author: KEM THOMPSON FROST, Justice.

text:
    KIRBY LAKE DEVELOPMENT, LTD., Miter Development Company, and Taylor Lake, Ltd., Appellants, v. CLEAR LAKE CITY WATER AUTHORITY, Appellee.
    No. 14-06-00924-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 5, 2008.

      Lawrence J. Fossi, Karen B. Jewell, for Appellants.
    Barry Abrams, Ramon G. Viada III, for Appellee.
    Panel consists of Justices FOWLER, FROST, and SEYMORE.
   MEMORANDUM OPINION

KEM THOMPSON FROST, Justice.

This is an appeal from the dismissal of inverse-condemnation claims filed by three developers against a water authority. We conclude that the facts alleged in the petition show an affirmative defense to the inverse-condemnation claims, namely that the developers consented to any alleged taking by the water authority. Accordingly, we affirm the trial court’s dismissal for lack of subject-matter jurisdiction.

I.Factual and PROCEDURAL Background

Appellants Kirby Lake Development, Ltd., Miter Development Co., and Taylor Lake, Ltd. (hereinafter collectively “Developers”) are development companies that own property within the boundaries of ap-pellee Clear Lake City Water Authority (hereinafter the “Authority”). The Authority is a conservation and reclamation district under article 16, section 59 of the Texas Constitution that operates as a water control and improvement district under Texas statutes. The Authority and each of the Developers entered into respective agreements entitled “Sales Agreement and Lease of Facilities” (hereinafter collectively the “Agreements”). The Developers sued the Authority in Harris County District Court in 2005, asserting, among other things, claims for alleged breaches of the Agreements by the Authority and inverse-condemnation claims. In a plea to the jurisdiction, the Authority asserted that the district court lacked subject-matter jurisdiction over the inverse-condemnation claims. The Developers then nonsuited those claims and filed them in the trial court below. The Authority asserted various defenses, including governmental immunity and consent. The Authority filed a plea to the jurisdiction, in which it asserted, among other things, that the Developers’ pleadings show consent to the alleged taking. The trial court granted the Authority’s plea to the jurisdiction and dismissed the claims for lack of subject-matter jurisdiction.

II.Issues for Review

On appeal, the Authority presents the following issues:

(1) Where a governmental authority unequivocally repudiates its contractual obligation to pay for private property, and instead announces its intention to use such property in perpetuity without any compensation, does a valid inverse-condemnation claim arise?
(2) Did the trial court err in dismissing the Developers’ inverse-condemnation claims for want of subject-matter jurisdiction?

III.Standard of Review

We review a trial court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). When a party has filed a plea to the jurisdiction challenging the pleadings, a reviewing court must construe the pleadings liberally in favor of the pleader and look to the pleader’s intent. See id. If the facts alleged affirmatively demonstrate the trial court’s jurisdiction to hear the cause, the plea to the jurisdiction must be denied. See id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction, but do not affirmatively demonstrate incurable defects in the jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. See id. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing an opportunity to amend. See id. at 227.

If in its plea to the jurisdiction a party challenges the existence of jurisdictional facts, the reviewing court considers relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See id. If the evidence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be denied. See id. at 227-28. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the court rules on the plea to the jurisdiction as a matter of law. Id. at 228. In ruling on a plea to the jurisdiction, a court does not consider the merits of the parties’ claims. See id. at 226-28; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

IV. Analysis

In their petition, did the Developers affirmatively negate jurisdiction by pleading facts which constitute consent to any alleged taking?

The Authority asserts, and the Developers do not deny, fhat the Authority is a political subdivision of the State that is generally entitled to assert governmental immunity. See Clear Lake City Water Author. v. Friendswood Dev. Co., 256 S.W.3d 735, 741-42 (Tex.App.-Houston [14th Dist.] 2008, pet. filed) (concluding the Authority is generally entitled to assert governmental immunity). When a political subdivision of the State is immune from suit under the doctrine of governmental immunity, a court lacks subject-matter jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Governmental immunity has two components: immunity from liability and immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.2006). Immunity from suit bars suit against the entity altogether. Id. When a governmental entity enters into a contract, it waives immunity from liability and voluntarily binds itself, just as any other party would, to the terms of the contract, but that entity does not thereby waive immunity from suit. Id. For there to be a waiver of immunity from suit in this context, there must be a clear and unambiguous waiver of immunity from suit as to the claims in question. See Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2007) (providing that a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language); Tooke, 197 S.W.3d at 332-33 (requiring clear and unambiguous language to waive governmental immunity).

There is a clear and unambiguous waiver of immunity from suit for inverse-condemnation claims within the ambit of article I, section 17 of the Texas Constitution (hereinafter “Takings Clause”). See Tex. Const, art. I, § 17. Therefore, governmental immunity does not shield the Authority from a claim for compensation under the Takings Clause. See Tex. Const. art. I, § 17; State v. Holland, 221 S.W.3d 639, 643 (Tex.2007). The Takings Clause mandates that “[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person....” Tex. Const, art. I, § 17. Generally, governmental entities compensate property owners before appropriating their property, either by paying a mutually agreed price or by paying the value as determined in a statutory condemnation proceeding. See Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex.1992). If, however, these entities appropriate property without paying adequate compensation, the property owner may recover the resulting damages through an inverse-condemnation claim. See id. An inverse condemnation may occur when a governmental entity physically appropriates or invades the property, or when it unreasonably interferes with the landowner’s right to use and enjoy the property, such as by restricting access or denying a permit for development. See id. To properly assert an inverse-condemnation claim against a governmental entity, a party must plead the following elements: (1) the governmental entity intentionally performed an act in the exercise of its lawful authority; (2) that resulted in the taking, damaging, or destruction of the party’s property; (3) for public use. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001); Steele v. City of Houston, 603 S.W.2d 786, 790-91 (Tex.1980); see also State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736 (1941). Consent to any alleged taking is an affirmative defense. See City of Houston v. Crabb, 905 S.W.2d 669, 674-75 (TexApp.-Houston [14th Dist.] 1995, no writ). The Authority pleaded this defense in the trial court below.

In their live petition in the trial court, the Developers pleaded as follows:

• The Authority entered into the Agreements with the Developers.
• Under these Agreements, the Developers agreed to construct, and the Authority agreed to purchase from the Developers, water, sewer, and drainage facilities that serviced homes built on the Developers’ land (hereinafter the “Facilities”).
• Under the Agreements, the Authority agreed to pay for the Facilities from proceeds of the sale of bonds. The Authority obligated itself to include “in any bond election” that it held “a bond authorization in an amount sufficient to pay the purchase price of the Facilities.” The Authority also agreed to “include any purchase of the Facilities in any bond issue sold subsequent to such election.”
• Pending the purchase of the Facilities, the Agreements allow the Authority to lease the Facilities at no charge, and to use them to provide water, wastewater, and drainage services to Authority residents. At all relevant times, based on such services, the Authority has levied and collected taxes and user fees from homeowners serviced by the Facilities.
• The Authority held a bond election in May 1998, and then again in October 1998. Each of those elections, if successful, would have authorized the issuance of bonds sufficient to permit the Authority to honor its obligation to purchase the Facilities under the Agreements. However, in the weeks leading up to those elections, members of the Authority’s board of directors campaigned against the bond-authorization measures, and on each occasion the measures failed.
• The Developers sued the Authority and urged that, under the Agreements, the Authority still was obliged to purchase the Facilities out of other revenues available to the Authority, even absent the authorization of a bond issuance.
• Trial in that case resulted in a jury verdict in favor of the Developers, but this court reversed the trial court’s judgment. See Clear Lake Water Auth. v. Kirby Lake Dev., Ltd,., 123 S.W.3d 735, 756 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). This court held that, though the Authority was obliged to include the bond authorization measure in its elections, it was not obliged to purchase the Facilities out of other Authority funds in the event that such an election were to fail.
• This court did not grant the Authority a perpetual license to abrogate its contractual obligations. It did not rule that, because the bond-authorization measures had failed in 1998, the Authority was therefore relieved from honoring its agreements to purchase the Facilities. In this court’s view, by contract (1) the Developers had agreed to await payment until a successful bond election occurred, and (2) the Authority had agreed to include bond authorization measures in its elections until such time as bonds were authorized permitting purchase of the Facilities.
• The Authority scheduled another bond authorization election in September 2004. However, the Authority did not include any item authorizing the bonds that would have required to purchase the Facilities. Upon learning of this omission, the Developers lodged a protest with the Authority, pointing to the language of the Agreements and urging that a bond-authorization measure be added to the ballot.
• The Authority, however, determined to walk away from its contractual obligations, advising the Developers that it “already had satisfied” its obligation to seek voter approval to issue bonds for purchase of the Facilities. The Authority underscored its repudiation of its obligations under the Agreements in a written stipulation in another case in which it stated that it considered any obligation to include a bond-authorization measure to have been satisfied before September 2004.
• Although it has disclaimed any further obligation to seek voter approval of bonds to purchase the Facilities, the Authority continues to use the Facilities, with no payment to the Developers.
• As a result of this repudiation of the Authority’s contractual obligation, the Developers filed suit in the district court asserting breach of contract and quantum meruit.
• The Authority’s use of and exercise of dominion and control over the Facilities constitutes a taking of the Facilities without compensation in violation of the Takings Clause. The Authority’s actions are intentional and those actions were a proximate cause of the taking of the Facilities, which were owned by the Developers at the time of the taking. The Developers did not consent to the taking, and received no compensation for the taking, which was for a public use. The Developers seek damages for the property taken.

In reviewing the Authority’s challenge to the Developers’ pleadings, we construe the pleadings liberally in their favor and look to their intent. See Miranda, 133 S.W.3d at 226. In their petition, the Developers allege that, under the Agreements, the Authority is allowed to lease and use the Facilities at no charge until the Authority purchases the Facilities and that the Authority has not purchased the Facilities. Presuming without deciding that the Authority’s alleged breaches of the Agreements resulted in recoverable contract damages to the Developers, the facts alleged in the Developers’ petition affirmatively negate the trial court’s subject-matter jurisdiction by showing that the Developers agreed to allow the Authority to lease and use the Facilities free of charge until the Authority purchases the Facilities. See General Servs. Comm’n, 39 S.W.3d at 598-99 (holding that, even presuming that facts alleged in petition were true, plaintiff did not allege a claim within the scope of the Takings Clause because it did not plead sufficient intent); State v. Steck Co., 236 S.W.2d 866, 869 (Tex.CivApp.-Austin 1951, writ ref'd) (holding by Texas Supreme Court that takings claim failed as a matter of law because the State took possession of the property in question under a contract with the plaintiff and therefore with the plaintiffs permission and consent); Hightower v. City of Tyler, 134 S.W.2d 404, 407 (Tex.Civ.App.-El Paso 1939, "writ refd) (holding by Texas Supreme Court that takings claim failed because, as a matter of law, developers consented to the City of Tyler using the water and sewer facilities installed by developers). Under the applicable standard of review, the facts alleged in the Developers’ petition affirmatively negate the trial court’s subject-matter jurisdiction by showing that the Developers consented to any alleged taking by the Authority. See Little-Tex Insulation Co., 39 S.W.3d at 598-99; Steele Co., 236 S.W.2d at 869; Hightower, 134 S.W.2d at 407.

The Developers argue that the Authority has breached the Agreements by refusing to submit to the voters the bond-authorization measures that, if approved, would require the Authority to purchase the Facilities. The construction of the Agreements is the subject of another lawsuit; nonetheless, under the Authority’s construction of the Agreements, there has been no breach of the Agreements and the Authority is not required to purchase the Facilities. Under the Developers’ petition, the Agreements are still in effect. The petition shows that rather than rescind the Agreements based on an alleged material breach by the Authority, the Developers have treated the Agreements as still in effect by continuing to demand performance under the Agreements and suing to enforce the Agreements. See Hanks v. GAB Bus. Servs., Inc., 644 S.W.2d 707, 708 (Tex.1982) (holding that, nonbreaching party must decide whether to rescind the contract or seek to enforce it when the material breach occurred, rather than waiting until after trial and before judgment to decide, and stating that non-breaching party waived its right to rescind the contract based on the other party’s material breach by (1) treating the contract as still in effect following the material breach and (2) by filing suit to enforce the contract); Gupta v. Eastern Idaho Tumor Inst., Inc., 140 S.W.3d 747, 757-58 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (holding that, as a matter of law, nonbreaching party was bound by the contract despite other party’s material breach because nonbreaching party continued to demand performance under the contract following the material breach). In the Agreements, the Developers consent to the Authority’s use of the Facilities free of charge until the Authority purchases the Facilities, which has not occurred.

For these reasons, the trial court did not err in concluding that governmental immunity bars the Developers’ inverse-condemnation claims and in granting the Authority’s plea to the jurisdiction. Accordingly, we overrule the Developers’ two issues and affirm the trial court’s judgment.

      . See Tex. Const. art. XVI, § 59; Act of Apr. 18, 1963, 58th Leg., R.S., ch. 101, 1963 Tex. Gen. Laws 164, 173; Tex. Water Code Ann. chs. 49, 51 (Vernon 2000 & Supp. 2007).

      . Often, courts use the terms "sovereign immunity” and "governmental immunity” interchangeably; nevertheless, they are two distinct concepts. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). "Sovereign immunity" refers to a State's immunity from suit and liability. Id. Its protection extends not only to the State, but also to the varying divisions of state government, including agencies, boards, hospitals, and universities. "Governmental immunity” protects political subdivisions of the State, including counties, cities, and school districts. Id.

      . The Developers also cite two cases that are not on point and that are not inconsistent with our analysis. See City of Garden Ridge v. Ray, No. 03-06-00197-CV, 2007 WL 486395, at *4 (Tex.App.-Austin Feb. 15, 2007, no pet.) (mem. op.); Texas Parks & Wildlife Dep't v. Callaway, 971 S.W.2d 145, 150 (Tex.App.-Austin 1998, no pet.).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P. d/b/a Valley Regional Medical Center.
    No. 13-08-136-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Nov. 6, 2008.
    Michael A. Hatchell, Charles R. Watson, Jr., Locke Lord Bissell & Biddell, LLP, Austin, TX, , Thomas F. Nye, Robert W. Clore, Vidaurri, Lyde, Gault & Quintana, Corpus Christi, TX, for Relator.
    J.A. Magallanes, Gilberto Hinojosa, Carlos Escobar, Magallanes & Hinojosa & Mancias, Brownsville, TX, Steve A. Kamel, Jack Washburn, Murphrey & Washburn, Houston, TX, Ronald G. Hole, Hole & Alvarez, L.L.P., Steven M. Gonzalez, Marion R. Lawler, III, Gonzalez Palacios, McAllen, TX, W. Richard Wagner, Patterson & Wagner, San Antonio, TX, for real parties in interest.
    Before Justices YÁÑEZ, RODRIGUEZ, and VELA.
   MEMORANDUM OPINION

MEMORANDUM OPINION

PER CURIAM.

Relator, Columbia Valley Healthcare System, L.P. d/b/a Valley Regional Medical Center, seeks a writ of mandamus to compel the trial judge, the Honorable Benjamin Euresti, Jr., presiding judge of the 107th Judicial District Court of Cameron County, Texas, and/or the presiding judge of the 404th District Court of Cameron County, to vacate his February 7, 2008 order denying relator’s Motion to Disqualify and Recuse counsel for real parties-in-interest, Magallanes & Hinojosa, P.C. (“the firm”), in trial court cause number 2006-06-2741-G in the 404th District Court of Cameron County, Texas. The trial court denied the relator’s motion to disqualify after a hearing on February 7, 2008.

On April 8, 2008, real parties-in-interest and the firm filed a response. On April 18, 2008, relator filed a Reply Brief in support of its petition for writ of mandamus.

We have reviewed the petition for writ of mandamus, response, reply, and record of the February 7, 2008 hearing. We conclude that the firm established that it took sufficient precautions to guard against any disclosure of confidences by its legal assistant, who was formerly employed by counsel for relator. Accordingly, we conclude that the relator has not shown a clear abuse of discretion or violation of a duty imposed by law.

Relator’s petition for writ of mandamus, filed March 13, 2008, is DENIED.

      . Relator notes that although plaintiffs’ suit was filed and is currently pending in the 404th District Court of Cameron County, the Honorable Benjamin Euresti, Jr., judge of the 107th District Court, presided over relator’s Motion to Recuse.

      . Real parties-in-interest (plaintiffs below) are Yvonne T. Leal and Alberto B. Leal, Individually and as next friends of Markus T. Leal, a minor.

        . See In re Amer. Home Prod. Corp., 985 S.W.2d 68, 75 (Tex.1998) (orig.proceeding); Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 835 (Tex.1994) (orig.proceeding); Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466, 467 (Tex.1994) (orig.proceeding).


author: SHERRY RADACK, Chief Justice. JIM SHARP, Justice,

text:
    Carl Doug DYESS a/n/f A.V., Minor, Appellant, v. Leon HARRIS, Donna L. Harris, and Spaulding for Children, Appellees.
    No. 01-08-00673-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 16, 2009.
    Corrected Dissenting Opinion Oct. 26, 2009.

      Jeffrey H. Marsh, The Marsh Law Marsh, Houston, TX, for Appellant.
    Greg K. Winslett, Richard Lee Smith Jr., Dallas, TX, Zandra E. Foley, Thompson, Coe, Cousins & Irons, Houston, TX, for Appellees.
    Panel consists of Chief Justice RADACK and Justices SHARP and TAFT.

       Justice Tim Taft, who retired from the First Court of Appeals effective June 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on May 19, 2009.

   OPINION

SHERRY RADACK, Chief Justice.

Appellant, Carl Doug Dyess, as next friend and guardian ad litem for A.V., a minor child, appeals from a traditional summary judgment rendered in favor of A.V.’s foster parents, appellees, Donna L. and Leon Harris, and appellee, Spaulding for Children, a non-profit agency that assisted in placing A.V. with the Harrises. The Harrises were also foster parents of U.N., who sexually assaulted A.V. in the Harrises’ home. Dyess’s single issue challenges the trial court’s ruling that the Har-rises and Spaulding did not owe a duty to A.V. because the assault was not foreseeable. We affirm.

UNDERLYING FACTS AND PROCEDURAL HISTORY

A. Background

When they became foster parents in 2002, the Harrises were approved to care for from one to five children in foster care. After moving to a much larger home, they obtained approval as a “group home” to care for a maximum of nine children. U.N. was ten years old in 2002, when the Harrises became foster parents of him and his younger brother. One of their first undertakings with U.N. was to care for him through surgery to remove a tumor on his face. Over the four years in which U.N. lived with the Harrises, they came to trust him and were planning to adopt him, having already adopted another foster child.

U.N. did well at school, generally got along well with the Harrises and the other foster children, and rarely got into trouble. Spaulding regularly monitored the care of U.N. and his brother by the Harrises and on February 17, 2006 reported positively on U.N.’s social, physical, and emotional needs while in their care. U.N. continued to miss his birth family, with whom he had some contact, but his therapist reported that U.N. was generally happy and continuing to remain positive in all areas. A Spaulding representative who visited the Harrises’ home on April 6, 2006 reported that U.N. and his brother “appeared to be doing great.”

The Harrises became foster parents of A.V. and her brothers in January 2006. In April 2006, A.V. was six years old, and U.N. was 14 years old. On the evening of April 8, 2008, Donna Harris was out of town to attend a funeral, and her husband was in charge. When A.V. misbehaved in some respect, Leon Harris placed her in a six-minute “time out” upstairs in the group home. Before the six minutes had elapsed, Leon heard a commotion and went upstairs to investigate. He saw U.N. running to the door and saw A.V. in the corner of the room with her panties down. U.N. claimed that he had found A.V. “like that” and was coming to summon Leon. U.N. denied any contact with A.V., but she stated that he had attempted to have sexual contact with her and had threatened to harm her if she told anyone. On the same evening, a ten-year-old girl in foster care with the Harrises revealed for the first time that U.N. had sexually assaulted her once before as well. It is undisputed that U.N. is in the custody of the Texas Youth Commission as a result of the incident with A.V.

B. This Lawsuit

Dyess sued the Harrises and Spaulding in September 2006, claiming that their negligent breach of duties owed to A.V. proximately caused the assault by U.N. and resulted in damages that Dyess claimed on A.V.’s behalf. Dyess’s live pleadings against the Harrises included numerous instances of failure properly to care for, to observe, to monitor, to supervise, and to ensure the safety of the children. His live pleadings against Spauld-ing alleged numerous instances of failures to warn the Harrises of U.N.’s prior history and his “true state,” to investigate his background, to implement measures that would have prevented the attack, and to properly and safely place foster children. Dyess also claimed that Spaulding was vicariously liable for the Harrises’ negligence under agency and respondeat superior principles.

The Harrises and Spaulding answered by general denials and affirmative defenses, including contentions that the criminal conduct of a third party (U.N.) had proximately or solely and proximately caused A.V.’s injuries or, alternatively, that any injuries had resulted from an intervening, superseding, or new and independent cause that was not reasonably foreseeable.

C.Motions for Summary Judgment and Dyess’s Response

The Harrises and Spaulding filed traditional and no-evidence motions for summary judgment, in which they argued that the assault on A.V. was not foreseeable as a matter of law, even if Texas law were to recognize a special relationship between foster parents and a foster child, which neither the Legislature nor Texas case law has yet recognized.

In response to the motions for summary judgment, Dyess claimed that U.N.’s sexual assault on A.V. was foreseeable and, therefore, that the Harrises and Spaulding had a duty to prevent it. Dyess also claimed that the foster-parent relationship between U.N. and the Harrises constituted a “special relationship” that gave rise to a duty to protect and to warn A.V. Dyess relied on deposition testimony and discovery responses to support his contentions that the Harrises and Spaulding either knew or should have known about U.N.’s tendencies and that the Harrises’ primary focus was not the foster children in their care, but the income they generated that enabled the Harrises to pay for their new home. Dyess provided extensive documentation regarding the Harrises’ monthly financial obligations and the tax-free income that they received as foster parents.

Dyess cited a number of factors to support his claims, including the number of children in the home, whose ages varied from infants to 19, and the varying ethnicities and behaviors of the children. Dyess also emphasized that the Harrises conceded their lack of knowledge about the history of the children in their care, though both denied that “their job” included inquiries into potential behavior problems. Dyess further emphasized that the Harrises had recently permitted 14-year-old U.N. to stay upstairs in the group home, while other children generally remained downstairs, and that the Harrises conceded that this decision was unwise in retrospect.

D. The Trial Court’s Ruling

In rendering summary judgment for the Harrises and Spaulding, the trial court ruled that the summary judgment evidence on which Dyess relied, including U.N.’s “personal and family history, and the foster family’s living arrangements!,] where children of mixed age, gender, and race living in the same home,” did not establish that the incident between U.N and A.V. was foreseeable. Indeed, the court stated that the evidence fell “short of the facts of other cases” in which courts had rejected foreseeability of an injury. Concluding that those cases constituted binding precedent, the trial court granted the Harrises’ and Spaulding’s motions for traditional summary judgment on “no duty” grounds.

STANDARD OF REVIEW

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Like the trial court, we must indulge every reasonable inference in favor of the nonmovant, here Dyess, take all evidence favorable to him as true, and resolve any doubts in his favor. See id. We review the evidence presented by the summary judgment record in the light most favorable to Dyess, as the party against whom the summary judgment was rendered, and we credit evidence that favors him if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).

As the parties moving for traditional summary judgment based on Rule of Civil Procedure 166a(c), the Harrises and Spaulding had to establish that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 SW.2d 746, 748 (Tex.1999). As defendants, they were entitled to prevail either by conclusively negating at least one element of each of Dyess’s causes of action as a matter of law or by conclusively establishing all elements of an affirmative defense as a matter of law. See Sanders v. Herold, 217 S.W.3d 11, 14 (Tex.App.Houston [1st Dist.] 2006, no pet.) (citing Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995)).

NEGLIGENCE

A. Elements

To prevail on his claims that the negligence of the Harrises and Spaulding caused U.N.’s sexual contact with A.V., Dyess had to establish all elements of a negligence claim, specifically, that they owed a duty to A.V. to protect her from U.N. and breached that duty, which proximately caused damages to her. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006); Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex.1994); Madison v. Williamson, 241 S.W.3d 145, 152 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).

B. Dispositive Principles of Duty Analysis

As in any negligence case, the trial court’s threshold inquiry was to determine whether the Harrises or Spaulding owed A.V. a duty under the facts and circumstances of the occurrence that gave rise to Dyess’s claims on her behalf. See Kroger Co., 197 S.W.3d at 794; Bird, 868 S.W.2d at 769; Madison, 241 S.W.3d at 152. When the facts are undisputed, the court determines duty as a matter of law. Sanders, 217 S.W.3d at 15; see Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 598 n. 5 (Tex.2006) (“[T]he existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question.”) (quoting Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990)).

1.General Rule: No Duty to Prevent Harm to Others

Persons generally have no duty to control the conduct of third parties. Loram Maint., 210 S.W.3d at 596; Tex. Home Mgmt, Inc. v. Peavy, 89 S.W.3d 30, 34 (Tex.2002) (citing Greater Houston Transp. Co., 801 S.W.2d at 525); see Barton v. Whataburger, Inc., 276 S.W.3d 456, 462 (Tex.App.-Houston [1st Dist.] 2008, pet. filed) (stating rule in context of criminal conduct). Unless the danger to the claimant is shown to be foreseeable, the conduct of the third party, including criminal conduct, is deemed a superseding cause of the injury resulting from the danger. See Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex.1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 550 (Tex.1985); Barton, 276 S.W.3d at 462.

An exception to this general rule applies when a special relationship exists between an actor and another that imposes a duty on the actor to control the other’s conduct. See Tex. Home Mgmt., 89 S.W.3d at 34 (citing Greater Houston Transp., 801 S.W.2d at 525). But even when a special relationship exists, courts will not impose a duty unless the risk of harm is foreseeable, see id. at 36, because a person has “‘neither a legal nor [a] moral obligation to guard against that which cannot be foreseen.’ ” Id. (quoting Houston Lighting & Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603, 606 (Tex.1960)) (quoting Tex. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 163 (1896)); see also Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939) (stating that no liability will be imposed for allegation of negligence unless allegedly negligent party “ought to have foreseen the consequences” of act in “light of the attendant circumstances”).

2. Risk-Utility Inquiry Determines Duty

Settled law recognizes that when courts determine whether a duty exists, they must “consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.” Madison, 241 S.W.3d at 152 (citing Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 710 (Tex.2003); Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 607 (Tex.2002)) (referring to this balancing of factors as risk-utility analysis). Foreseeability of the risk, however, is the “foremost and dominant consideration” in the duty analysis. Tex. Home Mgmt., 89 S.W.3d at 36 (quoting El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987)); Madison, 241 S.W.3d at 152.

3. “Mere Possibility is Not Reasonable Foreseeability

Foreseeability requires that defendant foresee only the general danger; the plaintiff need not establish that the defendant could foresee the exact sequence of events that produced the harm. Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex.1999); Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Nixon, 690 S.W.2d at 551. As stated in the trial court’s judgment, foreseeability is not determined by hindsight, but by what the defendant knew or should have known when the incident occurred. See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 757 (Tex.1998). Thus, the Harrises’ having acknowledged, in retrospect, unwise choices regarding U.N. does not raise a material issue of fact regarding what they knew or should have known before the assault. See id.

Likewise, foreseeability analysis does not consider what simply might occur, because this inquiry would necessarily give rise to a universal duty to prevent harm, which the law does not impose. Id. at 756. Accordingly, a two-pronged test determines foreseeability of injury for purposes of determining the defendant’s duty, as follows: (1) the injury must be of such a general character as might reasonably have been anticipated and (2) the plaintiff should be so situated with relation to the wrongful act that injury to him or one similarly situated might reasonably have been foreseen. Madison, 241 S.W.3d at 152 (citing Mellon Mortgage, 5 S.W.3d at 655; Nixon, 690 S.W.2d at 551).

4. Sanders & Madison: Danger Not Reasonably Foreseeable

This Court recently applied these principles in Sanders v. Herold and in Madison v. Williamson. Despite the special relationship between a teenager and his parents, we held in Sanders that the teenager’s parents owed no duty to a child whom the teenager molested in the parents’ home because the parents established as a matter of law that they were not aware of their son’s dangerous tendencies and could not anticipate the danger that he posed to other children. See Sanders, 217 S.W.3d at 17-19. As in this case, the parents learned about earlier abusive conduct only after their son had been arrested for the assault on the plaintiffs’ child. Id. at 18. Because the parents had no knowledge of the earlier abusive conduct, even though it had occurred in their home, the parents could not “reasonably anticipate” their son’s “dangerous tendencies.” See id. at 15, 18 (citing and quoting Rodriguez v. Spencer, 902 S.W.2d 37, 42 (Tex.App.-Houston [1st Dist.] 1995, no writ)). As we explained in Rodriguez, the duty of a parent to protect a third party from injurious acts by the parent’s minor child “depends on whether the injury to the third party is reasonably foreseeable under the circumstances, as evidenced by the parents’ knowledge, consent, sanction, or participation in the child’s activities.” 902 S.W.2d at 43. Compare Cain v. Cain, 870 S.W.2d 676, 680-81 (Tex.App.Houston [1st Dist.] 1994, writ denied) (holding that uncle owed duty to niece to prevent sexual assault by uncle’s son-in-law because uncle was aware of son-in-law’s guilty plea to offense of sexual assault of child and could thus reasonably foresee similar assault on niece).

In Sanders, the Herolds also knew that their son had voyeuristic tendencies when he was four and five years old and were aware, when he was a teenager, that he enjoyed the company of younger children and viewed pornography; the Herolds also conceded that their son “was raised in a household where sexual topics were frequently discussed in front of the children.” Sanders, 217 S.W.3d at 18. Yet, there was no summary-judgment evidence that the son’s voyeurism continued through his childhood and into his teenage years; that the pornography that he viewed included child pornography; or that his enjoyment of the company of younger children was deviant. Id. at 18-19. Because the parents were thus not aware that their son was dangerous, they had no duty to warn the Sanderses that he was dangerous. Id. at 19.

Applying the same analysis in the context of a no-evidence summary judgment rendered pursuant to Rule of Civil Procedure 166a(i), we further held in Madison that a wife had no duty to prevent her husband from committing a sexual assault against a minor child in their home. 241 S.W.3d at 153. As in Sanders, there was no competent summary-judgment evidence that the wife should have foreseen that her husband would engage in inappropriate sexual contact in their home. See id.

In both Sanders and Madison, the defendant family members lacked the knowledge of prior incidents of criminal behavior on which the supreme court relied in Texas Home Management. See 89 S.W.3d at 38-39 (holding that owner and manager of mental health and mental retardation facility could reasonably foresee danger to family members by facility resident whom facility’s interdisciplinary team permitted unsupervised, out-of-town home visits). Because the facility knew of the resident’s lengthy history of assaults, theft, and weapons violations, the Texas Home Management court held that the facility failed to establish as a matter of law that it could not reasonably foresee the danger that the resident would murder a family member while released from the facility for a home visit. See id. at 36-39 (citing Greater Houston Transp., 801 S.W.2d at 526).

C. Duty Analysis in This Case

In contrast to the demonstrated knowledge of the perpetrator’s dangerous tendencies that supported a duty owed as a matter of law in Texas Home Management, and much like the comparable lack of knowledge of the perpetrators’ dangerous tendencies shown by the circumstances of the Sanders and Madison cases, the summary-judgment record of this case does not establish that the Harrises and Spaulding could reasonably foresee a danger that U.N. would assault A.V.

Like the Harrises, Spaulding representatives were incredulous when they learned about the incident with A.V. The Harrises also expressed disbelief when a second foster child informed that U.N. had also assaulted her. As a Spaulding representative reported, though the Harrises had permitted U.N. to be unsupervised upstairs in the group home, he had gained their trust over the four years that he had spent as their foster child, to the extent that they were considering adopting him. He had never acted in a sexually inappropriate manner with anyone, and he did not use sexually explicit or suggestive language. In short, U.N. had never displayed any behavior that suggested that he would sexually assault anyone. Likewise, nothing in his personal history or progress notes suggested a likelihood of his sexually assaulting A.V. We note further that Dyess confirmed that he was not aware of any evidence that either the Harrises or Spaulding knew or should have known that U.N. would commit a sexual assault or that he was dangerous.

Under the record presented, we hold that the sexual assault on A.V. was not of such a general character that the Harrises or Spaulding might reasonably have anticipated it; we further hold that A.V. was not situated, with relation to the assault by U.N., in such a way that the Harrises or Spaulding might reasonably have foreseen that U.N. would sexually assault her or someone similarly situated to her. See Mellon Mortgage, 5 S.W.3d at 655; Nixon, 690 S.W.2d at 551; Madison, 241 S.W.3d at 152. Because neither the Harrises nor Spaulding could reasonably have foreseen the assault, the trial court properly rendered traditional summary judgment in favor of them on the ground that they had no duty to prevent U.N.’s sexual assault of AN.

We overrule Dyess’s issue.

CONCLUSION

We affirm the judgment of the trial court.

Justice SHARP, dissenting.

JIM SHARP, Justice,

corrected dissenting opinion.

My dissenting opinion of October 16, 2009, is withdrawn, and this one substituted in its place.

I dissent. The trial court preemptively usurped the jury’s fact-finding role.

By the time that U.N. was 10 years old, a number of life’s most twisted situations had already been visited upon him. His biological father was convicted of raping his sister. He and his younger brother were placed into the Harrises’ 2,160 square foot foster home. He missed his mother.

By April 2005, at age thirteen, U.N. was described by Donna Harris as possessed of “the teenager hormones and he wants to be left alone and by himself now .... he is very moody.” Leon Harris, too, noted U.N.’s maturation and acknowledged his understanding that thirteen is the age at which boys begin to seek sexual intercourse. Close to this same period, written reports of Spaulding’s own foster care coordinator confirm that Leon Harris had walked in on “a boy (who) had [G.] bent over with both of their underwear down.” As such, Leon Harris had approximately one year of advance notice that there was an issue with the foster children under his care acting out sexually.

Shortly after U.N.’s placement by Spaulding in the Harrises’ home (originally authorized to house between one and five children), the Harrises built their “dream home” and were approved to house eight foster children. The extra room to roam (4,847 square foot/$400,000) also enabled extra payments to the Harrises by Spauld-ing for Children. It stands to reason that this increased area also made supervision of so many children a more far-flung proposition.

The trial court acknowledged that Dyess’s summary-judgment evidence included the foster family’s living arrangements, where six to eight children of mixed ages (infants to the age of 19) and genders lived upstairs from the foster parents. The trial court also acknowledged that U.N. had “free reign” of the upstairs, where a group of unrelated boys and girls of varying ages lived, slept, dressed, bathed, etc., largely unsupervised.

Common sense or the most rudimentary familiarity with pubescent, unrelated boys and girls would dictate that such an arrangement far exceeded mere foreseeability: it was well-nigh certain to foster activity as innocently exploratory as “Let’s Play Doctor” and as tragic as the sexual penetration of a little six-year-old girl by an unquestionably unguided, unsupervised, deeply confused fourteen-year-old boy beset by “teenager hormones.”

The trial court’s order granting the motions for traditional summary judgment recites, “[T]he question is whether it was foreseeable that this specific foster child would act in such a heinous manner or some generally similar manner.” (Emphasis added.) Foreseeability, however, requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex.1999). The two-prong test for foreseeability articulated by the Supreme Court of Texas is (1) that the injury be of such a general character as might reasonably be anticipated and (2) that the injured party should be so situated with relation to the wrongful act that injury to him or one similarly situated might reasonably have been foreseen. Id.

In order to prevail on their traditional motion for summary judgment on the element of duty, the Harrises and Spaulding were required to show that there was no genuine issue of material fact regarding the foreseeability of the risk of harm to A.V. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). Evidence raises a genuine issue of material fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755-58 (Tex.2007).

In light of all of the evidence presented at summary judgment — viewed in the light most favorable to Dyess, indulging every reasonable inference in his favor, and resolving any doubts against the Harrises and Spaulding — reasonable and fair-minded jurors could differ in their conclusions as to whether the risk of harm to A.V. was foreseeable and, therefore, whether the Harrises and Spaulding had a duty to prevent the assault by U.N. The rendering of summary judgment was thus improper. I would sustain Dyess’s issue regarding foreseeability, reverse the trial court’s take-nothing summary judgment, and remand the case to the trial court for further proceedings.

      . In 2002, the 313th District Family Juvenile Court of Harris County, Texas, appointed Dyess guardian ad litem for A.V. in proceedings brought by the Texas Department of Family and Protective Services in which Harris County Child Protective Services obtained custody of A.V.

      . Foreseeability is also a component of the proximate cause element of a negligence claim. Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655-56 (Tex.1999).

      . Our analysis encompasses Sanders v. He-rold, which addressed duty in the context of the special relationship between parent and child, because the trial court in this case assumed for purposes of its analysis, but did not decide, that the relationship between foster parent and foster child was also a special relationship.


author: JANE BLAND, Justice.

text:
    Horace Hiawathai WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00557-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 29, 2009.
    Discretionary Review Dismissed Aug. 25, 2010.

      Christopher H. Warren, Spring, TX, for Appellant.

      Michael C. Young, Assistant District Attorney, Conroe, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.
   OPINION

JANE BLAND, Justice.

A jury convicted Horace Hiawathai Walker for felony driving while intoxicated, third offense or more. See Tex. Penal Code Ann. § 49.04 (Vernon 2003). Walker pleaded true to three enhancement paragraphs and the trial court assessed punishment at twenty-five years’ confinement. On appeal, Walker contends the trial court erred in admitting a DVD containing an audio recording of an inculpatory statement produced by the State during the trial. We hold that the trial court did not err in admitting the recording and therefore affirm the judgment of the trial court.

Background

During the evening of July 21, 2007, Texas Department of Public Safety Trooper R. Wolf conducted a traffic stop on Interstate 45 in Montgomery County. While walking from his patrol car to the stopped vehicle, Trooper Wolf noticed a car, driven by Walker, make a drastic lane change from the “fast” lane of traffic into the lane closest to Wolf. Wolf signaled with his flashlight for Walker to either move back into the fast lane or slow down. Just as Walker’s vehicle reached Wolf, Walker swerved back into the fast lane, forcing another vehicle off the road and onto the opposite shoulder. Suspecting that Walker might be intoxicated, Trooper Wolf released the individual he previously stopped, caught up to Walker’s vehicle, and pulled him over.

After stopping Walker, Trooper Wolf asked Walker to spell his middle name, which he accomplished only after two unsuccessful attempts. Wolf smelled a strong odor of alcohol on Walker’s breath and saw that Walker’s eyes were red and glassy. Walker submitted to a portable breath test, which indicated the presence of alcohol in his system. Wolf then administered the three standardized field sobriety tests. Walker displayed all six possible clues on the horizontal gaze nystagmus test, six of eight possible clues on the walk and turn test, and three of four possible clues on the one leg stand test. At this point, Wolf placed Walker under arrest, read Walker his Miranda rights, and requested a breath specimen. Walker refused, saying that it “was not going to help [Walker] any, it was going to help [Wolf].”

The State indicted Walker for felony driving while intoxicated, third offense or more, on September 13, 2007. On October 18, the trial court entered a discovery order, requiring the State to produce, among other things, “[a]ll written or recorded statements, including video tape recordings, of the defendant, along with all confessions or statements, whether verbal or otherwise, made pursuant to Art. 38.22 [Code of Criminal Procedure].” The State produced a DVD recording to defense counsel of Walker’s traffic stop. During trial the following April, the trial judge admitted the DVD recording of Walker’s traffic stop, captured by the video camera and audio equipment located in Trooper Wolfs patrol car. While the video played for the jury, the prosecutor asked Wolf to identify the “M-l” and “M-2” notations that appeared on the television screen. Wolf stated that these notations referred to two microphones: the M-l microphone was located inside the patrol car and Wolf wore the M-2 microphone attached to his uniform. Wolf also explained that the ability to hear both audio feeds depended on whether the television system was configured for two different speakers. If not, the audio from the M-2 microphone would override the audio from the weaker M-l microphone inside the patrol car, and the M-l feed would be inaudible. Toward the end of the video, after Wolf placed Walker in the patrol car and attempted to identify the passengers in Walker’s vehicle, the video showed one of the passengers walk over to Walker and the two men having a conversation that was inaudible on the DVD. Wolf suggested the problem was the configuration of the television, which did not appear equipped to play both audio feeds simultaneously.

After finishing Wolfs direct examination and returning from the lunch recess, the prosecutor informed defense counsel and the trial judge that, during Wolfs testimony, he discovered that the admitted DVD exhibit only contained the audio from the M-2 microphone. The M-l audio feed on the original DVD recording given to defense counsel pursuant to the trial court’s discovery order was present but inaudible due to the stronger M-2 feed and the television configuration. The prosecutor proposed creating a new DVD containing only the M-l feed from the interior of the patrol car, providing that recording to defense counsel for review and to confirm that all previously agreed-upon redacted information was correctly redacted from the new version, and then offering the new recording into evidence. The prosecutor noted that the audio of the new DVD contained a statement by Walker to his fellow passenger sarcastically telling him to thank another passenger for “letting [Walker] get so drunk.” Defense counsel objected on the ground that the prosecutor did not provide this information in a readily accessible form during the discovery period. At this point, the trial judge deferred ruling on the admissibility of the new recording until after the prosecutor provided a copy and gave defense counsel an opportunity to review it.

After cross-examination of Trooper Wolf, the prosecution tendered a redacted version of the M-l audio feed. In response to defense counsel’s statement that she had yet to hear the M-l feed, the trial judge proposed finishing the redirect examination of Wolf before determining how to proceed with the new recording. Upon finishing redirect, the court took a twenty minute recess to allow defense counsel time to review the recording. When trial reconvened, the prosecution formally offered the recording of the M-l audio feed. Defense counsel objected:

My one objection to this would be even though we have agreed on the redac-tions and even though it was on the videotape — or the DVD that I received prior to today’s trial and during the discovery period, I would still object to the production of this evidence as I have not had the chance to react to it. And it is almost tantamount to an ambush in this case; and the fact that it’s coming forth after the discovery period is over.

The prosecutor responded that the State produced the recording during the discovery period, and:

Since counsel is aware of the contents of this statement and was essentially provided with it — we thought the microphone didn’t capture it. The only development here is the microphone did capture it. Even if it hadn’t been captured on microphone we would have been able to call the trooper to say he said it.

The prosecutor also noted that Trooper Wolf included Walker’s statement in his offense report, which was made available to defense counsel as part of the prosecutor’s open file policy. The trial court overruled defense counsel’s objection and admitted the recording. The jury found Walker guilty of felony driving while intoxicated, third offense or more, and after Walker pleaded true to three enhancements related to prior DWI and aggravated assault convictions, the trial court assessed punishment at twenty-five years’ confinement.

Discussion

Walker contends that the trial court erred in admitting the M-l audio feed recording because the prosecution did not produce this recording in a readily accessible form until trial, in violation of the court’s discovery order. We review a trial judge’s decision to admit or exclude evidence for abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996). Unless the trial judge’s evidentiary decision is outside the “zone of reasonable disagreement,” we uphold the ruling. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991). When the trial judge makes a finding of fact based on the evaluation of credibility and demeanor, we defer to that finding. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). When the trial judge does not make explicit findings of fact, we “view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

When the trial court admits evidence offered by the State that was not produced in compliance with a discovery order, the relevant inquiry is whether the prosecutor acted with the specific intent to willfully disobey the discovery order by failing to turn over the evidence. Oprean v. State, 201 S.W.3d 724, 727 (Tex.Crim.App.2006); see also Hollowell v. State, 571 S.W.2d 179, 180 (Tex.Crim.App.1978) (“[Ejvidenee willfully withheld from disclosure under a discovery order should be excluded from evidence.”). A prosecutor’s actions may be extremely negligent or even reckless, but that conduct must rise to the level of willfulness to require exclusion of the evidence. See State v. LaRue, 152 S.W.3d 95, 97 (Tex.Crim.App.2004). We infer from the prosecutor’s actions and words whether the prosecutor had the specific intent to willfully disobey the discovery order. See Oprean, 201 S.W.3d at 728. In determining if the prosecutor acted willfully, we consider whether the record indicates that (1) the prosecutor intended to harm the defense, (2) the prosecutor’s actions were a strategic and purposeful effort to thwart the defense’s preparation of its case, or (3) the prosecutor consciously decided to violate the plain directive of the discovery order. See id. at 727, 728 (holding that prosecutor willfully violated discovery order when, after specifically telling defense counsel that she would only present sentences and judgments during the sentencing phase the next morning, she introduced video recording of one of defendant’s prior offenses). We also consider the validity of the prosecutor’s rationale and explanation for violating the discovery order, as well as whether the prosecutor suddenly discovered the evidence such that compliance with the terms of the discovery order was impossible. See id. at 727-28.

The record indicates that the State was unaware of the M-l audio feed until Trooper Wolf pointed out the absence of the feed during his direct examination. When the State introduced the original DVD recording, the prosecutor asked Wolf if the jury could hear both the audio from his microphone and the microphone located in the patrol car. Wolf responded that this would be possible “[i]f the TV system is set up for two different speakers. Some are not. If I have the M-2 on you will never be able to hear the inside of the car.” At the point in the video where Walker’s passenger approached the patrol car to converse with Walker, Wolf again commented on the lack of audio from the M-l microphone, mentioning that the television must be configured in a certain way to hear both audio feeds. When later discussing the problem with defense counsel and the trial judge, the prosecutor stated that he “probably would have known how to extract [the M-l feed] had [he] known it was there.” This evidence does not indicate that the prosecutor knew the M-l audio track existed on the original DVD recording and willfully concealed this fact from defense counsel until trial was underway.

Upon learning of the matter during Trooper Wolfs direct examination, the State brought it to the attention of defense counsel and the trial court. The State proposed making a separate DVD recording of the M-l feed only, providing that recording to defense counsel, and ensuring the removal of redacted material from this new recording prior to its introduction to the jury. The prosecutor pointed out that defense counsel had knowledge of the substance of the M-l feed, since Trooper Wolf included Walker’s comment in his offense report, which was available to defense counsel under the open file policy. The prosecutor promptly informed defense counsel and the trial judge upon completion of the new recording and repeatedly mentioned his desire for defense counsel to review the recording to check the redac-tions. These actions are not consistent with intent to harm the defense, thwart the defense’s preparation of its case, or consciously violate the discovery order. Here, the trial court admitted the M-l recording, and thus implicitly found that the prosecution did not willfully withhold the evidence. The trial court also gave defense counsel an opportunity to object and make redactions to the audio. Finally, the State produced the substance of the inculpatory statements in the officer’s report before the discovery deadline. For these reasons, we hold that the trial court did not abuse its discretion by admitting the recording of the M-l audio feed.

Walker notes that, in her concurring opinion in Oprecm, Judge Cochran suggests that withheld evidence may be inadmissible, even if the prosecutor does not willfully violate the discovery order, if withholding the evidence violates the defendant’s due process right to adequate notice. See Oprean, 201 S.W.3d at 729 (Cochran, J., concurring). She observed that allowing a short delay or recess to review the new evidence and formulate a defensive strategy protects this right. See id. at 730. Here, the trial court delayed ruling on the admissibility of the recording until after a twenty-minute recess, which provided defense counsel an opportunity to view the recording and prepare a defensive strategy. This recess, coupled with the prosecutor’s timely production of Wolfs offense report, which contained the statement, protected Walker’s due process right to adequate notice.

Conclusion

We hold that the trial court did not abuse its discretion in admitting the M-l recording. We therefore affirm the judgment of the trial court.

      . Walker also contends that ‘‘[t]he recording of Appellant in the back seat of Trooper’s Wolf's [sic] vehicle was in fact Article 38.22 material that was not provided until the second day of Appellant's trial.” As the State notes, Article 38.22 only applies to written or oral statements made as a result of custodial interrogation. See Tex Code Crim. Proc. Ann. art. 38.22, §§ 2, 3 (Vernon 2005). Although Walker was under arrest when he made the relevant statements to his passenger, these statements were not made in response to interrogation. Trooper Wolf was not present in the vehicle at the time.

      . Even if the trial court erroneously admitted the M-l recording, Walker must show harm to require reversal. See Cooks v. State, 844 S.W.2d 697, 734 n. 31 (Tex.Crim.App.1992) (citing Hollowell v. State, 571 S.W.2d 179, 180 (Tex.Crim.App.1978)). We note that, at the time the State offered the M-l recording, defense counsel neither requested a recess nor moved for a continuance. Defense counsel’s “failure to request postponement or seek a continuance waives any error urged in an appeal on the basis of surprise.” Lindley v. State, 635 S.W.2d 541, 544 (Tex.Crim.App.1982); see also Oprean v. State, 201 S.W.3d 724, 730 n. 10 (Tex.Crim.App.2006) (Cochran, J., concurring) ("Thus, the trial court may always exclude the undisclosed evidence, but if he does not, any error in causing ‘surprise’ to the defense is forfeited on appeal unless the defendant has also requested a postponement or recess.”).


author: EVELYN V. KEYES, Justice.

text:
    UNITED FIRE & CASUALTY CO., Appellant, v. BORING & TUNNELING COMPANY OF AMERICA d/b/a Bortunco, Appellee.
    No. 01-08-00487-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 11, 2010.
    Rehearing Overruled March 18, 2010.

      Brian R. Gaudet, Coats, Rose, Yale, Ry-man & Lee, P.C., League City, TX, for appellant.
    Jerrad D. Bloome, Richard M. Kaplan, Weycer, Kaplan, Pulaski & Zuber, P.C., Houston, TX, for appellee.
    Panel consists of Justices KEYES, HANKS, and SHARP.
   OPINION

EVELYN V. KEYES, Justice.

On cross motions for summary judgment in a suit to collect on a McGregor Act payment bond, the trial court granted summary judgment in favor of appellee, Boring & Tunneling Company of America (“Bortunco”), and denied the motion of appellant, United Fire & Casualty Company (“United Fire”). In two issues, United Fire argues that (1) Bortunco failed to substantially comply with the notice provisions of the McGregor Act; and (2) it did not waive its right to, nor is it estopped from, asserting notification defects.

We affirm.

BACKGROUND

Golf Services Group contracted with Harris County and the City of Houston to complete two different water line projects and, in compliance with the McGregor Act, obtained a payment bond through United Fire to ensure that any subcontractors would be paid if Golf Services defaulted. Golf Services subcontracted with Bortunco in May 2004 to complete the boring and tunneling work on the projects. Bortunco completed all work and fully performed its obligations under its agreement with Golf Services, but Golf Services failed to pay Bortunco for its work.

Bortunco sent notices to United Fire that it was seeking to collect against the payment bond for the services it had provided. Among the notices that Bortunco sent was one dated October 14, 2005, relating a claim for work and material expenses incurred in July and August of 2005. Bor-tunco sent the notice on a “sworn statement form,” and an agent for Bortunco signed the statement, but the notary did not attach a seal or signature. Bortunco’s notice comported with the statute in all other respects. Bortunco’s notice also requested that United Fire notify Bortunco if the claim was deficient in “any way.” United Fire received the notice and sent a letter acknowledging receipt of the claim and informing Bortunco that it would investigate the claim. The letter United Fire sent Bortunco stated, “Neither this letter, or any investigation by the Surety, should be construed to be a waiver of any rights under the bond.” United Fire did not object to the missing notary signature and seal.

On December 14, 2005, nearly two months after the claim filing deadline, Bor-tunco noticed that the original sworn statement was missing a notary seal and sent an identical sworn statement with a notary’s signature and seal. United Fire responded on January 11, 2006 with the same letter it had sent the first time.

Neither Golf Services nor United Fire, as the surety on Golf Service’s payment bond, paid Bortunco for the work it completed, and, on February 7, 2006, Bortunco filed suit against both Golf Services and United Fire seeking recovery of the contract balances on both projects in the amount of $438,389.74. Subsequently, Bortunco and United Fire settled the majority of Bortunco’s claims except for work and material expenses Bortunco incurred in July and August 2005. United Fire moved for summary judgment on the ground that Bortunco was not entitled to recover the remaining expenses because it had failed to give proper notice, specifically arguing that the October 14, 2005 notice lacked a sworn statement of account as required by the McGregor Act. United Fire supported its motion for summary judgment with copies of the October 14 and December 14 notices.

Bortunco filed its own motion for summary judgment and response to United Fire’s motion, arguing that its notice substantially complied with the McGregor Act notice provisions, or, alternatively, that United Fire “waived strict compliance with the notice provisions of the McGregor Act” and should be “estopped from demanding strict compliance.” In addition to copies of the relevant notices and United Fire’s responses, Bortunco supported its motion for summary judgment with the affidavit of Joe Gibbs averring that the notary had placed him under oath and that he had sworn to and signed the sworn statement of account dated October 14, 2005 in the notary’s presence, and that the notary’s oversight resulted in the missing signature and seal. Bortunco also provided the affidavit of the notary averring that Gibbs did swear to the contents of the sworn statement under oath and signed it in her presence and stating, “[T]he absence of my signature is solely indicative of a clerical error committed by me; Mr. Gibbs swore to and signed the Sworn Statement of Account under oath and in my presence and I simply neglected to place thereon my signature and seal as notary before mailing it to the surety and contractor. ...”

On December 12, 2007, the trial court granted Bortunco’s motion for summary judgment, awarding Bortunco the $142,542.75 it claimed for the July and August 2005 work, and denied United Fire’s motion without an opinion. United Fire appeals.

Standard of Review

We review a trial court’s grant or denial of summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). To prevail on a traditional summary judgment motion, the movant has the burden of proving that it is entitled to judgment as a matter of law and that there are no genuine issues of material fact. Tex.R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review the summary judgment evidence presented by both sides, determine all questions presented and render the judgment that the trial court should have rendered. Tex. Workers’ Comp. Comm’n v. Patient Advocates, 136 S.W.3d 643, 648 (Tex.2004).

McGregor Act and Substantial Compliance

United Fire contends that the notice Bortunco sent did not include a “sworn statement” as required by the McGregor Act because the notice did not have a notary seal or signature. Therefore, United Fire contends Bortunco failed to adhere to notice provisions in the McGregor Act and is not entitled to payment. Bortunco avers it substantially complied with the McGregor Act because the document was only defective as a result of the notary’s clerical error.

The legislature passed the McGregor Act to ensure payment to subcontractors because they may not place a lien against a public building. Suretec Ins. Co. v. Myrex Ind., 232 S.W.3d 811, 813 (Tex.App.-Beaumont 2007, no pet.); Ramex Constr. Co. v. Tamcon Serv. Inc., 29 S.W.3d 135, 139 (Tex.App.-Houston [14th Dist.] 2000, no pet.). It was not intended to set up “technical tricks, traps, and stumbling blocks to the filing of legitimate notices of claims,” but “to provide a simple and direct method of giving notice and perfecting claims.” Argee Corp. & Seaboard Sur. Co. v. Solis, 932 S.W.2d 39, 52-53 (Tex.App.-Beaumont 1995), rev’d on other grounds, 951 S.W.2d 384 (Tex.1997). The notice requirements were also intended “to protect the prime contractor from incurring double liability [and to relieve them of] liability for claims not asserted before retainage is paid in full.” Commercial Union Ins. Co. v. Spaw-Glass Corp., 877 S.W.2d 538, 540 (Tex.App.-Austin 1994, writ denied).

The McGregor Act requires general contractors to secure a bond from a surety, allows a subcontractor to sue the surety for unpaid balances for work and materials, and awards reasonable attorneys’ fees. Id.; see Tex. Gov’t Code Ann. §§ 2253.021, 2253.073 (Vernon 2008). To recover under the act, a claimant or subcontractor must provide notice to the general contractor and the surety in writing. Tex. Gov’t code § 2253.041. The McGregor Act further provides that the notice must conform to the following requirements:

(b) The notice must be mailed on or before the 15th day of the third month after each month in which any of the claimed labor was performed or any of the claimed material was delivered.
(c) The notice must be accompanied by a sworn statement of account that states in substance:
(1) the amount claimed is just and correct; and
(2) all just and lawful offsets, payments, and credit known to the affi-ant have been allowed.
(d) The statement of account shall include the amount of any retainage applicable to the account that has not become due under the terms of the public work contract between the payment bond beneficiary and the prime contractor or between the payment bond beneficiary and a subcontractor.

Tex. Gov’t Code Ann. § 2253.041(b)-(d) (Vernon 2008).

The McGregor Act is remedial in nature, and, therefore, “[t]he statute is to be given the most comprehensive and liberal construction possible.” Ramex, 29 S.W.3d at 139; see also City of LaPorte v. Taylor, 836 S.W.2d 829, 832 (Tex.App.Houston [1st Dist.] 1992, no writ). As a result, case law has established that adherence to notification deadlines requires strict compliance, but substantial compliance is adequate for the other notice provisions. Cf. Commercial Union Ins., 877 S.W.2d at 540 (holding that claimants could not recover when they failed to give any notice); Suretec Ins. Co., 232 S.W.3d at 816 (failure to provide notice by 15th day of month not saved by substantial compliance); Capitol Indem. Corp. v. Kirby Rest. Equip. & Chem. Supply Co., 170 S.W.3d 144, 147 (Tex.App.-San Antonio 2005, pet. denied) (holding “sworn certificate” that did not precisely comport with statutory language sufficient); U.S. Fid. & Guar. Co. v. Parker Bros. & Co., 437 S.W.2d 880, 881-82 (Tex.Civ.App.-Houston [1st Dist.] 1969, writ ref'd n.r.e.) (claimant substantially complied with notice provisions although sworn statements were sent to general contractor and unsworn statements sent to surety). Substantial compliance has been defined as “compliance with the ‘essential requirements of a statute’ ” and occurs when an actor’s deviation does not seriously impede the legislative purpose of the statute. See Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26, 30 (Tex.App.-Austin 1999, no pet.).

United Fire cites several cases which have held that late notification did not substantially comply with the McGregor Act. See, e.g., Laboratory Design & Equip., Inc. v. Brooks Dev. Auth., No. 04-07-00284-CV, 2008 WL 36614, at *3 (Tex.App.-San Antonio, no pet.) (holding that notice mailed one year late and failure to provide any sworn statement whatsoever with notice prevented subcontractor from recovering against payment bond). However, the issue here is not one of late notification. United Fire argues that Bor-tunco’s notice was deficient because it lacked the notary signature and seal, not because the notice was untimely. Nor did Bortunco’s notice fail to provide any sworn statement whatsoever. Therefore, Laboratory Design and the other cases United Fire relies on are distinguishable.

We conclude that this case is similar to Acme Brick. In Acme Brick, the claimant sent an otherwise correct notice with the affiant’s signature in the wrong place on the sworn statement. Acme Brick, a Div. of Justin Indus., Inc. v. Temple Assoc., 816 S.W.2d 440, 441 (Tex.App.-Waco 1991, writ denied). The document contained a notice of claim, factual statement that the claims were just and correct, the signature of the affiant, and the notary’s certification of the statement with a seal. Id. The court held that the document did qualify as an affidavit, but stated, “Moreover, even if the statement was not an affidavit, the McGregor Act requires only substantial compliance with its notice provisions.... We find the notices sent by Acme to [the prime contractor and surety] substantially complied with the notice provisions of the McGregor Act.” Id. (citing Featherlite Bldg. Prods. Corp. v. Constructors Unlimited, Inc., 714 S.W.2d 68, 69 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.)).

Here, although Bortunco’s sworn statement is missing the official certification by the notary to qualify as a affidavit, it is uncontested that Bortunco’s agent swore to the statement before an “officer authorized to administer oaths” and signed the statement in the notary’s presence. Likewise, the notice otherwise supplies the statutorily required statements and information and was delivered by the required deadline. Bortunco’s notification was only deficient because of the notary’s clerical error in failing to attach her signature and seal before mailing the document.

We also note that United Fire received actual notice within the statutory deadline and that, as soon as Bortunco noticed the clerical omission, it sent an identical notice and sworn statement, this time with the notary’s signature and seal. Bortun-co’s notary’s failure to affix a seal and signature to the sworn statement did not expose the prime contractor or the surety to increased liability, nor did it prevent United Fire from having actual notice of the claims Bortunco was making against the payment bond, especially in light of the fact that Bortunco apparently submitted numerous notices in compliance with the McGregor Act in the course of its dealings with United Fire.

Because Bortunco’s sworn statement met the essential requirements of the statute in providing actual notice to United Fire of Bortunco’s claims against the bond and adequately protected both Golf Services and. United Fire from undue liability, we hold that the document substantially complied with the McGregor Act’s notice provisions. To hold otherwise would require that we set up “technical tricks, traps, and stumbling blocks to the filing of legitimate notices of claims” rather than providing “a simple and direct method of giving notice and perfecting claims” as the legislature intended. See Argee Corp., 932 S.W.2d at 52-53. Therefore, Bortunco met its burden of proving that it was entitled to judgment as a matter of law and that there were no genuine issues of material fact. See Tex.R. Civ. P. 166a(c); Cathey, 900 S.W.2d at 341.

We overrule United Fire’s first issue.

Because we have determined that Bor-tunco’s notice substantially complied with the requirements of the McGregor Act, we do not need to address United Fire’s argument that it is not estopped and did not waive its right to assert notification defects.

CONCLUSION

We affirm the judgment of the trial court.

      . Chapter 2253 of the Texas Government Code is commonly referred to as the "McGre-gor Act." See Tex. Gov't Code Ann. §§ 2253.001-.079 (Vernon 2008 & Supp. 2009). The McGregor Act requires general contractors to secure payment bonds on public works projects because subcontractors cannot secure liens on public buildings and provides the procedure for collecting on the bonds. Id.

      . Appellant also cites several cases dealing with the use of affidavits in other contexts. These cases are distinguishable because they do not address substantial compliance with the sworn statement required by the McGre-gor Act.

      . A surety’s actual notice has been discussed and used in some cases to establish substantial compliance. See Redland Ins. Co. v. Sw. Stainless, L.P., 181 S.W.3d 509, 512 (Tex.App.-Fort Worth 2005, no pet.) (holding that because surety received actual notice, need of subcontractor to comport with statutory requirement that notice be sent certified mail was negated); Tex-Craft Builders, Inc. v. Allied Constructors of Houston, Inc., 465 S.W.2d 786, 792 (Tex.Civ.App.-Tyler 1971, writ ref'd n.r.e.) (discussing possibility that surety's actual knowledge and notice of details of claim could be sufficient to establish substantial compliance with McGregor Act).