author: ERIC ANDELL, Justice.

text:
    Lonnie BUTLER, Jr., Appellant, v. CONTINENTAL AIRLINES, INC., Appellee.
    Nos. 01-00-00396-CV, 01-98-00662-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 17, 2000.
    Rehearing Overruled Oct. 20, 2000.

      Edward M. Carstarphen, Stephen W. Lemmon, Thomas J. Brandt, Houston, Elaine A.G. Carlson, The Woodlands, for Appellant.
    J. Clark Martin, Marie R. Yeates, Adam Schiffer, Carol Elizabeth Jendrzey, Houston, for Appellee.
    Panel consists of Justices ANDELL, TAFT and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

ERIC ANDELL, Justice.

While an employee of Continental Airlines, Inc. (Continental), Lonnie Butler, Jr. wrote several macro computer programs. Butler later sued Continental, alleging it had adopted and copied his macros, ultimately using them in its new reservation system without compensating him. We are asked to determine if the trial court erred in its rendition of summary judgment in favor of Continental on Butler’s claims of fraud, conversion, breach of fiduciary duty, breach of contract, an accounting, unjust enrichment, constructive trust, misappropriation of trade secrets, estop-pel/quasi-estoppel, and quantum meruit. We are also asked to determine if the trial court abused its discretion when it entered a “death penalty” sanction order dismissing Butler’s cause of action for breach of contract. We affirm the trial court’s rendition of summary judgment on Butler’s claim for fraud. We dismiss Butler’s remaining claims for lack of subject matter jurisdiction. We overrule all points of error on appeal.

Factual Background

Butler worked for Continental from 1990 to 1995 as a reservation agent. During that time, Continental reservation agents made passenger reservations on a host computer system called SONIC, which they accessed through Telex keyboards attached to “dumb terminals.” These terminals lacked Personal Computer (PC) capability, but had Programmable Function (PF) keys, which could execute a type of computer program called a “macro.” While the parties disagree on many factual details, they agree Butler wrote several of these macro programs.

The purpose of these macros is to reduce the number of keystrokes necessary to create a passenger reservation, thus shortening response time and increasing agent productivity. Butler created a macro program for each PF key, and a keyboard template showing the function of each PF key, and named it Advanced Agent Productivity, or AAP. In 1993, Butler disclosed to Continental the macros he had written. Butler spoke to Vice President George Moore, Senior Director of Reservations, in October of 1993, and later wrote a letter to Ed McChrystal, Continental’s Staff Vice President for Reservations. He also contacted Robert Ferguson, C.E.O. of Continental. According to Butler, this disclosure was done in confidence for the limited purpose of testing and evaluation, pursuant to the provisions of the written “Assignment of Inventions Agreement” Butler had with Continental as an employee. In his deposition testimony, however, Butler admits he never told anyone at Continental he was revealing AAP to them in confidence. With Butler’s help, Continental tested the macros.

The parties disagree on the results of the testing and the extent to which the macros were used by Continental employees then, and possibly even today. When Continental suggested further testing was needed, Butler told Moore that he did not want further testing to be done, but that he just wanted the macros available for reservation agents’ use. In a letter to Moore in 1994, Butler stated he had accomplished what he set out to do — to offer Continental an alternative to the expense of purchasing a new computerized reservation system.

Shortly thereafter, Continental purchased a new computerized reservation system called “Qik-Res.” The Qik-Res system used terminals with PC capability instead of dumb terminals. Butler claims Continental incorporated his macros into the configuration during the transition phase from the SONIC system to Qik Res to use as a fall back until the reservation agents learned the new system.

Procedural Background

The procedural history in this case includes motions for summary judgment and partial summary judgment by both parties. Butler filed a motion for partial summary judgment on liability. Continental countered with a response and cross-motion for summary judgment. On May 9, 1997, the trial court entered an order granting Continental’s cross-motion for summary judgment, but it vacated the ruling on June 5, 1997. The trial court gave Continental 10 days to file a second motion for summary judgment addressing new claims raised by Butler in his second amended petition. Continental filed a second motion for summary judgment, which was granted on Butler’s claims for fraud, conversion, breach of fiduciary duty, unjust enrichment, misappropriation of trade secrets, constructive trust, estoppel/quasi estoppel, and quantum meruit causes of action. Butler’s only remaining cause of action was for breach of contract. Continental filed a motion for sanctions that the trial court denied by written order on April 22, 1998. Nevertheless, on April 23, 1998, the trial court signed an “Order Granting Continental’s Motion for Sanctions and Dismissing Plaintiffs Cause of Action With Prejudice.” The trial court struck all reference to sanctions from the text of the order. In a judgment nunc pro tunc dated September 24,1998, the trial court ordered that the April 23, 1998 order be replaced with a corrected and amended title, “Order Granting Continental’s Second Motion for Summary Judgment as to Plaintiffs Contract Claim and Dismissing Plaintiffs Contract Claim with Prejudice.” Butler appeals the trial court’s actions.

Death Penalty Sanction

In point of error one, Butler argues the trial court erred in dismissing his claim for breach of contract as a death penalty sanction, without notice or a hearing. On April 22, 1998, the trial court signed an order denying Continental’s motion for sanctions. The next day, the trial court signed an order entitled: “Order Granting Continental’s Motion for Sanctions and Dismissing Plaintiffs Cause of Action with Prejudice.” The entire text of the order concerning sanctions was crossed out by the trial court, with the following text remaining:

Be it remembered that there came on for consideration by the Court the Motion of Continental Airlines, Inc. for an Order dismissing Plaintiffs remaining claim for breach of contract with prejudice .... The Court, having re considered Continental’s Motion, the pleadings, and the law, concludes that Continental’s Motion should be granted. Accordingly, IT IS ORDERED that Plaintiffs remaining cause of action, (breach of contract) against Continental be and it is hereby dismissed with prejudice.

A judgment nunc pro tunc was later entered by the trial court in response to Continental’s motion to correct judgment nunc pro tunc. The judgment nunc pro tunc states that the judgment rendered on April 23, 1998 granted Continental’s summary judgment motion on Butler’s remaining cause of action (for breach of contract,) and did not grant Continental’s motion for sanctions.

Once the trial court has lost its jurisdiction over a judgment, it can only correct clerical errors in the judgment entered by using a judgment nunc pro tunc. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). The tidal court can only correct a final written judgment that incorrectly states the judgment actually rendered. Id. at 231-32. A clerical error is a mistake or omission in the entry of a judgment in the official record and the judgment as it was actually rendered. Universal Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex.1971). A judicial error, however, is an error arising from a mistake of law or fact that requires judicial reasoning or determination to correct. West Texas State Bank v. Gen. Resources Management Corp., 723 S.W.2d 304, 306 (Tex.App.—Austin 1987, writ ref'd n.r.e.). Whether an error in a judgment is judicial or clerical is a question of law after the trial court makes factual findings that it previously rendered judgment and the judgment’s contents. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex.1968); Escobar, 711 S.W.2d at 232. We review those factual determinations under a no-evidence and factually insufficient evidence standard of review. Escobar, 711 S.W.2d at 232.

In the nunc pro tunc order, the trial court states that during the April 20, 1998 hearing, counsel for Continental asked the trial court to reconsider Continental’s second motion for summary judgment and dismiss with prejudice Butler’s breach of contract claim. The trial court’s nunc pro tunc order states that its “minute entry,” i.e. docket sheet, for April 23, 1998, correctly states that the trial court was reconsidering Continental’s second motion for summary judgment, and the trial court had signed the order granting Continental’s second motion for summary judgment. In the order signed April 23, 1998, all of the language referring to sanctions and improper conduct by Butler’s counsel was crossed out by the trial court. The only reference to the motion for sanctions remained in the title of the order. The nunc pro tunc order states that the error was in not crossing out the corresponding language in the title of the order he signed.

We conclude this was a clerical error on the part of the trial court and did not result from judicial reasoning or determination. Burgess v. Burgess, 834 S.W.2d 538, 540 (Tex.App.—Houston [1st Dist.] 1992, no writ). There is evidence in the record supporting the finding of the trial court that the judgment actually rendered by the trial court on April 23,1998 granted Continental’s second motion for summary judgment. The trial court did not dismiss Butler’s claim for breach of contract as a death penalty sanction. Accordingly, we overrule point of error one.

Summary Judgment

Butler argues the trial court erred in its rendition of summary judgment for Continental.

1. Standard of Review

Summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). When a trial court’s order rendering summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

Once the defendant produces evidence that entitles it to summary judgment, the plaintiff must present evidence that raises a fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). In reviewing the defendant’s summary judgment proof, every reasonable inference must be indulged in favor of the plaintiff, and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985).

2. Applicability of Federal Copyright Act

In point of error three, Butler asserts summary judgment was improper because Continental did not establish, as a matter of law, that it owns a copyright in Butler’s computer programs. Continental argues it owns the rights of copyright in the computer macros under the Copyright Act, and that this disposes of all of Butler’s claims in this lawsuit because of the Copyright Act’s preemption provision. Further, Continental argues the trial court and this Court lack subject matter jurisdiction over these preempted claims arising under the Copyright Act because of a statute giving federal courts exclusive jurisdiction over cases relating to copyright.

Butler argues that his claim does not fall within the Copyright Act. He contends his suit is based on Continental’s use of his computer macros without his permission and without compensating him. Butler argues that his valuable contribution to Continental was his “idea” to write the macros, which he termed as a “moment of clarity” in oral argument before this Court. We are not convinced by these semantics. Butler’s suit is based on the computer macros he wrote, which he claims Continental copied onto multiple dumb terminals for use by its reservation agents, ultimately incorporating the macros into its new Qik-Res reservation system. Butler’s claim is that Continental copied and misappropriated the computer macros he authored. For the reasons discussed below, we conclude computer macros are the subject matter of the federal Copyright Act. Therefore, regardless of how the language in Butler’s petition is couched, several of Butler’s state law claims are preempted by the federal Copyright Act. Because the federal courts have exclusive jurisdiction over such claims, neither the trial court, nor this Court, has subject matter jurisdiction over those claims.

“The [federal] courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.” 28 U.S.C. § 1338(a) (1994). The Copyright Act preempts state rights that cover works falling within the Act’s subject matter, and protects rights which are equivalent to the exclusive rights within the scope of the Act. 17 U.S.C. § 301(a) (1994).

First, we must address whether Butler’s macros are within the subject matter of the Copyright Act.

What Components of a Computer Program are Copyrightable?

The Copyright Act was amended in 1976 to include computer programs as protectable literary works. Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 259 (5th Cir.1988). The Copyright Act defines a computer program as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” 17 U.S.C. § 101 (1994 & Supp. IV 1998). A computer program may be divided into literal and non-literal components. See Cognotec Servs. Ltd. v. Morgan Guar. Trust Co. of New York, 862 F.Supp. 45, 49 (S.D.N.Y. 1994). The literal elements of a computer program include the source and object codes which are unquestionably covered by copyright law. Id. A general consensus has emerged that the non-literal elements of a computer program may also be protected by copyright law. Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 536 & n. 20 (5th Cir.1994) (embracing the general noncontroversial proposition that non-literal aspects of copyrighted works, like their structure, sequence, and organization may be protected under copyright law). This proposition has been approved by United States Supreme Court precedent. See, e.g., Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S.Ct. 1282, 1289, 113 L.Ed.2d 358 (1991) (suggesting that the selection and arrangement or the organization of facts may by protected by copyright law). For example, if a flowchart is sufficiently detailed and original, it is entitled to copyright protection. Lotus Dev. Corp. v. Paperback Software Int’l, 740 F.Supp. 37, 45 (D.Mass.1990). The question as to which non-literal elements are protected by copyright law is fact specific, and each case is treated on an ad hoc basis. Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 704 (2nd Cir.1992); Cognotec, 862 F.Supp. at 49.

Continental’s Computer Reservation System and Butler’s Macros

Continental’s reservation agents, including Butler, used dumb terminals connected to large mainframe or central computers to make airline reservations. The database and the computer programs ran on the mainframe computer and the dumb terminals could transmit information and receive a response from the central computer. Only the central computer had the capability to process data. From the dumb terminal, the agent could read various flight and reservation information and could type in data from a customer and send that data to the central computer. Each dumb terminal had a row of PF keys across the top, which were designed to be used to write and activate macros.

Butler wrote 12 of these macros, one for each PF key, and made a keyboard template showing the location and function of each key. The macros were input in a single dumb terminal or a string of dumb terminals. Butler did not have access to the source code on the central computer. Butler claims his system is slightly different from a pure macro in that it allowed user interfaceability by letting the user fill in a form or make choices after activating a keystroke. Butler’s macros effectively programmed the existing computer program (the source code contained in the central computer) to perform certain functions at each dumb terminal into which his macro programs were input. Butler’s macros made a form appear on the screen at the dumb terminal for the reservation agents to fill in. The question of copyright still goes to the underlying program, and not to the forms that appear on the screen. Butler’s programs strung together single instructions and programmed the PF key to perform according to those instructions.

Although Butler argues against the copyrightability of his macro computer programs on appeal to this court, the record shows in 1995 he applied for the copyright for the code that he wrote. His deposition testimony reveals that his application for the copyright included four pages of code. The record is silent about any response Butler received from the Copyright Office.

Macros are simple computer programs. They program based on the existing computer program. Using instructions provided by Continental to its employees, Butler input his macro into the dumb terminals. This is a tangible expression of the program and is copyrightable. We conclude the macros Butler wrote are protected by copyright as non-literal components of a computer program.

Whether or not Butler actually received a copyright in the code, we conclude the macro computer programs he wrote constitute “literary works” within the meaning of the Copyright Act. 17 U.S.C. § 101; Eng’g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1341 & n. 5 (5th Cir.1994), opinion supplemented on denial of rehearing by 46 F.3d 408 (5th Cir.1995); Vault Corp., 847 F.2d at 259 & n. 5 (quoting a House Report stating that the term “literary works” includes computer programs).

Resulting Preemption of State Law Claims

Section 301 of the Copyright Act provides:

All legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103 ... are governed exclusively by this Title ... [N]o person is entitled to any such right or equivalent right in any such work under the common law or statutes of any States.

17 U.S.C. § 301(a) (1994).

The Fifth Circuit Court of Appeals has established a two-part test to determine if a state law claim is preempted: (1) whether the claim falls within the subject matter of copyright; and (2) whether the claim protects rights equivalent to any of the exclusive rights of a federal copyright. Daboub v. Gibbons, 42 F.3d 285, 288-89 (5th Cir.1995). Computer programs fall within the subject matter of copyright. Eng’g Dynamics, 26 F.3d at 1341. A state law claim is equivalent to a copyright claim where the core of the state law theory of recovery goes to wrongful copying. Daboub, 42 F.3d at 289-90. This inquiry requires a comparison of the nature of the rights protected under the Copyright Act with the nature of the state law rights being asserted. Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772, 787 (5th Cir.1999). A state law cause of action is equivalent to the rights granted by the Copyright Act if “the mere act of reproduction, distribution, or display infringes it.” Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488,1501 (5th Cir.1990). In other words, a state law claim is equivalent to federal copyright law rights if the elements of the state law cause of action would not establish qualitatively different conduct by the defendant than the elements for an action under the Copyright Act. Alcatel, 166 F.3d at 787; Daboub, 42 F.3d at 290. “Federal courts have repeatedly recognized that allowing state claims where the core of the complaint centers on wrongful copying would render the preemption provisions of the Copyright Act useless.” State v. Perry, 83 Ohio St.3d 41, 697 N.E.2d 624, 627 (1998); see United States ex rel. Berge v. Board of Trustees of Univ. of Ala., 104 F.3d 1453, 1464 (4th Cir.1997); see also Daboub, 42 F.3d at 290 & n. 8.

Section 106 grants the holder of a copyright the exclusive right to reproduce, distribute, perform, and display the copyrighted work. 17 U.S.C. § 106 (1994 & Supp. IV 1998). The core of Butler’s state law claims for conversion and misappropriation of trade secrets, without detailing the specific elements of each claim, is the same: the wrongful copying, distribution, and performance of Butler’s macro computer programs. Daboub, 42 F.3d at 289-90 (preempting state law claims for conversion and misappropriation of trade secrets); see also Data Gen. Corp. v. Grumman Sys. Support Corp., 795 F.Supp. 501, 505 (D.Mass.1992), aff'd, 36 F.3d 1147 (1st Cir.1994) (conversion claim was preempted); Aldridge v. The Gap, Inc., 866 F.Supp. 312, 314 (N.D.Tex.1994) (misappropriation claim is preempted by the Copyright Act); Gemcraft Homes, Inc. v. Sumurdy, 688 F.Supp. 289, 295 (E.D.Tex.1988) (claims for conversion and tortious interference with contract are preempted). Similarly, Butler’s claim that Continental was unjustly enriched by his macro computer programs is derived from Continental’s copying of the macros for use on other dumb terminals, and therefore, is preempted by the federal law. Tavormina v. Evening Star Prods., Inc., 10 F.Supp.2d 729, 734 (S.D.Tex.1998).

It follows that Congress intended that actions preempted by section 301 of the Copyright Act be regarded as arising under federal law relating to copyrights. Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 232 (4th Cir.1993). Congress has clearly indicated that state law claims, based on common law or statute, which are within the subject matter of copyright law and which protect rights equivalent to those which are exclusively within the scope of federal copyright law, should be litigated only as federal copyright claims. Id. Butler’s claims that Continental converted and misappropriated and was unjustly enriched by copying his computer macros are such claims and should be litigated as federal claims.

Further, 28 U.S.C. section 1338(a) provides that the jurisdiction of the federal courts in cases relating to copyright is exclusive. This is strong evidence that Congress intended litigation involving copyrights to take place in federal courts. Id.

Because Butler’s claims for misappropriation of trade secrets, conversion and unjust enrichment are preempted by the Copyright Act, we conclude neither the trial court nor this Court has subject matter jurisdiction over these claims. Accordingly, we dismiss Butler’s claims for misappropriation of trade secrets, conversion, and unjust enrichment.

Butler’s other claims covered by the Copyright Act

The federal courts have been granted exclusive jurisdiction over cases arising under the Copyright Act. 28 U.S.C. § 1338(a). Having concluded that Butler’s claims, preempted by the Copyright Act, are claims “arising under” the Copyright Act, we must next ask if Butler’s remaining claims also arise under the Copyright Act. All the circuit courts considering the question of whether a suit arises under the Copyright Act for the purposes of section 1338(a), including the Fifth Circuit Court of Appeals, have adopted the following criteria for determining if a claim arises under the Copyright Act, thus invoking the exclusive jurisdiction of the federal courts. A claim arises under the Copyright Act if: (1)the complaint is for a remedy expressly granted by the Act; (2) it asserts a claim requiring construction of the Act; or (3) it presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim. Goodman v. Lee, 815 F.2d 1030, 1031 (5th Cir. 1987) (adopting criteria from T.B. Harms Co. v. Eliseu, 339 F.2d 823, 828 (2d Cir. 1964)). Having thoroughly examined Butler’s remaining claims, we conclude that the resolution of the underlying issues in those claims depends upon construction of the Copyright Act. The construction of the work for hire provision of the Copyright Act will determine whether Continental has copied and used copyrightable material belonging to Butler or itself. “A case arises under federal law if rights claimed by one party may be defeated by one construction of the statute and sustained by opposite construction.” Hines v. Cenla Community Action Comm., Inc., 474 F.2d 1052, 1056 (5th Cir.1973). Therefore, we conclude the trial court and this Court lack subject matter jurisdiction over Butler’s remaining claims.

3. Shop Right Doctrine

In point of error two, Butler argues the trial court erred in its rendition of summary judgment because Continental has not established as a matter of law that it has a “shop right” in the computer macros. In its motion for summary judgment, Continental argued it had a shop right to Butler’s macros on the basis of two theories-implied license and estoppel and acquiescence. Because we have found as a matter of law, Butler’s computer macros fall within the subject matter of the Copyright Act, we decline to address point of error two.

4. Fraud

The Initial Claim

In point of error four, Butler argues the statements in a letter from Moore to Butler raise a genuine issue of material fact and preclude the rendition of summary judgment on his cause of action for fraud.

To prevail in a cause of action for fraud, a party must show:

(1) a material representation was made;
(2) it was false;
(3) when the speaker made it, he knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion;
(4) it was made with the intent that it should be acted on by the party;
(5) the party acted in reliance upon it; and
(6) the party thereby suffered injury.

Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183,185 (Tex.1977).

Butler initially argued Continental committed fraud by knowingly and falsely representing to him the actual value of AAP to Continental and that Continental would not use AAP. Butler claims that as a result of Continental’s actions, he halted all efforts to promote AAP to Continental and others. The specific statements that Butler claims were false were made in an April 15, 1994 letter from Continental Vice President George Moore to Butler. In the letter, Moore described the testing process used to test Butler’s computer macros and stated “the results were inconclusive in that there were no statistically valid differences in the productivity performances of the two [testing] groups.”

In response, Continental has provided the deposition testimony of Moore, Elizabeth Fuller, Continental’s Regional Director of Reservations, and Bruce Cunningham, a consultant to Continental, to support its contention that the statements made in Moore’s letter were an opinion expressed by Moore, and were not false because the test results were, in fact, inconclusive.

Butler has not provided any evidence to raise a fact issue as to Continental’s alleged fraud, but relies only on his own conclusory statements that the statements made by Moore were false. Conclusory statements may not be considered as summary judgment proof. Thomas v. Collins, 960 S.W.2d 106, 113 (Tex.App.— Houston [1st Dist.] 1997, pet. denied).

We conclude, as a matter of law, Continental has fulfilled its summary judgment burden and disproved the elements of Butler’s fraud claim that the statements were false, and that the speaker made the representations knowing they were false, or recklessly without any knowledge of the truth.

Butler also alleged Moore’s letter contained a statement falsely representing to him that Continental would not use his computer macros. A review of the letter shows Moore simply did not say what Butler contends he did.

Butler claims that the statement in Moore’s letter that Continental felt there was insufficient justification to further develop Butler’s proposals was a representation to him that Continental would not use his macros. What Moore simply said was there was insufficient justification to further develop Butler’s proposal. Moore also stated Continental would be implementing the Qik-Res reservation system in the near future. Moore made no statements to Butler that Continental would not use the macros in the interim, pending the conversion of its reservation system to Qik-Res. We overrule point of error four.

Butler’s Additional Allegations

In point of error five, Butler claims Continental failed to properly frame any basis for summary judgment on the new basis for his cause of action for fraud alleged in his amended petition, but merely attacked the sufficiency of his pleadings.

In an amended petition, Butler alleged Continental fraudulently represented: (1) if he disclosed inventions, it would not use them without demanding and receiving an assignment; (2) it would fairly and honestly test and evaluate AAP and fairly and honestly report the results of such tests; and (3) it would not use his inventions under any circumstances without demanding and receiving an assignment of his inventive rights.

Butler argues Continental merely attacked the sufficiency of Butler’s pleadings. A review of Continental’s second motion for summary judgment reveals that Continental argued Butler’s claim of fraud was precluded by his breach of contract claim based on the same facts.

Butler’s computer macros are literary works and are the subject matter of federal copyright law. The computer macros were not an invention or improvement governed by the parties’ Assignment of Inventions Agreement. We conclude, as a matter of law, the Assignment of Inventions Agreement cannot form the basis for a fraud cause of action by Butler.

Conclusion

We find, as a matter of law, Butler’s computer macros are copyrightable material as literary works under the Copyright Act. As such, they are the subject matter of the Copyright Act, and Butler’s claims for misappropriation of trade secrets, conversion, and unjust enrichment are preempted’ by the Copyright Act. We further conclude Butler’s remaining claims arise under the Copyright Act and fall within the exclusive jurisdiction of the federal courts. Therefore, the trial court and this Court lack subject matter jurisdiction over Butler’s claims for conversion, breach of contract, breach of fiduciary duty, unjust enrichment, constructive trust, misappropriation of trade secrets, estoppel and quasi estoppel, quantum meruit, and accounting are dismissed for lack of subject matter jurisdiction. We affirm the trial court’s rendition of summary judgment on Butler’s various claims for fraud based on statements made by Continental to Butler. We overrule all points of error on appeal.

      . “Dumb terminals" are keyboard/video display units that transmit information to the central computer, which processes the data. Data from the central computer, as well as the response from the central computer, may be viewed by the agent.

      . Generally, a macro is a computer program which is initiated by pressing a designated key, which causes the computer to execute a series of defined functions in a desired sequence.

      . The three new causes of action listed were (1) estoppel/quasi-estoppel, (2) quantum me-ruit, and (3) an accounting. Butler eventually filed a Third Amended Petition.

      . Butler's claim for an accounting also remained. The parties have both stipulated that Butler's claim for an accounting is a remedy and not a cause of action.

      . Handwritten interlineations are underlined.

      . The source code is the actual written code input by the programmer using a computer language such as BASIC or COBOL. The object code is the binary language comprised of zeros and ones through which the computer receives the instructions as programmed through the source code. Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1230-31 (3rd Cir.1986).

      . Non-literal components of a computer program involve the various steps a programmer employs prior to actually writing the instructions or source code. These elements include flow charts, inter-modual or sub-routine relationships, parameter lists and macros. Cognotec, 862 F.Supp. at 49 (citing Steven R. Englund, Idea, Process, or Protected Expression?: Determining the Scope of Copyright Protection of the Structure of Computer Programs, 88 Mich. L. Rev. 866, 870-72 (1990)).

      . Section 106 provides that:
      Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
      (1) to reproduce the copyrighted work in copies or phonorecords;
      (2) to prepare derivative works based upon the copyrighted work;
      (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
      (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
      (5) in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly. 17 U.S.C. § 106(1)(2)(3) (1994) & § 106(4)(5) (1994 & Supp. IV 1998).

      . Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 350 (2d Cir.2000) (providing citations to circuit court cases adopting the T.B. Harms test.)

      . In her affidavit, Fuller stated she was involved in the testing process. It was her opinion the test results were inconclusive, and it was clear to her that Moore had the same opinion. Bruce Cunningham, consultant for Continental, reviewed the test results independently, and stated in his affidavit that he agreed with Moore's conclusion that the test results were inconclusive, and he could see how Moore reached that conclusion. In his affidavit and in the letter sent to Butler, Moore stated that he thought further testing was necessary and this might provide more favorable results. Butler has not disputed Moore's statement that it was Butler who requested that no further testing be conducted on the macros.


source: Caselaw Access Project

author: FRANK G. EVANS, Justice (Retired).

license: Public Domain

text:
    WESTCHESTER FIRE INSURANCE COMPANY, Appellant, v. STEWART & STEVENSON SERVICES, INC., Appellee.
    No. 01-99-00738-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 24, 2000.
    Rehearing Overruled Nov. 15, 2000.

      Michael Smith Knippen, Chicago, IL, for appellant.
    David Matthiesen, Trevor R. Jefferies, Houston, Jeffrey J. Zissa, San Antonio, for appellee.
    Panel consists of Justices HEDGES, NUCHIA, and EVANS.

       The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   . OPINION

FRANK G. EVANS, Justice (Retired).

This is an insurance coverage dispute. Westchester Fire Insurance Company (“Westchester”), an excess insurer, appeals a summary judgment rendered in favor of its insured, Stewart & Stevenson Services, Inc. (“Stewart & Stevenson”). The issue on appeal is whether the primary insurer’s policy (the Lloyds policy) had exhausted its aggregate limits, thus requiring the Westchester policy to “drop down” and cover damages incurred by Stewart & Stevenson as the result of a lawsuit brought by Jesus Herrera, a former employee (the Herrera lawsuit).

I.FACTUAL BACKGROUND

A. The Insurance Policies

Stewart & Stevenson has the following layers of insurance coverage.

1. Self-Insured Retention

The contract between Stewart & Stevenson and its primary insurer provides a $200,000 self-insured retention (SIR) for any one accident or occurrence. The primary dispute between the parties at trial was whether the payment of defense costs by Stewart & Stevenson erodes the SIR.

2. The Lloyds Policy

The Lloyds policy provides coverage for $1 million dollars per occurrence, with a $2 million dollar aggregate limit. The Lloyds policy has two distinct coverages: (a) Commercial General Liability (CGL) Coverage and (b) an Employment Practices Insurance (EPI) endorsement.

The SIR provision of the CGL coverage provides: “US 200,000 Self Insured Retention any one accident or occurrence,” but is silent about whether the payment of defense costs by Stewart & Stevenson reduces the $200,000 SIR.

The EPI endorsement provides “claims made” coverage. The EPI SIR provision states that Lloyds is only responsible for the payment of “Loss[es] in excess of any SIR....” “Loss” is defined in the EPI coverage of the Lloyds policy as “damage judgment (including prejudgment interest awarded against an Insured on that part of any judgement [sic] paid by us), settlements, statutory attorney fees and Defense Costs.” Thus, under the EPI coverage of the Lloyds policy, payment of defense costs by Stewart & Stevenson will reduce its SIR.

3. The Westchester Policy

The Westchester Policy is an excess policy that provides limits of $10 million per occurrence with a $10 million aggregate limit of liability. The Westchester policy, like the Lloyds policy, is divided into CGL coverage with a separate EPI endorsement (endorsement # 16).

a.The CGL coverage

The insuring agreement of the CGL coverage provides:

We will indemnify the “insured” for those sums in excess of the “retained limit” which the “insured”, by reason of liability imposed by law, or assumed by the “insured” under contract prior to the “occurrence”, shall become legally obligated to pay as damages for [bodily injury or property damage, personal injury or advertising injury],

b.The EPI endorsement

The insuring agreement of the EPI endorsement provides: “We will pay those sums that the ‘insured’ must legally pay as damages because of an ‘insured event’ to which this insurance applies.” The section of the EPI endorsement entitled “Coverage Limits” provides that it will pay for “lossfes]” resulting from “insured events.” The definition of “Loss” includes “damage, judgment ... and settlement.” Of significance is that, under the Westchester EPI endorsement, “loss” does not include defense costs, but, under the Lloyds EPI endorsement, defense costs are specifically included in the definition of a “loss.”

c.The Non-Drop Down Endorsement

Endorsement # 14 to the Westchester policy contains a “non-drop down” endorsement which states that Westchester will not “drop down” and provide coverage if the underlying coverage is exhausted by payment of losses that would not have been covered by the Westchester policy.

B. Claims Made Under the Lloyds Policy

Stewart & Stevenson became a defendant in the lawsuit entitled Jesus Herrera v. Stewart & Stevenson Services, Inc. The suit was tried to a jury, which rendered a verdict in favor of Herrera in excess of $1.25 million. Stewart & Stevenson then settled with Herrera for $1,148,500 while the case was on appeal. Lloyds originally denied coverage for the Herrera suit because of late notice; however, they later paid what they calculated to be their limit of liability, and Stewart & Stevenson called upon Westchester to drop down and cover the excess. Westchester argued that the Lloyds policy had not been properly exhausted and refused to pay.

Before the Herrera suit, Lloyds had paid policy proceeds toward defense and/or settlement of three prior lawsuits on behalf of Stewart & Stevenson. These payments eroded the aggregate limits of liability of the Lloyds policy, although the parties dispute whether the aggregate has been exhausted.

The Snell lawsuit was filed as a claim under Lloyds CGL coverage and resulted in an $833,333 settlement.

The Leal lawsuit was also filed as a claim under Lloyds CGL coverage and resulted in a $255,000 settlement.'

The Campbell lawsuit was filed as a claim under Lloyds EPI endorsement. It was tried to a defense verdict and generated $473, 813.19 in defense costs.

C. The Motions for Summary Judgment

Although the parties agreed that the Snell, Leal, and Campbell lawsuits eroded Lloyds’ aggregate limit of liability, they disagreed about how to calculate the amount of the erosion. Both parties moved for summary judgment, each contending that its method of calculating the erosion of Lloyds’ aggregate limit was correct.

The trial court granted Stewart & Stevenson’s motion for summary judgment as to Westchester. The court also denied Westchester’s cross-motion for summary judgment. The court ordered that Stewart & Stevenson have judgment against Westchester in the amount of $273,359, ie., the exact amount Stewart & Stevenson had calculated that Westchester owed. The trial court denied Westchester’s cross-motion for summary judgment.

II. LAW AND ANALYSIS

A. Standard of Review for Summary Judgments

Summary judgment is proper only when a movant establishes there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Phillips Natural Gas Co. v. Cardiff, 823 S.W.2d 314, 317 (Tex.App.-Houston [1st Dist.] 1991, writ denied). In reviewing the summary judgment, we indulge every reasonable inference in favor of the nonmovant, assume all evidence favorable to the nonmovant is true, and resolve any doubts in its favor. Johnson, 891 S.W.2d at 644; Cardiff, 823 S.W.2d at 317.

When both parties file a motion for summary judgment, and one is granted and one is denied, the denial may be considered by the reviewing court if the appealing party complains of both the granting of the opponent’s motion and the denial of its own motion. Cardiff, 823 S.W.2d at 317. We will determine all questions presented, and may reverse the trial court’s judgment and render such judgment as the trial court should have rendered, including rendering judgment for the other movant. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988); Cardiff, 823 S.W.2d at 317. We will affirm the summary judgment if any of the theories advanced in Stewart & Stevenson’s motion is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Dardari v. Texas Commerce Bank, 961 S.W.2d 466, 468 (Tex.App.-Houston [1st Dist.] 1997, no writ).

B. Westchester’s Arguments on Appeal

Westchester presents two main arguments on appeal: First, it argues that the aggregate limits of the Lloyds policy were not exhausted, and that the trial court improperly concluded that: (a) Stewart & Stevenson’s payment of defense costs eroded its SIR, and (b) Lloyds’ aggregate was not reduced by the defense costs Lloyds paid toward the Campbell trial. Alternatively, Westchester argues that, even if Stewart & Stevenson and the trial court were correct in their method of calculating Lloyds’ remaining aggregate, the Westchester policy was nonetheless not triggered because, under its own terms, it does not recognize the exhaustion of the primary policy by the payment of defense costs. Because Westchester’s alternative theory does not rely on an interpretation of the Lloyds policy, but relies only on the terms of its own policy, we address that argument first.

1. Does the Westchester Policy Recognize the Exhaustion of the Lloyds Policy by the Payment Made by Lloyds Toward the Campbell Defense?

In response to Stewart & Stevenson’s motion for summary judgment, and as grounds for its own summary judgment, Westchester argued that “[e]ven if the Court finds that the Campbell defense costs erode the Aggregate Limits of the Lloyds policy, the Westchester policy does not recognize exhaustion of its underlying limits by payments not covered under the Westchester policy.” Specifically, West-chester argues that under its policy, defense costs are not a recognized loss which reduces its aggregate limits of liability. Therefore, by virtue of its “non-drop down” endorsement, Westchester argues that its liability was not triggered even if the Lloyds policy was exhausted because the exhaustion was the result of Lloyds’ payment of defense costs in the Campbell lawsuit.

To determine the validity of Westches-ter’s position, this Court must interpret the effect of the “non-drop down” endorsement, which provides as follows:

In the event of the reduction or exhaustion of the Aggregate Limits of Liability of the “Underlying Insurance” by reason of payment of losses not covered by this policy; this policy shall apply in the same manner it would have applied had such aggregate limit not been reduced or exhausted. (Emphasis added.)

In the interpretation of the terms of an insurance contract, the general rules of contract construction apply. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). The primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). If an instrument is worded so that it can be given an exact or certain legal interpretation, it is not ambiguous and a court can construe the contract as a matter of law. Louisiana Natural Gas Pipeline, Inc. v. Bludworth Bond Shipyard, Inc., 875 S.W.2d 458, 461 (Tex.App.-Houston [1st Dist.] 1994, writ denied). As with any contract, absent a finding of ambiguity, a court must interpret the meaning and intent of an insurance policy from the four corners of the document without the aid of extrinsic evidence. Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 716 (Tex.App.-Houston [14th Dist.] 1987, no writ). Only after a contract is found to be ambiguous may parol evidence be admitted for the purpose of ascertaining the true intentions of the parties expressed in the contract. Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 283 (Tex.1996). When construing a particular provision in an insurance policy, all of the policy’s provisions should be given effect, and the whole contract considered, with each clause being used to help interpret the others. Western Indem. Ins. Co. v. American Physicians Ins. Exch., 950 S.W.2d at 185, 188 (Tex.App.—Austin 1997, no writ).

Although we can find no cases interpreting such a clause, we do not believe that it is ambiguous. The literal meaning of the clause is that Westchester is not required to “drop down” and provide coverage if the Lloyds policy is exhausted by the payment of claims that the Westchester policy does not recognize as covered losses.

This interpretation is supported by a reading of other portions of the Westches-ter policy, which make it clear that the Westchester policy does not always “follow form” to the Lloyds policy. For example, section I.A.5. of Westchester’s EPI coverage provides:

Where any of the terms of this policy endorsement conflict with any terms of the “underlying endorsement”, the terms of this endorsement shall apply.

These two clauses, read in conjunction, make it clear that the Westchester policy is not strictly a “follow form” policy; at times, the coverage provided by Westches-ter will differ from that provided by Lloyds. If the exhaustion of the Lloyds policy is achieved by paying a claim for which the Westchester and Lloyds policies provide different coverage, the Westches-ter policy is not required to “drop down.” As such, a gap in coverage might be created.

2. Are Defense Costs a Covered “Loss” under the Westchester Policy?

Having concluded that, in some instances, the Lloyds policy and the West-chester policy provide different coverages, we must now decide whether this is one of those instances. The issue is whether defense costs are a covered “loss” under the Westchester policy.

Because the Campbell case was a sexual harassment suit, we look to the EPI endorsement of the Westchester policy to determine whether defense costs associated with that suit would erode the West-chester aggregate limit. The insuring agreement provides:

We will pay those sums that the “insured” must legally pay as damages because of an “insured event” to which this insurance applies. (Emphasis added.)
The “Coverage Limits” section provides: The Aggregate Limits is the most we will pay for the Combined total of all “claims” first made or brought during the “policy period” for “loss” that results from all “insured events.”

“Loss” is defined in the Westchester policy as:

[DJamage, judgment (including prejudgment interest awarded against an insured on that part of any judgement [sic] paid by us) and settlement. However, loss does not include civil or criminal fines or penalties imposed by law, non-monetary relief, liquidated damages where there is a finding of willfulness.

Most importantly, the definition of “loss” is preceded by a paragraph stating that it is “deleting in its entirety” a prior definition of “loss” that expressly included defense costs. Had the parties wished to include defense costs as a covered loss, it is unlikely that they would have rewritten the “loss” definition to delete any reference to defense costs.

As stated earlier, the Westchester policy provides that where its terms differ from the Lloyds policy, the Westchester policy terms will apply. Therefore, the West-chester’s definition of “loss” governs, and it does not include defense costs as a covered loss. Rather, the Westchester policy contemplates that it will cover “damages” that its insured is “legally obligated to pay.” This does not include defense costs.

Therefore, we conclude that defense costs are not included within the aggregate limits of the Westchester policy. Because the Westchester policy would not include defense costs within its aggregate limits, the non-drop down endorsement provides that Westchester will not recognize the erosion of the underlying Lloyds policy by including defense costs within its aggregate limits.

3. Does the Westchester Policy Have to “Drop Down”?

Lloyds paid $273,813 toward the defense costs of the Campbell lawsuit, which it then deducted from its remaining aggregate. However, as we have concluded, the Westchester policy does not define defense costs as a covered “loss,” therefore, it is not required to recognize the erosion of the Lloyds aggregate by the payment of those defense costs. In the eyes of West-chester, it is as if the $273,813 in defense costs for the Campbell suit had never been deducted from Lloyds aggregate limits. If the $273,813 were “added back” to the Lloyds aggregate, there would be no need for Westchester to “drop down” and cover the $273,359 deficit caused by the Herrera suit.

We sustain Westchester’s second issue. Because our opinion is based on an interpretation of the Westchester policy, we need not address: (1) whether Westches-ter has standing to argue about the construction of the Lloyds policy, or (2) whether the SIR underlying the Lloyds policy was eroded by Stewart & Stevenson’s payment of its own defense costs, or (3) any other issues related to the interpretation of the Lloyds policy.

III. CONCLUSION

Because the trial court erroneously concluded that the Westchester policy had been triggered, it erred in granting Stewart & Stevenson’s motion for summary judgment and in denying Westchester’s motion for summary judgment. Accordingly, we reverse the judgment of the trial court and render a judgment ordering that Stewart & Stevenson take nothing from Westchester.

      . The primary distinctions between the two methods of calculation are: (1) Stewart & Stevenson would apply defense costs to their SIR, while Westchester would require Lloyds to pay all defense costs and only payments by S & S toward actual settlements would erode the SIR (essentially, S & S would pay the SIR toward the settlement amount, resulting in smaller payments toward the total settlement by Lloyds. Lloyds would then pay all defense costs outside the policy limits); and (2) West-chester would not reduce the aggregate limits of the Lloyds coverage by the amounts Lloyds paid toward the Campbell defense.

      . Stewart & Stevenson argues there is no evidence the parties intended to create a "gap” in the coverage. However, absent ambiguity, evidence of the parties’ intent is irrelevant. Friendswood Dev. Co., 926 S.W.2d at 283.

      . We will assume, without deciding, that the aggregate limits of the Lloyds policy were properly eroded when Lloyds paid $273,813.00 toward the Campbell defense costs.

      . The applicable "loss” definition in the West-chester policy is preceded by a paragraph that states:
      Insuring Agreement VI — Definitions, Paragraph C — "Loss” is deleted its entirety and replaced with the [applicable "loss” definition]:
      Several pages later in the contract, Insuring Agreement VI — Definitions, Paragraph C provided the prior definition of "Loss” as:
      [Djamage, judgment, (including prejudgment interest awarded against an insured on that part of any judgment paid by us), settlements, statutory attorney fees and defense costs. However, loss shall not include civil or criminal fines or penalties imposed by law, non-monetary relief, liquidated damages where there is a finding of willfulness.
      Thus, by looking solely at the four corners of the Westchester policy, it is readily apparent that the parties expressly removed defense costs from the definition of a covered “loss.”


author: RICKHOFF, Justice. ALMA L. LÓPEZ, Justice,

text:
    Bree HENDRIX, Appellant, v. BEXAR COUNTY HOSPITAL DISTRICT d/b/a University Health Center Downtown, Appellee.
    No. 04-98-00833-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 30, 2000.
    J. Thomas Rhodes, III, Sean Lyons, Lyons & Rhodes, P.C., San Antonio, for Appellant.
    Laura A. Cavaretta, Plunkett & Gibson, Inc., San Antonio, for Appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, ALMA L. LÓPEZ, Justice.
   ON APPELLEE’S MOTION FOR REHEARING

RICKHOFF, Justice.

Appellee’s motion for rehearing is granted. The opinions and judgment of Decern-ber 30,1999, are withdrawn and the following opinions and judgment are substituted therefor.

Bree Hendrix sued the Bexar County Hospital District d/b/a University Health Center Downtown (BCHD), alleging that one of its employees sexually assaulted her under the guise of performing a breast exam. The trial court granted summary judgment in favor of BCHD. Because Hendrix’s injuries were not caused by a condition or use of tangible personal or real property, we must affirm the summary judgment.

FACTUAL BACKGROUND

Hendrix sought medical care at a BCHD facility. While she was in the waiting area, a BCHD employee named Ricardo Bermudez called her name over the public address system, escorted her to an examination room, and instructed her to put on a hospital gown, leaving the gown open in the front. Bermudez temporarily left the examination room, and Hendrix complied with his instructions. Bermudez returned to the examination room and proceeded to fondle Hendrix’s breasts, while she was on an examination table, under the guise of performing a breast examination. Hendrix later learned that Bermudez was not authorized to perform breast examinations. BCHD fired Bermudez after learning of his assault on Hendrix.

STANDARD OF REVIEW

We review a summary judgment de novo. See Sasser v. Dantex Oil & Gas, Inc., 906 S.W.2d 599, 602 (Tex.App.—San Antonio 1995, writ denied). We view the evidence in the light most favorable to the nonmoving party and disregard all contrary evidence and inferences. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

BCHD moved for summary judgment on the basis of sovereign immunity. It is undisputed that BCHD is a governmental entity. Once a defendant has established that it is a governmental entity, it has satisfied its initial summary judgment burden on the affirmative defense of sovereign immunity. See Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio 1999, no pet.); Brooks v. Center for Healthcare Servs., 981 S.W.2d 279, 283-84 (Tex.App.-San Antonio 1998, no pet.). The burden then shifts to the plaintiff to raise a fact issue. See Medrano, 989 S.W.2d at 144; Brooks, 981 S.W.2d at 284.

DISCUSSION

Hendrix claims that BCHD was negligent in hiring, supervising, and retaining Bermudez and in entrusting Bermudez with a uniform and nametag. She also claims that BCHD employees failed to implement or follow policies and procedures regarding the treatment of female patients in unsupervised conditions.

Governmental entities are generally immune from tort liability. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). The Texas Tort Claims Act (TTCA) waives sovereign immunity for personal injuries “caused by a condition or use of tangible personal or real property.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (Vernon 1997). Hendrix argues that her claims fit within this waiver because Ber-mudez used the examination room, examination table, patient gown, and public address system in committing the assault.

Our supreme court has emphasized that the TTCA provides only a limited waiver of sovereign immunity. See Bossley, 968 S.W.2d at 341. In accordance with its restrictive interpretation of the TTCA, the court held in Bossley that “[p]roperty does not cause injury if it does no more than furnish the condition that makes the injury possible.” Id. at 343.

Bossley involved the death of a suicidal hospital patient. The patient escaped through unlocked doors and was chased about half a mile by hospital staff. As he was approached by hospital staff and police officers near a freeway, he leaped into the path of a truck and was killed. See id. at 340-41. The supreme court rejected the argument that the patient’s death was caused by the unlocked doors, stating, “The unlocked doors permitted [the patient’s] escape but did not cause his death.” Id. at 343. The court distinguished Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex.1975), in which the court held that immunity was waived for a claim that a patient was injured when he fell out of a hospital bed that lacked side rails. See id. The court noted that in McGuire, the patient’s injury was immediate and directly related to the absence of the rails, whereas in Bossley, the patient’s death “was distant geographically, temporally, and causally from the open doors.” Id.

Hendrix argues that the use of the examination room, examination table, patient gown, and public address system was not geographically, temporally, or causally distant from her injury. We have previously refused to distinguish Bossley based on geographic and temporal distinctions. See Amador v. San Antonio State Hosp., 993 S.W.2d 253, 256-57 (Tex.App.—San Antonio 1999, pet. denied). We have also held that under Bossley, the “premises condition must actually be the instrumentality that causes the plaintiffs harm.” San Antonio State Hosp. v. Koehler, 981 S.W.2d 32, 37 (Tex.App.—San Antonio 1998, pet. denied); accord Wimberley v. Sloan, 963 S.W.2d 556, 558 (Tex.App.—Eastland 1998, no pet.) (holding that “neither the building nor the chair where plaintiff was sitting when he was assaulted was the ‘direct device’ causing plaintiffs injuries and the ‘required causal nexus’ for liability” under the TTCA was missing).

Applying these authorities here, we conclude that Bermudez’s use of the examination room, examination table, patient gown, and public address system did not cause the assault; they merely furnished some of the conditions that made the assault possible. See Holder v. Mellon Mortgage Co., 954 S.W.2d 786, 804-08 (Tex.App.—Houston [14th Dist.] 1997) (holding that a police car did not cause the plaintiffs sexual assault by a police officer, even though the assault was committed in the car and the officer used the car to pull the plaintiff over), rev’d on other grounds, 5 S.W.3d 654 (Tex.1999).

Hendrix’s allegations in this case are appalling. But we are duty-bound to apply the law as written by our legislature and as interpreted by our highest court. By its very nature, the limited waiver of sovereign immunity in the TTCA will leave governments immune from many claims — ■ including, as here, claims involving appalling facts.

The summary judgment is affirmed.

Dissenting opinion by: ALMA L. LÓPEZ, Justice.

ALMA L. LÓPEZ, Justice,

dissenting.

I respectfully dissent from the granting of the motion for rehearing because a fact issue exists about whether a premises condition served as an actual instrumentality that caused Hendrix harm. Under the supreme court’s decision in Bossley, Hendrix must allege an injury arising from the condition or use of tangible property. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341-43 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). Although this court has construed Bossley to require a direct connection between the condition of the property and the resulting injury, see San Antonio State Hospital v. Koehler, 981 S.W.2d 32, 36 (Tex.App.-San Antonio 1998, pet. denied), I believe Hendrix pled a sufficient causal connection between the use or misuse of government property and her injury to raise a question of fact about this issue. Unlike this court’s decision in San Antonio State Hospital v. Koehler where the plaintiffs injury occurred several miles from the defectively fenced hospital grounds and over a period of three days after the victim’s escape from the hospital grounds, see Koehler, 981 S.W.2d at 36, Hendrix’s injury occurred inside a hospital examining room. The employee, dressed in his lab coat and on duty, used the hospital’s public address system to call Hendrix’s name and lure her to an examining room where he used an examining table and hospital gown to carry out an assault. These facts were pled in Hendrix’s petition and, in my mind, sufficiently allege proximate cause in terms of time and place to meet the Bossley test.

Although the majority’s opinion recognizes the egregious conduct that occurred here, it overlooks the indicia of reliability inherent in the property that enabled the employee to complete his assault. A patient undergoing a breast exam expects to be directed to disrobe and submit to an intimate examination by a medical professional who is generally wearing a lab coat. Bermudez was a government employee who was on-duty and wearing an identification badge and uniform that enabled him to create the guise of a breast examination. Thus, the government property was used in the assault itself at the time of the assault. Had Bermudez not been given access to such property by virtue of his employment by BCHD, it is unlikely that he could have perpetrated the assault in the manner in which he did. Under these circumstances, a fact issue exists about whether the property used here became an actual instrumentality that caused Hendrix harm. I would reverse the summary judgment order in favor of BCHD and remand the cause for trial.

      . The TTCA does not waive sovereign immunity for injuries arising from intentional torts. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057 (Vernon 1997). However, when the focus of a claim is on the governmental entity’s negligent conduct, rather than the intentional conduct of its employee, the claim will not be treated as arising from the intentional tort. See Delaney v. University of Houston, 835 S.W.2d 56, 59-60 (Tex.1992); Young v. City of Dimmitt, 787 S.W.2d 50, 51 (Tex.1990); Medrano, 989 S.W.2d at 144.


author: ADELE HEDGES, Justice.

text:
    Alice MUSQUIZ, Appellant, v. HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellee.
    No. 01-99-01295-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 28, 2000.
    Rehearing Overruled Dec. 4, 2000.

      Bruce D. Mosier, Houston, for Appellant.
    Sandra D. Hachem, Houston, for Appel-lee.
    Panel consists of Justices HEDGES, NUCHIA, and EVANS.

       The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION ON REHEARING

ADELE HEDGES, Justice.

We deny the motions for rehearing and for en bane consideration filed by the Harris County Flood Control District (the District). Our opinion of July 20, 2000, is withdrawn and the following is substituted in its place. Our judgment of July 20, 2000, remains unchanged.

Alice Musquiz files a restricted appeal from the trial court’s judgment reinstating the special commissioners’ award in a condemnation proceeding. We vacate that judgment and hold that a prior order dismissing the cause of action for want of prosecution was the final judgment in this case.

Background

On February 13, 1996, the District filed a petition in condemnation against Mus-quiz and other landowners to condemn certain real property for a flood control project. The county court judge appointed three special commissioners to assess damages in accordance with Tex. PROp.Code Ann.' § 21.014(a) (Vernon 1984). On December 16,1996, the special commissioners held a hearing. Counsel for the District and the landowners appeared at the hearing, and the special commissioners awarded landowners $62,986.

On December 31, 1996, Musquiz filed objections to the commissioners’ award, in accordance with Tex. PROP.Code Ann. § 21.018(a) (Vernon 1984), but she did not serve a citation or other notice on the District, as required by Tex. PROp.Code Ann. § 21.018(b) (Vernon 1984). About ten months later, Musquiz filed amended objections to the commissioners’ award and included a prayer for service of citation.

No action was taken in the case for about one year. Consequently, on November 20, 1998, the trial court sent the parties a notice of intent to dismiss the case for want of prosecution. Because the parties did not appear at the status conference on March 23, 1999, the trial court signed an order that dismissed the District’s cause of action for want of prosecution. Musquiz contends that this March dismissal order was the final judgment in the ease. The District did not file any postjudgment motions to present the issue to the trial court. On appeal, the District disputes that the dismissal order was the final judgment.

On May 6, 1999, 44 days later, the trial court signed a judgment granting the District a perpetual easement across the property and reinstating the special commissioners’ award as just compensation to Musquiz. The May judgment further stated that “on March 23, 1999, the Court dismissed [Musquiz’s] objections for want of prosecution.” Notably, this language is inconsistent with the March dismissal order, which instead dismissed the District’s “cause of action” for want of prosecution.

In her sole point of error, Musquiz contends that the trial court did not have plenary power to sign the May judgment because it had already dismissed the “cause of action” for want of prosecution 44 days earlier on March 23, 1999. Mus-quiz seeks to set aside the May judgment and reinstate the March dismissal order.

Eminent Domain Proceedings

We begin our analysis by briefly summarizing the condemnation procedures set forth in the Property Code. When settlement terms cannot be reached between a condemnor and a landowner, the condem-nor must file a statement in condemnation in the proper court of the county in which the land is located. Tex. PRop.Code Ann. §§ 21.001, .012, .013 (Vernon 1984 & Supp. 2000). After the statement is filed, the trial court appoints three special commissioners who conduct hearings, assess the damages, and file awards reflecting their opinion of the value of the land. Tex. PROp.Code Ann. §§ 21.014-.016 (Vernon 1984). If satisfied with the special commissioners’ award, the condemnor may either pay the amount to the landowner or deposit the amount into the registry of the court. Tex. PROp.Code Ann. § 21.021(a)(1) (Vernon 1984).

Any party who is dissatisfied with the special commissioners’ award is allowed a certain amount of time within which to file objections. Tex. Prop.Code Ann. § 21.018(a). Upon filing the objections, the special commissioners’ award is vacated and the administrative proceeding converts into a normal pending cause with the condemnor as plaintiff for the purpose of proving its right to condemn, and the landowner as defendant. See Tex. PROP. Code Ann. § 21.018(b); Denton County v. Brammer, 361 S.W.2d 198, 200 (Tex.1962).

If no objections are timely filed, the court is required, as a matter of ministerial duty, to render judgment “on the award.” Pearson v. State, 159 Tex. 66, 815 S.W.2d 935, 938 (1958). Such a judgment is not appealable. Id. If the landowner timely files objections to the special commissioners’ award, the landowner must secure service of citation on the condemnor within a reasonable period of time. See Tex.Prop.Code Ann. § 21.018(b). Otherwise, the trial court should dismiss the objections for want of prosecution and reinstate the special commissioners’ award as the proper compensation. Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex.1984). In contrast, if the landowner secures service of citation, the special commissioners’ award cannot be reinstated. Id.

In the eminent domain context, it is important to note the difference between dismissing the landowner’s objection to the special commissioners’ award for want of prosecution and dismissing the condem-nor’s cause of action for want of prosecution. See, e.g., State v. Ellison, 788 S.W.2d 868 (Tex.App.—Houston [1st Dist.] 1990, writ denied) (using these terms interchangeably). When the landowner does not secure service on the condemnor within a reasonable period of time, the trial court should consider the objection abandoned and dismiss the “objection” for want of prosecution. Id. Once the objection is dismissed, the trial court should reinstate the special commissioners’ award as the proper compensation. Id.

In contrast, the entire “cause of action” is dismissed for want of prosecution when the landowner perfects service of citation on the condemnor, but the con-demnor does not satisfy its burden of going forward to trial. Amason, 682 S.W.2d at 241. For example, in the Amason case, the landowner timely objected to the special commissioners’ award and then obtained a waiver of citation from the con-demnor. Id. Neither party took any further action for nearly a year. Id. The Texas Supreme Court held that the entire case should have been dismissed for want of prosecution — without reinstating the special commissioners’ award. Id. at 243. Ultimately, then, the filing of objections coupled with service of citation prevents reinstatement of the special commissioners’ award. State v. Carlton, 901 S.W.2d 736, 738 (Tex.App.—Austin 1995, no writ).

Improper Reinstatement of Award

Musquiz contends that the trial court did not have plenary power to sign the judgment on May 6, 1999 because it had already dismissed the cause of action for want of prosecution 44 days earlier on March 23,1999. We agree.

According to Musquiz, the final judgment in this case was the March order dismissing the District’s cause of action for want of prosecution. In contrast, the District asserts that the final judgment was the May judgment reinstating the special commissioners’ award. The District argues that Musquiz did not perfect service of process for her objections to the special commissioners’ award; therefore, the May judgment properly dismissed Musquiz’s “objections” for want of prosecution and reinstated the commissioners’ award. See Amason, 682 S.W.2d at 242. On appeal, the District contends that service was not perfected because the person who prepared the return of service, Steve Klawin-sky, was not authorized to perform service.

If the District’s argument regarding service of process is correct, which we need not address, the District should have presented the complaint to the trial court. It did not do so. Nor did the District appeal the dismissal order. Without a postjudgment motion, the trial court had plenary power for 30 days after the dismissal order. See Tex.R. Civ. P. 329b(d).

On May 6,1999, 44 days later — after the trial court’s plenary power had expired— the trial court signed a judgment granting the District a perpetual easement across the property and reinstating the special commissioners’ award as just compensation to Musquiz. Because the trial court did not have plenary power to sign the May judgment reinstating the special commissioners’ award, we hold that the March 23, 1999 order dismissing the cause of action for want of prosecution was the final judgment. Accordingly, the May 6, 1999 judgment was void and must be set aside.

We sustain the sole point of error.

Conclusion

We hold that the March 23, 1999 order dismissing the cause of action for want of prosecution was the final judgment in this case, and we vacate the May 6, 1999 judgment of the trial court reinstating the special commissioners’ award.

      . Our holding does not conflict with the proposition that a "defective service” complaint is fundamental error and may be raised for the first time on appeal. See Nueces Housing v. M & M Resources, 806 S.W.2d 948, 950-51 (Tex.App.—Corpus Christi 1991, writ denied). The present case is distinguishable because it involves service of objections to a commissions' award, not service of a petition. The District in this case made an appearance and does not dispute personal jurisdiction.


author: BILL VANCE, Justice. REX D. DAVIS, Chief Justice,

text:
    In the Matter of J.A.D., a Juvenile.
    No. 10-99-268-CV.
    Court of Appeals of Texas, Waco.
    Oct. 4, 2000.

      Scott K. Stevens, Belton, for appellant.
    Riley J. Simpson, Coryell County Dist. Atty., Richard L. Mackay, Jr., Asst. Dist. Atty., Gatesville, for appellee.
    Before Chief Justice DAVIS, Justices VANCE and GRAY.
   OPINION

BILL VANCE, Justice.

The court below sitting as a juvenile court found that Appellant J.A.D. had engaged in delinquent conduct by committing the offense of arson and placed J.A.D. on probation for one year. See Tex .Fam.Code Ann. § 54.03(f) (Vernon Supp.2000); Tex. Pen.Code Ann. § 28.02(a)(2)(A) (Vernon Supp.2000). The State filed a motion to modify this disposition shortly before the expiration of the probationary term and later amended the motion to modify after the term had expired. The court heard the amended motion, modified the disposition, and committed J.A.D. to the Texas Youth Commission without a determinate sentence. J.A.D. claims in a single issue that the court erred by proceeding on the amended motion to modify because it was filed after his probationary term expired.

BACKGROUND

The court originally placed J.A.D. on probation on August 4, 1998. The State filed a motion to modify this disposition on August 3, 1999, one day before the probationary term expired. The motion to modify was set for hearing on August 9. The State filed a first amended motion to modify on August 5 and a motion for continuance on August 9. At the August 9 hearing, the court denied the State’s motion for continuance because the State failed to exercise due diligence in securing the attendance of the witnesses on whose absence the State premised the need for a continuance.

J.A.D. argued that the State’s first amended motion to modify was untimely because it had been filed less than seven days before trial without leave of court. The court agreed, struck the amended motion, and directed the State to proceed on the original motion. The court then determined, however, that J.A.D. had never been personally served with a copy of the original motion to modify. Accordingly, the court postponed the matter for sixteen days.

The State filed a second amended motion to modify on August 11. J.A.D. filed a motion to dismiss this motion because it was filed after the expiration of his probationary term. At the beginning of the August 25 hearing, the court heard J.A.D.’s motion. The court denied the motion because it considered the amended motion to relate back to the time the original motion was filed under the Rules of Civil Procedure and because J.A.D. did not claim that he had insufficient time to prepare his defense to the amended motion.

APPLICABLE LAW

We review a court’s decision to modify a juvenile disposition under an abuse-of-discretion standard. See In re M.A.L., 995 S.W.2d 322, 324 (Tex.App.—Waco 1999, no pet.); In re Cockrell, 493 S.W.2d 620, 627 (Tex.Civ.App.—Amarillo 1973, writ ref d n.r.e.). According to section 54.05(a) of the Family Code, a court may modify a juvenile disposition, other than a commitment to the Texas Youth Commission, until the child becomes eighteen years old or “is earlier discharged by the court or operation of law.” Tex.Fam.Code ANN. § 54.05(a) (Vernon Supp.2000).

The Code of Criminal Procedure contains similar provisions for the modification or revocation of an adult criminal defendant’s community supervision. See Tex.Code Crim.Proc.Ann. art. 42.12, §§ 21, 22, 23 (Vernon Supp.2000). For this reason, appellate courts reviewing the modification of juvenile dispositions have looked to adult revocation cases for guidance in determining the appropriate procedures to be followed in juvenile cases. See, e.g ., In re R.G., 687 S.W.2d 774, 776-77 (Tex.App.—Amarillo 1985, no writ); Franks v. State, 498 S.W.2d 516, 518 (Tex.Civ.App.—Texarkana 1973, no writ); see also In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re D.I.B., 988 S.W.2d 753 (Tex.1999).

In R.G., the Amarillo Court of Appeals applied precedent from the Court of Criminal Appeals to determine whether a juvenile court can hear a motion to modify after the expiration of the probationary term. The Court held:

[Wjhen a petition to modify disposition is filed within the probationary term for an alleged violation of the terms and conditions of probation which occurred within the probationary period, and the court proceeds to orderly disposition of that petition within a reasonable time with full regard for the procedural and substantive rights of the child, the court has authority to modify the prior disposition order even though the modification occurs after the termination date specified by the prior order.

R.G., 687 S.W.2d at 777. The Court relied on Bobo v. State to reach this conclusion. See id. at 776 (citing Bobo v. State, 479 S.W.2d 947, 949 (Tex.Crim.App.1972)).

The Court of Criminal Appeals first enunciated the rule applied in Bobo in the case of Ex parte Fennell. See Bobo, 479 S.W.2d at 949 (citing Ex parte Fennell, 162 Tex.Crim. 286, 288, 284 S.W.2d 727, 728-29 (1955)). In Fennell, the Court established the principle that a hearing on a timely-filed revocation motion may be conducted after the expiration of the probationary term if the hearing is not “unduly delayed.” Fennell, 162 Tex.Crim. at 288, 284 S.W.2d at 728-29 (quoting State ex rel. Lee v. Coker, 80 So.2d 462, 463 (Fla.1955)). This principle has come to be known as the “due diligence” requirement. See Brecheisen v. State, 4 S.W.3d 761, 763 (Tex.Crim.App.1999). Thus, the State must use “due diligence in executing the capias that results from the motion to revoke,” and the trial court must use “due diligence in hearing and determining the allegations in the revocation motion.” Id.

In these due diligence cases, the Court of Criminal Appeals has also determined that the State may not amend a timely-filed revocation motion after the probationary term has expired. See Guillot v. State, 543 S.W.2d 650, 653 (Tex.Crim.App.1976); accord Holtzman v. State, 866 S.W.2d 728, 729 n. 2 (Tex.App.—Houston [14th Dist.] 1993, pet. ref'd); Crockett v. State, 840 S.W.2d 160, 162 (Tex.App.—Houston [1st Dist.] 1992, no pet.); Chreene v. State, 691 S.W.2d 748, 750 (Tex.App.—Texarkana 1985, pet. ref'd). The Court described an amended revocation motion filed after the expiration of the probationary term as “a nullity.” Guillot, 543 S.W.2d at 653. The appellate courts in the more recent decisions cited above referred to such pleadings as “void.” See Holtzman, 866 S.W.2d at 729 n. 2; Crockett, 840 S.W.2d at 162; Chreene, 691 S.W.2d at 750.

In Guillot, the State timely filed a revocation motion alleging in part that the defendant had violated the conditions of his probation by being in possession of cocaine. Id. Guillot, 543 S.W.2d at 651. The State filed an amended motion after the probationary term had expired, altering the allegation to allege possession of heroin. Id. at 651-52. The Court held that the trial court could revoke only upon proof of one of the violations alleged in the timely-filed motion. Id. at 653. Because the defendant pled true to one of the allegations contained in the original revocation motion, the Court affirmed the judgment. Id.; accord Chreene, 691 S.W.2d at 750.

In J.A.D.’s case, the court relied on the rule in civil cases that under certain circumstances an amended petition will be deemed to relate back to the date of the original petition for limitations purposes. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.1990); Cooke v. Maxam Tool & Supply, Inc., 854 S.W.2d 136, 141 (Tex.App.—Houston [14th Dist.] 1993, writ denied); Tex.Civ.PRac. & Rem.Code Ann. § 16.068 (Vernon 1997). Section 51.17(a) of the Family Code provides that the Rules of Civil Procedure generally govern juvenile proceedings except on the burden of proof or when in conflict with the provisions of the Juvenile Justice Code. Tex.Fam.Code Ann. § 51.17(a) (Vernon Supp.2000); see also D.I.B., 988 S.W.2d at 756. The Austin Court of Appeals has described such proceedings in this manner:

Juvenile delinquency proceedings are both civil and criminal in nature. In light of the very real possibility of loss of liberty faced by the juvenile respondent, juvenile proceedings have been characterized as “quasi-criminal,” with procedural requirements similar to those in adult prosecutions.

In re S.L.L., 906 S.W.2d 190, 192 (Tex.App.—Austin 1995, no writ); accord In re M.R., 846 S.W.2d 97, 100-01 (Tex.App.—Fort Worth 1992), writ denied per curiam, 858 S.W.2d 365 (Tex.1993).

Because of the “quasi-criminal” nature of juvenile proceedings and because permitting amendments to motions to modify after the expiration of the probationary term would conflict with section 54.05(a) of the Family Code, which permits modification only during the term of probation, we hold that the civil rule that amended pleadings can relate back to the date of the original pleading for limitations purposes does not apply to motions to modify a juvenile disposition which are filed after the expiration of the probationary term.

APPLICATION

The State filed its second amended motion to modify J.A.D.’s disposition after the expiration of his probationary term. Therefore, the second amended motion is “a nullity” and the court had no authority to act upon it. Guillot, 543 S.W.2d at 653; accord Holtzman, 866 S.W.2d at 729 n. 2; Crockett, 840 S.W.2d at 162; Chreene, 691 S.W.2d at 750. Nevertheless, the court’s error in acting upon the untimely motion could be harmless if the court found that J.A.D. committed one of the violations alleged in the original motion and if the evidence supports such a finding. See Guillot, 543 S.W.2d at 653; Chreene, 691 S.W.2d at 750. However, the State has never served the original motion to modify on J.A.D. Thus, the allegations of this motion cannot serve as a basis for affirmance of the judgment. See Tex. R.CivP. 21 (any motion requesting an order must first be served on opposing party); see also D.I.B., 988 S.W.2d at 756. Accordingly, we sustain J.A.D.’s sole issue.

We reverse the judgment and remand this cause for further proceedings consistent with this opinion.

Chief Justice DAVIS dissenting.

REX D. DAVIS, Chief Justice,

dissenting.

The majority concludes that the allegations of the original motion to modify cannot serve as a basis to affirm the judgment because the State failed to serve J.A.D. with a copy of the original motion. Because this conclusion does not address the question of whether J.A.D. was harmed by the court’s error in acting on the untimely-filed second amended motion, I respectfully dissent.

Whenever we find error in the proceedings below, we must conduct a harm analysis, except when the error “defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis.” In re D.I.B., 988 S.W.2d 753, 759 (Tex.1999) (quoting Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997)). According to Rule of Appellate Procedure 44.1(a)(1), we cannot reverse the judgment unless we conclude that the error “probably caused the rendition of an improper judgment.” Tex.R.App.P. 44.1(a)(1); see also In re C.P., 998 S.W.2d 703, 712 (Tex.App.—Waco 1999, no pet.).

The original motion to modify alleges in part that J.A.D. violated the conditions of his probation by being expelled from school on November 6, 1998. The court found this allegation to be true. J.A.D. does not challenge the sufficiency of the evidence to support this finding. Accordingly, I would conclude that the court’s error in proceeding on the untimely-filed motion did not result in “rendition of an improper judgment.” See Guillot v. State, 543 S.W.2d 650, 653 (Tex.Crim.App.1976); Chreene v. State, 691 S.W.2d 748, 750 (Tex.App.—Texarkana 1985, pet. ref'd). Thus, I would affirm the judgment.

      . Title 3 of the Texas Family Code.