text:
    Jackie MIERS, Appellant, v. TEXAS A & M UNIVERSITY SYSTEM HEALTH SCIENCE CENTER d/b/a Baylor College of Dentistry & Dr. William Ralph Phillips, III, D.D.S., Appellees.
    No. 10-08-00183-CV.
    Court of Appeals of Texas, Waco.
    Dec. 30, 2009.

      Jeff Kobs, Kobs Haney & Hundley LLP, Fort Worth, for Appellant.
    Jennifer Leblanc, MacDonald Devin, Dallas, Nichelle A. Cobb, Office of Atty. Gen., Tort Litigation Division, Austin, for Appellees.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

TOM GRAY, Chief Justice.

Jackie Miers appeals two decisions of the trial court that dismissed her claims against Texas A & M University System Health Science Center d/b/a Baylor College of Dentistry and William Ralph Phillips, DDS, MD. Miers’s claims were brought pursuant to the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001 et seq. (Vernon 2005). The trial court granted the motion to dismiss Dr. Phillips pursuant to Texas Civil Practice and Remedies Code Section 101.106. The trial court later granted Baylor’s motion for summary judgment based on sovereign immunity. Because we find that the trial court did not err in granting Baylor’s motion for summary judgment pursuant to Texas Civil Practice and Remedies Code Section 101.021(2), that Miers’s complaint regarding Phillips being in the paid employment of Baylor may have been waived but nevertheless we find that Phillips was being paid by Baylor, and that the trial court did not err in dismissing Phillips because Baylor had the right to control his work pursuant to Sections 101.001(2) and 101.106(e), we affirm the orders and ultimately the judgment of the trial court. Motion for Summary Judgment

Miers first complains that the trial court erred in granting summary judgment as to Baylor. We review the grant or denial of a traditional motion for summary judgment de novo. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n. 7 (Tex.2005) (citing Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n. 137 (Tex.2004)). To be entitled to summary judgment, the movant must demonstrate that no genuine issues of material fact exist and that she is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c). Once the movant satisfies her burden, the burden shifts to the non-mov-ant to produce evidence sufficient to raise a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). In determining whether a fact issue exists, evidence favorable to the non-movant is taken as true. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985)). All doubts will be resolved in favor of the non-movant, and all reasonable inferences will be indulged in her favor. Id. (citing Nixon, 690 S.W.2d at 549).

Baylor’s motion for summary judgment raises an issue of sovereign immunity from suit that, if applicable, would deprive the Court of subject-matter jurisdiction. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). Subject-matter jurisdiction is a question of law, which we review de novo. Id. at 226. Likewise, deciding whether Miers’s claims fall under the Tort Claims Act is a matter of statutory construction, which we also review de novo. In re Forlenza, 140 S.W.3d 373, 376 (Tex.2004).

Use or Misuse of Tangible Personal Property

Miers complains that the trial court erred by granting Baylor’s motion for summary judgment based on the affirmative defense of sovereign immunity because Baylor waived its immunity pursuant to Texas Civil Practice and Remedies Code Section 101.021(2). Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 2005). Miers contends that the use or misuse of tangible personal property caused her injury. Initially, Baylor filed a plea to the jurisdiction on this basis, which the trial court denied and Baylor did not appeal that decision. Some time thereafter, Baylor filed a traditional motion for summary judgment alleging that there was no use or misuse of tangible personal property within the meaning of the Tort Claims Act so as to come within the waiver of immunity as a matter of law.

To establish a waiver of sovereign immunity based upon the use or misuse of non-defective tangible personal property, Miers must allege that the injury was caused by the use or misuse of tangible personal property by a governmental employee acting within the scope of his or her employment. Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex.1983); Sepulveda v. County of El Paso, 170 S.W.3d 605, 614-15 (Tex.App.-El Paso 2005, pet. denied). “Use” means “to put or bring into action or service; to employ for or apply to a given purpose.” Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex.2001). The usage of the property must have actually caused the injury. Miller, 51 S.W.3d at 588; see San Antonio State Hospital v. Koehler, 981 S.W.2d 32, 35 (Tex.App.-San Antonio 1998, pet. denied) (use of the property must be a substantial factor in bringing about the injury). Incidental involvement of the property is insufficient. Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998). Property does not cause inju ry if it does no more than furnish the condition that makes injury possible. Bossley, 968 S.W.2d at 343.

Miers lists several pieces of equipment and dental instruments that she contends were used or misused within the meaning of the statute to extract her teeth; however, there is no evidence that it was Phillips’s use or misuse of any of the listed equipment or dental instruments during the procedure in which her teeth were removed that caused the injury. To the contrary, there is evidence that Phillips correctly used the equipment and dental instruments when he removed the teeth. It is entirely and solely the decision to remove the additional teeth at all that is the source of Phillips’s alleged negligence, not the manner in which they were removed. Consequently, there is no waiver of sovereign immunity based on the use or misuse of tangible personal property. See Tex. Tech. Univ. Health Sciences Ctr. v. Lucero, 234 S.W.3d 158, 169 (Tex.App.-El Paso 2007, pet. denied) (allegation of misuse of equipment during procedure does not waive immunity when stent placed correctly); see also Turner v. Zellers, 232 S.W.3d 414, 419 (Tex.App.-Dallas 2007, no pet.). We overrule Miers’s first issue.

Motion to Dismiss

In her second issue, Miers complains that the trial court erred by granting Phillips’s motion to dismiss pursuant to Texas Civil Practice and Remedies Code § 101.106, which mandates dismissal of a claim filed against an employee when the suit is filed pursuant to Chapter 101 against both a governmental unit and one of its employees upon the filing of a motion by the governmental unit. Tex. Civ. Prao. & Rem.Code Ann. § 101.106(e) (Vernon 2005).

The term “employee” is defined in Chapter 101 as “a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.” Tex. Civ. Prao. & Rem.Code Ann. § 101.001(2) (Vernon 2005).

Miers contends that Phillips never established as a matter of law that he was an employee of Baylor because he was not in the paid service of Baylor and because Baylor did not have the right to control his work. Phillips was paid by BUMC, and his salary, withholding taxes, and health insurance were reimbursed to Baylor through an affiliation agreement between BUMC and Baylor. Miers does not contend that her claims were not brought pursuant to Chapter 101, rendering Section 101.106 inapplicable, but agrees that if Phillips is an employee of Baylor, as defined by the statute, dismissal is appropriate under that section. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 656 (Tex.2008) (all tort theories, including intentional torts by employees, encompassed in dismissal for failure to establish waiver of sovereign immunity); see also Kanlic v. Meyer, 230 S.W.3d 889, 894-95 (Tex.App.-El Paso 2007, pet. denied).

Section 101.106(e) provides, “If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (Vernon 2005).

Paid Service

Miers contends that because Phillips’s W-2’s for the relevant time periods indicate that he was paid by BUMC, he has not established as a matter of law that he was an employee of Baylor. Baylor responded that while Phillips’s salary was paid by BUMC, they had reimbursed BUMC in full for that salary, and attached to their pleadings copies of invoices from BUMC to Baylor that affirmatively show that BUMC billed Baylor in full for Phillips’s salary. Additionally, Phillips provided copies of letters from Baylor admitting him into their residency program and detailing the dates and salary he would be receiving while in their program. Phillips believed that he was in the paid employment of Baylor. There was also evidence presented that the agreement between BUMC and Baylor was a cost-sharing arrangement, and that Baylor would reimburse BUMC for some, but not all, residents working in their facility. The evidence is, however, undisputed that all of Phillips’s cost of employment was ultimately borne by Baylor. Although the reason for this arrangement between Baylor and BUMC is not revealed by the record, we believe it is immaterial to our analysis.

Miers does not identify any authorities in support of her argument that Phillips did not establish as a matter of law that he was in the paid service of Baylor at the time of the extraction of her teeth. See Tex.R.App. P. 38.1(i). Without citations to appropriate authorities, this argument in support of this portion of Miers’s issue could be treated as inadequately briefed, and therefore waived. See also Walder v. State, 85 S.W.3d 824, 828 (Tex.App.-Waco 2002, order) (per curiam). We have concluded, however, that based on the undisputed evidence presented that Baylor established as a matter of law with no evidence to the contrary having been presented, that Phillips was in the paid service of Baylor within the meaning of the statute.

Right to Control Work

Miers contends that Phillips did not establish as a matter of law that Baylor had the right to control his work. Her argument is that Phillips’s exercise of independent professional judgment as a treating physician was outside of Baylor’s right of control, which would thereby exclude him from the statutory definition of “employee.” See Murk v. Scheele, 120 S.W.3d 865, 866 (Tex.2003). As the Texas Supreme Court stated in Murk:

This argument sweeps far too broadly. The Act’s definition of “employee” does not require that a governmental unit control every detail of a person’s work. The operator of a motor vehicle, for example, must exercise independent judgment, but this does not mean that he or she cannot be considered an employee under the Act. If it did, a governmental unit could never be “liable for ... injury ... proximately caused by ... the negligence of an employee ... arising from the operation or use of a motor-driven vehicle”, even though section 101.021(1) of the Act provides for such liability. Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). Similarly, a physician whose practice is controlled by a governmental unit is not precluded from being an “employee” within the meaning of the Act simply because he or she must exercise some independent medical judgment.

Murk, 120 S.W.3d at 866.

Phillips was a resident oral surgeon at Baylor. Phillips’s medical decisions in the treatment of patients was subject to regimens prescribed by Baylor, faculty supervision and review, and in some instances, could have been vetoed by his supervisors. The nature of any practice as a physician requires them to make many medical decisions using their own professional judgment. However, that necessity does not, by itself, vitiate Baylor’s right to control the details of Phillips’s practice. Murk, 120 S.W.3d at 866. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542 (Tex.2002); Dalehite v. Nauta, 79 S.W.3d 243, 245-46 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). While it is undisputed that Phillips made the decision to extract Miers’s teeth and the procedure was solely his judgment call, his supervisory physicians were available if they were needed to assist or if Phillips had asked them. Further, Baylor had the right to stop a procedure (if medically safe to do so) if it was believed that Phillips was not doing something properly; and ultimately could remove Phillips from a procedure if necessary. Baylor also had the right to remove Phillips from the program if they felt it was appropriate to do so. The trial court did not err in its determination that Baylor had the right to control Phillips’s actions. We overrule Miers’s second issue.

Conclusion

We find that the trial court did not err in granting Baylor’s motion for summary judgment dismissing Baylor on the basis of sovereign immunity. We find that the trial court did not err in determining that Phillips was an employee of Baylor within the meaning of the Tort Claims Act and thus did not err in granting the motion to dismiss Phillips. Accordingly, we affirm the final judgment of the trial court.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    $5,420.00 U.S. CURRENCY, Appellant, v. The STATE of Texas, Appellee.
    No. 08-08-00107-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 6, 2010.
    Charles Ray Holmes, Beaver, WV, Appellant pro se.
    Randall W. Reynolds, District Attorney, Pecos, TX, for State.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Charles Ray Holmes, pro se, appeals from a judgment forfeiting $5,420.00 in U.S. currency to the Ward County Sheriffs Office. Finding no error, we affirm.

FACTUAL SUMMARY

On February 9, 2007, the State filed notice of seizure and intended forfeiture of $5,420.00 in U.S. currency pursuant to Chapter 59 of the Texas Code of Criminal Procedure and it identified Holmes as the possessor and owner of the property. The State alleged that the property was contraband as defined by Article 59.01 of the Code of Criminal Procedure and subject to forfeiture because it was used or intended to be used in the commission of certain felonies, it was the proceeds gained from the commission of a felony identified in Chapter 59.01, or it was acquired with proceeds gained from the commission of a felony identified in Chapter 59.01. As required by Article 59.04(b) of the Code of Criminal Procedure, the State attached to its notice the affidavit of the seizing officer, Deputy Sheriff Jaime S. Ybarra. Holmes, acting pro se, did not file a formal answer but he filed a written pleading on December 31, 2007, asserting that the property should not be forfeited because the related criminal charges had been dismissed and he could produce payroll records to prove that the currency was obtained through employment. The trial court conducted a bench trial on February 29, 2008, but Holmes did not appear for trial because he was incarcerated in a federal prison in Oklahoma. The trial court entered a no answer default judgment in favor of the State on March 14, 2008. Holmes filed a timely notice of appeal.

HOLMES’ DEFENSES TO FORFEITURE

On appeal, Holmes challenges the default forfeiture judgment by attempting to prove his defenses through the attachment of evidence to his brief. In Issue One, he argues that the criminal cases against him were dismissed, and therefore, the money was improperly forfeited. In support of his argument, Holmes has attached to his brief a copy of an order dismissing a erimi-nal prosecution for tampering with physical evidence (cause number 07-08-04884-CRW in the 143rd District Court of Ward County and styled The State of Texas v. Charles Ray Holmes) for the stated reason: “Defendant is serving a federal sentence and in the interest of justice the State declines to pursue this charge at this time.” Similarly, in Issue Two, Holmes asserts that the money forfeited was not contraband but had been earned by him while employed with Lariat Services, Inc.

He has attached to his brief what appears to be a copy of his W-2 for 2006. The record before us does not include a reporter’s record. None of the documents attached to Holmes’ brief can be considered by the court because they have not been formally included in the record on appeal. Burke v. Ins. Auto. Auctions, 169 S.W.3d 771, 775 (Tex.App.-Dallas 2005, pet. denied); Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.App.-Dallas 2005, no pet.); see Adams v. Reynolds Tile and Flooring, Inc., 120 S.W.3d 417, 423 (Tex.App.-Houston [14th Dist.] 2003, no pet.)(stating that the attachment of documents as appendices to briefs does not constitute formal inclusion in the record on appeal). Accordingly, we overrule Issues One and Two. As Appellant does not argue any other grounds for reversing the default forfeiture, we affirm the judgment of the trial court.

      . According to letters written by Holmes to the trial court judge, Holmes was incarcerated in federal prison in Oklahoma at the time of the bench trial.


text:
    JNY, L.P., and JNY, II, L.P., Appellants, v. RABA-KISTNER CONSULTANTS, INC., and Raba-Kistner-Anderson Consultants, Inc., d/b/a Raba-Kistner Consultants (SW), Inc., Appellees.
    No. 08-07-00253-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 27, 2010.
    Randy Lee, Attorney at Law, Midland, TX, for Appellants.

      Todd C. Collins, Houston, TX, for Appel-lees.
    Before McCLURE, J., RIVERA, J., and SALAS-MENDOZA, Judge SALAS-MENDOZA, Judge, sitting by assignment.
   OPINION

ANN CRAWFORD McCLURE, Justice.

JNY, L.P. and JNY II, L.P., collectively JNY, appeal the trial court’s order dismissing -with prejudice the negligence counterclaims alleged against Raba-Kist-ner Consultants, Inc., and Raba-Kistner-Anderson Consultants, Inc. d/b/a Raba-Kistner Consultants (SW), Inc., collectively Raba-Kistner. For the reasons that follow, we reverse and remand.

FACTUAL BACKGROUND

In the trial court, Raba-Kistner filed suit against JNY to collect fees for professional services performed at the Jones Apparel Building located at 11891 Alameda, El Paso, Texas. On July 19, 2004, JNY answered and counterclaimed for negligence for failure to adequately inspect and/or test soil conditions in the building pads prior to construction. Raba-Kistner moved to dismiss the counterclaims with prejudice. The trial court found that Chapter 150 of the Texas Civil Practices and Remedies Code applied to the counterclaims and ordered JNY to comply with Section 150.002(a) by a date certain. Subsequently, both parties amended their pleadings, and Raba-Kistner again moved to dismiss JNY’s negligence counterclaim for failure to comply with Section 150.002(a). The trial court granted the motion and entered a severance order. This appeal follows.

Tex.Civ.Prac. & Rem.Code Ann. § 150.001

In Point of Error One, JNY claims the trial court erred because Section 150.002 is not applicable since Raba-Kistner is not a licensed professional engineer or “design professional” as defined by statute. See Tex.Civ.Prac. & Rem.Code Ann. § 150.001 (Vernon 2005).

Standard of Review

We review a dismissal pursuant to Section 150.002 for an abuse of discretion. Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395, 397 (Tex.App.-Beaumont 2008, no pet.); see also Palladian Bldg. Co., Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex.App.-Fort Worth 2005, no pet.); Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419, at *1 (Tex.App.-San Antonio Oct. 3, 2007, no pet.) (mem. op.). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court does not demonstrate an abuse of discretion. Palladian, 165 S.W.3d at 433.

Statutory construction is a question of law which we review de novo. Id. at 436. Once we determine the proper construction, we must then decide whether the trial court abused its discretion in applying the statute. Id. A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Our primary objective is to deter mine the Legislature’s intent and give it effect. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). We must interpret the statute according to its plain meaning. Id. We must read the statute as a whole and not in isolated portions. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). We read every word, phrase, and expression as if it were deliberately chosen, and we presume the words excluded from the statute are done so purposefully. Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied).

The Origin of Chapter 150

Chapter 150 of the Texas Civil Practices and Remedies Code was part of House Bill 4 which was considered and enacted by the Legislature in 2003. Tex.H.B. 4, 78th Leg., R.S. (2003). H.B. 4 was a comprehensive civil justice reform bill intended to address and correct problems the Legislature believed impaired fairness and efficiency in the court system. The bill addressed the filing of non-meritorious lawsuits, and the authors’ stated intent was to bring more balance to the civil justice system, reduce litigation costs, and address the role of litigation in society.

The ZOOS Statute

As originally enacted, Chapter 150, entitled “Design Professionals,” applied to registered architects and licensed professional engineers. Tex.Civ.Prac. & Rem.Code Ann. § 150.001; Acts 2003, 78th Leg., ch. 204, § 20.01, eff. Sept. 1, 2003. Section 150.002 required a certificate of merit in any action for damages alleging professional negligence by a design professional:

[T]he plaintiff shall be required to file with the complaint an affidavit of a third-party registered architect or licensed professional engineer competent to testify and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error or omission claimed to exist and the factual basis for each such claim. The third-party professional engineer or registered architect shall be licensed in this state and actively engaged in the practice of architecture or engineering.

Tex.Civ.PRAC. & Rem.Code Ann. § 150.002. Failure to provide an affidavit could result in dismissal with prejudice. Id. JNY’s primary argument is that because Raba-Kist-ner is a corporation, it cannot be a “design professional,” as that term is defined:

In this chapter, ‘design professional’ means a registered architect or licensed professional engineer.

Tex.Civ.Prac. & Rem.Code Ann. § 150.001.

JNY emphasizes that the term “engineer” is a word of art and is statutorily defined as a person engaged in the practice of engineering in Texas. Tex. Occ.Code Ann. § 1001.002(2)(Vernon 2004). Additionally, Sections 1001.301(a) and 1001.301(e) distinguish a “person” from an entity, (a) A person may not engage in the practice of engineering unless the person holds a license issued under this chapter.
⅜ ⅜ ⅜ ⅜ ⅜ ⅝
(e) A person, sole proprietorship, firm, partnership, association, or corporation that engages in or offers or attempts to engage in conduct described by this section is conclusively presumed to be engaged in the practice of engineering.

Tex.Occ.Code Ann. §§ 1001.301(a), (e). JNY reasons that the Occupations Code must be read in conjunction with Chapter 150 of the Texas Civil Practices and Remedies Code such that only individuals may be licensed as engineers. A corporation cannot satisfy the statutory eligibility requirements for a license, which includes gradation and testing requirements.

We agree that Chapter 150 is meant to serve a gatekeeper function to limit and/or control claims against design professionals. However, it is not clear from either the legislative history or the language of the 2003 statute that design professionals include entities such as Raba-Kistner. This is further evidenced by the Legislature’s rewording of Section 150.001 in the 2005 amendments.

2005 Amendments

During the regular session of the 79th Legislature, two bills were passed by both the House and Senate and signed by the governor, ironically on the very same day. House Bill 854 originated in the Civil Practices Committee and addressed only Chapter 150 of the Texas Civil Practices and Remedies Code. For purposes of our analysis, the amendment to Section 150.001 is relevant:

Sec. 150.001. DEFINITION. In this chapter “licensed or registered [] professional” means a registered architect, registered professional land surveyor, or licensed professional engineer.

Acts 2005, 79th Leg., R.S., ch. 189, § 1, 2005 Tex.Gen.Laws 348. The House Research Organization Bill Analysis, dated April 19, 2005, contains this Digest:

HB 854 would extend the requirement under sec. 150.002 for a third-party affidavit in professional negligence suits to include registered professional land surveyors. It also would change the title of ch. 150 from ‘Design Professionals’ to ‘Licensed or Registered Professionals.’

House Bill 1573 originated in the Licensing and Administrative Procedures Committee and addressed not only Chapter 150 of the Texas Civil Practices and Remedies Code but the “practice of architecture” provisions of the Occupations Code as well. By virtue of H.B. 1573, Chapter 150 was amended in the following relevant particulars:

Sec. 150.001. DEFINITIONS [DEFINITION]. In this chapter:
(1) ‘Design [¿design] professional’ means a licensed [registered] architect, [er] licensed professional engineer, or any firm in which such licensed professional practices, including but not limited to a corporation, professional corporation, limited liability corporation, partnership, limited liability partnership, sole proprietorship, joint venture, or any other business entity.
(2) ‘Practice of architecture’ has the meaning assigned by Section 1051.001, Occupations Code.

Acts 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex.Gen.Laws 370. H.B. 1573 retained the title of Chapter 150 as “Design Professionals” and did not add “registered professional land surveyors” to the definition of a design professional.

If amendments to the same statute are enacted at the same session of the Legislature, one amendment without reference to the other, the amendments shall be harmonized if possible so that effect may be given to each. Tex. Gov’t Code Ann. § 311.025(b)(Vernon 2005). If the amendments are irreconcilable, the latest in date of enactment prevails. Id. “Date of enactment” is the date on which the last legislative vote is taken on the bill enacting the statute. Tex. Gov’t Code Ann. § 311.025(d). In this instance, codification reflected an effort to harmonize the bills. H.B. 854 was effective from May 27, 2005 until August 31, 2005; H.B. 1573 was effective from September 1, 2005 until August 31, 2009. By virtue of the 2009 amendments, the disconnect between the titles of Chapter 150 was resolved by Senate Bill 1201:

SECTION 1. The heading to Chapter 150, Civil Practice and Remedies Code, as amended by Chapters 189 (H.B. 854) and 208 (H.B. 1573), Acts of the 79th Legislature, Regular Session, 2005, is reenacted to read as follows:

CHAPTER 150. LICENSED OR REGISTERED PROFESSIONALS

Acts 2009, 81st Leg., ch. 789, § 1, 2009 Tex.Gen.Laws 1989, eff. Sept. 1, 2009. Reenactment is required by both the Government Code and the Texas Constitution. See Tex. Gov’t Code Ann. § 311.025(c); Tex. Const, art. 3, § 36.

We turn now to the effect of the 2005 amendments. Clearly, they do not apply retroactively:

This Act applies only to an action filed on or after the effective date of this Act. An action filed before the effective date of this Act, including an action filed before that date in which a party is joined or designated after that date, is governed by the law in effect immediately before the change in law made by this Act, and that law is continued in effect for that purpose.

Acts 2005, 79th Leg., R.S., ch. 189, § 4, 2005 Tex.Gen.Laws 348, eff. Sept. 1, 2005. Because JNY’s original counterclaims were filed on July 19, 2004, the 2003 statutory provisions control.

Analysis

Raba-Kistner contends that the 2005 amendments reflect an effort to harmonize the Civil Practices and Remedies and the Occupations Code to effectuate the original intent of the authors that the certificate of merit requirement apply to persons and entities alike. In fact, the schism between the bills passed by two separate committees reveals the opposite. The bill which emerged from the Civil Practices Committee did not add references to corporate entities. The bill which emerged from the Licensing and Administrative Procedures Committee did. And that committee clearly understood the problem, because both the Civil Practices and Remedies Code and the Occupations Code were amended by their H.B. 1573. We interpret the amendments to mean that the Legislature did not originally intend to include corporate entities within the definition of design professionals. We thus conclude that the trial court erred in dismissing JNY’s counterclaims for negligence because the “certificate of merit” requirement does not apply. We sustain Issue One and reverse and remand for trial. Because of our resolution of Issue One, we need not address Issue Two.


text:
    Roberto DIAZ, Jr., Individually and as Next Friend of Robert C. Diaz, a Minor, Appellant, v. The CANUTILLO INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 08-07-00357-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 3, 2010.

      Wendy L. Ferrell, El Paso, TX, for Appellant.
    Steven L. Hughes, Mounce, Green, Myers, Safi, Paxson & Galatzan, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Roberto Diaz, Jr., individually and as next friend of Robert C. Diaz, appeals from an order granting a plea to the jurisdiction filed by the Canutillo Independent School District. At issue is whether negligent parking constitutes the use or operation of a motor vehicle as contemplated by the Texas Tort Claims Act. On these facts, we conclude it does not.

FACTUAL SUMMARY

Diaz filed a negligence cause of action alleging that his son, Robert C. Diaz, was seriously injured while playing touch football on a playground owned by CISD. Diaz alleged that Robert was injured when he ran into a parked vehicle which had been negligently parked by an unknown employee “in the area of the school playground.” Robert’s right eye is blind as a result of the injury.

CISD filed a plea to the jurisdiction asserting that it is immune from Diaz’s personal injury claims because the motor vehicle was not being “used” or “operated” and merely furnished the condition that made the injury possible. CISD attached Diaz’s answers to a request for admissions establishing that the motor vehicle was empty, parked, and stationary, with the engine disengaged. Diaz filed a response but did not tender evidence. The trial court granted the plea to the jurisdiction and dismissed Diaz’s claims. This appeal follows.

WAIVER OP SCHOOL DISTRICT’S SOVEREIGN IMMUNITY

Diaz challenges the trial court’s ruling by three issues. First, he argues that we should only look to the pleadings to determine if he sufficiently alleged a waiver of sovereign immunity. Second, he contends that the act of parking a motor vehicle constitutes use or operation of a motor vehicle. Third, he maintains that his pleadings sufficiently state a nexus between the alleged negligent act and the child’s injuries.

Standard of Review

In his first issue, Diaz claims that we can look only to the pleadings in reviewing the trial court’s ruling on the plea to the jurisdiction. We disagree. A plea to the jurisdiction contests a trial court’s subject matter jurisdiction. Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Whether a court has subject matter jurisdiction is a question of law which we review de novo. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). Similarly, whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is a question of law subject to de novo review. Id. 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 228. This standard generally mirrors that of a summary judgment under Tex. R.Civ.P. 166a(c). Id.

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. at 226. However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. Id. at 227. In this case, the relevant evidence submitted in connection with CISD’s plea is undisputed. Contrary to Diaz’s assertion, our review is not restricted to his pleadings. We overrule Issue One.

Use or Operation of a Motor Vehicle and the Nexus Requirement

In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004); Texas Department of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex.1999). The Texas Tort Claims Act provides a limited waiver of sovereign immunity. Tex.Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 2005 and Vernon Supp. 2009). Sovereign immunity includes two distinct principles, immunity from liability and immunity from suit. Miranda, 133 S.W.3d at 224; Jones, 8 S.W.3d at 638. Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction. Miranda, 133 S.W.3d at 224. The Tort Claims Act creates a unique statutory scheme in which the two immunities are co-extensive: “Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.” Miranda, 133 S.W.3d at 224, quoting Tex.Civ.Prac. & Rem.Code Ann. § 101.025(a). Thus, CISD is immune from suit unless the Tort Claims Act expressly waives immunity. See Tex.Civ.Prac. & Rem.Code Ann. §§ 101.001(3)(B)(defining a governmental unit to include a political subdivision of this state, including any school district).

Section 101.021 provides that:

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. But the Tort Claims Act also provides: “Except as to motor vehicles, this chapter does not apply to a school district or to a junior college district.” Tex.Civ.Prao. & Rem.Code Ann. § 101.051. Thus, a school district is immune from tort liability unless a personal injury arises out of the use or operation of a motor vehicle. The term “use” has been defined to mean “to put or bring into action or service; to employ for or apply to a given purpose.” LeLeaux v. Hamshire-Fannett Independent School District, 835 S.W.2d 49, 51 (Tex.1992). The term “operation” is defined to mean “a doing or performing of a practical work.” Id.

The phrase “arises from” requires a nexus between the injury negligently caused by a governmental employee and the operation or use of a motor-driven vehicle or piece of equipment. LeLeaux, 835 S.W.2d at 51. This requires more than mere involvement of the property. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex.2003). The vehicle’s use or operation must have actually caused the injury. Id. The operation or use of the motor vehicle does not cause injury if it merely furnishes the condition that makes the injury possible. Id.

Diaz readily admits that his suit is based on a school district employee’s negligent parking or placement of the motor vehicle in question. Nevertheless, he contends that parking necessarily constitutes use or operation of a motor vehicle because it is inherent to its use and operation. In support of this argument, he directs us to Employers Mutual Casualty Company v. St. Paul Insurance Company, 154 S.W.3d 910 (Tex.App.-Dallas 2005, no pet.). There, a “crash truck” which carried the crash barrier and flashing arrow board was located at the rear of a road-work convoy. The driver stopped the crash truck near the crest of a hill while waiting for the trucks in front of it to start climbing the next hill. The crash truck was rear-ended while it was stopped but still running. The issue on appeal was whether insurance coverage was excluded by the provision that the policy did not cover bodily injury, property damage, or medical expenses resulting from the use or operation of any auto owned or operated by any protected person. Employers argued that the crash truck was being used as a steel barricade, not as an auto. Id. at 914. The Dallas Court of Appeals held that whether the truck was stopped was not determinative of whether it was being used or operated as an auto. Id. at 915. The crash truck was transporting the driver, the crash barrier, and the flashing arrow board at the time of the accident. The driver was in the truck, the engine was running, and the driver was waiting to drive over the crest of the hill when the accident occurred. Id. The truck was not merely the place where the accident occurred; instead it was the truck’s presence on the roadway and the driver’s decision to stop the truck in the left lane of fast-moving traffic that resulted in the accident. Id. Employers is clearly distinguishable because it did not involve the Tort Claims Act. Further, the undisputed evidence here demonstrates that the motor vehicle was not being operated by anyone at the time of Robert’s injury.

Citing Finnigan v. Blanco County, 670 S.W.2d 31B (Tex.App.-Austin 1984, no writ), Diaz also contends that a motor vehicle can be used or operated even when it is unoccupied. In Finnigan, a deputy sheriff parked his patrol car near the jail’s exercise yard and left the motor running while he went inside. The deputy knew the jail’s only prisoner had access to the exercise yard. The prisoner escaped, got into the ear, and fled the area. The getaway vehicle was then involved in a fatal collision after the officers gave chase. The court of appeals held that the use or operation of a motor-driven vehicle involves the transportation of a person from one place to another and necessarily includes stopping the vehicle and leaving the motor running. Id. at 316. Finnigan is readily distinguishable because the motor vehicle was not running at the time of Robert’s injury.

Diaz next suggests that the negligent placement of the vehicle can constitute use or operation. In Dallas Area Rapid Transit v. Willis, 163 S.W.3d 814 (TexApp.-Dallas 2005, pet. denied), a woman fell as she exited a bus. She filed suit alleging that the bus driver was negligent in failing to properly stop the bus close enough to the curb for her to exit safely. The Dallas Court of Appeals held that the use or operation of a motor vehicle involves the transportation of individuals from one location to another and such transportation necessarily includes the act of stopping the vehicle. Id. at 817. The evidence established that the bus was transporting passengers and the driver was in the bus when the accident occurred. Id. Because the plaintiffs pleadings alleged that the driver took the affirmative action of parking the bus in a way that may have contributed to her accident, the court of appeals found the pleadings sufficient to state a cause of action under the Tort Claims Act. Id. The DART case is factually different because the bus was being operated or used at the moment of the plaintiffs injury and the accident directly arose from that operation or use. Further, the act of the plaintiff exiting the bus is an inherent part of the bus’s function of transporting people from one location to another.

Diaz next contends that there is no requirement that the injury and the negligence be contemporaneous. In Elgin Independent School District v. R.N., 191 S.W.3d 263 (Tex.App.-Austin 2006, no pet.), a five-year-old child was left asleep on a school bus and the bus was locked. The child remained on the bus for several hours. The Austin Court of Appeals held that while the bus driver’s failure to unload the child was a failure of supervision rather than a “use or operation” of the bus, the driver’s action in locking the door constituted a use of the vehicle. Id. at 272. Diaz reasons that if locking a bus is use or operation, then so is parking a vehicle. Elgin can be distinguished because the child was inside the bus and the negligence had a direct impact on her. More importantly, Elgin was a pleadings-only case.

Finally, Diaz maintains that an injury can arise out of the use or operation of a motor vehicle which is stationary, parked, turned off, and unoccupied. He cites Tarrant County v. English, 989 S.W.2d 368 (Tex.App.-Fort Worth 1998, pet. denied) in support of this argument. Tarrant County purportedly spilled diesel fuel while preparing trucks to haul asphalt. The diesel fuel migrated onto the plaintiffs property and he sued for damages. The county argued there was no nexus between the operation of the trucks and the damage to the plaintiffs property because the trucks were not in use when the diesel fuel was applied. The court of appeals disagreed, holding that the trucks were in use because they were being prepared to transport and release asphalt onto county roads. Id. at 375-76. Here, CISD’s vehicle was not being prepared for use or operation.

We turn now to the authorities cited by CISD. In LeLeaux v. Hamshire-Fannett Independent School District, 835 S.W.2d 49 (Tex.1992), a student who had traveled to a band contest in a school bus entered the parked and empty school bus through the rear emergency door. She stood up in the doorway and struck her head on the door frame. Emphasizing that the bus was parked and not in operation, the Supreme Court held that the student’s injury did not arise out of the operation or use of the school bus. Id. at 52. The bus was nothing more than the place where the student happened to injure herself. Id. at 51.

In Texas Department of Public Safety v. Grisham, 232 S.W.3d 822 (Tex.App.-Houston [14th Dist.] 2007, no pet.), the plaintiff was traveling in the right lane of a road when he approached the scene of an accident. A vehicle involved in the accident was partially obstructing the left lane and a DPS cruiser was parked on the right shoulder of the roadway with its emergency lights activated. The plaintiff changed into the left lane and struck the disabled vehicle. The Fourteenth Court of Appeals held that sovereign immunity was not waived because the DPS cruiser did not actually cause the plaintiffs injury; it merely furnished the condition that made the plaintiffs injury possible. Id. at 827.

In City of Kemah v. Vela, 149 S.W.3d 199 (Tex.App.-Houston [14th Dist.] 2004, pet. denied), a police officer made a traffic stop and parked behind the plaintiffs car in a left-turn lane. The officer placed the plaintiff in the back seat of the patrol car. A second police officer parked his patrol car behind the first and activated his emergency lights. A truck subsequently drove into the back of the second patrol car which in turn struck the first patrol car injuring the plaintiff. The plaintiff alleged that his injuries arose from the negligent parking of the patrol cars in the turning lane. The Fourteenth Court of Appeals determined that the plaintiffs injuries did not arise from the use or operation of the patrol cars and that the parking of the patrol cars merely furnished the condition that made the injuries possible. Id. at 204-05.

We recognize that these authorities are inherently fact specific and often courts must fit square pegs into round holes. But the undisputed evidence submitted by CISD established that the motor vehicle was parked and the engine was disengaged. It was in no way being used when Robert ran into it and tragically injured his eye. We conclude that it was not being used or operated within the meaning of those terms under the Texas Tort Claims Act. See LeLeaux, 835 S.W.2d at 51 (defining use and operation). The vehicle only furnished the condition that made the injury possible. See Texas Department of Public Safety v. Grisham, 232 S.W.3d at 827; City of Kemah v. Vela, 149 S.W.3d at 204-05. We overrule Issues Two and Three and affirm the judgment of the trial court below.


text:
    ASHLEY FURNITURE INDUSTRIES INC., by and through RBLS INC., d/b/a Ashley Furniture Homestores, Appellant, v. The LAW OFFICE OF DAVID PIERCE, Appellee.
    No. 08-08-00045-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 3, 2010.

      Michele Locke, Michele Locke, P.C., El Paso, TX, for Appellant.
    Ryan Little, The Law Office of David Pierce, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Ashley Furniture Industries Inc., by and through RBLS Inc., d/b/a Ashley Furniture Homestores, appeals from an order dismissing its appeal from justice court for failure to file a proper appeal bond. For the reasons that follow, we affirm.

FACTUAL SUMMARY

According to the pleadings filed in the justice court, the Law Office of David Pierce purchased a conference room table from Ashley in 2005. Less than a year later, Pierce noticed that the table had begun to crack and deteriorate. Ashley replaced the table, but the new table also began to crack. Pierce contacted Ashley again, but Ashley refused to cure or replace the defective table.

Pierce filed a statement of claim in the justice court alleging breach of contract and breach of warranty claims against Ashley. On November 5, 2007, the justice of the peace rendered judgment in favor of Pierce, awarding damages in the amount of $1,462.92, together with reasonable attorney’s fees of $750, and court costs in the amount of $72, for a total judgment of $2,285.92. On November 9, Ashley filed a notice of appeal in the county court at law and contemporaneously filed an appeal bond in the amount of $2,285.92. The justice court approved the bond on November 15.

On November 19, Pierce filed a motion to dismiss, contending that Ashley failed to perfect its appeal because it did not post a sufficient bond within ten days from the date the judgment was signed. Pursuant to the Rules of Civil Procedure, the requisite bond should have been twice the amount of the original judgment— $4,571.84. See Tex.R.Civ.P. 571. Pierce served Ashley with its motion by facsimile the same day. Ashley responded that the county court had jurisdiction to entertain the appeal because the justice of the peace had approved the bond. The trial court granted Pierce’s motion and this appeal follows.

DEFECT IN THE APPEAL BOND

In its sole issue for review, Ashley contends the trial court abused its discretion by dismissing the appeal without allowing it time to correct or amend the bond. Pierce responds that the appeal should be dismissed because the issue is inadequately briefed. Alternatively, Pierce maintains that the trial court properly dismissed the appeal because Ashley failed to file an amended bond within the time parameters set forth in Rule 571.

Waiver of Appellate Review

We first consider Pierce’s argument that the appeal should be dismissed because Ashley waived error when it failed to cite to any relevant portion of the record to support its complaints. An appellant’s brief must contain a clear and concise argument for the contention made, with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1(h); see Torres v. GSC Enterprises, Inc., 242 S.W.3d 553, 559 (Tex.App.-El Paso 2007, no pet.)(brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to the record); City of Midland v. Sullivan, 33 S.W.3d 1, 10 n. 6 (Tex.App.-El Paso 2000, pet. dism’d w.o.j.)(appellant failed to brief complaint and thus waived appellate review). An appellant waives error when it does not provide appropriate citations to authorities or to the record. In re 248 S.W.3d 753, 760 (Tex.App.-Fort Worth 2008, no pet.); Torres, 242 S.W.3d at 559. We construe the Rules of Appellate Procedure liberally, but an appellate court has no duty to search the record without sufficient guidance from an appellant to determine whether an assertion of reversible error is valid. In re M.J.G., 248 S.W.3d at 760; Dallas Independent School District v. Finían, 27 S.W.3d 220, 237 (Tex.App.-Dallas 2000, pet. denied). An appellate court has discretion to find an issue is waived due to inadequate briefing. Fredonia State Bank v. General American Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994).

Ashley’s brief provides only one reference to the clerk’s record and it is contained in a: “See Generally Court Clerk’s Record previously filed with the Court of Appeals.” Although Ashley cites various exhibits which are attached to its brief and appendix, these are not a part of the official appellate record and cannot be considered. Fox v. Wardy, 234 S.W.3d 30, 33 (Tex.App.-El Paso 2007, pet. dism.); see Tex.R.App.P. 34.1. Although Ashley has waived the sole issue for review, we will exercise our discretion to review the merits because the clerk’s record is relatively short.

Dismissal of Appeal

Ashley first contends that the trial court abused its discretion by granting Pierce’s motion to dismiss based on a deficient bond without allowing Ashley time to amend. Secondly, it complains that the trial court never pronounced the bond defective so as to trigger the five-day amendment period under Rule 571.

Standard of Review

We first disagree with Ashley that we are to review the trial court’s judgment for an abuse of discretion. To the contrary, we review the dismissal predicated on a deficient appeal bond under a de novo standard. See Watkins v. Debusk, 286 S.W.3d 58 (Tex.App.-El Paso 2009, no pet.); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). The existence of a trial court’s jurisdiction is a question of law. Watkins, 286 S.W.3d at 60. The sufficiency of the notice to invoke the five-day correction period is also a question of law which we review de novo. Id. at 62.

Applicable Law

To perfect an appeal from justice court to county court, an appellant must: (1) file an appeal bond as required by Rule 571 or file an affidavit of inability to pay under Rule 572; and (2) pay to the county clerk, within twenty days after being notified by the county clerk to do so, the costs on appeal as required by Rule 143a. Tex. R.Crv.P. 571; Watkins, 286 S.W.3d at 60, citing Almahrabi v. Booe, 868 S.W.2d 8,10 (Tex.App.-El Paso 1993, no writ). Rule 573 provides that an appeal is perfected when the bond has been filed and all requirements of Rule 571 have been satisfied. Tex.R.Civ.P. 573. To comply with Rule 571, an appellant must file an appeal bond with the justice of the peace in an amount equal to twice the amount of the judgment within ten days from the date the judgment is signed. Tex.R.Civ.P. 571.

If an appeal contains defects or irregularities in procedure, either of form or substance, the appeal shall not be dismissed without allowing an appellant five days after notice within which to correct or amend the defective appeal. Tex.R.Civ.P. 571. Rule 571 does not provide for any specific type of notice. Watkins, 286 S.W.3d at 62, citing Heldt v. 12811 El Sendero Trust # 04.15022, No. 04-04-00615-CV, 2005 WL 1458234 at *1 (Tex. App.-San Antonio June 22, 2005, pet. denied) (mem. op. not designated for publication). The notice must conform to due process which is met if the notice prescribed affords the party a fair opportunity to appear and defend its interests. Watkins, 286 S.W.3d at 62; In re A.Y., 16 S.W.3d 387, 388 (Tex.App.-El Paso 2000, no pet.). Compliance with each requirement of Rule 571 is jurisdictional. See Almahrabi, 868 S.W.2d at 10. If one of the prerequisites is not met, and the defect is not corrected within five days of notice, the county court lacks jurisdiction to hear the appeal and it must be dismissed. See Williams v. Schneiber, 148 S.W.3d 581, 583 (Tex.App.-Fort Worth 2004, no pet.).

Analysis

Ashley first argues that it properly perfected appeal. While it filed a bond with the justice of the peace within ten days from the date the judgement was signed, it failed to post bond in the correct amount. Regardless of whether the justice of the peace approved the bond, Ashley was required to meet all of the requirements of Rule 571. Tex.R.Civ.P. 571, 573. Because it failed to do so, the appeal was not perfected.

Alternatively, Ashley contends that because the trial court never pronounced that the bond was defective, the five-day correction period was never triggered. But Rule 571 does not require the trial court to pronounce that the bond was defective. See Tex.R.Civ.P. 571. Although the rule requires notice, it does not provide for any specific type of notice. See Tex.R.Civ.P. 571; Watkins, 286 S.W.3d at 62, citing In re A.Y., 16 S.W.3d at 388.

Two cases provide guidance in deciding the issue before us. In Heldt, Sendero Trust filed a complaint for forcible detain-er against Heldt. The justice court granted summary judgment in favor of the Trust in the amount of $3,300 plus $1,000 in attorney’s fees. When Heldt appealed to the county court, he filed an appeal bond in the amount of $4,300. The Trust filed a motion to dismiss, claiming that Heldt’s bond was insufficient because (1) it was not made payable to Sendero Trust; and (2) it was in an amount less than the statutory amount required. The docket sheet in the clerk’s record contained a notation that the motion was heard and that the trial court gave Heldt five days in which to post bond in the amount of $10,000. No formal written order was entered. The Trust filed a second motion to dismiss based on Heldt’s failure to file another bond and the trial court dismissed the appeal with prejudice. The appellate court affirmed, holding that Heldt received notice that his bond was insufficient when the Trust filed the first motion to dismiss. Heldt, 2005 WL 1458234 at *1. He also received notice when the trial court orally ordered him to post another bond, and yet again when the second motion to dismiss was filed. Id.

We addressed a similar issue in Watkins. Watkins filed a petition in justice court alleging damages resulting from a vehicular accident involving Debusk. Watkins, 286 S.W.3d at 59. Following a bench trial, the justice court entered a take-nothing judgment against Watkins on April' 17, 2007. Id. Watkins filed a notice of appeal in the justice court on April 25, but did not file an appeal bond. Watkins, 286 S.W.3d at 59. On May 7, Debusk’s attorney faxed a letter to Watkins’ counsel regarding certain discovery matters and also stated: “[Pjlease send me a copy of the appeal bond that was filed and approved by the Justice Court. I have not received notice that any such bond was filed.” Id. On June 20, Debusk filed a plea to the jurisdiction alleging that no appeal bond had been filed. Id. On June 25, Watkins obtained an appeal bond of $0 which was approved by the justice court. Id. Despite the filing of the bond, the county court granted Debusk’s plea to the jurisdiction and dismissed the appeal for want of jurisdiction. Id. The trial court found that Watkins received the letter on May 7, and that this communication constituted sufficient notice of procedural defects. Id. We found the fax to be insufficient because the letter did not say that no appeal bond had been filed, nor did it indicate that Watkins had not complied with Rule 571. Id. at 62. We concluded that Watkins had complied with Rule 571 by filing a bond within five days once he was placed on notice by the filing of the plea to the jurisdiction. Id.

In both of these cases, the appellant received sufficient notice when the party opposite either filed a motion to dismiss for want of jurisdiction or a plea to the jurisdiction. Watkins, 286 S.W.3d at 62; Heldt, 2005 WL 1458234 at *1. We conclude that Ashley had sufficient notice when Pierce filed and served the motion to dismiss on the precise ground that Ashley had not perfected its appeal pursuant to Rule 571 because it had not posted a bond equal to twice the amount of the original judgment. Ashley had five days from the date of the facsimile transmission to correct or amend the bond. It failed to do so. Thus, the county court lacked jurisdiction of the appeal and properly granted Pierce’s motion to dismiss. Tex.R.Civ.P. 571. We overrule the sole point and affirm the judgment of the trial court below.


author: DIANE M. HENSON, Justice.

text:
    Gilbert FRANCO, Appellant, Guillermo Ochoa Cronfel, Cross-Appellant, v. Guillermo Ochoa CRONFEL, Appellee, Gilbert Franco, Cross-Appellee.
    No. 03-09-00494-CV.
    Court of Appeals of Texas, Austin.
    March 12, 2010.
    Rehearing Overruled May 18, 2010.

      Mike Thompson, Jr., Wright & Green-hill, PC, Austin, TX, for Appellant.
    Kemp W. Gorthey, Austin, TX, for Ap-pellee.
    Before Justices PATTERSON, PURYEAR and HENSON.
   OPINION

DIANE M. HENSON, Justice.

Gilbert Franco posted a review of legal services provided by Guillermo Ochoa-Cronfel on the website www.RipoffReport. com (“Ripoff Report”). Ochoa-Cronfel sued Franco for defamation. See Tex. Civ. Prac. & Rem.Code Ann. § 73.001 (West 2005). Franco filed several motions for summary judgment. The trial court granted Franco’s partial motion asserting that Ochoa-Cronfel was a public official as a matter of law and denied Franco’s no-evidence and traditional motions asserting that Ochoa-Cronfel had failed to raise a fact issue on the element of actual malice. Franco now appeals the trial court’s denial of his no-evidence and traditional motions, arguing in two issues on appeal that (1) Ochoa-Cronfel did not raise a fact issue with regard to the element of actual malice and (2) the trial court should not have considered Ochoa-Cronfel’s affidavit. On cross-appeal, Ochoa-Cronfel challenges the granting of Franco’s partial motion, arguing that the trial court erred in its determination that Ochoa-Cronfel qualified as a public official. We affirm the trial court’s order denying Franco’s no-evidence and traditional motions for summary judgment and dismiss Ochoa-Cronfel’s cross-appeal for want of jurisdiction.

BACKGROUND

Franco filed a creditor-debtor action to recover proceeds from the sale of his printing business. In July 2007, the court hearing the action appointed Ochoa-Cron-fel to serve as receiver, authorizing him to take possession of and sell the non-exempt assets of the defendants to the action. See Tex. Civ. Prac. & Rem.Code § 31.002(b)(3) (West 2008) (appointment of receiver). Ochoa-Cronfel’s appointment was altered in August 2007 to give him additional powers, including authorization to liquidate assets in satisfaction of the judgment and take over the subject business and operate it with a view toward disposing of it as a going concern.

Five months later, in December 2007, Ochoa-Cronfel filed a motion to withdraw as receiver. In February 2008, the trial court entered an agreed order discharging Ochoa-Cronfel as receiver. The agreed order, signed by the attorney representing Franco at the time, states “that all actions taken by the Receiver Guillermo Ochoa-Cronfel during the pendency of the receivership are APPROVED IN ALL RESPECTS.”

On June 23, 2008, roughly four months after Ochoa-Cronfel’s agreed discharge as receiver, Franco published a review of Ochoa-Cronfel on the Ripoff Report website. The review was entitled, “Report: The Cronfel Firm Guillermo Ochoa-Cron-fel” and subtitled “Don’t let this firm be a receiver for your property — More interested in depleting your assets for his own financial gain.” The review, posted under Franco’s first name, “Gilbert,” read:

This attorney was assigned to be a receiver for some assets that I needed to recover. He totally screwed up the whole deal. He allowed the defendants in the case to steal money and property. He lied on court documents as far as time he spent on the case. He falsified and mislead [sic] the court with financial statements and other information to the court. He made deflamatory [sic] remarks before the court about me — which were blatent [sic] lies.
He threatened me with extortion to get almost $20,000 from me when the court orders state that the receivers [sic] fees are a taxation against the defendants, not'the plaintiff. He would not liquidate my property to me, unless I paid him money — a direct contriction [sic] to the court order.
He is now trying to extort more money from me or he will use his legal power to cause me more fiancial [sic] harm. This is a bad attorney in its worst form. He personally has cause [sic] me almost $500,000 in damages.

Franco signed the review, “Victim of Extortion and Fraud, Austin, Texas, U.S.A.”

Ochoa-Cronfel discovered the review roughly one month after its posting. He found the review after querying his name in the search-engine Google, after which Franco’s review came up as one of the first results. After being informed that Ochoa-Cronfel had discovered the review, Franco attempted to remove it from Ripoff Report. By Ripoff Report’s terms, however, users cannot remove content they have posted. Franco then modified his review. He added a comment stating, “This is just my opinion and should be treated as so.” He added another comment explaining that he was not an attorney and posted dictionary definitions for “extortion,” “fraud,” and “malfeasance.” He also changed the name on the review, from “Gilbert” to “Anonymous.”

Several days after altering the review, Franco spoke over the phone with Darrell Gest, Ochoa-Cronfel’s attorney at the time. Before the conversation, Franco prepared a list of talking points, including, “Do you have proof that I am the one that published statements about Cronfel?” His talking points also included the statements, “It appears that anybody can make a report about anybody with much ease. Would you believe everything that was written [on Ripoff Report?]”

During the phone call with Gest, Franco denied posting the review on Ripoff Report. He speculated about who might have written the review, indicating that he had attempted to determine who had posted it but had not received any response to his inquiries.

Ochoa-Cronfel sued Franco for defamation. In the affidavit and deposition testimony submitted during pretrial proceedings, Franco admitted that he had posted the review of Ochoa-Cronfel on Ripoff Report. He explained that he had lied to Gest about the posting so as not to “incriminate” himself. He also stated that he had attempted to remove the posting and altered it because the statements in the review were “not proven facts yet.”

Franco, however, also stated in his affidavit that the statements he made in the review were truthful: “At the time of the posting of the statements, I knew of no statement that was false and I had no serious doubts as to the truth of any statement I made.” In support of this assertion, he detailed deficiencies in Ochoa-Cronfel’s performance that had led him to post the review. Franco stated that Ochoa-Cronfel misled the court by providing inaccurate billing statements and alleging that he had to “chase [Franco] down for money.” Franco also stated that Ochoa-Cronfel improperly sought fees from him personally, when instead all fees should have been paid from the assets of the debtors. In addition, Franco claimed that Ochoa-Cronfel failed to fulfill several of his receivership duties, including safeguarding funds, pursuing insurance claims, and providing monthly reports.

Ochoa-Cronfel disputes each of Franco’s assertions. In his own affidavits, Ochoa-Cronfel contended that he never misled the court, and that the billing statements he provided and the representations he made about Franco were accurate. Ochoa-Cronfel further stated that, as agreed to by Franco, all fees came from recovered assets, and that he never attempted to coerce Franco into personally paying any fees. Finally, Ochoa-Cronfel stated that he had fulfilled all of his duties as receiver through the time of his agreed discharge in February 2008. In support of this contention, he pointed to the agreed order, signed by Franco’s counsel, which reflects that Ochoa-Cronfel’s actions as receiver had been approved in all respects.

Franco filed several summary judgment motions. He filed a partial motion arguing that Ochoa-Cronfel was a public official as a matter of law and consequently must prove actual malice, which the trial court granted. Franco then filed no-evidence and traditional motions arguing that Ochoa-Cronfel had not raised a fact issue regarding actual malice, which the trial court denied. Franco now appeals the trial court’s denial of his no-evidence and traditional motions, while Ochoa-Cronfel cross-appeals on the trial court’s granting of Franco’s partial motion.

STANDARD OF REVIEW

Defamation cases are reviewed under the same summary-judgment standards as other cases even though constitutional considerations are involved. See Casso v. Brand, 776 S.W.2d 551, 556-57 (Tex.1989) (rejecting higher standard used by federal courts in defamation cases). We review a trial court’s decision to grant or deny a motion for summary judgment de novo. See Texas Mun. Power Agency v. Public Util. Comm’n of Tex., 253 S.W.3d 184, 192, 199 (Tex.2007). Evidence favorable to the non-movant will be taken as true, and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

When a party seeks both a traditional and a no-evidence summary judgment, we first review the trial court’s decision regarding summary judgment under the no-evidence standard. See Tex.R. Civ. P. 166a(i). If the non-movant failed to produce more than a scintilla of evidence raising a genuine issue of fact on the challenged elements of his claim, there is no need to analyze whether the movant met his burden on his motion for traditional summary judgment. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004).

A party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the non-movant’s claims on which the non-movant would have the burden of proof at trial. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). If the non-movant then produces more than a scintilla of probative evidence to raise a genuine issue of material fact, a no-evidence summary judgment is improper. Id.; Forbes, Inc. v. Granada Biosci, Inc., 124 S.W.3d 167, 172 (Tex.2003). More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. Forbes, 124 S.W.3d at 172.

Under the traditional summary-judgment standard, the movant has the burden to show that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548. A defendant moving for a traditional summary judgment must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). After a defendant has done so, the burden then shifts to the plaintiff to produce evidence creating a fact issue on the element or defense in order to defeat the summary judgment. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).

DISCUSSION

Jurisdiction over Franco’s Interlocutory Appeal

Generally, the denial of a motion for summary judgment is an interlocutory order not reviewable on appeal. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980); Cox Tex. Newspapers, L.P. v. Wootten, 59 5.W.3d 717, 720 (Tex.App.-Austin 2001, pet. denied). However, “a person whose communication appears in or is published by the electronic or print media” who is sued for defamation may appeal an interlocutory order denying summary judgment. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(6) (West 2008), § 73.001; Cox, 59 S.W.3d at 717. As Franco’s review was published by an electronic media outlet and he was subsequently sued for defamation based on the review, we have jurisdiction to consider his interlocutory appeal of the trial court’s order denying his no-evidence and traditional motions for summary judgment. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(6).

Consideration of Ochoa-Cronfel’s Affidavit

We address Franco’s second issue on appeal, which concerns what evidence the trial court was permitted to consider in entering its order on Franco’s no-evidence and traditional motions, before turning to his first issue, which concerns the court’s order itself. In Franco’s second issue on appeal, he argues that the trial court should not have considered Ochoa-Cron-fel’s July 23, 2009 affidavit in ruling on the summary judgment motion, as the affidavit contained only conclusory statements. See Prime Prods., Inc. v. SSI Plastics, 97 S.W.3d 631, 637 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (“Affidavits supporting or opposing a motion for summary judgment must be factual; conclusions of the affiant are not considered to have any probative value.”). Ochoa-Cronfel’s affidavit, however, contains numerous facts of which Ochoa-Cronfel presumably had personal knowledge, including details of the actions he took as receiver and estimates of losses owing to Franco’s review. Accordingly, Ochoa-Cronfel’s affidavit constitutes competent summary judgment evidence. Franco’s second issue on appeal is overruled.

Summary Judgment on the Element of Actual Malice

We turn to Franco’s first issue on appeal. Franco argues that the trial court should have granted his no-evidence and traditional motions for summary judgment because Ochoa-Cronfel did not raise a fact issue regarding actual malice. To recover for defamation, a public official must prove that the defendant published a false and defamatory statement with actual malice. Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 420 (Tex.2000).

“Actual malice” in the defamation context is a term of art. Id. Unlike common-law malice, it does not include ill will, spite, or evil motive. Id. Rather, to establish actual malice, a plaintiff must prove that the defendant made the statement “with knowledge that it was false or with reckless disregard of whether it was true or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Huekabee, 19 S.W.3d at 420. “Reckless disregard” is also a term of art. Huekabee, 19 S.W.3d at 420. To establish reckless disregard, a public official or public figure must prove that the publisher “entertained serious doubts as to the truth of his publication.” St Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Huckabee, 19 S.W.3d at 420.

No-Evidence Motion for Summary Judgment

Franco first argues that summary judgment should be granted because Ochoa-Cronfel presented no evidence of actual malice. As the actual malice inquiry focuses on the defendant’s state of mind at the time of publication, direct evidence that the defendant knew the statements to be false will rarely be available to the plaintiff. See Bentley v. Bunion, 94 S.W.3d 561, 597 (Tex.2002) (noting that plaintiff need not produce “smoking gun” proving knowledge of falsity). Instead, a plaintiff may — and often must — use circumstantial evidence to show that the defendant acted with reckless disregard and “entertained serious doubts as to the truth of his publication.” See id. at 591; see also St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968).

Circumstantial evidence showing reckless disregard may derive from the “defendant’s words or acts before, at, or after the time of the communication.” Clark v. Jenkins, 248 S.W.3d 418, 435 (Tex.App.-Amarillo 2008, no pet.). In this case, Ochoa-Cronfel presented evidence that Franco attempted to remove the review after its discovery. When he was unable to do so, Franco added disclaimers that the review reflected only his opinions, admitting during his deposition that his statements did not constitute “proven facts.” Franco also lied about having made the posting to Gest, Ochoa-Cronfel’s then-attorney, indicating that he did not want to “incriminate” himself. These actions and statements following the discovery of the review support the contention that Franco “entertained serious doubts about the truth of his publication,” and consequently acted with actual malice.

In addition, selectively omitting facts in order to create a false impression may constitute evidence of actual malice. Huckabee, 19 S.W.3d at 425-26; Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 578 (Tex.App.-Austin 2007, pet. denied). Franco’s review, while it claims that Ochoa-Cronfel “screwed up the whole deal,” omits the fact that the trial court approved all of the actions taken by Ochoa-Cronfel in his capacity as receiver, in an order agreed to by Franco’s counsel at the time. Accordingly, the evidence suggests that Franco omitted facts to create a false impression.

This evidence constitutes more than a scintilla that Franco acted with actual malice in making the posting, thereby rendering no-evidence summary judgment inappropriate. Accordingly, we turn from Franco’s no-evidence motion to his traditional motion.

Traditional Motion for Summary Judgment

In his traditional motion, Franco argues that Ochoa-Cronfel failed to raise a fact issue on the element of actual malice. A defendant in a defamation action seeking to negate the element of actual malice must present evidence that he or she did not publish the statement with knowledge of its falsity or reckless disregard for its truth. Huckabee, 19 S.W.3d at 420. Once the defendant has produced evidence negating actual malice as a matter of law, the burden shifts to the plaintiff to present controverting proof raising a genuine issue of material fact. See Tex.R. Civ. P. 166a(c); Huckabee, 19 S.W.3d at 420.

In attempting to negate the element of actual malice and shift the burden to Ochoa-Cronfel, Franco relies on his affidavit and deposition testimony. While the affidavit or deposition of the defendant in a defamation case may be used to negate actual malice, the affidavit or deposition must comply with the rules of civil procedure governing evidence from interested witnesses. See Casso, 776 S.W.2d at 558-59. Under the rules of civil procedure, an affidavit from an interested witness will only support a motion for summary judgment if it is (1) clear, positive, and direct; (2) otherwise credible and free from contradictions and inconsistencies; and (3) susceptible of being readily controverted. Tex.R. Civ. P. 166a(c); Huckabee, 19 S.W.3d at 424.

Franco argues that his affidavit and deposition meet the requirements of rule 166a(c) as they are “clear, positive, and direct.” However, according to the rule, the evidence must also be “credible and free from contradictions and inconsistencies.” Id. When there is “evidence tending to discredit or impeach” depositions or affidavits, the testimony “cannot be considered as doing more than raising an issue of fact.” Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

In this case, the assertions in Franco’s affidavit that he “knew of no statement that was false” and “had no serious doubts as to the truth of any statement I made” are undermined by evidence in the record. Specifically, evidence showing that Franco attempted to remove the posting, amended the posting, and lied about having made the posting discredits his affidavit.

Franco’s deposition faces similar problems. Not only is Franco’s deposition testimony undermined by the same evidence that undermines his affidavit, but Franco’s deposition also contains statements that, on their own, discredit his testimony. As noted above, Franco states in his deposition that he lied about having made the posting so as not to “incriminate” himself. Franco also admits that the statements he made about Ochoa-Cronfel were not “proven facts,” a concession that evinces doubt about the veracity of the statements.

As the record contains evidence to impeach or discredit Franco’s testimony, we conclude that his affidavit and deposition fail to meet the requirements of the rules of civil procedure regarding interested-witness testimony. See Tex.R. Civ. P. 166a(c). Accordingly, as Franco’s summary-judgment evidence does not negate any element of Ochoa-Cronfel’s defamation claim, the burden does not shift to Ochoa-Cronfel to demonstrate that a fact issue exists.

We note that even if the burden shifted to Ochoa-Cronfel to controvert Franco’s affidavit and deposition testimony, the same evidence that undermines the credibility of Franco’s testimony also provides adequate controverting proof of Franco’s assertions. Specifically, the facts that Franco attempted to remove the posting, revised the posting, and lied about having made the posting provides circumstantial evidence of actual malice. See Clark, 248 S.W.3d at 435 (explaining that “defendant’s words or acts before, at, or after the time of the communication” may prove actual malice). This evidence is sufficient to controvert Franco’s affidavit and deposition testimony and to raise a fact issue regarding whether Franco had “significant doubt about the truth of his statements at the time they [were] made.” Bentley, 94 S.W.3d at 596.

Our analysis leads us to conclude that summary judgment is improper on the element of actual malice. Franco’s first issue on appeal is overruled.

Attorney’s Fees

Under the civil practice and remedies code, “[i]n the case of an appeal brought pursuant to Section 51.014(6), if the order appealed from is affirmed, the court of appeals shall order the appellant to pay all costs and reasonable attorney fees of the appeal.” Tex. Civ. Prac. & Rem.Code § 51.015 (West 2008); Gaylord Broad. Co. v. Francis, 7 S.W.3d 279, 286 (Tex.App.-Dallas 1999, pet. denied). As we overrule both of Franco’s issues on appeal and thereby affirm the order of the trial court, we order Franco to pay all costs and reasonable attorney’s fees of the appeal in an amount to be determined by the trial court.

Jurisdiction over Ochoa-Cronfel’s Cross-Appeal

Ochoa-Cronfel’s cross-appeal challenges the trial court’s order granting Franco’s motion for partial summary judgment and determining that Ochoa-Cronfel qualified as a public official. Franco filed a motion to dismiss Ochoa-Cronfel’s cross-appeal for want of jurisdiction.

The civil practice and remedies code authorizes an interlocutory appeal of the denial of a media defendant’s motion for summary judgment. See Tex. Civ. Prac. & RermCode Ann. § 51.014(a)(6). Texas courts have consistently recognized, however, that the statute does not permit the plaintiff to bring a similar interlocutory appeal, nor does it confer jurisdiction over cross-points raised on appeal by the plaintiff. See TSM AM-FM TV v. Meca Homes, Inc., 969 S.W.2d 448, 451 (Tex.App.-El Paso 1998, pet. denied) (holding that appellate court lacked jurisdiction to consider plaintiff’s cross-point challenging denial of plaintiffs summary-judgment motion); see also Rogers v. Cassidy, 946 S.W.2d 439, 443 (Tex.App.-Corpus Christi 1997, no writ) (holding that court cannot address plaintiffs summary judgment motion on interlocutory appeal even when addressing defendant’s competing motion). Under the language of the code and the cases interpreting it, we do not have jurisdiction to consider Ochoa-Cronfel’s cross-point.

Ochoa-Cronfel argues that this Court may consider its cross-point “in the interest of judicial economy.” See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex.1996); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 428-29 (Tex.App.Waco 1997, writ denied) (applying Cincinnati Life to interlocutory appeal taken under section 51.014(6)). Cincinnati Life and Delta instruct that when an appellate court has jurisdiction to consider any issue raised in a summary judgment order, “the appellate court should consider all summary judgment grounds the trial court rules on and the movant preserves for appellate review that are necessary for final disposition of the appeal.” Cincinnati Life, 927 S.W.2d at 627. In addition, “the appellate court may consider other grounds that the movant preserved for appellate review and [the] trial court did not rule on in the interest of judicial economy.” Id.

These cases are inapposite to Ochoa-Cronfel’s cross-appeal. Cincinnati Life and Delta delineate which issues the appellate court may address when it has the jurisdiction to address at least one of the issues raised in the trial court’s order on the movant’s summary judgment motion. See Cincinnati Life, 927 S.W.2d at 627; Delta, 949 S.W.2d at 428-29. These cases do not, however, extend the appellate court’s reach to enable it to address separate summary judgment orders over which the court does not otherwise have jurisdiction. As we have no jurisdiction to consider any issues in the order disposing of Ochoa-Cronfel’s summary judgment motion, Cincinnati Life and Delta do not apply.

Accordingly, we grant Franco’s motion to dismiss Ochoa-Cronfel’s cross-appeal for want of jurisdiction.

CONCLUSION

Because we find no reversible error, we affirm the judgment of the trial court denying Franco’s no-evidence and traditional motions for summary judgment and order Franco to pay all costs and reasonable attorney’s fees of the appeal in an amount to be determined by the trial court. We further dismiss Ochoa-Cronfel’s cross-appeal for want of jurisdiction.

      . The facts recited herein are from the evidence presented by the parties in their motions for summary judgment.

      . Franco does not dispute that he made the posting.

      . According to a computer screen-shot provided by Ochoa-Cronfel, Franco's posting is the third result listed following a search for "guillermo ochoa cronfel” on Google.

      .The Terms of Service for Ripoff Report, as posted on the website, read, "By posting information on [Ripoff Report], you understand and agree that the material will not be removed even at your request. You shall remain solely responsible for the content of your postings on [Ripoff Report].” Accordingly, Franco’s review has been listed on Ripoff Report since Franco originally posted it on June 23, 2008.

      . In his phone conversation with Gest, Franco indicated that he planned to file a complaint about Ochoa-Cronfel with the State Bar of Texas. Franco, however, did not file a complaint, and admitted in his deposition that he no longer has any plans to do so.

      . The parties do not challenge our jurisdiction over Franco’s interlocutory appeal.

      . We note that two affidavits by Ochoa-Cron-fel are included in the record, one dated June 30, 2009, and the other dated July 23, 2009. Franco describes the affidavit in issue as “responding to each paragraph of Mr. Franco's affidavit,” a description that comports with the July 23rd affidavit.

      . As our analysis below demonstrates, Ochoa-Cronfel's affidavit is not necessary to controvert Franco’s summary-judgment evidence due to the presence of other controverting evidence in the record.

      .As noted above, Ochoa-Cronfel's cross-appeal seeks to challenge the trial court’s determination that he qualified as a public official when he held the position of court-appointed receiver. As we conclude infra that we do not have jurisdiction over Ochoa-Cronfel's cross-appeal, we do not address the issue here, and assume for purposes of this analysis that Ochoa-Cronfel must meet the increased burden given to public-official plaintiffs in defamation actions. See Bentley v. Bunton, 94 S.W.3d 561, 590 (Tex.2002) (explaining that defamation plaintiff who is public official must prove additional element of actual malice). Our analysis, however, should not be read as a commentary on whether the trial court properly determined that Ochoa-Cron-fel qualified as a public official, nor should it be deemed to preclude any challenge of the issue on direct appeal.

      . While Ochoa-Cronfel did not specifically request attorney’s fees, we note that the terms of the statute are "mandatory.” Gaylord Broad. Co. v. Francis, 7 S.W.3d 279, 286 (Tex.App.-Dallas 1999, pet. denied); see also Tex. Civ. Prac. & Rem.Code Ann. § 51.015 (West 2008).

      . In addition to granting Franco’s motion to dismiss Ochoa-Cronfel's cross-appeal, we also grant Franco’s motion for leave to file a supplemental post-submission letter brief, filed January 29, 2010.