author: Justice FILLMORE.

text:
    CHRISTIAN CARE CENTERS, INC., Appellant, v. Jane GOLENKO, Jean Miller, and Judy Miller, Individually and on Behalf of The Estate of Nell Connally, Deceased, Appellees.
    No. 05-09-01521-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 4, 2010.
    Rehearing Overruled Jan. 6, 2011.

      Delta Sue Best, Allison L. Spruill, Best & Spruill, P.C., Austin, TX, Appellant.
    Michael Tate Barkley, Sugar Land, TX, Susan Cassidy Cooley, Schell, Mitchell & Cooley LLP, Addison, TX, Roger Arash Farahmand, Farahmand Law Firm, P.C., Dallas, TX, R. Alan York, Goodwin Pappas Langley Ronquillo, LLP, Houston, TX, for Appellees.
    Before Justices FITZGERALD, MURPHY, and FILLMORE.
   OPINION

Opinion By

Justice FILLMORE.

This interlocutory appeal follows the trial court’s refusal to dismiss the health care liability claims of appellees Jane Golenko, Jean Miller, and Judy Miller, Individually and on behalf of the Estate of Nell Connally, against Christian Care Centers, Inc. Christian Care complains the trial court erred by denying its motion to dismiss because appellees’ experts are not qualified to render opinions contained in their reports and the reports do not constitute good faith efforts to comply with chapter 74 of the civil practice and remedies code. We affirm the trial court’s order.

Background

Jay Haberman suffered from early-onset Alzheimer’s disease. After having a seizure at home, Haberman was admitted to Centennial Medical Center. While he was hospitalized, Haberman allegedly exhibited aggressive and combative behavior that required restraints and supervision by a personal attendant. Haberman was subsequently transferred to Christian Care’s Alzheimer’s Unit. Haberman allegedly continued to exhibit aggressive behavior at Christian Care. Appellees assert that the day following his admission to Christian Care, Haberman was unsupervised in the dining room of the facility. Nell Connally, a resident of Christian Care, was also in the dining room using her “merry walker,” which is a walker that includes a seat for the user. Haberman allegedly grabbed the walker and turned it over, causing Connally to hit her head on the floor. Connally later died from a subdural hema-toma caused by the fall.

Appellees brought a wrongful death action against Haberman. In their second amended petition, appellees also asserted health care liability claims against Christian Care. Appellees alleged Christian Care was negligent in its care of Connally by failing to properly evaluate Haberman prior to admitting him to Christian Care, failing to manage, restrain, and evaluate Haberman following his admission, and failing to protect Connally from Haber-man. Appellees timely served Christian Care with expert reports by Dr. Lige Rushing, a physician who is board certified in internal medicine, rheumatology, and geriatrics, Suzanne Frederick, a registered nurse, and Sid Gerber, a licensed nursing home administrator.

Christian Care objected to the expert reports and moved to dismiss appellees’ claims on the grounds that appellees’ experts are not qualified to render opinions concerning the applicable standard of care and causation and the expert reports do not constitute good faith efforts to meet the requirements of section 74.351 of the civil practice and remedies code. The trial court denied the motion to dismiss, and Christian Care brought this interlocutory appeal.

Standard of Review

We review a trial court’s order on a motion to dismiss a health care liability claim for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam). A trial court abuses its discretion when it clearly fails to analyze and determine the law correctly or applies the law incorrectly to the facts. Petty v. Churner, 310 S.W.3d 131, 134 (Tex.App.-Dallas 2010, no pet.)

Analysis

Within 120 days of filing a health care liability claim, a plaintiff must serve an expert report with the expert’s curriculum vitae on each defendant against whom a liability claim is asserted. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (West Supp. 2010). An “expert report” is a:

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

Id. § 74.351(r)(6). The trial court is required to grant a motion challenging the adequacy of a report only if the report does not constitute an objective good faith effort to comply with the statutory requirements. Id. § 74.351(b)(2), (l). In determining a report’s sufficiency, the court may not look beyond the report itself because all information relevant to the inquiry should be contained with the document’s four corners. Palacios, 46 S.W.3d at 878.

Standard of Care

Christian Care first argues that appel-lees’ experts are not qualified to render an opinion as to the standard of care applicable to Christian Care. An expert is qualified to render an opinion regarding whether a health care provider departed from the accepted standards of care if the expert:

(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

Tex. Civ. Prac. & Rem.Code Ann. § 74.402(b) (West 2005). To assist the court in making a determination as to whether the expert is qualified on the basis of training or experience, the trial court must consider whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is certified by a licensing agency or a professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and (2) is actively practicing health care in rendering health care services relevant to the claim. Id. § 74.402(c).

Dr. Rushing

Christian Care contends Dr. Rushing is not qualified to testify about the applicable standard of care because he is not actively practicing health care in an area relevant to the claim. Christian Care asserts that, although Dr. Rushing is board certified in internal medicine and geriatrics, he does not have the “nursing home experience” to testify as to the standard of care applicable to nurses and nurses aides employed in nursing facilities. Finally, Christian Care contends Dr. Rushing has never worked for a nursing home screening patients for admission to a certified Alzheimer’s unit and, therefore, is not qualified to opine about Christian Care’s decision to admit Haberman.

Christian Care asserts we should consider deposition testimony given by Dr. Rushing in another case to “disqualify” him from opining about issues relating to nursing care in a certified Alzheimer’s unit. We question whether a defendant can rely on evidence not contained within the expert’s reports to attack the expert’s qualifications. See Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (declining to consider excerpts from expert’s deposition in other cases, affidavit of another doctor, and standards promulgated by Infectious Diseases Society of America because “analysis of the qualifications of an expert under section 74.351 is limited to the four corners of the expert’s report and curriculum vitae”); In re Windisch, 138 S.W.3d 507, 511 (Tex.App.-Amarillo 2004, orig. proceeding) (declining to consider expert’s testimony given at hearing on motion to dismiss because determination of expert’s “qualifications to provide an expert report must be made on the basis of the contents of the report and curriculum vitae”); see also Mosely v. Mundine, 249 S.W.3d 775, 779 (Tex.App.Dallas 2008, no pet.) (analysis of expert’s qualifications limited to expert’s report and curriculum vitae). However, we need not reach the issue because the testimony relied upon by Christian Care, while attached to its brief, is not in the record. We cannot consider documents attached to a brief “if they are not formally included in the record on appeal.” Cantu v. Horany, 195 S.W.3d 867, 870 (Tex.App.-Dallas 2006, no pet.).

We, therefore, turn to whether Dr. Rushing’s report and curriculum vitae demonstrate he is qualified to opine about the applicable standard of care. Dr. Rushing is licensed to practice medicine in Texas and is board certified in internal medicine, rheumatology, and geriatrics. He is actively engaged in the practice of these three specialties and is an attending physician at Presbyterian Hospital in Dallas. He has “served as a primary care physician for more than 10,000 patients in hospitals, nursing homes, assisted living facilities, and patients who had Alzheimer’s disease.” He regularly engages in the diagnosis and treatment of patients with Alzheimer’s disease. He has had patients with violent behavior similar to Haber-man’s behavior who represented a threat to others as well as themselves and patients who required geriatric psychiatric care. He has “worked closely with and written orders for, and supervised the execution of these orders for the care and treatment of [his] patients and supervised the nurses (registered nurses, licensed vocational nurses, and [certified nursing assistants] ), who have been assigned to provide nursing care, including assessment for transfer and admission assessments for [his] patients under similar circumstances” as Haberman. As a result, he is “intimately familiar with the specific standards of care that are required of the facilities and caregivers and the physicians who provide care and treatment for patients” such as Haberman.

According to Dr. Rushing, the standard of care required Christian Care and its staff to “properly assess Mr. Haberman’s needs prior to his admission to be certain that they indeed could meet his needs.” Dr. Rushing specifically questions Christian Care’s “failure to properly assess Mr. Haberman prior to accepting him for transfer” and opines that if “a proper assessment had been done, it would have been obvious that the Christian Care Center could not meet Mr. Haberman’s needs i.e. one-on-one supervision, restraints, and intensive psychiatric care and treatment that Mr. Haberman required.” Further, after Haberman’s transfer, the nursing staff had the opportunity to review Haber-man’s medical records and assess his condition. Dr. Rushing questions the nursing staffs’ failure to provide one-on-one supervision of Haberman, including the failure to adequately supervise Haberman in the dining room at the time he turned over Connally’s walker, and failure to report Haberman’s clinical status and behavior to the director of nurses or the administrator of the facility.

Not every licensed doctor is automatically qualified to testify on every medical question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996). However, “expert qualifications should not be too narrowly drawn.” Larson v. Downing, 197 S.W.3d 303, 305 (Tex.2006) (per cu-riam). Rather, the trial court should determine whether the proffered expert has “knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.” Broders, 924 S.W.2d at 153-54; see Chester v. El-Ashram, 228 S.W.3d 909, 912 (Tex.App.-Dallas 2007, no pet.). The focus is on whether the expert’s expertise goes to the very matter on which he is to give an opinion. Broders, 924 S.W.2d at 153.

The essential claim in this case involves the standard of care applicable to the assessment and care of individuals with Alzheimer’s disease. Thus, the relevant question is not the narrow issue of whether Dr. Rushing has worked in a nursing home or served on a committee evaluating potential patients for admission to a nursing home. Rather, it is the broader issue of whether Christian Care and its staff should have recognized Haberman’s condition was such that Christian Care could not provide the care Haberman needed or could not protect its other residents from Haberman. Dr. Rushing’s report and curriculum vitae show he is certified in geriatrics and internal medicine. He has treated patients with conditions similar to Haberman’s condition and has been involved in the assessment of these patients for transfer and admission to various facilities. He has also supervised nurses in the care and assessment of his patients. The trial court did not abuse it discretion by finding Dr. Rushing is qualified to testify about the standard of care applicable to assessing a patient with a condition similar to Haberman’s for admission into a particular facility and the needs of the patient once admitted. See Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552, 558 (Tex.App.-Dallas 2009, no pet.) (physician who stated he was familiar with standard of care for nurses and for prevention and treatment of injury involved in claim qualified to opine about standard of care for nurses); IHS Acquisition No. 140 Inc. v. Travis, No. 13-07-00481-CV, 2008 WL 1822780, at *5 (Tex. App.-Corpus Christi 2008, pet. denied) (mem. op.) (doctor specializing in geriatrics qualified to opine about standard of care applicable to nursing home).

Suzanne Frederick

Christian Care next argues Frederick is not qualified to testify about the applicable standard of care because she has never been a full-time employee of a nursing home, never held a job that entailed admitting patients into a nursing home, and does not actively practice health care in a nursing home. Frederick is a board certified gerontological nurse and a certified wound care nurse. She has a master of science degree in nursing administration. She teaches nursing students at McLennan Community College and educates nursing students in nursing home and hospital settings, including caring for Alzheimer’s patients, administering medication, transcribing orders, supervising residents, and notifying physicians of residents’ behaviors. From 2003 through 2005, she taught a nursing administration class at the University of Texas at Arlington. She has worked as a nursing supervisor and a staff nurse at a hospital and served as the Subacute Program Director/Staff RN at a nursing home for seven years.

Frederick opined on the standard of care applicable to Christian Care for the admission of Haberman to Christian Care and the care of Haberman by the Christian Care nursing staff following his admission. Because Dr. Rushing and Gerber are qualified to opine about the standard of care applicable to Christian Care in deciding to admit Haberman into the facility, we need not decide whether Frederick was also qualified to do so. See Tex.R.App. P. 47.1. Turning to the nursing staff, Frederick opined that the standard of care required the nurses at Christian Care to accurately transcribe Haberman’s medications onto the physician’s orders, have a verification system to ensure the accuracy of the orders and the medication administration record, administer only the medications prescribed by the physician, contact the physician to verify the orders as written on the medication profile report, notify the physician of Haberman’s behavior, and adequately assess and supervise Haberman.

Issues relating to administering medication, assessing a patient’s condition, and contacting a physician about a patient’s medication and condition are not unique to the care of residents in a nursing home. Frederick’s curriculum vitae demonstrates she has worked as a nurse and nursing supervisor and educated students about caring for Alzheimer’s patients, administering medication, transcribing orders, supervising residents, and notifying physicians of resident behaviors. We conclude the trial court did not abuse its discretion in finding Frederick was qualified to testify about the standard of care applicable to the nursing staff at Christian Care.

Sidney Gerber

Christian Care contends Gerber, a licensed nursing home administrator, is not qualified to opine about the standard of care applicable to Christian Care because he is not a licensed health care provider and does not practice health care in an area relevant to appellees’ claims. In determining whether an expert is qualified on the basis of training and experience to render an opinion about the standard of care, a trial court must consider whether, at the time the claim arose or at the time the expert gave his opinion, that person (1) is certified by a licensing agency or a professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and (2) is actively practicing health care in rendering health care services relevant to the claim. Tex. Crv. Prac. & Rem. Code § 74.402(c). However, the factors in section 74.402(c) are not mandatory elements that must be proved before a witness is qualified as an expert. Heritage Gardens Healthcare Ctr. v. Pearson, No. 05-07-00772-CV, 2008 WL 3984053, at *5 (Tex.App.-Dallas 2008, no pet.) (mem. op.). Whether Gerber is certified by a licensing agency or a professional certifying agency or is actively practicing health care are only two factors to be considered in determining whether Gerber is qualified on the basis of training and experience to offer the opinions contained in his report. Id.

Further, for purposes of determining whether an expert witness is qualified to opine about the standard of care applicable to a health care provider, “practicing health care” includes:

(1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; or
(2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.

Tex. Civ. Prac. & Rem.Code Ann. § 74.402(a). “Health care” includes any act “performed or furnished, or that should have been performed or furnished” by the health care provider for, to, or on behalf of the patient. Id. § 74.001(a)(10). A “health care liability claim” includes a cause of action against the health care provider for a departure from the standard of care for “safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant.” Id. § 74.001(a)(13). Christian Care’s provision of safety, professional, or administrative services to Connally constitutes health care. Gerber is “practicing health care” if he (1) is educating health care providers in safety, professional, or administrative services provided by nursing facilities at an accredited education institution, (2) is serving as a consultant in safety, professional, or administrative services relevant to nursing facilities, or (3) is licensed, certified, or registered relating to the provision of safety, professional, or administrative services by nursing facilities. See id. § 74.402(a).

Appellees claim Christian Care failed to properly assess Haberman’s condition pri- or to admitting him into Christian Care’s facility. Gerber is licensed as a nursing facility administrator in Texas and has eight years of experience managing and operating nursing home facilities. He has knowledge of the state and federal regulations governing nursing home facilities. As a nursing home administrator, he worked closely with nursing home management and staff. He is currently a consultant in the field of long-term care management and provides quality assurance monitoring and inspection of facilities on behalf of the facilities’ management. He also assists families of nursing home residents with long-term care planning and management support, including the verification of care compliance, care coordination, and review of care with physicians and long-term care facilities. He teaches classes in long-term care management and administration to nursing home administrator candidates at the University of Texas Health Science Center and San Jacinto College.

In Gerber’s opinion, the standard of care for a nursing facility includes an assessment of the prospective resident at the hospital prior to admission. The purpose of this assessment is for a nursing facility professional to thoroughly and accurately assess a prospective resident’s medical or mental conditions to determine whether the placement is appropriate, the nursing facility’s capabilities to provide the necessary care, and the safety risks to both the resident and other residents. The standard of care requires the facility to admit “only residents who it can assure that it has the abilities to provide adequate and sufficient care by competent staff, owners, operators, and administration based on the care needs of the individual resident and in compliance with all standards that regulate the nursing facility.”

Gerber opined that Christian Care failed to comply with the applicable standards of care by not adequately assessing Haber-man prior to admission. In Gerber’s opinion, if Christian Care had sent a nurse to evaluate Haberman prior to admission, it would have “had a much greater understanding of the significant risk of admitting Mr. Haberman into the general population with other residents at the facility, would have been prepared to manage his aggression and violent behavior, would have taken steps to protect other residents from potential harm inflicted by Mr. Ha-berman, could have refused his admission and acceptance to the nursing facility, and ultimately could have prevented Ms. Con-nally’s death.” Finally, in Gerber’s opinion, Christian Care failed to adhere to its own policies and procedure for evaluating Haberman for placement and, if it had done so, Haberman would not have been deemed appropriate for admission under Christian Care’s criteria.

Gerber is licensed in nursing home administration and managed a nursing home for eight years. He has knowledge of rules and regulations applicable to nursing facilities. He teaches and performs consulting work in the field of long-term care. The trial court did not abuse its discretion by finding Gerber is qualified to opine about the standard of care for the admission of a patient with Alzheimer’s disease to a nursing facility.

Causation

Christian Care next argues that appellees’ experts are not qualified to address causation because Gerber and Frederick are not licensed physicians and Dr. Rushing is not qualified on the very matter at issue in this ease. “[A] person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.” Tex. Civ. Prac. & Rem.Code §§ 74.351(r)(5)(C); 74.403(a) (West 2005). Neither Frederick nor Gerber is a physician and, therefore, neither is qualified to render an opinion about causation. See Petty, 310 S.W.3d at 135.

Christian Care argues Dr. Rushing is not qualified to opine about causation “for the same reasons” he is not qualified to opine about the standard of care. Under rule of evidence 702, the expert must have knowledge, skill, experience, training, or education regarding the specific issue before the court. See Tex.R. Evid. 702. As set out above, Dr. Rushing is licensed to practice medicine in Texas. He is board certified in internal medicine and geriatrics and is actively engaged in the practice of these specialties. He regularly engages in the diagnosis and treatment of patients with Alzheimer’s disease. He has had patients with violent behavior like Ha-berman’s behavior and who represented a threat to others as well as themselves. He has knowledge of the admission assessment process and the care needed for these patients. In his opinion, it was reasonably foreseeable that Christian Care could not meet Haberman’s needs and that Haberman’s behavior would likely result in injury to himself or others. We conclude the trial court did not err by concluding Dr. Rushing was qualified to opine about causation.

Good Faith Effort

Christian Care finally argues the trial court erred by denying the motion to dismiss because appellees’ expert reports do not constitute good faith efforts to comply with chapter 74. Specifically, Christian Care asserts all three reports pertain only to its care of Haberman, not its care of Connally, and that Dr. Rushing’s opinions about causation are conclusory.

To constitute a good faith effort to comply with the statutory requirements, an expert report must inform the defendant of the specific conduct called into question and provide a basis for the trial court to determine that the claims have merit. Palacios, 46 S.W.3d at 879. It does not need to marshal all of the plaintiffs proof, but it must include a fan-summary of the expert’s opinion on each of the elements identified in the statute: the applicable standard of care, the breach or deviation from the standard of care, and the causal relationship between the breach and the injury. Id. at 878. The report cannot merely state the expert’s conclusions about these elements. Id.; Petty, 310 S.W.3d at 134. The expert must explain the basis of his statements to link his conclusions to the facts. Bowie Mem’l Hosp., 79 S.W.3d at 52; Petty, 310 S.W.3d at 134.

Contrary to Christian Care’s argument, its alleged failure to properly care for Haberman is relevant to whether it breached the standard of care owed to Connally. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex. 2005) (nursing home as a heath care provider had duty to protect resident and patient population from harming themselves and each other). Dr. Rushing, Frederick, and Gerber identified the conduct of Christian Care that was called into question — the failure to properly assess Haberman’s condition and needs prior to his admission, to correctly administer medication to Haberman after admission, and to properly assess, supervise, and care for Haberman after admission. In Dr. Rushing’s opinion, Christian Care’s failure to properly care for Haberman presented a danger to Connally and caused her death. The trial court did not abuse its discretion by finding appellees’ expert reports informed Christian Care of the specific conduct called into question and provided a basis for the trial court to determine that the claims have merit.

Christian Care also asserts Dr. Rushing’s report does not constitute a good faith effort to comply with section 74.351 because his opinions about causation are conclusory. In claiming the report is deficient as to causation, Christian Care focuses on Dr. Rushing’s statement that, “In summary, the care and treatment rendered to Jay Haberman by Centennial Medical Center and its staff, the Christian Care Center and its staff, and Dr. Swathi Bayya fell below the accepted standard of care for the reasons described in this report and proximately caused the death of Nell D. Connally.” Christian Care claims this statement shows a lack of differentiation between the health care providers and does not address viable treatment options for Connally.

The issue is whether Dr. Rushing’s report, not the one statement relied upon by Christian Care, articulated a causal relationship between Christian Care’s alleged failure to meet the applicable standards of care and Connally’s death. See Tex.Civ. Prac. & Rem.Code 74.351(r)(6). This required Dr. Rushing to link Christian Care’s alleged negligence with appellees’ alleged harm — the assault on Connally by Haberman. See UHS of Timberlawn, Inc. v. S.B., 281 S.W.3d 207, 213-14 (Tex.App.Dallas 2009, pet. denied) (expert report sufficiently linked health care provider’s negligence to sexual assault of complainant by another patient). Haberman was allegedly aggressive and combative prior to being admitted to Christian Care and required physical restraints and supervision by a personal attendant. His aggressive behavior allegedly continued at Christian Care. According to Dr. Rushing, the standard of care required Christian Care to properly assess Haberman’s condition pri- or to admitting him to Christian Care and required the nursing staff at Christian Care to report Haberman’s condition following his admission and to properly supervise Haberman. Dr. Rushing opined that, even though it was reasonably foreseeable that Haberman was a danger to himself or others, he was admitted to the Christian Care facility and was not properly cared for or supervised. While Haber-man was unsupervised in the dining room at Christian Care, he injured Connally by turning over her walker, leading to her death. We conclude the trial court did not abuse its discretion by finding Dr. Rushing’s report articulated the required causal relationship.

We overrule Christian Care’s sole issue and affirm the trial court’s order.


source: Caselaw Access Project

author: Justice RICHTER.

license: Public Domain

text:
    Amanda WARD, Appellant, v. ACS STATE AND LOCAL SOLUTIONS, INC. d/b/a LDC Collection Systems, Appellee.
    No. 05-09-00557-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 16, 2010.

      Lloyd E. Ward, Lloyd Ward P.C., Dallas, for Appellant.
    Jeffrey S. Levinger, Hankinson Levinger LLP, Dallas, for Appellee.
    Before Justices MORRIS, MARTIN RICHTER, and LANG-MIERS.
   OPINION

Opinion by

Justice RICHTER.

In this appeal from a no-evidence and traditional summary judgment, Amanda Ward contends the trial court erred in dismissing her claims against ACS State and Local Solutions, Inc. d/b/a LDC Collection Systems (“ACS”) for negligence per se violations of the transportation code and occupations code, and for violation of the debt collection act. Concluding Ward’s arguments are without merit, we affirm the trial court’s judgment.

I. BACKGROUND

ACS provides traffic signal enforcement systems to municipalities. On October 31, 2006, ACS entered into a contract with the City of Dallas for the maintenance, installation, and support of a red light enforcement system. On April 19, 2007, one of the red light cameras installed by ACS photographed Ward’s vehicle driving through an intersection when the light was red. Ward subsequently received a notice of violation from the city. The notice advised that Ward could either contest the violation or pay the $75 fine on or before May 15, 2007. When Ward did neither, a $25 late fee was assessed.

ACS sent Ward a notice concerning the amount due and advised that Ward could dispute the validity of the obligation by providing ACS with written notice within thirty days. Ward did not dispute the obligation, but instead initiated this lawsuit. In her original petition, Ward claimed ACS violated the fair credit reporting act and the deceptive trade practices act (“DTPA”) by notifying her of its intent to report her delinquent account to a credit bureau. Several times throughout the course of the litigation, ACS moved for summary judgment and Ward supplemented her petition to add additional claims. On January 30, 2008, the trial court granted partial summary judgment in favor of ACS on claims Ward had asserted under the DTPA and the Texas Debt Collection Practices Act (“TDCA”). The case was removed to federal court where ACS moved to dismiss Ward’s federal debt collection claim. Ward moved for leave to amend to add claims for negligence per se, negligence, and gross negligence. The federal court granted ACS’s motion to dismiss the federal claim and remanded the case to the state court for a determination on Ward’s request to add the new state law claims. Following remand, ACS moved for summary judgment on Ward’s claims for negligence, gross negligence, and negligence per se violations of the transportation and occupations codes. In the order granting the motion, the trial court concluded that while ACS was required to obtain a license under the occupations code, ACS was nonetheless entitled to summary judgment on the negligence per se claim based on this statutory violation because Ward produced no evidence to support a finding of proximate cause or damages. The trial court also granted summary judgment on Ward’s remaining claims, and dismissed all of her claims with prejudice. Ward now appeals the trial court’s grant of summary judgment in favor of ACS on her TDCA and negligence per se claims.

II. Standard of Review

The standard of review for a traditional summary judgment is well known. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). We must determine whether ACS demonstrated that no genuine issues of material fact existed and it was entitled to judgment as a matter of law. See id. at 548-49. We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See Tex. R. Civ. P. 166a(i); Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). We must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. See Gen. Mills, 12 S.W.3d at 833. When analyzing traditional and no-evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant. See Nixon, 690 S.W.2d at 549; Gen. Mills, 12 S.W.3d at 833.

III. Discussion

We begin our analysis with Ward’s challenge to the summary judgment in favor of ACS on her claim of negligence per se under Tex. Occ.Code Ann. § 1702.101 (West 2004). Chapter 1702 requires that any person who acts as an “investigations company” obtain an investigations company license. See id. Ward contends ACS was negligent per se when it provided red light cameras to the City of Dallas without first obtaining a license as required by the statute. ACS responds that the trial court erred in concluding it was required to obtain a license, but even if it was, Ward failed to demonstrate how ACS’s failure to obtain a license was the proximate cause of her injury. In the alternative, ACS argues the injury stemming from Ward’s red light violation is not the type of injury the statute was designed to prevent.

Negligence per se is a concept adopted by the civil courts in which a duty is based on a standard of conduct created by a statute rather than on the reasonably prudent person test used in pure negligence claims. Smith v. Merritt, 940 S.W.2d 602, 607 (Tex.1997). To prove negligence per se, Ward was required to show that a statute or ordinance was violated and that such violation was the proximate cause of her damages. See Moughon v. Wolf, 576 S.W.2d 603, 604 n. 2 (Tex.1978); see also Hudson v. Winn, 859 S.W.2d 504, 508 (Tex.App.-Houston [1st Dist.] 1993, writ denied). Ward was also required to show that the statute was designed to prevent injury to a class of persons to which she belongs. See Trujillo v. Carrasco, 318 S.W.3d 455, 458 (Tex.App.-El Paso 2010, no pet.).

The components of proximate cause are cause-in-fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). These elements cannot be established by mere conjecture, guess, or speculation. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980). The test for cause-in-fact is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003). If the defendant’s negligence merely furnished a condition that made the injuries possible, there can be no cause-in-fact. Urena, 162 S.W.3d at 551; IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004). In other words, the conduct of the defendant may be too attenuated from the resulting injuries to the plaintiff to be a substantial factor in bringing about the harm. IHS Cedars Treatment Ctr., 143 S.W.3d at 799; Arguelles v. Kellogg Brown & Root, 222 S.W.3d 714, 731 (Tex.App.Houston [14th Dist.] 2007, no pet.).

Ward did not dispute that her vehicle was involved in a traffic violation, nor did she contest her liability for the resulting fine. Her argument is premised on the notion that but for the operation of the red light camera that ACS installed, no citation would have been issued. Ward’s emphasis on the fact that the red light camera was operational, however, is misplaced. ACS’s failure to obtain a license is the statutory violation upon which the negligence per se claim is based. The alleged injury is the traffic citation and resulting fine. Therefore, for purposes of proximate cause, the question is whether ACS’s failure to obtain an investigator’s license was the cause-in-fact of Ward receiving a traffic citation and fine.

In her response to ACS’s motion for summary judgment, Ward offered no evidence that the absence of an investigator’s license had any effect on ACS’s right or ability to obtain the contract with the City of Dallas, install or operate the red light camera, or transmit data to the city. Thus, there was nothing to establish that the absence of a license was a substantial factor in causing the injury. Indeed, there was nothing to indicate that the absence of a license factored in the issuance of the citation or assessment of the fine at all. Because the record reflects that the uncontested act of running a red light rather than ACS’s failure to obtain an investigator’s license was the cause-in-fact of any injury, the trial court did not err in concluding ACS was entitled to judgment as a matter of law. Ward’s challenge to the summary judgment based upon the occupations code is overruled.

We next address Ward’s challenge to the summary judgment on her claim under the TDCA. See Tex. Fin.Code Ann. § 392.001 (West 2006). Ward asserts that the reporting of the ticket to credit reporting agencies violates the statute. ACS responds that the complaint has not been preserved for our review. We agree with ACS.

In her response to ACS’s motion for summary judgment, Ward stated: “plaintiffs per se claim under the Texas Finance Code has been abandoned. Plaintiff has abandoned this claim and has instead filed a claim under [the transportation code].” When Ward abandoned her claim in the trial court, she waived the right to complain about that claim on appeal. See Akin v. Santa Clara Land Co., 34 S.W.3d 334, 339 (Tex.App.-San Antonio 2000, pet. denied).

Ward also contends the trial court erred in granting summary judgment on her negligence per se claim under Tex. Transp. Code Ann. § 707.003 (West Supp. 2010). Specifically, Ward argues ACS violated the statute by reporting her unpaid fíne to credit agencies. ACS responds that the statute does not apply because the contract between ACS and the City of Dallas was executed before the effective date of the statute. ACS further asserts that Ward’s civil penalty was not imposed under Chapter 707.

The section of the statute upon which Ward relies provides that a local authority or the person with which the local authority contracts may not provide information about a civil penalty imposed under the statute to a credit bureau. See Tex. Transp. Code Ann. § 707.003(h) (West Supp.2010). By its terms, the statute became effective on September 1, 2007, and the Texas Legislature expressly stated that section 707.003 “applies only to a contract entered into on or after the effective date of [the] Act.” See Tex. Transp. Code Ann. § 707.003, historical note (West Supp. 2010) [Acts 2007, 80th Leg., R.S. Ch. 1149, § 9, 2007 Tex. Sess. Law Serv. ch. 1149], It is undisputed that the contract between ACS and the City of Dallas was signed on October 31, 2006. Because the contract was not entered into on or before the legislatively prescribed date, the statute does not apply and the trial court did not err in concluding that ACS is entitled to judgment as a matter of law. See Verrando v. ACS State and Local Solutions, Inc., No. 3:08-CV-2241-G, 2009 WL 2958370, at * 5 (N.D.Tex. Sept. 15, 2009) (concluding statute inapplicable to this contract on a motion to dismiss).

Within the context of her proximate cause argument, Ward also appears to argue that ACS’s lack of a license rendered the evidence of the red light violation inadmissible because it was illegally obtained. According to Ward, she was required to pay fines “due to the presentation of the illegally obtained evidence” and “the resulting issuance of ... citations.” There is nothing in the summary judgment record, however, to establish that ACS’s failure to acquire a license would or could have any exclusionary effect on the admissibility of the evidence concerning the red light violation. Moreover, even if the evidence was inadmissible, Ward fails to explain how this might impact the proximate cause analysis. Ward’s challenge to the summary judgment based upon the transportation code is overruled.

Having resolved all of Ward’s issues against her, we affirm the trial court’s judgment.

      . Ward ultimately paid the fine 20 months after receiving the original notice of the violation.

      . The supplemental petition in which Ward presumably asserted claims for negligence, gross negligence, and negligence per se is not part of the record before us. However, in the motion for summary judgment, the response, and in the briefs on appeal, the parties do not dispute that these claims were before the court.

      . In addition, Ward not only failed to object to this summary judgment evidence, but in-eluded it in her response.


author: Justice MYERS.

text:
    Kurt OHNESORGE, Appellant, v. WINFREE ACADEMY CHARTER SCHOOL, Appellee.
    No. 05-09-01453-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 16, 2010.

      W.D. Masterson, Theodore Anderson, John H. Crouch, Kilgore & Kilgore, PLLC, Dallas, TX, for Appellant.
    Robert Alen Schulman, Joseph E. Hof-fer, Rogers, Morris & Grover, L.L.P., for Appellee.
    Before Justices MORRIS, MOSELEY, and MYERS.
   OPINION

Opinion By

Justice MYERS.

Kurt Ohnesorge appeals the trial court’s order dismissing for want of jurisdiction his cause of action against Winfree Academy Charter School under the Texas Whis-tleblower Protection Act. In his sole issue, appellant asserts the School is subject to the Whistleblower Protection Act. We affirm the trial court’s judgment.

The Whistleblower Protection Act is set forth in chapter 554 of the Texas Government Code. See Tex. Gov’t Code Ann. §§ 554.001-.010 (West 2004). The Act prohibits a state or local governmental entity from taking adverse personnel action against a public employee who reports in good faith a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. Id. § 554.002(a). The Act defines “local governmental entity” as: “a political subdivision of the state, including a: (A) county; (B) municipality; (C) public school district; or (D) special-purpose district or authority.” Id. § 554.001(2). In the School’s motion to dismiss, the School argued that it was not a local governmental entity as defined in the Act and, therefore, not subject to the Act. In his response, appellant argued that the School was a local governmental entity. The trial court granted the School’s motion to dismiss.

In his sole issue, appellant contends the School, an open-enrollment charter school, is subject to the Whistleblower Protection Act. “The Whistleblower Act is a broad remedial measure intended to encourage disclosure of governmental malfeasance and corruption.” City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex.2008). Appellant argues that the Act is a remedial statute and must be construed liberally to give full effect to the legislature’s purpose. See Davis v. Ector County, Tex., 40 F.3d 777, 785 (5th Cir.1994). “Liberally construing a provision, however, does not permit divorcing its application from the words in the statute.” Nationwide Ins. Co. v. Elchehimi, 249 S.W.3d 430, 435 (Tex.2008).

In construing a statute, a reviewing court should determine and give effect to the legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000); Jones v. State, 175 S.W.3d 927, 930 (Tex.App.-Dallas 2005, no pet.). If the meaning of the statutory language is unambiguous, a reviewing court adopts, with few exceptions, the interpretation supported by the plain meaning of the provision’s words and terms. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999); Jones, 175 S.W.3d at 930. If a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to create ambiguity. Fitzgerald, 996 S.W.2d at 865-66; Jones, 175 S.W.3d at 930. When we interpret a code enacted by the legislature, we read words and phrases in context and construe them according to the rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a); see Jones, 175 S.W.3d at 930. Words are given their ordinary meaning. See Jones, 175 S.W.3d at 930.

Appellant asserts that the statutes and administrative regulations state that open-enrollment charter schools are “public schools.” See Tex. Educ.Code Ann. § 12.105 (West 2006) (“An open-enrollment charter school is part of the public school system of this state.”); 19 Tex. Admin. Code § 100.1011(3) (Tex. Educ. Agency, Definitions) (defining “charter school” as “[a] Texas public school operated by a charter”). However, the issue is not whether an open-enrollment charter school is a “public school” but whether it is a “local governmental entity” by being a “public school district” or other “political subdivision.” See LTTS Charter Sch., Inc. v. C2 Constr., Inc., 288 S.W.3d 31, 34 (Tex.App.-Dallas 2009, pet. granted) (section 12.105 “does not establish an open-enrollment charter school as being the same as a school district”).

Appellant argues that the School falls within the definition of local governmental entity and political subdivision because it is a public school district. Appellant points out that the School’s website stated the School’s name is “Winfree Academy Charter School District” and listed its email address as “wacsd.” However, the School’s calling itself a school district on its website and email address does not make it a public school district. The issue is whether an open-enrollment charter school is a public school district under the law. The education code does not define “public school district.” However, the Texas Constitution and statutes make clear that a public school district is a defined geographic region with a board of trustees overseeing the management of the free public schools within that region. Tex. Const, art. VII, § 3; Tex. Educ.Code Ann. §§ 11.002, .051, .303, .352 (West 2006). An open-enrollment charter school is a school, not a district. See 19 Tex. Admin. Code § 100.1011(3) (defining “Charter school” as “A Texas public school operated by a charter holder under an open enrollment charter....”). Thus, an open-enrollment charter school may be a public school, but it is not a public school district. See C2 Constr., 288 S.W.3d at 34-35. We conclude the School is not a public school district under section 554.001(2) of the government code even though the school referred to itself as a school district in its website.

Appellant also argues that the School is a local governmental entity because it is a political subdivision. In Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d 529 (Tex.1980), the supreme court defined the attributes of a political subdivision. The supreme court stated that a political subdivision:

• has jurisdiction over a portion of the State;
• the members of its governing body are elected in local elections or are appointed by locally elected officials; .and
• has the power to assess and collect taxes.

Id. at 531. An open-enrollment charter school has no jurisdiction outside its own campus, the members of its governing body are selected according to the methods set out in the charter, and it lacks the power to assess and collect taxes. See Tex. Educ.Code Ann. §§ 12.102, .111. We conclude open-enrollment charter schools are not “political subdivisions.”

Appellant also argues that the legislature has made charter schools subject to the same laws, including the Whistle-blower Protection Act, that are applicable to public schools generally, citing section 12.103(a) of the education code. Section 12.103(a) states, “Except as provided by Subsection (b) ..., an open-enrollment charter school is subject to federal and state laws and rules governing public schools — ” Tex. Educ.Code Ann. § 12.103(a) (West 2006). However, the Whistleblower Protection Act makes “public school districts,” not “public schools,” subject to it. Accordingly, section 12.103(a) does not make the School subject to the Act.

Appellant relies on two Texas Attorney General opinions in support of his argument that the School is a political subdivision. The opinions of the Texas Attorney General are not controlling authority, but they may be cited as persuasive authority. Commissioners Court v. Agan, 940 S.W.2d 77, 82 (Tex.1997); C2 Constr., 288 S.W.3d at 35. Appellant quotes from Texas Attorney General Opinion No. GA-0664, which state'd, “[w]e see no basis for distinguishing a charter school from an independent school district....” Tex. Att’y Gen. Op. No. GA-0664 (2008). The question before the Attorney General was whether an open-enrollment charter school was subject to the constitutional prohibition barring a county from making a gratuitous payment to a school district. See id. (“We see no basis for distinguishing a charter school from an independent school district with respect to gratuitous payment of a county’s public money. Consequently, a court would likely conclude that article III, section 52 applies to prohibit a county from gratuitously donating county funds to a charter school, the same as to an independent school district.” (citations omitted)); see also Tex. Const, art. Ill, § 52; C2 Constr., 288 S.W.3d at 35. As we stated in C2 Construction, “the opinion does not support the broad proposition that an open-enrollment charter school is a ‘political subdivision’ in all situations.” C2 Constr., 288 S.W.3d at 35. The case before us does not involve a gratuitous payment of a county’s public money to a charter school, or anything similar. We conclude opinion GA-0664 is not applicable.

Appellant also cites to Attorney General opinion No. GA-0629, which concerned whether a charter school was a “political subdivision” under chapter 606 of the Texas Government Code for purposes of social security coverage for the political subdivision’s employees. Tex. Att’y Gen. Op. No. GA-0629 (2008). As the Attorney General observed, “Chapter 606’s definition of ‘political subdivision’ is unique in Texas Statutes and it serves the limited purpose of delineating entities eligible for inclusion” in the social security program. Id. (footnote omitted). That definition, however, is limited to chapter 606 of the government code. See Tex. Gov’t Code Ann. § 606.001 (West 2004) (“In this chapter: ...”). The Attorney General’s interpretation of the term “political subdivision” under section 606.001 of the government code is not applicable to the definition of “political subdivision” under section 554.001 of the government code. See C2 Constr., 288 S.W.3d at 35-36.

The legislature has specified the statutes under which an open-enrollment charter school is considered a “governmental entity,” “political subdivision,” “local government,” or “governmental body.” See Tex. Educ.Code Ann. §§ 12.1051, .1052, .1053 (West 2006 & Supp.2010); Tex. Local Gov’t Code Ann. § 176.001(3) (West 2008). None of these provisions make an open-enrollment charter school a “governmental entity,” “governmental body,” “local governmental entity,” “political subdivision,” or “school district” for purposes of the Whistleblower Protection Act.

We conclude the School is not subject to the Whistleblower Protection Act. We overrule appellant’s sole issue.

We affirm the trial court’s judgment.

      . Appellant also alleged the School was liable under Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985), for firing him for refusing to perform an illegal act. The School alleged in its motion to dismiss that this cause of action was barred by governmental immunity. Appellant does not assert on appeal that the trial court erred in dismissing this cause of action.

        . Whether the School was subject to the Whistleblower Protection Act is the only argument appellant presents on appeal. Appellant does not argue that the trial court's dismissal for want of jurisdiction was erroneous because the court had subject-matter jurisdiction over the cause regardless of whether the School was subject to the Act. To the extent such an argument could have been raised, we express no opinion on it but confine ourselves to the argument presented on appeal. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998) (per curiam) ("It is axiomatic that an appellate court cannot reverse a trial court’s judgment absent properly assigned error.”); Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 838 (Tex.App.-Dallas 2005, no pet.) (“We may not reverse a trial court's judgment in the absence of properly assigned error.”).

      . Appellant also cites to an interim report of the 77th Legislature as demonstrating the legislature's intent that open-enrollment charter schools be treated as public schools. See House Comm, on Public Educ., Interim Report to the 77th Legislature, 76th Leg., R.S. (2000). We addressed the identical argument in LTTS Charter School, Inc. v. Palasota, 293 S.W.3d 830 (Tex.App.-Dallas 2009, pet. filed). As we stated in that case, "We find no support for [the] contention that a subcommittee report written by three members of a nine-member committee demonstrates a clear picture of legislative intent.” Palasota, 293 S.W.3d at 836. Furthermore, as discussed above, the fact that an open-enrollment charter school may be subject to the same laws as public schools does not make them subject to laws that apply to public school districts.

      . Section 606.001(3) defines "Political subdivision” as including a county, a municipality; or
      an instrumentality of the state, of another political subdivision, or of the state and another political subdivision:
      (i) that is a juristic entity that is legally separate and distinct from the state or political subdivision; and
      (ii) whose employees are not employees of the state or political subdivision.
      Tex. Gov’t Code Ann. § 606.001(3) (West 2004). In explaining the definition, the Attorney General stated, "the continued use of the term ‘political subdivision’ must refer to a ‘political subdivision’ that is other than the entity actually being examined under the definition.” Tex. Att’y Gen. Op. No. GA-0629 n. 13.


author: Chief Justice WRIGHT.

text:
    K & S MART, INC. and Karim Hemani, Appellants, v. PROTON PRC, LTD., Appellee.
    No. 05-10-01065-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 16, 2010.
    David R. Gibson, The Gibson Group, DeSoto, for Appellant.
    Luke Laman, Plano, John Alan Goren, Dallas, for Appellee.
    Before Chief Justice WRIGHT and Justices O’NEILL and MYERS.
   OPINION

Opinion by

Chief Justice WRIGHT.

Before the Court is appellee’s motion to dismiss for want of jurisdiction. The trial court conducted a bench trial in this case on June 25, 2009. Appellants appeared in person and through their counsel and fully participated in the trial. At the conclusion of the trial, the trial court took the case under advisement. The trial judge signed the judgment on March 23, 2010. Counsel for appellee received a copy of the judgment in the mail. Counsel for appellants contends that he did not receive a copy of the judgment in the mail. On August 23, 2010, five months after the judgment was signed, appellants filed their notice of restricted appeal.

Appellee contends this appeal should be dismissed because appellants do not meet the requirements for a restricted appeal and them notice of appeal was otherwise untimely. In their response to the motion to dismiss, appellants admit that they participated in the trial. They contend, however, that they will be denied due process if they are not allowed to appeal.

The right to a restricted appeal is limited to parties who did not participate— either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a post-judgment motion or notice of appeal. Tex.R.App. P. 30. The legislature has the power to limit the right of appeal. Sultan v. Mathew, 178 S.W.3d 747, 752 (Tex.2005) (citing Seale v. McCollum, 116 Tex. 662, 287 S.W. 45, 47 (1926)).

Appellants do not meet the requirements for a restricted appeal because they participated in the trial. Appellants did not file any post-judgment motions. See generally Tex.R. Civ. P. 306a & 329b. Therefore, their notice of appeal was due April 22, 2010. See Tex.R.App. P. 26.1. Appellants notice of appeal filed on August 23, 2010 was untimely. Without a timely filed notice of appeal, this Court lacks jurisdiction. See Tex.R.App. P. 25.1(b).

Accordingly, we grant appellee’s motion to dismiss for want of jurisdiction and dismiss this appeal. See Tex.R.App. P. 42.3(a).


text:
    Karim HEMANI, Appellant, v. PROTON PRC, LTD. and Big Score Investors, L.L.C., Appellees.
    No. 05-10-01066-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 16, 2010.
    David R. Gibson, The Gibson Group, DeSoto, for Appellant.
    Luke Laman, Plano, John Alan Goren, Dallas, for Appellee.
    Before Chief Justice WRIGHT and Justices O’NEILL and MYERS.
   OPINION

Opinion by

Chief Justice WRIGHT.

Before the Court is appellees’ motion to dismiss for want of jurisdiction. The trial court conducted a bench trial in this case on July 1, 2009. Appellant appeared in person and through his counsel and fully participated in the trial. At the conclusion of the trial, the trial court took the case under advisement. The trial judge signed the judgment on March 28, 2010. Counsel for appellees received a copy of the judgment in the mail. Counsel for appellant contends that he did not receive a copy of the judgment in the mail. On August 23, 2010, five months after the judgment was signed, appellant filed his notice of restricted appeal.

Appellees contend this appeal should be dismissed because appellant does not meet the requirements for a restricted appeal and his notice of appeal was otherwise untimely. In his response to the motion to dismiss, appellant admits that he participated in the trial. He contends, however, that he will be denied due process if he are not allowed to appeal.

The right to a restricted appeal is limited to parties who did not participate— either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a post-judgment motion or notice of appeal. Tex.R.App. P. 30. The legislature has the power to limit the right of appeal. Sultan v. Mathew, 178 S.W.3d 747, 752 (Tex.2005) (citing Seale v. McCollum, 116 Tex. 662, 287 S.W. 45, 47 (1926)).

Appellant does not meet the requirements for a restricted appeal because he participated in the trial. Appellant did not file any post-judgment motions. See generally Tex.R. Crv. P. 306a & 329b. Therefore, his notice of appeal was due April 22, 2010. See Tex.R.App. P. 26.1. Appellant’s notice of appeal filed on August 23, 2010 was untimely. Without a timely filed notice of appeal, this Court lacks jurisdiction. See Tex.R.App. P. 25.1(b).

Accordingly, we grant appellees’ motion to dismiss for want of jurisdiction and dismiss this appeal. See Tex.R.App. P. 42.3(a).


author: Justice LANG-MIERS.

text:
    Christopher AUDIA, Appellant, v. Kenneth HANNOLD and Janice Hannold, Appellees.
    No. 05-08-01147-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 17, 2010.
    Thomas B. Cowart, Wasoff & Cowart, PLLC, Dallas, for Appellant.
    William Marcus Toles, Dallas, for Appel-lees.
    Before Justices MORRIS, RICHTER, and LANG-MIERS.
   OPINION

Opinion By

Justice LANG-MIERS.

This is an appeal from a take-nothing judgment entered in appellant Christopher Audia’s personal-injury lawsuit against ap-pellees Kenneth and Janice Hannold. On appeal, Audia complains that the district court violated his rights under the Texas Constitution by empaneling a six-person jury because “[t]he plain, literal language of Article V, Section 13 requires twelve jurors be empaneled in any civil matter in a Texas District Court.” We conclude that Audia’s complaint was not preserved for appellate review. As a result, we affirm the trial court’s judgment.

Background

Audia’s counsel filed this personal-injury lawsuit against the Hannolds alleging that Audia fell from a ladder while repairing the cathedral ceiling in the Hannolds’ home. Audia’s counsel later withdrew from representing him, and Audia proceeded pro se. Audia and the Hannolds agreed to try the case to a six-person jury. The jury found all parties negligent and attributed 80% of the negligence to Audia.

After the jury returned its verdict, the Hannolds filed a motion for entry of judgment. During the hearing on that motion, Audia asked for a new trial on the ground that “you have to have nine jurors in a district court and we only had six.” In response, the trial court reminded Audia that he agreed to try the case to a six-person jury. The trial court also explained to Audia, “[T]he Court offered [a six-person jury] as an option because you are pro se, and it would have been easier for you. That was the only consideration. And as a district court, this court has the option of having a jury panel of six.” Based on the jury’s verdict, the trial court signed a final judgment ordering that Au-dia take nothing on his claims against the Hannolds.

Audia timely filed a motion for new trial, in which he relied on article V, section 13, of the Texas Constitution and argued that “the verdict in this suit, returned by only six jurors, is invalid and cannot form the basis of a judgment” because nine jurors “is the constitutional minimum to obtain a verdict in a Texas District Court.” The Hannolds filed a written response opposing Audia’s motion for new trial, in which they relied on section 62.201 of the government code and argued that parties can, and frequently do, “agree to proceed with six (6) jurors” in a Texas district court. The trial court conducted a hearing on Audia’s motion at which Audia did not appear, and signed an order denying the motion.

Analysis

On appeal, Audia argues that “[t]he Texas Constitution requires a jury of twelve in a Texas district court to start a jury trial in a civil matter and there are no exceptions to that rule that would authorize a district court to empanel a jury of only six.” Audia also argues that section 62.201 of the government code “creates an impermissible conflict between this statute and Article V, section 13 of the Texas Constitution.”

As Audia acknowledges, this Court must first determine the threshold issue of whether Audia has preserved his complaint for appellate review. See In re A.B.P., 291 S.W.3d 91, 97 (Tex.App.-Dallas 2009, no pet.). Generally, to preserve a complaint for appellate review, a party must timely present the complaint to the trial court and seek a ruling on the complaint. See Tex.R.App. P. 33.1(a) (as prerequisite to presenting complaint for appellate review, record must show (1) party presented timely request, motion, or objection to trial court sufficient to make trial court aware of complaint, and (2) trial court ruled or refused to rule); In re L.M.I., 119 S.W.3d 707, 711 (Tex.2003). This general rule applies to constitutional complaints. See Tex. D&p't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex.2001).

Audia essentially argues that he was not required to preserve his complaint for appellate review because the right to a twelve-person jury in district court is a right that cannot be waived. We disagree. See Alam v. Wilshire & Scott, P.C., No. 01-06-00604-CV, 2007 WL 2011048, at *4 (Tex.App.-Houston [1st Dist.] July 12, 2007, no pet.) (mem.op.) (“To preserve a state constitutional challenge to a six-person jury, [] a party, whether pro se or represented by counsel, must timely object to the numerical composition of the jury.”); Smith v. Estate of Branch, No. 05-90-00941-CV, 1991 WL 219469, at *9 (Tex. App.-Dallas Oct. 11, 1991, no writ) (not designated for publication) (appellant waived complaint about district court empaneling a six-person jury because complaint was first raised in motion for new trial).

Alternatively, Audia argues that his pre-trial agreement to proceed with a six-person jury did not constitute a waiver of his right to a twelve-person jury because the record does not demonstrate that he was adequately informed of his right to a twelve-person jury and “intentionally relinquished that known right.” Again, we disagree.

During oral argument, Audia’s appellate counsel explained that Audia’s argument that his agreement did not constitute a waiver is based on the fact that Audia was pro se at the time of the agreement. We recognize that Audia appeared pro se before and during trial. But pro se litigants are held to the same standards as licensed attorneys, and they must comply with applicable rules of procedure. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978); cf. In re J.P., 196 S.W.3d 434, 438 (Tex.App.-Dallas 2006, no pet.) (“Nothing in our record shows appellant did not understand the waiver he was signing. Appellant’s dissatisfaction with the outcome of the proceedings does not render involuntary his waiver of notice.”).

In this case, Audia’s complaint about the number of jurors was not timely because it was raised for the first time after the jury reached its verdict. See Alam, 2007 WL 2011048, at *4 (“[Appellant’s] motion for new trial was not a timely objection or request concerning the numerical composition of the jury.”); see also Mann v. Ramirez, 905 S.W.2d 275, 278-79 (Tex.App.-Houston [14th Dist.] 1995, writ denied) (“It is too late to complain of the jury panel or errors in the selection of the jury when the complaint, as in this case, is made only after the verdict.”). Stated differently, a party cannot agree to a trial in district court before six jurors, wait for an unfavorable verdict, and then complain about the number of jurors. Cf. Estate of Branch, 1991 WL 219469, at *9 (rejecting defendant’s attempt “to have two bites of the apple by sitting back and allowing a six[-]person jury to be seated without making his objections known to the trial court and then later hoping to obtain a new trial by complaint of this error in his motion for new trial”).

Conclusion

We conclude that Audia did not preserve his complaint for appellate review. See Alam, 2007 WL 2011048, at *4. We affirm the trial court’s judgment.

      . Alter the case was called for trial, and before voir dire began, the following exchange occurred:
      THE COURT: ... The Court has just been made aware that both sides have agreed to select a juiy panel of six out of the venire panel. Mr. Audia, is that your wish?
      MR. AUDIA: Yes, ma'am.
      THE COURT: Mr. Toles [counsel for the Hannolds], is that your wish?
      MR. TOLES: No objection, Your Honor. That’s fine.
      THE COURT: All right. Then a panel of six will be chosen....

      . Article V, section 13, of tire Texas Constitution states:
      Grand and petit juries in the District Courts shall be composed of twelve persons, except that petit juries in a criminal case below the grade of felony shall be composed of six persons; but nine members of a grand juiy shall be a quorum to transact business and present bills. In trials of civil cases in the District Courts, nine members of the jury, concurring, may render a verdict, but when the verdict shall be rendered by less than the whole number, it shall be signed by eveiy member of the juiy concurring in it. When, pending the trial of any case, one or more jurors not exceeding three, may die, or be disabled from sitting, the remainder of the juiy shall have the power to render the verdict; provided, that the Legislature may change or modify the rule authorizing less than the whole number of the juiy to render a verdict.
      Tex. Const, art. V, § 13.

      . Section 62.201 of the government code states: "The juiy in a district court is composed of 12 persons, except that the parties may agree to try a particular case with fewer than 12 jurors.” Tex. Gov’t Code Ann. § 62.201 (West 2005).

      . The clerk’s record contains a hearing notice on Audia’s motion for new trial that is signed by Audia. But the order denying his motion for new trial states that Audia, "pro se, did not appear” at the hearing.


author: Justice MARTIN RICHTER.

text:
    Tommy HAMILTON, Appellant, v. FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, Isabella G. Bezerra, and Kim Recer, Appellees.
    No. 05-09-01376-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 18, 2010.

      Tommy Hamilton, Rosharon, pro se.
    Andrew E. Crownover, Amis & Farish, Arlington, for Appellees.
    Before Justices O’NEILL, MARTIN RICHTER, and LANG-MIERS.
   OPINION

Opinion By

Justice MARTIN RICHTER.

Pro se appellant, Tommy Hamilton (Hamilton), appeals from the trial court’s order granting summary judgment in favor of Farmers Texas County Mutual Insurance Company (Farmers). Hamilton contends the trial court erred in granting Farmers’ motion for summary judgment and in subsequently dismissing the case. We affirm in part, and reverse and remand in part.

BACKGROUND

Hamilton sued Farmers, Isabella Bezer-ra and Kim Recer for personal and property injuries suffered by Hamilton as a result of an automobile accident on or about July 5, 2007. In his pro se original petition, Hamilton stated that his car ran out of gasoline and was stalled on the side of a road when another vehicle hit the rear of Hamilton’s car, causing personal injury to him and damage to his car. The vehicle involved in the collision with appellant was owned by Jose Bezerra and insured by Fanners. Kim Recer was an agent for Farmers. The record reflects some confusion as to the identity of the person driving Bezerra’s automobile at the time of the collision. In the caption of his petition, Hamilton listed Isabella Bezerra as a defendant; however, in the body of the petition, Hamilton identified Maria Bezerra as party to the lawsuit and made no further reference to Isabella Bezerra. In its motion for summary judgment, Farmers added to the confusion by misstating the allegations of Hamilton’s petition that damage was done to his car in a collision with Jose Bezerra. This misstatement was repeated in a motion for summary judgment filed by Isabella Bezerra and Recer. Hamilton filed a motion for summary judgment in which he stated the police report of the incident would reflect that Isabella Bezer-ra was driving the automobile that hit him. There is nothing in the record to indicate the trial court ruled on Hamilton’s motion for summary judgment and the record does not contain a copy of the police report.

On November 4, 2008, Farmers filed a motion for summary judgment on the basis that a third party such as Hamilton may not maintain a direct cause of action against the insurance carrier of an insured defendant pursuant to Article 21.21 of the Texas Insurance Code. There is nothing in the record to indicate that Hamilton filed a response. On September 23, 2009, the trial court signed an order granting Farmer’s motion for summary judgment. The order states it is a final judgment disposing of all issues and parties.

On October 5, 2009, Isabella Bezer-ra and Kim Recer filed a motion for summary judgment, arguing they were entitled to a traditional summary judgment against Hamilton because he had not alleged Isabella Bezerra drove the vehicle involved in the accident, was present at the accident scene or contributed to the accident in any way. Further, they asserted that because Hamilton was prohibited from maintaining a direct action against Farmers, he was likewise prohibited from bringing an action against Recer because she was acting in her capacity as agent for Farmers. There is nothing in the record to indicate the trial court ruled on Bezerra and Recer’s motion for summary judgment.

On November 17, 2009, Hamilton filed his notice of appeal, asserting the trial court erred in granting Farmer’s motion for summary judgment and dismissing his lawsuit.

JURISDICTION

After reviewing the record, this Court questions its jurisdiction over the appeal because the trial court’s order granting Farmer’s motion for traditional summary judgment does not appear to dispose of all claims and all parties. An appellate court is obligated to review sua sponte issues affecting its jurisdiction. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex.2004); OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 735 (Tex.App.-Dallas 2007, pet. denied). Appellate jurisdiction is never presumed. See Texas Integrated Conveyor Systems, Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 360 (Tex.App.-Dallas 2009, pet. denied); Zuniga v. Navarro & Assoc., P.C., 158 S.W.3d 663, 666 (Tex.App.-Corpus Christi 2005, pet. denied). Whether an appellate court has jurisdiction over an appeal is a legal question and is í-eviewed de novo. See IFS Security Group, Inc. v. American Equity Ins. Co., 175 S.W.3d 560, 562 (Tex.App.-Dallas 2005, no pet.). If the record does not affirmatively demonstrate the appellate court’s jurisdiction, the appeal must be dismissed. Id.

An appeal may be taken only from a final order unless a statute specifically authorizes an interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. §§ 51.012, 51.014(1) (West 2008 & Supp. 2010); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). A judgment issued without a conventional trial on the merits is final for purposes of appeal if it (1) actually disposes of all claims and all parties then before the court; or (2) states with unmistakable clarity that it is a final judgment as to all claims and all parties. Lehmann, 39 S.W.3d at 192; Texas Integrated Conveyor Systems, 300 S.W.3d at 361.

In determining whether an order actually disposes of all pending claims and parties, the courts of appeal may look to the record in the case. Lehmann, 39 S.W.3d at 205. Here, the record reflects the existence of parties and claims not mentioned in the trial court’s order granting Farmer’s motion for summary judgment. The order indicates that only Farmer’s motion was before the trial court for hearing. The trial court ordered that Hamilton take nothing from Farmers, dismissed Hamilton’s cause of action against Farmers, and ordered that Farmer’s court costs be taxed against Hamilton. Clearly the order disposes of Hamilton’s claims against Farmers. However, the order is silent as to defendants Bezerra and Recer and Hamilton’s alleged claims against them.

We then look to the language of the order to determine if it states with unmistakable clarity that it is a final judgment as to all claims and all parties. The order states “all relief not expressly granted is expressly denied” and “this is a final judgment disposing of all issues and parties.” If the intent to finally dispose of the case is clear from the order, the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. Id. at 200. Based on the express language of the order, we conclude the order is a final judgment. We have jurisdiction over this appeal.

If a judgment grants more relief than requested, it is reversible, but not interlocutory. Id. A trial court can enter a summary judgment only against those claims attacked in a motion for summary judgment. See Texas Integrated Conveyor Systems, 300 S.W.3d at 365; Wright v. Sydow, 173 S.W.3d 534, 554 (Tex.App.Houston [14th Dist.] 2004, pet. denied) (citing McConnell v. Southside Indep. Sch. List., 858 S.W.2d 337, 342 (Tex.1993)). Farmers’ motion for summary judgment requested a take nothing judgment in favor of Farmers only. We conclude the express language of the trial court’s order grants more relief than requested.

APPELLANT’S BRIEF

Having determined we have jurisdiction, we now turn to Hamilton’s brief. Texas Rule of Appellate Procedure 38.1 provides that an appellant’s brief “must state concisely all issues or points presented for review.” Tex.R.App. P. 38.1(f). The brief “must state concisely and without argument the facts pertinent to the issues or points presented” and be supported by record references. Tex.R.App. P. 38.1(g). And the brief “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 38.1(i). Although we construe pro se pleadings and briefs liberally, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Peña v. McDowell, 201 S.W.3d 665, 667 (Tex.2006); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978); Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex.App.-Dallas 2009, pet. denied). After Hamilton filed his original brief, this Court notified him by letter that his brief was deficient in numerous respects, including the lack of a concise statement of the issues presented for review and appropriate citations to the record as required by Texas Rule of Appellate Procedure 38.1. Hamilton was given ten days within which to file an amended brief to cure the deficiencies. Hamilton filed an amended brief which again fails to comply with rule 38.1. Hamilton’s issues are unclear and, at best, confusing. Hamilton appears to ask this Court to make fact findings on issues unrelated to the order granting summary judgment to Farmers. Hamilton complains that the trial court erred in granting summary judgment but his argument consists of conclusions and does not provide proper, meaningful analysis in support of his contentions. He neither cites to any authority nor discusses any applicable law with respect to the trial court’s order or Farmers’ motion for summary judgment. Further, Hamilton’s amended brief does not contain a single citation to the clerk’s record or reporter’s record as required by rule 38.1. Tex.R.App. P. 38.1. We conclude this issue is inadequately briefed and presents nothing to review. McCray v. Clerk of the Court, No. 05-08-01398-CV, 2009 WL 3135183, at *2 (Tex.App.-Dallas October 1, 2009, pet. denied) (mem. op.); In re L.M.M., No. 05-07-00789-CV, 2008 WL 2454680, at *1 (Tex.App.-Dallas June 19, 2008, no pet.) (mem. op.); Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet. denied). We overrule all issues.

We affirm the portion of the trial court’s judgment granting Farmers’s motion for summary judgment as to Farmers only. We reverse and remand for further proceedings as to all other defendants and claims.