn Loving, testified Wood had to borrow to make the bail on the two prior indictments and could not secure $750,000 to make this bail. The prior bonds were on payment plans; they are now paid off. David Simoneaux, the bail bondsman on Wood’s other bonds, testified Wood did not have the funds to put up the whole amount for the first bonds. Simoneaux believed Wood’s funds are gone.

Wood testified at the November 2009 habeas hearing. He indicated he does not have the financial ability to make the $750,000 bond on the two counts. He explained he had been in jail since April 28, 2009, and during that time his financial circumstances “ha[d] gotten worse.” By borrowing money, he indicated he could manage to put up $5,000 on each bond. Wood testified he has exhausted all of his available funds.

E. Future Safety of the Victim and the Community

Much of the money allegedly defrauded has not been located. The record also reveals the car consignment business in which Wood was involved is no longer in existence.

F. The Rubac Factors

As noted, a trial court may consider the defendant’s work history, prior criminal record, his family and community ties, length of residency, aggravating factors in the offense, and previous and outstanding bail. Ex parte Rubac, 611 S.W.2d at 849. Evelyn Loving testified Wood and her daughter (Wood’s wife) lived with her in The Woodlands. Loving indicated she has known Wood for five years, and Wood and her daughter Toby have been married for approximately a year. When Loving met Wood, he was living with his mother and father in Conroe. Loving also explained that during the time she has known Wood, he has lived in an apartment. When Wood and Toby married, they had a place of their own, but now they live with Loving because of financial difficulties. Prior to Wood’s incarceration, he was working with his brother-in-law tearing out sheetrock and “doing odd and end things” for a living. At that time, his brother-in-law drove Wood to and from work. Wood has no prior convictions. He previously made bail twice. He has made every court appearance. See Ex paHe Rubac, 611 S.W.2d at 849; see also Ex parte Traylor, Nos. 01-98-01376-CR, 01-99-00012-CR, 1999 WL 497424, at *3, *5. (Tex.App.Houston [1st Dist.] July 8, 1999, no pet.) (not designated for publication) (bail of $500,000 found to be excessive in theft case involving approximately $1.2 million of investors’ money; bond reduced to $100,000).

Analysis

In Ex parte Keller, 595 S.W.2d 531 (Tex.Crim.App.1980), the trial court set bail at $200,000 per case on three charges of theft of property alleged to be worth $1,000,000. Id. at 531. The Court of Criminal Appeals considered evidence showing appellant had substantial ties to the community and had been self-employed for many years. The Court noted there was a lack of evidence showing the circumstances of the offense and a lack of evidence showing the likelihood of appellant’s failure to appear at trial as directed. Finding the bail to be excessive, the Court reduced it to $10,000 for each of the three offenses. Id. at 533. Given the existing bonds of $370,000, the imposition of new bail totaling $750,000 in this case seems inconsistent with the result in Keller. We recognize, however, that case law may be “ ‘of relatively little value in addressing the ultimate question of the appropriate amount of bail in a particular case’ because appellate decisions on bail matters are often brief and avoid extended discussions, and because the ‘cases are so individualized that generalization from results reached in others is difficult.’ ” Ex parte Beard, 92 S.W.3d 566, 571 (Tex.App.-Austin 2002, pet. ref'd) (quoting “41 Dix and Dawson § 16.51”). The circumstances in this case must be considered, not simply those that may have been present in Keller.

The record reveals the re-indictments arise out of the same alleged criminal conduct as the prior indictments for which bail was set at a total amount of $370,000. Although there was discussion during the April 2009 hearing about the possible dismissal of the prior cases, no dismissals had occurred at the time of the November 2009 hearing. Nevertheless, whether the prior individual theft cases have been dismissed is not the issue presented here, because, whether or not the prior individual cases have been dismissed, the bonds remain in effect in this subsequent proceeding relative to the original charges. See Tex.Code Crim. Proc. Ann. art. 17.09, § 1.

The trial court asked counsel for briefing on the effect of the prior bonds. The trial court told appellant’s counsel she was denying his request to credit the prior bonds “at this time,” but she would consider whatever else he presented after conducting research. Counsel said he would bring a “new motion” or a “new writ” if needed. Considering the arguments made to the trial court and the significance of the issue, however, we do not find that Wood waived the issue by not providing the additional briefing or filing a new motion or writ with the court.

Even if the prior bonds were not in effect, the exhaustion of resources on the prior bonds affects Wood’s ability to pay. Given that the new indictments arose out of the same criminal conduct as the prior indictments and are subsequent proceedings relative to the original charges, and considering evidence that appellant has exhausted resources in making the original bonds, we conclude the imposition of bail totaling $750,000 on top of the $870,000 in bonds from the prior indictments is excessive. The trial court carefully explained the reasons for setting the bail amount, and the court considered the statutory factors. Nevertheless, it appears the court did not consider the prior bonds because of the continued existence of the other cases. Under article 17.09, the existing bonds must be taken into account in this case. See Tex.Code CRiM. Proc. Ann. art. 17.09. We sustain Wood’s issue, reverse the trial court’s order, and set bail at $50,000 for each of the two counts of aggregate theft, for a total of $100,000 additional bail.

REVERSED AND RENDERED.