author: Justice O’NEILL.

text:
    Cathryn BROXTERMAN, Appellant, v. Doyle CARSON, M.D., et al., Appellees.
    No. 05-08-01392-CV.
    Court of Appeals of Texas, Dallas.
    March 22, 2010.

      Cathryn Broxterman, Allen, TX, pro se.
    Kirk D. Willis, Helms & Greene, LLC, Dallas, TX, Stephanie Railsback Johnson, Law Office of Stephanie R. Johnson, Col-leyville, TX, Joel J. Steed, Steed Flagg, LLP, Rockwall, TX, for Appellees.
    Before Justices O’NEILL, LANG-MIERS, and MYERS.
   OPINION

Opinion By

Justice O’NEILL.

Cathryn Broxterman appeals from the trial court’s dismissal of her case for failure to file an expert report. In six issues, Broxterman contends generally that the trial court erred in dismissing the case because (1) alleged violations of civil rights, Texas statutes, and other acts do not require an expert report, (2) certain claims can be pursued under the doctrine of res ipsa loquitur without an expert report, (3) the expert report requirement violates her constitutional rights, and (4) appellees manipulated the expert report requirement by failing to timely respond to production requests. We overrule Brox-terman’s issues and affirm the trial court’s dismissal order.

Background

On March 29, 2006, Broxterman went to the emergency room at Medical Center of McKinney after cutting her wrist. Subsequently, she was involuntarily admitted to a nearby partner hospital, Green Oaks. When a few of the stitches came loose she was transported back to the emergency room. Dr. Doyle Carson insisted that she be given Haldol prior to being transported back to the emergency room. Broxterman told the counselor at Green Oaks, Ruth Lytle, that she had previously had a bad reaction to the medication and had many contraindications to its administration. The medication was given to her against her will and her consent was obtained after the fact. Broxterman suffered severe adverse reactions to the Haldol causing extreme pain, cracked teeth, and mental anguish. She contends that the staff at Green Oaks ignored her requests for help. Broxterman was released from Green Oaks on April 3, 2006.

Broxterman filed suit against Green Oaks, Lytle, and Dr. Carson on March 31, 2008. When Broxterman failed to file an expert report within 120 days of filing suit, the appellees moved to dismiss. The trial court dismissed the case and this appeal timely followed.

Standard of Review

We review a dismissal of a case for failure to file an expert report for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006) (per curiam); Kettle v. Baylor Med. Ctr. at Garland, 232 S.W.3d 832, 837 (Tex.App.-Dallas 2007, pet. denied). We may find abuse of discretion where a trial court acts arbitrarily or unreasonably or without reference to any guiding rules or principles, or fails to correctly determine, analyze, or apply the law, but we may not substitute our judgment in deciding discretionary matters. Cayton v. Moore, 224 S.W.3d 440, 444-45 (Tex.App.-Dallas 2007, no pet.).

Application of the Expert Report Requirement to Broxterman’s Claims

In her first two issues, Broxterman contends the expert report requirement does not apply to her claims for violation of civil rights, statutory violations, and assault and battery. In her third issue, she claims that the doctrine of res ipsa loquitur applies alleviating the need for an expert report.

A plaintiff who files a health care liability claim must file an expert report within 120 days of filing suit. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2009). The only way to extend the 120-day deadline for filing the report is by written agreement of the parties. Id. Section 74.001(a)(13) defines a health care liability claim as a “cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13) (Vernon 2005). An expert report must provide the expert’s opinion as to the applicable standard of care and how the care provided failed to meet the standard of care and explain the relationship between that failure and the claimed injury. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6). If a claimant fails to timely file an expert report, the trial court shall dismiss the claim with respect to the physician or health care provider with prejudice to the refiling of the claim. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(2).

A health care liability claim cannot be recast as another cause of action in an attempt to avoid the expert report requirement. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex.2005). We look to the underlying nature of a claim to determine whether it constitutes a health care liability claim. Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex.App.-Dallas 2005, no pet.). If an act or omission complained of is an inseparable part of the rendition of health care services, the claim is a health care liability claim. Id. Whether a claim is a health care liability claim under section 74.351 is a question of law and is reviewed de novo. Id.

In her amended petition, Broxter-man asserted claims for medical malpractice, fraudulent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, violations of the Texas Health and Safety Code, assault and battery, and civil rights violations. The focal point of each of her claims is her treatment while hospitalized at Green Oaks. She complains of Dr. Carson’s decision to administer Haldol against her wishes, the manner in which her concerns over the medication were or were not conveyed to Dr. Carson, the threat of physical violence if she refused the medication, the lack of obtaining prior consent, the delay in her treatment for severe side effects suffered as a result of the Haldol, and her inability to obtain something to write with to work on her religious exercises. The essence of each of Broxterman’s claims is negligence in the rendition of health care services. The fact that some of the alleged acts were done knowingly or indifferently does not change the nature of the claim. See Lee v. Boothe, 235 S.W.3d 448, 452 (Tex.App.-Dallas 2007, pet. denied).

Broxterman also contends and we agree that a patient receiving either voluntary or involuntary mental health services has the right to refuse medication. However, administration of a psychoactive medication may be given without consent in certain circumstances. See Tex. Health & Safety Code Ann. § 576.025(a)(1) (Vernon Supp. 2009). She relies upon Murphy v. Russell, 167 S.W.3d 835 (Tex.2005) to support her contention that medication given without consent constitutes a battery. The supreme court held, however, that failure to obtain consent does not automatically result in liability. Id. at 838. Expert testimony is still necessary to determine whether there were reasons for providing medical care without consent that do not breach any applicable standard of care. Id. Thus, Broxterman’s battery claim still necessitates an expert report.

We conclude that each of Broxterman’s claims constitutes a health care liability claim. We overrule Broxterman’s first two issues.

In her third issue, Broxterman contends the doctrine of res ipsa loquitur abolishes any need for an expert report. She contends a lay person can understand, without the need of expert testimony, that she was wrongly treated and that the mental anguish she suffered was a natural result of that treatment.

The rule of res ipsa loquitur allows an inference of negligence, absent direct proof, only when injury would ordinarily not have occurred but for negligence, and the defendant’s negligence is probable. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 604 (Tex.2004). The application of the doctrine of res ipsa loquitur is specifically limited in health care liability claims to “those cases to which it has been applied by the appellate courts of this state as of August 29, 1977.” Tex. Civ. Prac. & Rem. Code Ann. § 74.201 (Vernon 2005). The three categories where appellate courts have typically applied the doctrine in medical malpractice cases are (1) negligence in the use of mechanical instruments, (2) operating on the wrong portion of the body, and (3) leaving surgical instruments or sponges within the body. Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex.1990).

Broxterman’s claims fall outside of these three categories. Thus, the doctrine of res ipsa loquitur does not apply to Broxter-man’s case. Accordingly, we overrule Broxterman’s third issue.

Validity of the Expert Report Requirement

Next, we address Broxterman’s fourth issue in which she contends the requirement of an expert report violates her constitutional right to due process. Specifically, she asserts that the statute is unconstitutional as applied to her because her claim is not frivolous and the goal of the statute is to prevent and/or discourage frivolous lawsuits. She also contends that the expert report requirement prevents her from pursuing a remedy under the law.

When reviewing the constitutionality of a statute, we begin with a presumption that the statute is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003); Tex. Gov’t Code Ann. § 311.021(1) (Vernon 2005). The party challenging the constitutionality of a statute bears the burden of demonstrating that it fails to meet constitutional requirements. Walker, 111 S.W.3d at 66. Every court that has considered whether the expert report requirement passes constitutional muster has concluded that it does. See, e.g., Thoyakulathu v. Brennan, 192 S.W.3d 849, 855-56 (Tex.App.-Texarkana 2006, no pet.) (due process does not require “exceptions [to the expert report requirement] that would encompass any conceivable complication in order to pass constitutional muster”); Mocega v. Urquhart, 79 S.W.3d 61, 64 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (predecessor to section 74.351 did not violate open courts provision of Texas Constitution); Gill v. Russo, 39 S.W.3d 717, 718-19 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (same); Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 736-37 (Tex.App.-San Antonio 1999, no pet.) (dismissal of claim due to failure to comply with expert report requirement, even if claim is meritorious, does not offend due process); see also Etheredge v. McCarty, No. 05-05-00164-CV, 2006 WL 1738258 (Tex.App.-Dallas June 27, 2006, no pet.) (mem. op.) (dismissal imposed as a direct result of plaintiffs failure to file an expert report in compliance with the statutory deadline was appropriate and did not violate the due process clause).

We recognize Broxterman’s frustration of having her case dismissed under these circumstances. However, we are not at liberty to create exceptions to the expert report requirement every time the objective of that requirement is frustrated. Following the precedent of our sister courts, we conclude that the expert report requirement does not violate Broxterman’s constitutional rights.

Broxterman also claims that the expert report requirement violates the Americans with Disabilities Act (ADA). She contends the prohibitive cost of obtaining a report violated her rights under the ADA. The ADA concerns physical and mental disabilities. See 29 U.S.C.A. § 705(9)(A) (West 2008). Indigence is not a disability under the ADA. See Weinreich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.1997) (disabled person’s inability to participate in reduced-fare program due to inability to afford medical documentation, not due to disability). For this reason, Broxterman’s ADA argument fails. Having held that section 74.351 does not violate Broxter-man’s constitutional rights or the ADA, we overrule her fourth issue.

In her fifth issue, Broxterman asserts the trial court erred in dismissing her case for failure to file an expert report because Green Oaks failed to produce her medical records in response to discovery requests. In her brief, Broxterman contends that in response to her request to produce her medical records, Green Oaks stated that it did not have to produce her medical records until she filed her expert report. Broxterman’s contention is not supported by the record. The record shows that Green Oaks objected to the production request as overbroad and that the records were in the custody and control of the Medical Center of McKinney, not Green Oaks.

Although we understand Broxterman’s frustration with attempting to obtain an expert report without her medical records, the statute does not provide for any extension based on diligent efforts. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a); Regis v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex.App.-Houston [14th Dist.] 2006, no pet.). For this reason, we overrule Broxterman’s final issue and affirm the trial court’s order.

      . In light of our holding that the doctrine of res ipsa loquitur does not apply to Broxter-man’s claims, we do not express any opinion as to what effect application of the doctrine would have on the expert report requirement.

      . Broxterman's sixth issue is broadly worded to include points from her first five issues. Because we overrule her first five issues, we also overrule her sixth issue.


source: Caselaw Access Project

author: Justice FRANCIS.

license: Public Domain

text:
    Emil CERULLO d/b/a New You Weight Management Center and New You Weight Management Centers, LLC, Appellants/Cross-Appellees, v. Peter GOTTLIEB, Appellee/Cross-Appellant.
    No. 05-08-01173-CV.
    Court of Appeals of Texas, Dallas.
    March 25, 2010.
    Rehearing Overruled May 5, 2010.

      Rebecca E. Bell, Anthony Leonard Vi-tullo, Fee, Smith, Sharp & Vitullo, L.L.P., Dallas, for appellants.
    William N. Radford, Thompson, Coe, Cousins & Irons, LLP, Jeffrey S. Levinger and Brett Kutniek, Hankinson Levinger LLP, Jerry D. Mason, Dallas, for appellee.
    Before Justices MORRIS, FRANCIS, and FILLMORE.
   OPINION

Opinion by

Justice FRANCIS.

This appeal involves a five-week jury trial in which Emil Cerullo d/b/a New You Weight Management Center (Cerullo) and New You Weight Management Centers, LLC, (New You) alleged multiple causes of action against multiple defendants in a business dispute over lap band surgeries. Essentially, Cerullo and New You alleged they had entered into joint venture or partnership agreements with various defendants to develop ambulatory lap band surgery centers for weight-loss patients and to market the venture. After Cerullo and/or New You launched the marketing strategy and located potential clients, they claim the defendants cut them out and went on to profit from Cerullo’s business concept. Cerullo and New You sought damages for, among other things, fraud, breach of fiduciary duty, and conspiracy.

At the close of the evidence, the trial court directed a verdict dismissing many of Cerullo’s and New You’s claims. Of the remaining claims, the jury found in favor of only New You on one claim, fraud, against one defendant, Peter Gottlieb, and awarded actual and punitive damages. In response to post-judgment motions, the trial court disregarded a portion of the actual damages, reduced the punitive damages, and rendered judgment in New You’s favor against Gottlieb.

Both sides appealed. New You challenges the trial court’s judgment only as it relates to the damages awarded. By cross-appeal, Gottlieb challenges both the liability and damage findings. For the reasons set out below, we conclude there is no evidence to support the jury’s fraud finding against Gottlieb; accordingly, we reverse the trial court’s judgment and render judgment that New You take nothing on its claim.

Although we have a voluminous record before us, only New You’s fraud claim against Gottlieb is at issue in this appeal. Because any damage award must be predicated on a liability finding, we begin with Gottlieb’s cross-appeal as it raises liability issues and restrict our recitation of the facts to those pertinent to the fraud action against Gottlieb.

Cerullo was a businessman who owned an ambulatory diagnostic imaging center in Dallas. Cerullo testified that, in early 2002, he and one of the doctors who used his center, Dr. Fred Maese, formed a joint venture/partnership to develop ambulatory centers for lap band surgeries. At the time, the lap band device had been FDA-approved for less than one year, and lap band surgeries performed in the United States were being done in hospitals. Cer-ullo believed prospective weight-loss candidates would prefer an outpatient setting, if available.

Early on, the men brought on Len Platt as an equal partner in their venture, hired a patient advocate, retained an architect to draw up plans for the center, traveled to Mexico to observe three lap band surgeries, and met with the manufacturer of the lap band device to discuss the procedure. In March, the joint venture/partnership approached Gottlieb about building the surgery center. At the time, Gottlieb was working with Dr. Allen Baskind, a surgeon, to build a surgery center in Richardson (Surgery Center of Richardson, or SCOR) but indicated he was interested in working on Cerullo’s project. At that meeting or a later one, Gottlieb was shown the architectural plans and said he would take five-percent ownership and charge a management fee if he built the center. Cerullo said his group accepted the proposal, although he could not recall when.

Cerullo testified that, in May, he formed the entity at issue in this case, New You, with Platt and Maese as equal partners. Over the ensuing months, Cerullo and/or Platt talked to surgeons about “becoming interested in learning how to install a lap band”; helped physicians get proctored to perform the procedure; met with insurance representatives about the efficacy of lap band procedures in outpatient facilities; and advertised for and conducted informational seminars to promote lap band surgeries to prospective weight-loss clients.

In August, New You entered a one-year marketing agreement with an existing facility, Plano Surgery Center (PSC), to split revenues and losses on lap band surgeries performed there. Under the agreement, New You was obligated to market lap band surgeries and, to that end, hosted seminars and engaged in radio and print advertising to attract potential clients. In return, New You received 66 2/3 percent of the net revenues of the lap band surgeries, and PSC kept the remaining 33 1/3 percent.

During this same time, Cerullo, Platt, and Maese toured the facility that was to be used as SCOR with Gottlieb and Bas-kind. According to Cerullo, Gottlieb suggested that, while waiting to build its own facility, New You send its clients to SCOR once it opened in January 2003. According to Cerullo, the terms were to be the same 66 2/3 to 33 1/3 split it had with PSC.

After New You contracted with PSC, communications with Gottlieb stopped for several months. When problems arose with PSC in late 2002, Cerullo told Platt to contact Gottlieb on the status of SCOR, and Platt learned SCOR’s opening was going to be delayed until August 2003 because of an asbestos problem. Cerullo said the parties’ original agreement to split revenues and losses also changed in early 2003, ultimately resulting in a 65/35 split to bring surgeries to SCOR. Cerullo said that after the 65/35 agreement was reached, he gave Gottlieb and Baskind “virtually all of the business information and knowledge we had and the [surgeon] contacts we had” related to lap band surgery, including financial information regarding New You’s relationship with PSC. Over the next several months, Cerullo said New You continued its discussions with Gottlieb, primarily through Platt, and continued to market lap band surgery.

By the spring of 2003, issues had arisen regarding the legality of the revenue-splitting arrangement between New You and PSC. New You’s lawyers had advised that if New You contracted with a surgery center to generate bariatric surgeries based on the volume of surgeries performed, the agreement would constitute a misdemean- or offense under Texas law. In light of these issues, Cerullo said New You and Gottlieb decided to restructure their arrangement to a consulting agreement/marketing budget.

At Gottlieb’s request, Cerullo said he and Platt came up with an inflated “budget” based on the estimated number of annual surgeries performed so as to achieve a 65/35 revenue split. The “budget” called for SCOR to pay New You a “bariatric consulting fee” of $93,750 per month for 300 surgeries and an additional consulting fee if more than 450 lap band surgeries were performed in a year at SCOR.

On June 5, Platt sent Gottlieb a list of expenses that New You “ha[d] budgeted on a monthly basis for the next year” and a draft “Consulting Agreement.” Under the proposal, SCOR was to pay New You a monthly fee of $95,793.08, which comprised budgeted expenses and a 12 1/2 percent consulting fee. The next day, Gottlieb responded in writing that the “proposal” appeared “fair and reasonable” except for a line item designated as bonus. Gottlieb said he and Baskind needed more information on the “bonus” line item, explaining that the dollar amount could not be related to the volume of surgeries at the center. Gottlieb asked Platt to clarify the line item and “resubmit for our review.” In closing, Gottlieb said, “We look forward to a long and successful relationship with New You Weight Management.” Cerullo said that, in response, Platt told Gottlieb to eliminate the bonus line, and Gottlieb agreed.

On July 17, Cerullo and Platt received a letter from New You’s counsel, Bill Creas-ey, following up on a discussion he had with them days earlier. In the letter, Creasey again advised that any arrangement for marketing services that was based on patient volume would be illegal and would constitute a misdemeanor violation of law. Platt showed this letter to Gottlieb. On July 23, Cerullo received an email from Baskind and Gottlieb rejecting “an exclusive marketing agreement” with New You because it was not in SCOR’s best interest. Eight days later, SCOR opened using surgeons that Cerullo said either he or Platt introduced to Gottlieb and a former New You employee. At about the same time, Platt quit New You and assigned his interest in the company to Cerrullo. Cerullo never contacted Bas-kind after receiving the email and only talked to Gottlieb three months later when Cerullo asked him to advertise on a New You radio show.

Cerullo testified that in reliance on Gott-lieb’s promises to do business with New You, expenses were incurred in hiring employees, retaining employees, and marketing the lap band surgeries though radio and print advertising and conducting seminars, although he was not always clear as to which particular entity incurred those expenses. Additionally, in reliance on Gottlieb’s promises, he said he did not build a surgery center, he introduced Gott-lieb to surgeons that eventually went to SCOR, and he provided Gottlieb all of the information he had developed for his business plan.

With respect to the plan to build a surgery center, Platt’s testimony differed somewhat from Cerullo’s. Platt, who was Cerullo’s partner in New You and the one who handled the negotiations with Gott-lieb, testified Gottlieb told them it would take eighteen months to build a new surgery center. After meeting with Gottlieb and PSC, Platt said he and Cerullo decided they wanted to provide services “sooner than later by working with already established outpatient ambulatory surgery centers” and entered a contract with PSC. After they struck a deal with PSC, Platt said he continued to talk to Gottlieb to keep New You’s options open. He also said that while he and Cerullo thought they would “eventually” build a center, they “never pulled the trigger.”

As for the proposed business deal with SCOR, Baskind explained his reasons for declining New You’s proposal and explained his and Gottlieb’s roles. Although both Cerullo and Platt testified that Bas-kind was involved in the negotiations from the beginning (albeit to a lesser degree than Gottlieb), Baskind testified he first met Cerullo and Platt in the spring of 2003 through Gottlieb. After meeting Cerullo and Platt, Baskind had Gottlieb handle discussions regarding a marketing agreement to bring bariatric patients to SCOR, but only Baskind was authorized to make a final decision.

When Gottlieb presented New You’s proposed marketing budget to him in June, he and Gottlieb had extensive discussions over it, including the bonus line item. Over the ensuing six weeks, Baskind testified he analyzed the budget, performed due diligence, and consulted with legal counsel, leaving him with some concerns, two of which were the cost and legality of New You’s proposal.

As for cost, Baskind explained he had no way of knowing whether SCOR would be successful, and New You’s budget was a “huge sum of money,” $1.2 million over the course of a year, when he was already in a “precarious financial state.” Moreover, Baskind said the proposal provided for no measurement of New You’s performance. As Baskind explained, New You could promote lap band surgery for SCOR all it wanted, but it had no control over where the surgeries were performed because the patient and surgeon made that choice.

As for the legality of the proposal, Bas-kind believed it was in “clear violation” of anti-kickback statutes because it appeared to be based on “paying for patients.” Bas-kind explained that the “substance of the deal” was more important than its form or “cloak,” and he was concerned the payments under the agreement “could be construed as being a different way of paying for referrals.”

A lesser consideration was his concern with Cerullo. Baskind testified that during the time he was performing due diligence, Cerullo showed up at SCOR unannounced and appeared to be “under the influence of something.” Baskind then learned from Gottlieb that Cerullo had a prior narcotics conviction, leaving him with a concern that his pharmacy license could be put at risk if he approved the agreement. Given these concerns, Baskind believed the proposal was “a very one-sided contract” that put SCOR at too great a risk and instructed Gottlieb to notify Cer-ullo and Platt that he was not interested.

Gottlieb testified that he discussed building a surgery center for Cerullo and Platt, but they “really didn’t have their ducks in a row” and the idea was never really revisited after the initial meeting. Instead, during 2002 and 2003, Gottlieb said he explored several different business alternatives and relationships so that New You could provide lap band patients and marketing for SCOR. In these discussions, he dealt primarily with Platt in trying to put a deal together. He discussed the ongoing proposals with Baskind, who had concerns “pretty much from the beginning,” and made clear to Cerullo and Platt that Baskind, as SCOR’s owner, made the ultimate decision.

Finally, Creasey and Andy Meyercord were legal counsel for New You and PSC, respectively, during the relevant time period. Both testified about a meeting between New You and PSC representatives in January 2003 regarding the legality of their marketing contract (which was the model used by New You in its discussions with Gottlieb). Both testified they believed the agreement was illegal because it provided for marketing services in exchange for payments on a per patient basis, and those at the meeting were aware of their opinions. Platt was present at this meeting. Further, Creasey confirmed that he discussed the issue again with Platt and Cerullo that summer and again advised that any arrangement that involved payment on the number of surgeries was illegal. Creasey followed up that discussion with the July 17 letter that Platt showed to Gottlieb.

In the first issue of his cross appeal, Gottlieb asserts the evidence is legally insufficient to support the jury’s fraud finding, in part, because there was no evidence presented that Gottlieb did not intend to keep his promises at the time he made them.

When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate that no evidence supports the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). We review the evidence presented at trial in the light most favorable to the jury’s verdict, crediting evidence favorable to that party if reasonable jurors could and disregarding evidence unless reasonable jurors could not. Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex.2007); City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). Anything more than a “scintilla of evidence” is legally sufficient to support the jury’s finding. Cont’l Coffee Prods., Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). To be more than a scintilla, the evidence must rise “to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).

A promise to do an act in the future constitutes fraud only when made with no intention of performing the promise at the time the promise was made. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.1986). As the supreme court has recognized, proving that party had no intention of performing at the time the promise was made is “not easy” because intent to defraud is not usually susceptible to direct proof. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 305 (Tex.2006). The mere failure to subsequently perform a promise, standing alone, is not evidence of fraud. Formosa, 960 S.W.2d at 48. Similarly, denying that an alleged promise was ever made is not legally sufficient. Tony Gullo, 212 S.W.3d at 305. Usually, successful claims have involved confessions by the defendant or its agents of the requisite intent. See id. (citing Formosa, 960 S.W.2d at 48 and Spoljaric, 708 S.W.2d at 434-35).

However, “slight circumstantial evidence” of fraud, when considered with a breach or promise to perform, is sufficient to support a finding of fraudulent intent. Spoljaric, 708 S.W.2d at 435 (quoting Maulding v. Niemeyer, 241 S.W.2d 733, 738 (Tex.Civ.App.-El Paso 1951, orig. proceeding)). The evidence presented must have been relevant to the defendant’s intent at the time the promise was made. Formosa, 960 S.W.2d at 48. “Intent tends to be a fact question uniquely within the realm of the trier of fact because it so depends on the credibility of witnesses and the weight given to their testimony.” Spoljaric, 708 S.W.2d at 434. However, evidence “so weak that it creates only a mere surmise or suspicion of its existence ... constitutes no evidence.” See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex.1992).

In its responsive brief, New You asserts that Gottlieb made “general and specific” promises over the course of eighteen months, and then recites the following five promises: (1) Gottlieb would build a surgical facility for bariatric surgeries, (2) Gott-lieb would manage the facility for a five percent management fee, (3) Gottlieb “invited” New You “to join the business plan of the surgical center he was building with Baskind in lieu of an independent facility[,]” (4) Gottlieb’s surgical center would be more profitable and reliable than the plan in place by New You for interim surgeries, and (5) the development of the bariatric side required the “continued sharing of information, marketing, doctors, personnel, and patients by New You in the months prior to and initial months of operation of the new surgical center.”

New You does not present separate argument as to each of these promises, but generally presents a chronology of events relating to promises made by Gottlieb and New You’s reliance on those promises. Then, New You asserts that Gottlieb’s “deceitful business practices and intentions” can be gleaned by comparing his representations to New You with “the reality as viewed by Baskind.” In particular, New You relies on Baskind’s testimony that he knew nothing about Cerullo or his desire to build a surgery center or to engage in business with SCOR until April 2003, one year after Gottlieb first met Cerullo and Platt. This argument, however, is belied by the testimony of New You’s partners, Cerullo and Platt, that Baskind was involved in the discussions from the beginning and was present during various meetings, albeit to a lesser extent than Gottlieb. Platt testified that in 2002, he met with Baskind five to six times, and in 2003, saw him thirty to forty times. Both Cerullo and Platt testified that Baskind was present during the summer 2002 tour of the unrenovated SCOR facility (where Gottlieb offered the facility as an interim site for New You clients until New You could build its own center), and both testified that Baskind agreed to some of the various deals. Given New You’s theory of the case and the evidence it presented, we question whether a reasonable jury could disregard New You’s own evidence regarding the timing of Baskind’s involvement.

But even if it could, Gottlieb’s failure to apprise Baskind of all the details of the ongoing negotiations with New You is no evidence that Gottlieb had no intent to perform at the time he made the representations. To the contrary, it was undisputed that Gottlieb, who had authority to negotiate with New You, did present New You’s proposed consulting agreement/marketing budget to Baskind. This consulting agreement/marketing budget was an alternative arrangement devised after legal issues arose over the profit allocation deal New You had with PSC. Baskind, who had sole authority to approve or disapprove the proposal, spent several weeks analyzing the numbers, performing due diligence, and consulting with legal counsel, before he decided to reject it, primarily because of cost and legality concerns.

The facts of this case are comparable to those in T.O. Stanley Boot Co. There, the plaintiffs alleged the bank misrepresented it would loan them $500,000. At trial, the bank’s president denied that he agreed to make the loan. 847 S.W.2d at 222. Additionally, the plaintiffs referred to a memorandum, written shortly after a meeting in which the loan was discussed, in which a bank officer referred to compiling resumes for a Small Business Administration loan package, thereby suggesting the bank was looking at alternative sources for the plaintiffs to obtain the loan. The supreme court concluded this evidence was “so weak it constitutes no evidence” of the bank’s intention not to perform.

As in T.O. Stanley, the fact that Gottlieb failed to perform on his promises, standing alone, is not evidence of a lack of intent to perform at the time he made the promises, but is only a circumstance to be considered with other facts. Moreover, the other fact relied on by New You — specifically, Gott-lieb’s purported failure to apprise Baskind of the various deals — is simply no evidence of Gottlieb’s intent not to perform, just as the bank’s looking into alternative loan sources was no evidence of the bank’s intent not to perform in T.O. Stanley. We sustain Gottlieb’s first issue. Our disposition of this issue makes it unnecessary to address Gottlieb’s remaining issues. See Tex.R.App. P. 47.1. Further, because we have concluded there is no evidence to support the fraud finding, the damage findings are immaterial and we do not reach the issues presented by New You’s appeal.

We reverse the trial court’s judgment and render judgment that New You take nothing on its fraud claim against Gottlieb.

      . Although Cerullo filed a notice of appeal and is listed as an appellant on the brief, he has not raised any issues that are relevant to him. New You has challenged the reduced damage award but has not challenged the trial court's directed verdict or any adverse jury findings.

      . Documents filed with the secretary of state showed Cerullo as tire only member.

      . In December, Maese left New You and the joint venture/partnership after disputes arose between him and Cerullo.


author: JAMES T. CAMPBELL, Justice.

text:
    Juan Luis CONTRARAS, Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-00289-CR.
    Court of Appeals of Texas, Amarillo.
    March 25, 2010.

      Adam Tisdell, Law Office of Jeff Blackburn, Amarillo, for appellant.
    Timothy D. Salley, Assistant District Attorney, Dumas, for appellee.
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
   MEMORANDUM OPINION

JAMES T. CAMPBELL, Justice.

Appellant Juan Luis Contraras appeals from his conviction for possession of methamphetamine with intent to deliver and the resulting sentence of ten years of imprisonment. Through one issue, appellant contends the trial court erred in denying his motion to suppress. We agree, reverse the trial court’s judgment and remand the cause to the trial court.

Background

On August 13, 2009, appellant plead guilty to possession of methamphetamine, with intent to deliver, in an amount of four grams or more but less than 200 grams. On August 17, 2009, the trial court certified appellant’s right to appeal pre-trial rulings made in his case. Appellant timely appealed the trial court’s denial of his motion to suppress.

Appellant’s motion to suppress was heard at the same time as a similar motion filed by the passenger in the car appellant was driving at the time of his arrest. The same evidence applies to both motions, and the trial court denied both motions. We reversed the trial court’s denial of the passenger’s motion to suppress. See Gonzalez-Gilando v. State, 306 S.W.3d 893 (Tex.App.-Amarillo 2010). We will apply a similar analysis here.

At the motion to suppress hearing, Department of Public Safety troopers Foster and Gamez testified they were patrolling U.S. 385 in Hartley County on November 19, 2008. Foster agreed that U.S. 385 is a main route for drug trafficking through Hartley County. The troopers, traveling south, met appellant’s 1999 Chevy Lumina at the south limits of Channing, Texas. Trooper Foster testified he noticed appellant’s car as it passed because it was “an older model vehicle” and “it was really clean. There was no road grime or dirt on it. It had been recently washed.” He agreed with the State that this is one indicator to watch for with regard to drug trafficking. He also noted that when the cars passed, appellant and his passenger quickly and simultaneously looked to their right, away from the troopers. The troopers turned around. Foster said appellant “[came] ... almost to a complete stop” at a blinking caution light at an intersection in Channing. Appellant continued north, driving cautiously and keeping his speed well under the speed limit. Appellant tapped his brakes as he drove, a behavior Foster testified was “an indication of extreme nervousness, and it just raises our suspicion.” The trooper also testified that when he first saw appellant and his passenger, their hats “were canted to the side and — ” ... “as they met us, they turned them around.” The trooper agreed with the prosecutor that this behavior could indicate criminal activity. The trooper also testified that the two men did not “quite fit the vehicle” because they were “younger individuals.”

Foster testified these factors gave him a reasonable suspicion of criminal activity, but he also agreed with the prosecutor that a DPS policy prevented him from making the traffic stop based only on his reasonable suspicion when he had not observed a traffic offense. As the troopers continued to follow appellant, with their in-vehicle computer they were given information the vehicle’s registration was current but the insurance information was unavailable. Trooper Gamez testified similarly.

The troopers made contact with Hartley County deputy sheriff Fowler, who was north of their position on the highway, to get a “third set of eyes” on appellant. They told Fowler of their observations of appellant and his passenger, and he also checked on the vehicle’s registration and insurance. He also found the insurance information “not available.” Fowler conducted a traffic stop of appellant. Fowler testified he believed he was entitled to stop the vehicle to check the validity of the automobile insurance.

Analysis

We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to a trial court’s determination of historical facts and reviewing de novo the court’s application of the law Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007); Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002); Guzman v. State, 955 S.W.2d 85, 87-90 (Tex.Crim. App.1997). When, as here, findings of fact are neither requested nor filed, 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. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005).

The principles of Terry v. Ohio are applicable to traffic stops. Richardson v. State, 39 S.W.3d 634, 637 (Tex.App.-Amarillo 2000, no pet.), citing United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); St. George v. State, 237 S.W.3d 720 (Tex.Crim.App.2007). Consistent with the principles set forth in Terry v. Ohio, a police officer lawfully may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks evidence rising to the level of probable cause. State v. Arriaga, 5 S.W.3d 804, 805 (Tex.App.-San Antonio 1999, pet. ref'd). Under Terry, an investigative detention is reasonable, and therefore constitutional, if (1) the officer’s action was justified at the detention’s inception; and (2) the detention was reasonably related in scope to the circumstances that justified the interference in the first place. Haas v. State, 172 S.W.3d 42, 50-51 (Tex.App.-Waco 2005, pet. ref'd). For the officer’s initial action to be justified under the first prong, the State must demonstrate that there “existed specific, articula-ble facts that, taken together with rational inferences from those facts, reasonably warranted that intrusion.” Id. at 51. The officer must have “a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the unusual activity is related to crime.” Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997), quoting Meeks v. State, 653 S.W.2d 6, 12 (Tex.Crim.App.1983). The facts known to the officer must amount to more than a hunch or suspicion. Davis, 947 S.W.2d at 240. In determining whether the officer’s suspicion was reasonable, we employ an objective standard asking whether the facts available to the officer at the moment of detention warrant a person of reasonable caution to believe that the action taken was appropriate. See Terry, 392 U.S. at 21-22, 88 S.Ct. 1868; Hernandez v. State, 983 S.W.2d 867, 869 (Tex.App.-Austin 1998, pet. ref'd) (quoting Davis, 947 S.W.2d at 243). The State need not establish with absolute certainty that a crime has occurred in order to establish reasonable suspicion. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001). Police officers may justifiably make inferences from visual observations based on them experiences in law enforcement. Bass v. State, 64 S.W.3d 646, 650 (Tex.App.-Texarkana 2001, pet. ref'd). Also, facts giving rise to reasonable suspicion may be supplied by information from another person. Brother v. State, 166 S.W.3d 255, 257 (Tex.Crim.App.2005).

The State argues the officers’ observations provide specific articulable facts supporting their reasonable suspicion of appellant’s involvement in criminal activity. The State points out that, on a U.S. highway on which drug trafficking was common, officers observed (1) appellants vehicle was clean with no road grime; (2) when appellant passed the troopers, both he and his passenger quickly and simultaneously looked to the right, away from the troopers; (3) appellant and his passenger adjusted their caps and posture when they saw the troopers; (4) appellant almost completely stopped at a blinking caution light when no other vehicles were around; (5) after the troopers turned around to follow him, appellant drove cautiously, keeping his speed under the speed limit and using his brakes often; and (6) appellant and his passenger were younger individuals and did not match the older model 1999 Chevrolet Lumina. As in Gonzalez-Gilando, we find that the conduct of appellant and his passenger to which the troopers testified, and reasonable inferences from those facts, did not give rise to a reasonable suspicion that appellant was engaged, had engaged, or was about to engage in criminal conduct. Gonzalez-Gilando, 306 S.W.3d at 895. Perhaps the circumstances, viewed in their totality and in the light most favorable to the court’s ruling, give rise at most to a reasonable suspicion something out of the ordinary was occurring, but we are unable to agree they form the basis for a reasonable suspicion criminal activity was afoot. See Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App.1992) (court unwilling to find that driving as defendant did after passing patrol car well within the speed limit was suspicious activity creating a reasonable belief that activity is related to crime). See also Ford, 158 S.W.3d at 493 (officer’s testimony defendant was “following too close” insufficient basis for finding reasonable suspicion); Loesch v. State, 979 S.W.2d 47, 52, 53 (Tex.App. Corpus Christi 1998, no pet.) (vehicle was illegally detained where suspicion derived exclusively from facts concerning defendant’s location, that he drove an older vehicle that looked weighed down, and that he did not look at the officers when he drove past them).

The State also contends officers were given a reasonable suspicion appellant was driving an uninsured vehicle by the information relayed through their computers. It is a misdemeanor offense to operate a motor vehicle that is not covered by valid motor vehicle liability insurance or some other means of establishing “financial responsibility.” See Tex. Transp. Code Ann. § 601.191 (Vernon 1999). If the relayed information gave officers a reasonable suspicion appellant was driving without liability insurance coverage, the deputy’s stop of appellant was lawful.

In 2005, the Legislature directed the creation of a program for the verification of vehicle owners’ compliance with financial responsibility laws, intended to reduce the number of uninsured motorists in Texas. Tex. Transp. Code Ann. § 601.452 (Vernon Supp. 2009). The legislation required information from insurance companies issuing motor vehicle liability policies in Texas. Tex. Transp. Code Ann. § 601.454 (Vernon Supp. 2009).

As the legislation required, the implementing agencies adopted regulations to implement the Financial Responsibility Verification Program. See 28 TAC § 5.601-5.611 (Vernon 2006) (regulations of the Texas Department of Insurance). The regulations required insurance companies to submit data on personal auto insurance policies in force in Texas to a database weekly, or to make the data available via an approved web-based system. 28 TAC §§ 5.604, 5.606. The regulations specify requirements for correcting errors and maintaining the accuracy of policy information. 28 TAC § 5.605. The regulations also required that insurers providing information to the database meet and maintain a 95 percent “match rate” beginning January 1, 2008, and a 98 percent rate beginning January 1, 2010.

In Gonzalez-Gilando, we rejected the State’s contention the officers had reasonable suspicion appellant was driving without insurance. We are not persuaded to a different conclusion by the State’s further arguments in this case. At oral argument, the State brought Brown v. State, 986 S.W.2d 50 (Tex.App.-Dallas 1999, no pet.), to our attention. In Brown, Dallas police officers arrested the defendant solely because he was driving a vehicle listed as stolen by the National Crime Information Center (NCIC) computer. Brown, 986 S.W.2d at 51. The appellate court found the listing gave officers probable cause for his warrantless arrest for unauthorized use of a motor vehicle. Id. at 54. In support of its conclusion, the court cited other instances in which courts had upheld police rebanee on NCIC stolen-vehicle information. Id. at 52. Concluding its discussion of the reasonableness of the Dallas officers’ reliance on the NCIC information, the court found the record before it provided “no reason to question whether stolen vehicle information obtained from the NCIC is reasonably trustworthy.” (Italics in original). Id. at 54.

Two factors distinguish the case at bar from Brown. First, in Brown the vehicle the defendant was driving was listed as stolen. Brown, 986 S.W.2d at 51. Here, it is unclear what information, if any, was conveyed to the officers about appellant’s compliance with vehicle insurance requirements. As noted, the officers said the insurance information was “unavailable.” Deputy Fowler also once used the word undocumented with regard to appellant’s insurance. But in this context those terms are not self-explanatory. The record gives us no explanation of their meaning, and we are unwilling to speculate on them. The Department of Insurance regulations for web-based compliance speak of “affirmative” and “negative” responses to inquiries. 29 TAC § 5.608. Even viewed in the light most favorable to the trial court’s ruling, the responses the officers described here give no reasonable basis for an inference appellant’s car was not insured.

Second, the court in Brown was satisfied that the NCIC system had an operating history demonstrating the reasonableness of police rebanee on the information it provided. Brown, 986 S.W.2d at 54. The record before us contains no such information on the Financial Responsibility Verification Program. The State would have us rely on the agency regulations mandating a certain level of accuracy, but, as we said in Gonzalez-Gilando, nothing in the record shows those requirements have been met. Gonzalez-Gilando, 306 S.W.3d at 897 n. 3.

The State also has cited United States v. Cortez-Galaviz, 495 F.3d 1203 (10th Cir.2007). There, the court found a Utah state computer system containing vehicle insurance and registration data provided sufficient information to justify a traffic stop. The officer stopped the vehicle when, in response to his computer inquiry about its registration and insurance status, he received a message, highlighted in red, reading “INSURED/Not Found: AS OF /9/30/2005 Recommend request proof of insurance.” Id. at 1204. Evidence showed the message apparently was one of at least three possible responses to an officer’s computer search, the others being messages indicating that the vehicle definitely was or was not insured. Id. The court characterized the computer response as telling the officer that “the state database maintained for the purpose of recording vehicle insurance information contained no information suggesting that the owner of the [vehicle] had insured it,” and found the information gave the officer reason to stop the vehicle for investigation of a possible insurance violation. Id.

Without an understanding of what the terms mean under the nomenclature of our state’s insurance verification program, we cannot agree the “unavailable” or “undocumented” responses the officers described here are the equivalent of that in Cortez-Galaviz. As the court there noted, the response fairly conveyed a negative implication regarding the defendant’s compliance with Utah’s requirements. 495 F.3d at 1204. The same is not true here. Deputy Fowler testified that the response he once described as “undocumented” led him to believe the vehicle did not have insurance. Without some foundation for that conclusion, however, we cannot accept it as reasonable. As we noted also in Gonzalez-Gilando, one of the troopers agreed the response he received indicated, “they could have insurance or they may not have insurance.” While undoubtedly accurate, the statement could be made of any vehicle on the road.

Accepting the officers’ testimony in the light most favorable to the trial court’s ruling, and deriving from the testimony every reasonable inference, we nonetheless must conclude the officers had no reasonable suspicion appellant was operating a motor vehicle without valid liability insurance, or that criminal activity was otherwise afoot. The trial court erred by failing to grant appellant’s motion to suppress.

Denial of the motion to suppress led to admission of the evidence that officers found drugs in appellant’s car. As in Gon zalez-Gilando, we find the trial court’s erroneous denial of the motion was harmful. Tex.R.App. P. 44.2.

We sustain appellants issue, reverse the trial court’s judgment and remand the cause to the trial court.

      . See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). This is a second degree felony punishable by imprisonment for a term of not more than 20 years or less than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (Vernon 2003).

        . Deputy Fowler also once used the term "undocumented” with regard to the insurance information his computer gave him.

      . One trooper explained that drug traffickers frequently wash their vehicles because they are "so concerned about fingerprints and evidence ... in every other town or so, they’ll stop and wash their vehicle. So that’s the reason — that's another indicator we look for clean vehicles.”

      . Deputy Fowler estimated the insui'ance information began appearing on his in-vehicle computer in September or October, before his stop of appellant in November.


text:
    DALLAS AREA RAPID TRANSIT, Appellant, v. Barbara CARR, Appellee.
    No. 05-09-00786-CV.
    Court of Appeals of Texas, Dallas.
    April 6, 2010.

      Higinio (Gene) Gamez, Assistant General Counsel, Dallas, TX, for Appellant.
    John E. Richards, Richard & Valdez, Dallas, TX, for Appellee.
    Before Justices MORRIS, O’NEILL, and FILLMORE.
   OPINION

Opinion By

Justice O’NEILL.

The trial court denied Dallas Area Rapid Transit’s (DART) plea to the jurisdiction. In a single issue, DART asserts the trial court did not have subject matter jurisdiction of this case because appellant Barbara Carr failed to state a violation under Texas Government Code section 554, commonly referred to at the Texas Whistleblower Act (the “Act”). We reverse the trial court’s judgment and dismiss the lawsuit with prejudice.

Background

Appellant Barbara Carr was employed by DART as a bus operator. On October 25, 2006, during a stop on one of her routes, a man approached the bus, spoke to her in an aggressive tone, used a racial epithet, and pulled a knife on her. She closed the bus door and notified a DART dispatch operator. The DART police caught the man and rather than arresting him, they issued a disorderly conduct citation.

After Carr learned the man was not arrested, she went to a DART board meeting and discussed her displeasure with the situation. She claimed if she had pulled a knife on someone, she would have been arrested. Following the meeting, an investigation was opened to review the officer’s actions. The investigation ultimately concluded “officers at the scene make split second decisions that later, after further thought and deliberation may be second guessed, however, here ranking officers made a decision and resolved this incident with the information they had on hand at the time.” The investigation ultimately determined “classification for this Administrative Review by the Office of Professional Standards is ‘Unfounded.’ ” (Emphasis in original.)

On June 11, 2007, Carr was involved in another physical confrontation with a passenger. As a result of the incident, the passenger filed a complaint with DART police. After another independent investigation, DART terminated Carr for unacceptable conduct and work place violence. Carr invoked DART’s employee grievance procedures and was later reinstated.

Carr then filed suit against DART under the Act. In her First Amended Original Petition, Carr asserted the following:

Carr in good faith complained to the Board of Directors of DART concerning a violation of the law of an employee of DART, to wit, of the dereliction of duty of one of DART’s police officers. Said complaint was protected activity under Chapter 554 of the Texas Government Code. Carr also reported an assault on her person by a passenger and was terminated related to the assault.

The City filed a plea to the jurisdiction asserting Carr was simply trying to avoid dismissal by “artfully pleading” around the statute. Specifically, DART argued Carr failed to state a violation of law under the Act, and her claim was in fact a claim for negligence for which DART retained immunity from suit.

The trial court denied DART’s plea to the jurisdiction on June 23, 2009. This interlocutory appeal followed.

Standard of Review

A party may challenge the trial court’s subject-matter jurisdiction by filing a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). Whether the trial court has subject-matter jurisdiction is a question of law, which we review de novo. Id. at 226. In conducting our review, we construe the pleadings liberally in favor of the plaintiff and look to the plaintiffs intent. Id. at 226-27. We consider the pleadings and evidence pertinent to the jurisdictional inquiry. Id.; City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686 (Tex.App.-Dallas 2003, pet. denied). The plaintiff has the burden to plead facts affirmatively showing the trial court has subject-matter jurisdiction. Tex. Dep’t of Parks & Wildlife, 133 S.W.3d at 226. If the evidence creates a fact issue concerning jurisdiction, the plea to the jurisdiction must be denied. Miranda, 133 S.W.3d at 227-28.

Applicable Law

Agencies like DART are immune from suit and liability in Texas unless the legislature expressly waives sovereign immunity. State v. Lueck, 290 S.W.3d 876, 880 (Tex.2009). The immunity provision of the Whistleblower Act states:

A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter. Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for violation of this chapter.

Tex. Gov’t Code ANN. § 554.0035 (Vernon 2004).

In State v. Lueck, the Supreme Court of Texas recently determined what a party must plead to succeed on a claim under the Act. See Lueck, 290 S.W.3d at 881. Section 554.002(a) provides that “a state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law....” Tex. Gov’t Code Ann. § 554.002(a) (Vernon 2004).

The Lueck court determined there are but two jurisdictional requirements under section 554.0035. Lueck, 290 S.W.3d at 881. For the government’s immunity to be waived, the plaintiff must (1) be a public employee and (2) allege a violation of this chapter. Id. (Emphasis in original.) Thus, it necessarily follows that a party must actually allege a violation of the Act for there to be waiver from suit. Id. As such, the elements under section 554.002 must be considered in order to ascertain what constitutes a violation and whether a party has alleged said violation. Id.

The Act defines “law” as “a state or federal statute, an ordinance of a legal governmental entity, or a rule adopted under a statute or ordinance.” Tex. Gov’t Code Ann. 554.001(1) (Vernon 2004). However, there is no requirement an employee identify a specific law when making a report. Tex. Dep’t of Criminal Justice v. McElyea, 239 S.W.3d 842, 849 (Tex.App.-Austin 2007, pet. denied). Nor does an employee need to establish an actual violation of law. Id. However, there must be some law prohibiting the complained-of conduct to give rise to a whistleblower claim, otherwise, any complaint, grievance, or misconduct could support a claim. Id.; see also Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638, 642-43 (Tex.App.-Corpus Christi 2001, pet. denied); see, e.g., Vela v. City of Houston, 186 S.W.3d 49, 53 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (trial court correctly granted summary judgment in favor of city under the Act because plaintiff failed to cite to any building or electrical code, provision, or law he believed the city violated). In other words, when an employee believes and reports in good faith that a violation has occurred, but is wrong about the legal effect of the facts, he is nonetheless protected by the statute. McElyea, 239 S.W.3d at 850.

Analysis

Because Carr has the burden to plead facts affirmatively showing the trial court had subject-matter jurisdiction, we begin by analyzing her first amended original petition. Tex. Dep’t of Parks & Wildlife, 133 S.W.3d at 226. She specifically pleaded “Carr in good faith complained to the Board of Directors of DART concerning a violation of the law of an employee of DART, to wit, of the dereliction of duty of one of DART’s police officers.”

DART’s plea to the jurisdiction contains evidence of Carr’s deposition testimony and a transcript of her complaint to the DART board of directors during a November 14, 2006 hearing. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000) (noting reviewing court may consider evidence and must do so when necessary to resolve the jurisdictional issues raised). During the November 14 meeting, Carr repeatedly said the transit police had a “manpower shortage.” She also expressed her dismay at the police for writing a disorderly conduct ticket when a man pulled a knife on her because “if I was to pull a knife in this room on anybody I would be — either be terminated and hauled off to jail.”

During her deposition, when repeatedly asked what violation of law she was complaining about, she said “it was a dereliction of their duty to take this guy to jail. That is their duty, is to serve and protect, and they did not do that ... they should have arrested him.”

Based on these allegations, we conclude Carr failed to establish the officer violated a law requiring protection under the Act. Her statements to the DART board of directors do not allege any violations of law. At most, her complaint about “manpower shortage” pertains to internal personnel staffing policies and procedures. Potential violations of internal policies are not violations of law the Act is designed to protect. See Lueck, 290 S.W.3d at 885; Vela, 186 S.W.3d at 53.

Further, her claims of dereliction of duty for failing to serve and protect and failing to arrest do not establish a violation of law. If, how, and when to arrest a suspect is within a police officer’s discretion. City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 376 (Tex.App.-Dallas 1994, no writ). Further, an officer owes no duty to a specific plaintiff to arrest a suspect. Dent v. City of Dallas, 729 S.W.2d 114, 116 (Tex.App.-Dallas 1986, writ ref'd n.r.e.) (duty is to public at large). It follows Carr cannot establish a violation of law where an officer has exercised his discretion to issue a citation for disorderly conduct rather than arrest the suspect, even though Carr may believe the officer should have done something more. See Tex.Crim. Proc. Ann. art. 14.06(b) (Vernon 2005) (officer has discretion to issue a citation for a Class C misdemeanor rather than taking the offender before a magistrate).

Carr asserts two provisions of the code of criminal procedure support her whistle-blower claim: article 2.13 and article 6.05. Both of these sections discuss an officer’s duty to preserve the peace and prevent injury. Tex.Code Crim. Proc. Ann. arts. 2.13, 6.05 (Vernon 2005). However, as noted above, an officer has no specific duty to an individual to arrest a suspect and has discretion in carrying out his duties. Here, the officer issued a disorderly conduct citation and handled the situation in a way that preserved the peace and prevented injury. The fact that Carr disagrees with the officer’s actions does not mean her allegations encompass a “violation of law” envisioned under the Whistleblower Act. Thus, Carr failed to plead facts affirmatively showing the trial court had subject-matter jurisdiction. Miranda, 133 S.W.3d at 226. As such, the trial court erred in denying the City’s plea to the jurisdiction.

We reverse the trial court’s order denying the City’s plea to the jurisdiction and dismiss Carr’s lawsuit with prejudice.

      . No one disputes that DART is a governmental unit for purposes of immunity under the Act.