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    Alfredo MORENO and Frances Moreno, Individually and as Heirs and Representatives of the Estate of Bernadette Moreno, Deceased, Appellants, v. Joseph A. QUINTANA, Jr., M.D. and El Paso Healthcare System, Ltd. d/b/a Del Sol Medical Center, Appellees.
    No. 08-06-00134-CV.
    Court of Appeals of Texas, El Paso.
    March 10, 2010.
    Rehearing Overruled April 7 and 14, 2010.
    See also, Moreno v. Palomino-Hernandez, 269 S.W.3d 236.

      David Duran, El Paso, for appellants.

      Cynthia C. Llamas, Arthur R. Piacenti, Ray, Valdez, McChristian & Jeans, P.C., Joseph L. Hood Jr., Windle, Hood, Alley, Norton, Brittain & Jay, LLP, El Paso, for appellees.
    Before CHEW, C.J., McCLURE, and CARR, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Alfredo and Frances Moreno, on behalf of their daughter Bernadette Moreno, appeal the trial court’s orders granting summary judgments in favor of Dr. Joseph Quintana, M.D. and Del Sol Medical Center. We find that the trial court improperly granted both motions for summary judgment, and we reverse the court’s take-nothing judgments and remand the case for trial.

Bernadette Moreno arrived at Del Sol Medical Center in El Paso on February 11, 2003, in hypertensive crisis, under the care of Dr. Edward Juarez. Shortly after midnight, Ms. Moreno was transferred to the intensive care unit by Physician Assistant Roy Malphurs due to uncontrolled hypertension and respiratory distress. Her respiratory rate was between thirty-five and forty, with low oxygen saturation in her blood, and her blood pressure was recorded at 190/110. At 3 a.m., Nurse Ruddy rerecorded Ms. Moreno’s vital signs. According to her chart, Ms. Moreno’s blood pressure had risen to 205 over 126, her heart rate was 124 beats per minute, she had a respiratory rate of forty, and a blood oxygen saturation of 90 percent. Nurse Ruddy contacted Cardiologist Dr. Joseph Quintana to consult on Ms. Moreno’s case. Dr. Quintana returned Nurse Ruddy’s page at 3:30 a.m. He accepted the consultation for Ms. Moreno’s hypertension and ordered medication to reduce her blood pressure, but did not got to the hospital to examine her in person. Ms. Moreno’s blood pressure remained above desirable levels until between 5 and 5:30 a.m.

At 9:55 a.m., contrast dye was administered in preparation for a cat-scan. At 10:25 a.m., Ms. Moreno was in emergency respiratory distress due to congestive heart failure. Dr. Adolfo Palomino ordered several medications, including versed and two doses of succinylcholine to prepare Ms. Moreno for intubation. Succi-nylcholine is used to paralyze the patient’s diaphragm for intubation, and because of this, the patient is unable to breathe until the tube is properly placed. Ms. Moreno was pronounced dead at 10:58 a.m., after she went into a pulseless electrical heart rhythm, following complications when Dr. Palomino was unable to re-establish an airway.

Alfredo and Frances Moreno, as representatives of the estate of Bernadette Moreno (“the Morenos”), filed a medical malpractice suit against Dr. Quintana and El Paso Healthcare System, Ltd. d/b/a Del Sol Medical Center on April 25, 2005. Both Dr. Quintana and Del Sol answered the suit and filed independent hybrid motions for summary judgment. The More-nos timely filed their responses to both motions and produced summary judgment evidence on the challenged elements of breach and proximate cause. Dr. Quinta-na filed numerous objections to the More-nos’ summary judgment evidence, including objections to the affidavit evidence and deposition testimony of the Morenos’ medical expert witness Dr. David Ostrander and objections to his own deposition testimony.

By written order dated March 23, 2006, the trial court sustained Dr. Quintana’s objections and excluded Dr. Ostrander’s affidavit and deposition from consideration. The court also sustained Dr. Quin-tana’s objection to the Morenos’ supplement to their summary judgment response and struck documentary evidence of Dr. Quintana’s orders for Ms. Moreno’s treatment on February 12. On the same day, the trial court granted summary judgment for Dr. Quintana specifically on no-evidence grounds and entered a take-nothing judgment against the Morenos. The court also granted Del Sol’s motion for summary judgment, although without specifying on what basis, and entered another take-nothing judgment.

The Morenos raise four issues on appeal. In Issues One and Two, the Morenos contend the trial court abused its discretion by sustaining the objections to Dr. Ostran-der and Dr. Quintana’s affidavit and deposition testimony. The Morenos contend the evidence was admissible, and therefore should have been considered as part of their summary judgment response. In Issues Three and Four, the Morenos challenge the trial court’s summary judgments in favor of Dr. Quintana and Del Sol.

In Issue One, the Morenos contend that the trial court erred in sustaining Dr. Quintana’s objections to the affidavit of expert witness, Dr. David Ostrander. Rulings on the admission or exclusion of summary judgment evidence are reviewed under an abuse of discretion standard. Barraza v. Eureka Co., a Division of White Consolidation Industries, Inc., 25 S.W.3d 225, 228 (Tex.App.-El Paso 2000, pet. denied). A trial court abuses its discretion when the trial court fails to act in accordance to guiding rules or principles. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002).

In its ruling on Dr. Quintana’s objections, the trial court specified it was sustaining Dr. Quintana’s objection to Dr. Ostrander’s affidavit, because the affidavit “misrepresents Dr. Quintana’s deposition testimony” and “does not consider Dr. Quintana’s sworn deposition errata page and the sworn supplementation to Dr. Quintana’s deposition testimony.” The trial court does not specify what “misrepresentation” it concluded was sufficient to warrant excluding an otherwise uncontested expert opinion from consideration. However, Dr. Quintana purports a misrepresentation exists in the difference between his own deposition and Dr. Os-trander’s opinion testimony; specifically, Dr. Ostrander’s opinion that Ms. Moreno’s death was caused, in part, by the delay in treating Ms. Moreno due to Dr. Quintana’s failure to see her in the hospital, as compared to Dr. Quintana’s own deposition testimony that he may have treated Ms. Moreno differently and more aggressively, had Nurse Ruddy told him how severe Ms. Moreno’s vitals were. The record does demonstrate that Dr. Quintana exercised his right to clarify his deposition testimony on numerous occasions prior to summary judgment, thereby preserving his disputes with Dr. Os-trander’s opinions and interpretations of the record for the fact finder to resolve. Dr. Quintana has failed to cite, however, and we have been unable to locate Texas precedent holding that an otherwise unchallenged expert affidavit is subject to exclusion from evidence during summary judgment proceedings for “misrepresenting” another witnesses testimony, or for allegedly failing to consider another witness’s clarifications of his testimony, or any other part of the record in general.

Indeed, under either summary judgment standard, the court is required to view the evidence in the light most favorable to the non-movant and indulge all inferences and resolve all doubts in the non-movant’s favor. See Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). As such, it was the trial court’s duty to disregard Dr. Quintana’s disputes with Dr. Os-trander’s opinions, and view the evidence in the Morenos’ favor alone. Ultimately, whether or not this type of evidentiary “misrepresentation” has occurred can only be answered when the fact finder determines what witnesses are credible and what weight to give their testimony. Similarly, whether or not Dr. Ostrander considered all, or part, of the appropriate evidence in coming to his expert opinions is a ripe subject for cross-examination. Such issues are for the fact finder alone, and therefore, cannot be properly addressed at summary judgment. See City of Keller v. Wilson, 168 S.W.3d 802, 821-22 (Tex.2005). Because there was no legal basis for the trial court’s ruling, it abused its discretion by excluding Dr. Ostrander’s affidavit on its stated basis. Issue One is sustained.

In Issue Two, the Morenos argue the trial court also abused its discretion by sustaining Dr. Quintana’s objections to excerpts from Dr. Quintana’s deposition testimony. The court sustained Dr. Quinta-na’s objection to the Morenos’ Exhibit 8, lines 11-19 of page 45 of Dr. Quintana’s own deposition, which the Morenos included in their response to Dr. Quintana’s motion for summary judgment. Exhibit 8 included the following grounds: (1) compound question; (2) Improper hypothetical; leaves out material facts; and (3) Improper standard, predicate; improper foundation; improper question of “probably” rather than “reasonable medical probability.” The Morenos’ entire discussion of this issue in their appellate brief consists of a single paragraph, in which they conclude based on a single citation to Texas Rule of Evidence 801(e)(2)(3), that the challenged deposition testimony consisted of admissions of a party opponent, and are therefore admissible. In addition, despite Dr. Quintana’s argument that the Morenos waived this argument by failing to properly brief the issue, the Morenos’ reply brief contains no reference to the trial court’s ruling on Exhibit 8.

Texas Rule of Appellate Procedure 38.1 provides the requirements for an appellant’s brief. Tex.R.App.P. 38.1. Sub-paragraph (i) provides that a brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1(i). Failure to adequately brief an argument results in waiver. Riddle v. Unifund CCR Partners, 298 S.W.3d 780, 783 n. 1 (Tex.App.-El Paso 2009, no pet.). Because the Morenos have failed to provide a proper argument in support of their contention that the trial court’s evi-dentiary ruling in this instance was an abuse of discretion, the issue has been waived. Because the trial court’s ruling with regard to Exhibit 8 stands, the exhibit will not be considered as evidence in our review of the court’s judgment. Issue Two is overruled.

We now turn to the merits of the trial court’s summary judgment. In Issue Three, the Morenos contend the trial court erred by granting Dr. Quintana’s no-evidence motion for summary judgment. A no-evidence motion for summary judgment is essentially a pretrial motion for directed verdict, and we apply the same legal sufficiency standard of review. Gray v. Woodville Health Care Center, 225 S.W.3d 613, 616 (Tex.App.-El Paso 2006, pet. denied). A no-evidence summary judgment movant must specify which essential elements are devoid of evidentiary support. Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.-El Paso 2005, pet. denied). The burden then shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact regarding each challenged element. Aguilar, 162 S.W.3d at 834. The non-movant meets this burden, thereby defeating the no-evidence motion by producing more than a mere scintilla of evidence in support of each challenged element. See Gray, 225 S.W.3d at 616. A “scintilla” of evidence rises to the level that enables reasonable minds to differ in the conclusions to be drawn therefrom. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.2003). A no-evidence motion is properly granted when the non-movant fails to produce proper summary judgment evidence, or the evidence produced is so weak as to create no more than a mere surmise or suspicion. On appeal, we conduct a de novo review of the trial court’s ruling to determine whether or not the non-movant’s evidence demonstrated that a material fact issue exists on each of the challenged elements. See King Ranch, Inc., 118 S.W.3d at 751. When conducting such a review, the appellate court must view the evidence in the light most favorable to the non-movant. See Gray, 225 S.W.3d at 616. When, as here, the trial court fails to specify which no-evidence ground served as the basis for its ruling, we must review each ground raised in the motion, and the judgment will be affirmed if any of the theories prove meritorious. Id. at 617.

The essential elements of a claim for medical malpractice are: (1) a duty by the physician to act according to a standard of care; (2) breach of that standard of care; (3) a causal connection between the alleged breach and the injury; and (4) injury or harm to the plaintiff. See Linan v. Rosales, 155 S.W.3d 298, 302 (Tex.App.-El Paso 2004, pet. denied). Dr. Quintana’s motion challenged the breach and causation elements of the Morenos’ cause of action. The Morenos responded by producing testimony by Dr. Ostrander, Dr. Quintana, and Nurse Ruddy in support of their argument that fact issues exist on both challenged elements.

We turn first to the breach element. Dr. Quintana asserts that there is no evidence that he breached the standard of care because the Morenos’ primary expert witness on this issue, Dr. Ostrander, only speculated as to a breach “if’ Dr. Quintana failed to personally attend to Ms. Moreno in the hospital. Dr. Quintana concludes that because Dr. Ostrander’s testimony was merely speculative, it cannot serve to raise a genuine issue of material fact. Because we disagree that the Morenos’ response was strictly limited to Dr. Ostran-der’s statement as cited by Dr. Quintana, we conclude the Morenos’ met their summary judgment burden on this issue.

Exhibit 4, attached to the Morenos’ response, was Dr. Ostrander’s expert affidavit. In the affidavit, Dr. Ostrander explained that he had reviewed all the pertinent medical records and statements, including those of Nurse James Ruddy in forming his opinions.

Nurse James Ruddy called Dr. Joseph A. Quintana at 3:30 a.m. on February 12, 2003 to advise Dr. Quintana that he had been consulted regarding [Ms. Moreno]. Dr. Quintana accepted the consult and gave orders at this time for medication to lower [Ms. Moreno’s] blood pressure. The standard of care required Nurse Ruddy to inform Dr. Quintana not only of [Ms. Moreno’s] blood pressure, but also her heart rate, rate of respirations, oxygen saturation and history of desatu-ration requiring increasing doses of supplemental oxygen. Dr. Quintana testified that if he had been made aware of [Ms. Moreno’s] respiratory rate and low oxygen saturation, he would have come to the hospital to see [Ms. Moreno]. Nurse Ruddy testified he believes he gave Dr. Quintana all the abnormal vital signs. Vital signs include the respiratory rate.
If Nurse Ruddy failed to give Dr. Quintana the heart rate, blood pressure, respiratory rate, and oxygen saturation, and history of desaturation requiring increasing doses of supplemental oxygen, then his care fell below the standard of care and contributed to the delay in providing [Ms. Moreno] with necessary diagnostic and therapeutic care. If Dr. Quintana was aware of the heart rate, blood pressure, respiratory rate, oxygen saturation and history of desaturation, his failure timely to evaluate the patient and to order additional diagnostic studies, diuretics and bi-level positive airway pressure (BiPAP) breached the standard of care.

When we view Dr. Ostrander’s affidavit more broadly than the single statement relied on by Dr. Quintana, a question of material fact becomes apparent. While Dr. Ostrander • does conclude that absent proper communication from Nurse Ruddy, Dr. Quintana’s actions were not a breach of the standard of care. Dr. Ostrander also specifically noted that Nurse Ruddy believed all necessary vitals had been given to Dr. Quintana at 3:30 a.m., making Dr. Quintana’s inaction a breach. Dr. Os-trander’s affidavit is supplemented by Exhibit 7 to the Morenos’ response, which contains Nurse Ruddy’s deposition. According to Nurse Ruddy’s deposition, Dr. Quintana was advised of the patient’s vital signs when he spoke with Ruddy at 3:30 a.m. On the other hand, Dr. Quintana’s deposition attached to the response as Exhibit 8, indicates that based on the information given to him when he returned the hospital’s page, he did not feel it was necessary to personally attend to Ms. Moreno.

When we take a comprehensive view of the evidence in the Morenos’ response, it is apparent that the resolution of the issue of Dr. Quintana’s alleged breach is dependant on the determination of what information Dr. Quintana was, or was not, given when he spoke with Nurse Ruddy at 3:30 a.m. Answering that question depends on the credibility attributed to Nurse Ruddy’s recollection, versus Dr. Quintana’s. Evaluations of witness weight and credibility are for the fact finder only, and therefore are not appropriate considerations on summary judgment. See Wilson, 168 S.W.3d at 821-22 (noting the deference given to the fact finder regarding witness credibility in a legal sufficiency review). In the case before us, we are limited to viewing the evidence in the light most favorable to the Morenos, as the non-movants. See Gray, 225 S.W.3d at 616-17. Under such a light, we conclude the evidence could lead reasonable minds to differing conclusions regarding Dr. Quintana’s alleged breach. Accordingly, the Morenos’ have met their summary judgment burden to raise a genuine issue of material fact on this issue, and summary judgment was not properly granted on this ground.

We now turn to Dr. Quintana’s second challenged element: proximate cause. Dr. Quintana moved for no-evidence summary judgment by challenging the proximate cause element solely on the basis that there was no evidence that the alleged breach was a cause-in-fact of Ms. Moreno’s death. The motion does not contain an argument regarding the foreseeability element of proximate cause. Specifically, Dr. Quintana argued that Dr. Ostrander’s testimony conclusively established that Dr. Palomino’s intubation attempts were the only proximate causes of Ms. Moreno’s death regardless of Dr. Quintana’s alleged breach. Again, because we believe the evidence must be viewed more broadly, we disagree.

Proximate cause consists of two elements; cause-in-fact and foreseeability. Wyatt v. Longoria, 38 S.W.3d 26, 32 (Tex.App.-El Paso 2000, no pet.). These elements cannot be established by mere conjecture, guess, or speculation. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex.2004). An act or omission is a cause-in-fact of the alleged harm or injury when it was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. Mason, 143 S.W.3d at 799. While courts have recognized that proximate cause is generally a fact question, it may be a question of law when the evidence is undisputed, and where only one reasonable inference may be reasonably drawn. Borrego v. City of El Paso, 964 S.W.2d 954, 959 (Tex.App.-El Paso 1998, pet. denied).

According to Dr. Ostrander’s affidavit and deposition testimony, Dr. Quintana’s alleged breach contributed to the delay in treatment which lead to the need to intu-bate Ms. Moreno, and ultimately to her death. While Dr. Ostrander’s affidavit does state that Ms. Moreno died from complications related to the intubation, he goes on to explain that assuming Dr. Quin-tana was given all of Ms. Moreno’s vital signs during his conversation with Nurse Ruddy, Dr. Quintana’s failure to personally attend to Ms. Moreno and order more aggressive treatment lead to the need for intubation. In his deposition, Dr. Ostran-der explained the connection between the need for more aggressive treatment and Ms. Moreno’s deteriorating condition in more detail. Dr. Ostrander testified that Ms. Moreno was suffering from heart failure, a diagnosis that should have been made early in the evening, and which would have lead, according to the standard of care, to her being treated aggressively with a combination of BiPAP, diuretics, and blood pressure control. These treatments would have stabilized and improved her condition over night, ultimately erasing need for intubation.

In Dr. Quintana’s own deposition, he also testified that based on the information recorded regarding Ms. Moreno’s condition at 2:42 a.m., there may have been a need to change the initial approach to the case by seeing her personally, or ordering more testing. Again, based on the medical records, Dr. Quintana noted a need for more diuretics and anti-hypertensive medication to improve Ms. Moreno’s condition before the need for intubation arose. While Dr. Quintana’s testimony on these points was based on his review of Ms. Moreno’s medical chart, rather than his own recollection of the information he received at the time he was assigned to the case, viewed in the light most favorable to the Morenos, the evidence is not legally conclusive. Because Dr. Quintana’s testimony, combined with Dr. Ostrander’s opinions could lead reasonable minds to different conclusions regarding the causes of Ms. Moreno’s death, the Morenos met their no-evidence summary judgment burden on this issue. See Gray, 225 S.W.3d at 616-17. Therefore, the proximate cause element was not a proper basis for the trial court’s judgment. See Borrego, 964 S.W.2d at 959.

Dr. Quintana’s summary judgment motion also included a section in which he argued the Morenos had no-evidence of their ability to recover certain types of damages. Regarding the Morenos’ claim for loss of inheritance damages specifically, the issue has been conceded by the family. The balance of Dr. Quintana’s arguments in this section of his summary judgment motion are based on the success of his challenges to the breach and proximate cause elements of the Morenos’ cause of action. Given our conclusion that neither of the challenged elements provided a proper basis for summary judgment, summary judgment was not properly granted on the issue of recoverable damages.

In sum, having concluded that none of Dr. Quintana’s grounds for no-evidence summary judgment support the trial court’s judgment, Issue Three is sustained.

In Issue Four, the Morenos contend the trial court’s summary judgment in Del Sol’s favor was also improper. Del Sol moved for summary judgment on both traditional and no-evidence grounds. Each section of the hybrid motion contained two grounds for summary judgment. Under the no-evidence standard, Del Sol challenged the proximate cause element of the Morenos’ medical malpractice cause of action, and also alleged that the Morenos’ allegation that Physician Assistant Roy Malphurs was negligently credentialed by the hospital was unsupported by evidence of malice. Under the traditional summary judgment standard, Del Sol argued the “negligent credentialing cause of action” asserted by the Morenos was not recognized in Texas. In the alternative, to the extent such a cause of action was a basis for liability, the hospital claimed immunity under Texas Occupations Code Section 160.010, because there is no evidence that the physicians assistant who attended to Ms. Moreno was given hospital privileges with malicious intent. Because our analysis of Del Sol’s traditional grounds will dispose of the majority of the summary judgment, we will address those grounds first.

As with any summary judgment ruling, a traditional summary judgment is subject to de novo review. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). To succeed on a tradition motion for summary judgment, the movant must establish that there is no genuine issue of material fact so that judgment should be granted as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005). Summary judgment is therefore properly granted if the defendant disproves at least one essential element of the plaintiffs cause of action, or establishes all essential elements of an affirmative defense. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002); Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001). If the movant is successful in establishing its right to judgment as a matter of law, the burden then shifts to the non-movant to produce evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). As in a review under the no-evidence standard, the reviewing court will take as true all competent evidence favorable to the non-movant, indulge every reasonable inference, and resolve any doubts in the non-movant’s favor. See Grant, 73 S.W.3d at 215. Unlike a no-evidence motion however, a traditional motion for summary judgment must stand or fall on its own merit, there is no right to a traditional summary judgment by default. See City of Houston, 589 S.W.2d at 678.

The primary issue at summary judgment regarding the Morenos’ claims against the hospital revolves around the existence and elements of a “negligent credentialing” cause of action. At the time the trial court granted Del Sol’s motion, the Morenos’ Fourth Amended Original Petition was the live pleading in the case. The Morenos’ alleged the hospital was negligent by:

(a) Failing to properly train and supervise the nurses who cared for [Ms. Moreno] in its intensive care unit on February 12, 2003.
(b) Failing to properly assess [Ms. Moreno].
(c) Failing to properly monitor [Ms. Moreno].
(d) Failing to keep [Ms. Moreno’s] physicians or their designated healthcare provider employees timely advised of [Ms. Moreno’s] condition.
(e) Failing to properly evaluate Roy Malphurs, P.A. to determine his ability to evaluate and treat a patient like [Ms. Moreno] and other similarly situated patients while being aware that intensive care patients are at high risk of injury and require the highest level of care;
(f) Allowing Roy Malphurs, P.A. to treat patients in the ICU;
(g) Failing to define and limit Roy Malphurs, [sic] P.A., scope of practice, and
(h) Failing to timely call an anesthesiologist or pulmonolgist to intubate [Ms. Moreno].

The first question we must address, as argued by Del Sol, is whether “negligent credentialing” is recognized as a cause of action in the State of Texas. The hospital relies on two Texas Supreme Court cases for the proposition that negligent credentialing has never been recognized as a cause of action in this state; St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex.1997) and Romero v. KPH Consol., Inc., 166 S.W.3d 212 (Tex.2005). In Agbor, the Court held that the Texas Medical Practice Act applied to a patient’s cause of action against a hospital for negligently credentialing a physician. Agbor, 952 S.W.2d at 504. The Agbor family sued the hospital where their son suffered permanently disabling injuries during his delivery. Id. The Agbors alleged the hospital was negligent and grossly negligent for credentialing the physician who delivered the baby. Id. The hospital moved for summary judgment under former Article 4495b, §§ 1.01-6.13, arguing that the Texas Medical Practice Act provided immunity for credentialing decisions by health care entities absent malice. Id. While the Court did not expressly recognize “negligent credentialing” as an independent cause of action, it did state that the Texas Medical Practice Act provided that malice was the “threshold standard” for a cause of action against a hospital for its “credentialing activities.” Id. at 509.

The Court revisited the issue in 2005 in Romero. In Romero, the claimant sued the defendant hospital for “malicious credentialing” of a surgeon, whom they alleged negligently delayed a blood transfusion during surgery. Romero, 166 S.W.3d at 214. Although the Court’s discussion was focused on whether the jury was properly charged on the issue of the hospital’s alleged negligent credentialing of the surgeon, in its discussion the Court explained, “[i]n Texas, by statute, a hospital is not liable for improperly credentialing a physician through its peer review process unless the hospital acts with malice.... ” Id. at 214 n. 1, citing Tex.Occ.Code ANN. § 160.010(b) & (c) (formerly Tex.Rev.Civ. Stat.Ann. art. 4495b, § 5.06(l)-(m); Act of June 1, 1987, 70th Leg., R.S., ch 596, § 18, 1987 Tex.Gen.Laws 2325, 2385). Again, while not expressly acknowledging a cause of action for negligently credentialing, the Court noted the difficulty a claimant faces in accessing evidence of malicious credentialing. Romero, 166 S.W.3d at 224-25.

Although not cited by Del Sol, the Texas Supreme Court revisited the issue of negligent credentialing again in 2004, in Garland Community Hosp. v. Rose, 156 S.W.3d 541 (Tex.2004) (orig. proceeding). This case came to the Court on a petition for writ of mandamus involving the medical expert report requirement in former Article 4591i. See Rose, 156 S.W.3d at 542. In the underlying suit, the claimant sued the defendant hospital for negligently credentialing a doctor who performed a cosmetic surgery. Id. The issue before the Court was whether “negligent credentialing” was a healthcare liability claim subject to the medical expert report requirements of the Texas Medical Liability and Insurance Improvement Act. Id. In one, the Court noted that it had never formally recognized the existence of a common-law cause of action for negligent credentialing, but concluded it would assume such a claim existed for the purposes of the case. Id. at 542 n. 1, citing Agbor, 952 S.W.2d at 508. In its analysis of negligent credentialing as a health care liability claim, the Court discussed the process and purposes of a hospital’s credentialing practices. The Court explained:

Furthermore, the Hospital’s credentialing activities are an inseparable part of the medical services [the plaintiff] received. One of a hospital’s primary functions is to provide a place in which doctors dispense health care services. The quality of a health care provider’s medical staff is intimately connected with patient care. A hospital’s credentialing of doctors is necessary to that core function and is, therefore, an inseparable part of the health care rendered to patients.

Rose, 156 S.W.3d at 545.

The Court also noted “a negligent credentialing claim involves a specialized standard of care,” for which “[t]he health care industry has developed various guidelines to govern a hospital’s credentialing process.” Rose, 156 S.W.3d at 546. Ultimately, the Court concluded that negligent credentialing claims “involve a claimed departure from an accepted standard of health care” and thereby, concluded such claims did fall within the definition of “health care liability claims.” Id.

From the combined discussions in these three cases, we conclude that although Texas may not formally recognize an independent, common law, cause of action for negligent credentialing, such allegations are recognized by Texas courts and by statutory authority as actionable theories of liability in medical negligence cases. Were we to hold such claims are not permitted by Texas law, the effect would be to eviscerate several provisions of the Texas Occupations Code (one of which is the basis for Del Sol’s second argument), and we would be ignoring binding precedent from the Texas Supreme Court. Negligent credentialing is a viable theory of liability for medical negligence on the part of a health care entity, which fails to abide by the specialized standard of care and industry guidelines, which govern the credentialing process for medical staff. See id. at 545-46. Given this conclusion, summary judgment was not properly granted on the basis that negligent credentialing is not recognized as a basis of liability in Texas.

We now turn to whether or not the negligent credentialing theory, as alleged by the Morenos, incorporates the burden to prove malice as required by Texas Occupations Code Section 160.010. Subparagraph (b) of Section 160.010 provides:

(b) A cause of action does not accrue against a member, agent, or employee of a medical peer review committee or against a health care entity from any act, statement, determination or recommendation made, or act reported, without malice, in the course of medical peer review.

Tex.OCC.Code Ann. § 160.010(b) (Vernon 2004).

This provision has been held to provide immunity for health care entities and physicians absent allegations of malice in the credentialing process. See Agbor, 952 S.W.2d at 505-06, 509 (applying former version of Section 160.010(b) and (c)). Del Sol argues the immunity and associated malice requirement also applies when the allegedly negligently credentialed individual is a physician assistant. Because the Morenos neither alleged Physician Assistant Malphurs was maliciously credentialed, nor produced evidence of malice in Del Sol’s credentialing procedures, the hospital concludes it was entitled to summary judgment.

The applicability of this provision to a physician assistant is a question of statutory construction. Our primary objective is to determine the Legislature’s intent in enacting a particular provision, and to give that provision its intended effect. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). We must interpret the statute according to the plain meaning of the language used, and must read the statute as a whole without giving effect to certain provisions at the expense of others. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003); In re J.I.M., 281 S.W.3d 504, 507 (Tex.App.-El Paso 2008, pet. denied). Each word, phrase, or expression must be read as if it were deliberately chosen, and we will presume that words excluded from a provision were excluded purposefully. Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied).

We turn first to the structure of the Texas Occupations Code. Section 160.010 is contained in Subtitle B of Title 3. See Tex.OoC.Code Ann. § 160.010 (Vernon 2004). Title 3 governs “Health Professions.” Within Title 3 are several subtitles including: Subtitle A “Provisions Applying to Health Professions Generally;” Subtitle B “Physicians;” and Subtitle C “Other Professions Performing Medical Procedures.” See Tex.OCC.Code Ann. Title 3 “Health Professions” (Vernon 2004). While Section 160.010 is contained in Subtitle B, specifically applicable to physicians, Subtitle C contains Chapter 204, also known as “The Physician Assistant Licensing Act” (“the Act”). See Tex.Ooc.Code Ann. § 204.001 (Vernon 2004). Similar to the provisions for the governance of physicians in Subtitle B, the Act includes provisions establishing and defining the duties of the Physician Assistant Board, provides the licensing and eligibility requirements for individuals who seek to practice as a physician assistant in Texas, defined the scope of a physician assistant’s practice, and requires that a physician assistant work under the specifically defined supervision of a physician. See Tex.Occ.Code ANN. §§ 204.051-204.207.

The Act also includes a section imposing a duty on physician assistants and physicians, to report to the physician assistant board any information which, in that person’s opinion, indicates a physician assistant “poses a continuing threat to the public welfare through practice as a physician assistant.” Tex.OCC.Code Ann. § 204.208(a) (Vernon 2004). Section 204.208(b) specifically incorporates several provisions of Chapter 160 of the Medical Practice Act. See Tex.Occ.Code Ann. § 204.208(b); see also Tex.Occ.Code Ann. § 151.001 (Vernon 2004) (providing that Texas Occupations Code Title 3, Subtitle B, may be cited as “the Medical Practice Act”). Subparagraph (b) provides “[s]ec-tions 160.002, 160.003, 160.006, 160.007(d), 160.009, 160.013, 160.014, and 160.015 apply to medical peer review relating to the practice of a physician assistant.” Tex. Occ.Code Ann. § 204.208(b). Furthermore, subparagraph (c) provides immunity from civil liability for any person, health care entity or a medical peer review committee, who furnishes records, information, or assistance to the physician assistant board without malice. Tex.Occ.Code Ann. § 204.208(c).

Based on the Legislature’s decision not to incorporate Section 160.010 into Section 204.208(b), in addition to the limitation of the section’s immunity provision’s limitation to liability related to the “act” of reporting a physician assistant to the board, there is no indication from the statutory language that the Legislature intended Section 160.010 to apply to credentialing decisions regarding a physician assistant. Furthermore, the placement of Section 160.010 in the subtitle dedicated solely to licensing and governing of physicians, also indicates a Legislative intent for the provision to apply only to credentialing decisions involving physicians. Accordingly, we conclude Del Sol was not entitled to immunity for its credentialing activities related to Physician Assistant Malphurs, and the Morenos were not required to allege and produce evidence that Mr. Malphurs was credentialed with malicious intent to avoid summary judgment on their negligent credentialing allegations. Summary judgment was not properly granted on Del Sol’s second “traditional” ground.

Finally, we must address Del Sol’s no-evidence grounds. The hospital raised two basis for summary judgment under the no-evidence standard. It alleged there was no evidence of malice in its credentialing of Mr. Malphurs, and it argued that Dr. Ostrander’s opinion conclusively established the hospital was not a proximate cause of Ms. Moreno’s death. As we have concluded, Section 160.010 does not apply in the case of a hospital’s activities in credentialing a physician assistant, malice was not an essential element of the Morenos’ cause of action against the hospital. Therefore, the family’s failure to produce such evidence in response to Del Sol’s motion did not provide a basis for summary judgment. Regarding the proximate cause element, Del Sol’s argument is identical to that made by Dr. Quintana and discussed at length above. Dr. Os-trander’s singular statement that the failed intubation was the ultimate cause of Ms. Moreno’s death does not prevent the remainder of the summary judgment evidence produced by the Morenos from raising genuine issues of material fact regarding other causes, including their allegations of negligence against the hospital. See Gray, 225 S.W.3d at 616-17. Again, the proximate cause element was not a proper basis for the trial court’s judgment. See Borrego, 964 S.W.2d at 959. Having determined that none of the grounds presented in Del Sol’s motion for summary judgment provide a proper basis for the trial court’s judgment, we sustain Issue Four.

Having sustained Issues One, Three, and Four, we reverse the trial court’s summary judgment and remand the case for proceedings consistent with this opinion.

CARR, J., Not Participating.

      . To the extent, the parties have re-framed this argument in their briefing to this Court to include other proximate cause doctrines, such as "superceding cause” or "new and independent cause.” Those arguments were not presented to the trial court and have been preserved for our review. See Tex.R.App.P. 33.1(a).

      . The hospital’s summary judgment arguments focused exclusively on the allegations dealing specifically with Physician Assistant Malphurs, and the hospital’s alleged negligence surrounding the management of his practice. The same is true in Del Sol’s briefing to this Court. The Morenos have limited their response to the hospital’s arguments. Accordingly, we will address Issue Four as it has been presented to us. However, it is important to note that the balance of the Morenos’ medical negligence allegations against the hospital went unchallenged by the hospital’s summary judgment. Accordingly, regardless of the propriety of the “negligent credentialing” allegations, we question the trial court’s entry of a final, take-nothing judgement against the Morenos when many of their allegations against the hospital went unchallenged during the summary judgment proceedings.

      . Article 4590i has since been replaced by Chapter 74 of the Texas Civil Practice and Remedies Code. Act of June 2, 2003, 78th Leg., ch. 204, § 10.01, 2003 Tex.Gen.Laws 874, 884 (now codified at Tex.Civ.Piuc. & Rem. Code Ann. §§ 74.001-.507 (Vernon 2003)).

      . As the no-evidence summary judgment standard and its accompanying standard of review were discussed at length in our analysis of Dr. Quintana’s no-evidence motion, we see no need to repeat those well-known standards here. To the extent necessary, our analysis of Dr. Quintana's no-evidence motion is incorporated by reference in the discussion of Issue Four.

      . Del Sol's summary judgment argument on this point was identical to the argument presented by Dr. Quintana.


source: Caselaw Access Project

author: TOM GRAY, Chief Justice.

license: Public Domain

text:
    LDF CONSTRUCTION, INC., Lynn D. Foster, Mark W. Todd Architects, Inc. and Mark W. Todd, Appellants, v. Sam BRYAN, Connie Bryan, and Sammy R. Bryan, DDS, P.A., Appellees. In re LDF Construction, Inc. and Lynn D. Foster. In re Mark Todd and Mark W. Todd Architects.
    Nos. 10-08-00315-CV, 10-08-00348-CV, 10-08-00407-CV.
    Court of Appeals of Texas, Waco.
    March 10, 2010.

      Levon G. Hovnatanian, Martin Disiere Jefferson & Wisdom LLP, Michael L. Landrum, O’Donnell Ferebee Medley & Keiser, Houston, TX, for Appellants.
    J. Paxton Adams, Attorney at Law, Hunstville, TX, for Appellees.
    Gregg S. Weinberg, Roberts Markel PC, Houston, TX, for Amicus Curiae.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

TOM GRAY, Chief Justice.

This is one of the last combinations of proceedings where a party has to pursue a mandamus proceeding if the Federal Arbitration Act (FAA) might be applicable and also pursue an interlocutory appeal if the Texas Arbitration Act (TAA) might be applicable. The invitation of the Texas Supreme Court has been acted upon. See Am. Std. v. Brownsville Indep. Sch. Dist. (In re D. Wilson Constr. Co.), 196 S.W.3d 774, 780 n. 4 (Tex.2006) (‘We again invite the Legislature, ‘[i]n the interests of promoting the policy considerations of rigorous and expedited enforcement of arbitration agreements, ... to consider amending the Texas Act to permit interlocutory appeals of orders issued pursuant to the Federal Act.’ ”) (citing Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992)). Effective September 1, 2009, section 51.016 of the Civil Practice and Remedies Code was amended to allow an interlocutory appeal of an order denying a motion to compel arbitration under the FAA. See Tex. Civ. Prao. & Rem.Code Am § 51.016 (Vernon Supp.2009). These proceedings, however, were filed before the effective date of the new statutory provision.

In these proceedings, the appellants/re-lators have had to do things the hard way — file both an appeal and petitions for a writ of mandamus. It has made the task for both the trial court and this Court more complex due to multiple issues and methods necessary to insure that the proper procedural vehicle was used to obtain review. Because in this instance we conclude that the FAA applies, we dismiss the interlocutory appeal, LDF Construction, Inc. v. Bryan, No. 10-08-00315-CV. We conditionally grant the petitions for writ of mandamus to compel arbitration filed by LDF Construction, Inc. and Lynn D. Foster (LDF) and Mark Todd and Mark Todd Architects (Todd).

A Brief History

Sam Bryan, an orthodontist, contracted with Joyce Matlack, a California resident who specialized in dental-related interior designs, to provide interior design services for a new office for Bryan. Bryan then. contracted with Todd to develop a set of master and schematic plans to be designed according to the interior plans provided by Matlack. Three years later, LDF entered into an agreement with Bryan to build the new office. The construction of the office was to comply with the specifications and designs by Todd. Bryan’s contracts with LDF and Matlack contained arbitration provisions, but the contract between Bryan and Todd did not.

When construction of the office did not go as expected, Bryan, his wife, and Sammy R. Bryan, DDS, P.A. (Bryan) sued LDF, Todd, and Matlack and Matlack/Van Every Design, Inc. (Matlack). Todd, Matlack, and LDF each moved to compel arbitration. The trial court initially granted Matlack’s motion to compel arbitration. However, that ruling was withdrawn at the hearing on Todd’s and LDF’s motions. The trial court ultimately denied Todd’s and LDF’s motions to compel arbitration but did not rule on Matlack’s motion. That motion remains pending in the trial court. LDF and Todd filed separate notices of appeal of the trial court’s decision and filed separate petitions for a writ of mandamus. Both notices of appeal were filed in one proceeding, Tex.R.App. P. 12.2(c), whereas each mandamus was filed as a separate proceeding.

General Law of Arbitration

The Texas statutes governing arbitration of disputes are found in Chapter 171 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. §§ 171.001-171.098 (Vernon 2005). The FAA, which applies to “any maritime transaction or a contract evidencing a transaction involving commerce,” is found in title 9 of the United States Code. See 9 U.S.C. § 2.

In evaluating a motion to compel arbitration, a court must first determine whether a valid arbitration agreement exists, and then whether the agreement encompasses the claims raised. Am. Std. v. Brownsville Indep. Sch. Dist. (In re D. Wilson Constr. Co.), 196 S.W.3d 774, 781 (Tex.2006); see In re Dillard Dep’t Stores, Inc., 186 S.W.3d 514, 515 (Tex.2006) (per curiam). Whether a valid arbitration agreement exists is a legal question subject to de novo review. Id. Although the Texas Supreme Court has repeatedly expressed a strong presumption favoring arbitration, the presumption arises only after the party seeking to compel arbitration proves that a valid arbitration agreement exists. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003) (emphasis added). Courts must resolve any doubts about an arbitration agreement’s scope in favor of arbitration. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex.2001).

Arbitration agreements are interpreted under traditional contract principles. J.M. Davidson, 128 S.W.3d at 227. If the trial court finds a valid agreement, the burden shifts to the party opposing arbitration to raise an affirmative defense to enforcing arbitration. Id. Absent a defense to enforcing the arbitration agreement, the trial court has no discretion but to compel arbitration and stay its own proceedings. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex.2002) (per curiam).

The types of issues raised as a defense determine whether the arbitrator or the trial court resolves those issues. A court may determine a specific challenge to the validity of the arbitration agreement but a challenge to the validity of the contract as a whole, and not specifically to the arbitration agreement, must go to the arbitrator. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 448-449, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); In re Labatt Food Serv., L.P., 279 S.W.3d 640, 647-648 (Tex.2009). See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) (claim of fraud in the inducement of arbitration clause itself may be adjudicated by court, but court may not consider claim of fraud in the inducement of the contract generally); In re Houston Pipe Line Co., 311 S.W.3d 449, 451 (Tex.2009) (“When a party disputes the scope of an arbitration provision or raises a defense to the provision, the trial court, not the arbitrator, must decide the issues.”); In re Morgan Stanley & Co., 293 S.W.3d 182, 185 (Tex.2009) (“[D]efenses attacking the validity of a contract as a whole, and not specifically aimed at the agreement to arbitrate, are for the arbitrator, not the court.”); Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 56 (Tex.2008) (“[T]he party opposing arbitration must show that the fraud relates to the arbitration clause specifically, not to the broader contract in which it appears.”); Perry Homes v. Cull, 258 S.W.3d 580, 589 (Tex.2008) (“[Ajrbitrators generally must decide defenses that apply to the whole contract, while courts decide defenses relating solely to the arbitration clause.”); In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 190 & n. 12 (Tex.2007) (noting that a defense relating to the parties’ entire contract rather than the arbitration clause alone is a question for the arbitrators); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex.2001) (noting that the defenses of unconscionability, duress, fraudulent inducement, and revocation must specifically relate to the arbitration part of a contract and not the contract as a whole if they are to defeat arbitration, and that validity of an arbitration provision is a separate issue from validity of the whole contract). Further, questions that “grow out of the dispute and bear on its final disposition,” for example, whether conditions precedent have been met, notice, time limits, laches, and estoppel, are procedural arbitrability issues that are reserved for resolution by the arbitrator. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). In contrast, the trial judge decides questions of substantive arbitrability, which implicate “gateway” issues, for example, whether a particular agreement binds the parties to arbitrate. Id. at 85.

The Texas anomaly op TAA vs FAA

The TAA and FAA provide alternative procedural vehicles for relief. In re Educ. Mgmt. Corp., 14 S.W.3d 418, 425 (Tex.App.-Houston [14th Dist.] 2000, orig. proceeding). A trial court’s order denying a motion to compel arbitration may be reviewed by interlocutory appeal when the motion is brought under the TAA. Tex. Civ. Prac. & Rem.Code Ann. § 171.098(a)(1) (Vernon 2005). Until just recently and when the orders at issue in these proceedings were signed, mandamus was the appropriate vehicle to challenge an order denying arbitration under the FAA. In re Bank One, N.A., 216 S.W.3d 825, 826 (Tex.2007) (orig. proceeding) (per curiam); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex.1996) (per curiam). But see Tex. Civ. Prac. & Rem.Code Ann. § 51.016 (Vernon Supp.2009). Prior to September 1, 2009, litigants like LDF and Todd who alleged entitlement to arbitration under the FAA, and in the alternative, under the TAA, were burdened with the need to pursue parallel proceedings — an interlocutory appeal of the trial court’s denial under the TAA, and a writ of mandamus from the denial under the FAA. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992).

Which Arbitration Act Applies?

If the arbitration clause is enforceable under the FAA, an analysis of enforceability under the TAA is unnecessary. See In re D. Wilson Constr. Co., 196 S.W.3d 774, 783-84 (Tex.2006). Accordingly, we first review the petition for writ of mandamus to assess enforceability of the arbitration provision under the FAA.

The FAA applies to “any maritime transaction or a contract evidencing a transaction involving commerce.” See 9 U.S.C. § 2. “ ‘[Commerce’ ... means commerce among the several States.” 9 U.S.C. § 1. Interstate commerce is not limited to the interstate shipment of goods, but includes all contracts “relating to” interstate commerce. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 754 (Tex.2001). The FAA “extends to any contract affecting commerce, as far as the Commerce Clause of the United States Constitution will reach.” L & L Kempwood Assocs., L.P. v. Omega Builders, Inc. (In re L & L Kempwood Assocs., L.P.), 9 S.W.3d 125, 127 (Tex.1999) (per curiam).

Bryan alleged in his first amended petition that Matlack was a resident of California. He also alleged that the company, Matlack/Van Every Design, Inc. was a California company. Bryan alleged that both Matlack and the company conducted business in Texas but did not have a principle office in Texas and did not have a registered agent listed with the Secretary of State. Service of process was to be effectuated by serving Matlack at her business address in Santa Cruz, California.

Bryan further alleged that in May of 2004 he met Matlack while attending an orthodontist meeting in Florida. Matlack informed Bryan that she was an interior designer, specializing in the design of dental offices. Matlack eventually traveled to Texas to meet with Bryan to discuss designing a new office for Bryan in Huntsville, Texas. Bryan approved a contract submitted by Matlack. The letterhead of the contract, which was admitted into evidence at the hearing on LDF’s and Todd’s motions to compel arbitration, indicated that Matlack’s business address was Santa Cruz, California. According to Bryan, Mat-lack then sent design plans to Bryan for his approval and eventually, a plan was approved.

There was no other evidence about the nature of the contract or services or source of supplies. This is, however, a commercial construction contract, and there was no effort to show that the materials were of a uniquely local origin. Even if the materials were of such a nature, there is still an impact on interstate commerce. See The Daniel Ball, 77 U.S. 557, 565, 19 L.Ed. 999, 10 Wall. 557 (1870) (although goods loaded and unloaded within the same state, interstate commerce was impacted because some goods were destined to other states). Further, Bryan does not contend that the FAA does not apply. Accordingly, we hold that the FAA, not the TAA, applies.

LDF and Foster

In evaluating LDF’s motion to compel arbitration, we first determine whether LDF proved a valid arbitration agreement exists. An agreement to arbitrate is valid except on grounds as exist at law or in equity to revoke any contract. 9 U.S.C. § 2; see In re Morgan Stanley & Co., 293 S.W.3d 182, 184 (Tex.2009). LDF introduced its contract and arbitration provision into evidence at the hearing on its motion to compel arbitration. The provision states that “[a]ny claim arising out of or related to the Contract ... is subject to arbitration.” Bryan’s only dispute with the validity of the provision, both to the trial court and on appeal, is that the entire contract was procured by fraud. As discussed more fully below, this is not a specific challenge to the validity of the arbitration provision but is a challenge to the validity of the contract as a whole and such is left to resolution by the arbitrator. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444-446, 126 S.Ct. 1204, 16B L.Ed.2d 1038 (2006). There was no challenge to the validity solely of the arbitration provision in the contract, and LDF thus satisfied the first step.

Next, we determine whether the claims raised by Bryan fall -within the scope of the arbitration provision. When addressing this issue, we focus on the factual allegations involved in the dispute and not on the legal causes of action raised by the parties. In re Conseco Fin. Servicing Corp., 19 S.W.3d 562, 568 (Tex.App.-Waco 2000, orig. proceeding). Any doubts as to whether the dispute falls within the scope of the arbitration agreement should be resolved in favor of arbitration. Id. (citing Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 & n. 8, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995)).

Bryan pled many causes of action against LDF and Foster: breach of contract, breach of implied warranty and workmanlike performance, negligence, and various claims of fraud. After securing designs and plans from Matlack and Todd, Bryan contracted with LDF to construct a new office. The contract included Todd’s and Matlack’s work. LDF was to finish the office within 210 days and “execute the Work described in the Contract Documents.” The contract also listed Todd as the architect overseeing the project. Bryan alleged LDF knew the provisions in the contract relating to the architect would not be followed.

Construction of the office did not go well. There were problems with the foundation, patient chairs were not centered with the windows, electrical panels and conduit had to be moved, and weeks of inactivity occurred at the jobsite. When it came time to install the sheetrock, Bryan began to question the ceiling heights. Bryan alleges he received either unintelligible answers or no answer at all from LDF, Matlack, and Todd. LDF, Matlack, and Todd eventually acknowledged that the ceiling heights could be altered but for an additional cost.

Bryan alleged that LDF, Todd, and Matlack were aware of the problems with the ceiling height and discussed among themselves ways to “cover-up” and fix the problems, rather than informing Bryan of the problems. Bryan also alleged that LDF, Todd, and Matlack held themselves out to be professionals who where competent and experienced. Bryan claimed that LDF, Todd, and Matlack contracted with him “to provide services that would facilitate, correspond, and accentuate the endeavors contractually and voluntarily undertaken by the other defendants” according to a specific scheme and design approved by Bryan.

Bryan further alleged that LDF, Todd, and Matlack failed with regard to workmanship and integrity of the work undertaken by them. It was alleged that Todd and Matlack prepared inaccurate, incompatible plans while LDF, who had a duty to ensure that construction was conducted in accordance with the plans, did not inform Bryan of the problems with the plans upon LDF’s discovery of the problems. Furthermore, Bryan alleged, LDF performed services in an unacceptable and unworkmanlike manner in that among other things, deviations from the plans were made without informing Bryan.

Bryan added a claim to his first amended petition regarding a bill from a subcontractor for carpentry work. Rough carpentry work was completed in October of 2007. According to Bryan, copies of Applications and Certificates for Payment, which were sworn to by LDF for the months of September and October, indicated that no money was owed regarding the carpentry. Bryan claimed that upon closer inspection, the certificates were inaccurate and that LDF knew they were inaccurate. Bryan alleged that LDF provided the bill to the subcontractor who signed it and sent it on to Bryan. Bryan further alleged that LDF used this bill to cause Bryan financial injury, mental anguish, and emotional distress.

All of Bryan’s claims center on the construction of Bryan’s office and the failures of the office’s construction to comply with Bryan’s contract. The language of the arbitration provision is very broad and encompasses any claim “arising out of or related to” the contract. There is no claim by Bryan that does not have its origin outside the relationship created by the contract. Even Bryan’s tort claims arise from the relationship around the contract. Likewise, Bryan’s claims in his personal capacity (non-signatory) against Foster in his individual capacity (non-signatory) all arise out of that same relationship, the one created by the contract, and but for the contract would not exist. In re Conseco Fin. Servicing Corp., 19 S.W.3d 562, 570 (Tex.App.-Waco 2000, orig. proceeding). Finally, we note that there is no suggestion that Foster’s actions were in any capacity other than as an agent for LDF.

Accordingly, we hold that all claims against LDF, including those that are made against Foster, are within the scope of the arbitration agreement.

Defenses

Having determined that LDF proved the existence of an arbitration agreement between the parties and that the claims asserted by Bryan are within the scope of the arbitration agreement, we now turn to the defenses to arbitration raised by Bryan and which appear to have been relied upon by the trial court. The primary defense is that the construction agreement, including the arbitration agreement, was induced by fraud. This is a defense to the entire contract. This is not just a defense to the mandatory arbitration provision. A plaintiff cannot sue for the benefits on the contract, in essence sue for breach of contact, and sue on only part of the contract. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 755 (Tex.2001) (“[A] litigant who sues based on a contract subjects him or herself to the contract’s terms.”). Having brought the suit as a breach of contract claim, a plaintiff cannot excise a single paragraph from the contract, the arbitration clause, and reject it. See In re Weekley Homes, L.P., 180 S.W.3d 127, 133 (Tex.2005) (“Having obtained these substantial actions from Weekley by demanding compliance with the provisions of the contract, Von Bergen cannot equitably object to the arbitration clause attached to them.”). Bryan is not asserting that the fraud/unconscionability claim goes to only the arbitration clause. Since the claim is asserted to the contract as a whole, it is a claim that is decided by the arbitrator, rather than the court. See In re Morgan Stanley & Co., 293 S.W.3d 182, 185 (Tex.2009).

Bryan also asserts that LDF cannot avail itself of the arbitration provision because of conditions precedent to enforcement that were not, and cannot now be, performed. The provision states that prior to arbitration, the parties will attempt to resolve the dispute, first through the architect and then through nonbinding mediation. Bryan asserts that because these provisions are conditions precedent to the institution of litigation and cannot be complied with, the arbitration provision is negated. We disagree. There is no indication in the provision that the parties intended to dispense with arbitration if the other methods of resolution did not occur first. In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007). Further, Bryan cannot unilaterally skip the efforts to resolve the dispute by other methods by skipping directly to litigation and thereby avoid the arbitration provision. Cf. Global Evangelism Educ. Ministries, Inc. v. Caddell, No. 04-08-00686-CV, 2009 WL 398255, at *2-3, 2009 Tex.App. LEXIS 1085, *5-6 (Tex.App.-San Antonio Feb. 18, 2009, no pet.) (mem. op.) (party that first filed suit rather than seeking mediation cannot rely on the failure of conditions precedent to evade arbitration). To hold otherwise would allow the provision to be avoided simply because one party chose to go directly to litigation. The agreement provided for three levels of dispute resolution before enforcement in the courts. Because this is an issue to be decided by the arbitrator, the arbitrator may decide that the methods of dispute resolution skipped by Bryan need to be utilized before proceeding to arbitration; or the arbitrator may decide that at this point the other methods of dispute resolution would be ineffective and, therefore, proceed with the resolution of the disputes by arbitration.

Bryan also asserts that LDF cannot avail itself of the arbitration provision in Matlack’s contract. In this regard, Bryan argues that because LDF comes to court with unclean hands, LDF cannot use a mandamus proceeding to compel arbitration as a non-signatory under another party’s agreement. Because of our holdings above, we are not utilizing the arbitration provision in Matlack’s agreement but rather we are using the provision in LDF’s own contract to compel arbitration of all claims Bryan has asserted against all the LDF related defendants.

Accordingly, because Bryan has failed to prove any valid reason why their claims against LDF should not be referred to binding arbitration, we conditionally grant LDF’s petition for writ of mandamus.

Todd

We now turn to the trial court’s denial of Todd’s motion to also refer Bryan’s claims against Todd to arbitration. Todd had a written contract with Bryan but that contract did not have an arbitration provision in it. Thus, Todd is a non-signatory to any arbitration agreement. Bryan asserts that the trial court, having reviewed the evidence, did not abuse its discretion in refusing to refer the claims raised against Todd to arbitration. We disagree.

As a rule, arbitration of a claim cannot be compelled unless it falls within the scope of a valid arbitration agreement; but sometimes a person who is not a party to the agreement can compel arbitration with one who is, and vice versa. Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 305 (Tex.2006). Non-signatories to an agreement subject to the FAA may be bound to an arbitration clause when rules of law or equity would bind them to the contract generally. In re Labatt Food Serv., 279 S.W.3d at 643; In re Weekley Homes, 180 S.W.3d at 131. Several rules of law and equity, such as the principles of equitable estoppel and agency, may be used to compel arbitration. See In re Labatt Food Serv., 279 S.W.3d at 644; see also Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 527 (5th Cir.2000).

Equitable estoppel applies to allow a non-signatory to compel arbitration when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the non-signatory. Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524 (5th Cir.Tex.2000). When a signatory’s claims against a non-signatory make reference to or presume the existence of the written agreement, the signatory’s claims arise out of and relate directly to the written agreement, and arbitration is appropriate. Id.; Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 307 (Tex.2006). The Fifth Circuit refers to this as the “intertwined-claims test.” Grigson, 210 F.3d at 527. The Texas Supreme Court has referred to this principal as “direct benefits” estoppel. See Meyer, 211 S.W.3d at 305 (“a person who seeks by his claim ‘to derive a direct benefit from the contract containing the arbitration provision’ may be equitably estopped from refusing arbitration.” (emphasis added)).

Todd asserts that Bryan is equitably estopped from preventing arbitration of the claims asserted against them. As with LDF, Bryan alleged various claims against Todd: breach of contract, breach of implied warranty and workmanlike performance, negligence, DTPA, and various claims of fraud. According to the first amended petition, Bryan began searching for an architect in 2004 to design his office based upon the design, interior details, and overall schematics supplied by Matlack. Bryan ultimately contracted with Todd. Bryan’s contract with Todd provided that Todd would devise a set of master and schematic plans to be designed according to the plans and specifications provided by Matlack. Matlack sent plans to Bryan for approval. Todd was to design the appropriate plans to the approved specifications set out by Matlack. Todd drafted approximately 60 pages of intricate drawings, design diagrams, roof plans, ceiling plans, etc.

Thus far, the allegations in this section are those essentially unique to Todd or that relate to Todd and Matlack. Previously, we have discussed in detail, for the purpose of addressing the scope of LDF’s arbitration provision, the allegations made against LDF. It is now necessary to repeat many of those same allegations. However, this time, the purpose of this review of the allegations is to show how interrelated Bryan’s allegations against LDF, Todd, and Matlack are and thus how impractical it would be to try to resolve the allegations against LDF and Matlack in one forum and those against Todd in another.

In 2007, LDF contracted with Bryan to construct the new building. The contract included Todd’s and Matlack’s work. LDF was to finish the building within 210 days and “execute the Work described in the Contract Documents.” The contract also listed Todd as the architect overseeing the project. Bryan alleged that LDF knew the provisions in the contract relating to the architect would not be followed.

As previously described, construction of the office did not go well. When it came time to install the sheetrock, Bryan began to question the ceiling heights. Bryan alleged he received either unintelligible answers or no answer at all from LDF, Mat-lack, and Todd. LDF, Matlack, and Todd eventually acknowledged that the ceiling heights could be altered but for an additional cost. As construction problems mounted, Bryan began to investigate the cause.

After a review of the plans, Bryan learned that the plans of Todd and Mat-lack were incompatible and that Todd’s plans did not incorporate Matlack’s designs. Bryan alleges that LDF, Todd, and Matlack were aware of the problems and discussed among themselves ways to “cover-up” and fix the problems, rather than informing Bryan of the problems. LDF, Todd, and Matlack, Bryan alleged, held themselves out to be professionals who where competent and experienced. Bryan claimed that LDF, Todd, and Matlack contracted with him “to provide services that would facilitate, correspond, and accentuate the endeavors contractually and voluntarily undertaken by the other defendants” according to a specific scheme and design approved by Bryan.

Bryan further alleged that LDF, Todd, and Matlack failed with regard to workmanship and integrity of the work undertaken by them. Todd and Matlack prepared inaccurate, incompatible plans while LDF, who had a duty to ensure that construction was conducted in accordance with the plans, did not inform Bryan of the problems with the plans upon LDF’s discovery of the problems. Furthermore, Bryan alleged, LDF performed services in an unacceptable and unworkmanlike manner in that among other things, deviations from the plans were made without informing Bryan.

In this instance, the claims against Todd are so intertwined and interdependent with the claims against LDF and Matlack, both of which have arbitration provisions in their contracts with Bryan, that it would be impractical to resolve the disputes against them in arbitration without simultaneously resolving the claims against Todd.

Defenses

Bryan asserts that Todd cannot assert equitable estoppel to compel Bryan to arbitration because Todd has unclean hands. Bryan relies upon the principle in law that he who seeks equity must do equity. See Truly v. Austin, 744 S.W.2d 934, 938 (Tex.1988) (“It is well-settled that a party seeking an equitable remedy must do equity and come to court with clean hands.”). A party seeking to invoke this equitable doctrine must show that he has been seriously harmed and the wrong complained of cannot be corrected without applying the doctrine. City of Fredericksburg v. Bopp, 126 S.W.3d 218, 221 (Tex.App.-San Antonio 2003, no pet.). Bryan asserts that at the hearing he proved Todd did not come to court with “clean hands.” Specifically, Bryan argues that Todd’s attorney admitted that there was a discrepancy in the ceiling height. Further, he argues that in an email presented at the hearing, LDF knew of the discrepancies and sent nineteen “requests for information” to Todd requesting information from Todd on how to proceed. According to the email, Todd told LDF how to proceed regarding the ceiling height discrepancies.

Todd and' LDF assert that Bryan did not present any evidence of “unclean hands” at the hearing. Specifically, Todd and LDF assert that this Court cannot rely on the email because it was not properly introduced into evidence at the hearing. We need not resolve whether trial counsel’s references to documents not otherwise introduced into evidence was evidence properly before the trial court. Even if we consider the email and argument of counsel as evidence regarding the conduct of Todd, it would only go so show a possible breach of the contract and is not of the character of evidence that shows “unclean hands” such as to defeat the application of the doctrine of collateral estop-pel to compel Bryan to arbitrate the claims against the non-signatory to the arbitration agreement, Todd, along with the claims that are subject to arbitration against LDF and Matlack.

Bryan also argues that the trial court had discretion not to apply equitable es-toppel, even if it could be applied in the same circumstances. We disagree. “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 308 (Tex.2006) (quoting, Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)).

Accordingly, we hold that Bryan’s claims against Todd should also have been referred to arbitration and conditionally grant Todd’s petition for writ of mandamus.

Matlack

Finally, we note that the trial court withdrew its order which referred the claims against Matlack to arbitration, holding that the order was rendered without adequate notice to Bryan. Bryan conceded in his brief filed with this Court that he does not contest the validity of the Matlack arbitration agreement. Matlack filed amicus briefs with this Court in these proceedings in support of having all the claims of Bryan against all the defendants referred to arbitration together. We have no reason to believe that the trial court will not grant Matlack’s pending motion to refer Bryan’s claims against Matlack to arbitration, especially in light of the discussion and holdings herein. Because the trial court has not ruled on Matlack’s pending motion, because we have no proceeding before us which addresses that motion, and further because we cannot compel the trial court to rule on the motion in a certain way, we decline at this time to mandate the trial court s ruling on that motion. See In re Salazar, 134 S.W.3d 357, 358 (Tex.App.-Waco 2003, orig. proceeding); see also State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex.Crim.App.1987).

Conclusion

In summary, we conditionally grant LDF’s and Todd’s petitions for writ of mandamus. A writ will issue only if the trial court fails to withdraw its order denying the abatement of the trial court proceedings and the referral of Bryan’s claims against LDF and Todd to binding arbitration within 21 days from the date of this opinion. Further, the appeal by LDF and Todd is dismissed.

      . Bryan, in response to Todd’s and LDF’s petitions for writ of mandamus, conceded the validity of the Matlack arbitration provision but, nevertheless, sued Matlack along with Todd and LDF.

      . The only claim Bryan contends was outside the scope of the arbitration provision is his claim pursuant to the fraudulent lien statute. Tex. Civ. Prac. & Rem.Code § 12.002 (Vernon Supp.2009). Nevertheless, this claim also falls within the scope of the arbitration provision because, but for the contract with LDF, the subcontractor would not have incurred costs of performing carpentry work for which he sought payment from Bryan. See In re Conseco Fin. Servicing Corp., 19 S.W.3d 562, 570 (Tex.App.-Waco 2000, orig. proceeding).

      . We note that while these proceedings were pending, we abated the proceedings for mediation. A settlement was not reached.

      . Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002).


author: DAVID WELLINGTON CHEW, Chief Justice.

text:
    Floyd THOMAS, Appellant, v. Harold LAYTON, Appellee.
    No. 08-07-00266-CV.
    Court of Appeals of Texas, El Paso.
    March 17, 2010.

      John P. Mobbs, El Paso, for appellant.
    Corey Haugland, James, Goldman & Haugland, P.C., El Paso, for appellee.
    Before CHEW, C.J., McCLURE, J. and ANTCLIFF, Judge (Sitting by Assignment).
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Appellant, Floyd Thomas, appeals the trial court’s judgment that Appellee, Harold Layton, is entitled to $201,724.80 in damages arising out of them partnership. Mr. Thomas brings this appeal on a single issue that challenges the sufficiency of the evidence supporting this damages award.

In 1989, Mr. Harold Layton opened a plant for chaffhaye, an alfalfa product that is bagged and sold as feed for horses. Mr. Thomas was Mr. Layton’s business partner. In 2000, Cimarron Agricultural, Ltd. (“Cimarron”) bought the plant, but continued to employ Mr. Layton and Mr. Thomas. There was an agreement between Mr. Layton and Mr. Thomas with Cimarron, that Mr. Layton ran the plant and Mr. Thomas sold the chaffhaye.

In January 2003, Cimarron announced plans to close the plant. Two months later, Mr. Thomas and Mr. Layton bought the business back from Cimarron.

In April 2003, Mr. Thomas and Mr. Lay-ton sold the plant to Mr. Greg Collier, who took over a month later under the name “Pioneer Cattle Company.” However, Mr. Collier abandoned the operation in September 2003. Mr. Layton and Mr. Thomas decided to continue operations, hoping to sell it later on; Mr. Thomas became responsible for sales, while Mr. Layton oversaw the plant’s operations.

Mr. Thomas and Mr. Layton stopped operating the plant in December 2003. Then in early 2004, they sold the business to Mr. Steve Rader. After the sale, Mr. Layton did not receive additional revenue from chaffhaye sales, but when Mr. Layton asked for a sales statement from Mr. Thomas, the latter did not respond.

In February 2005, Mr. Layton brought suit for an accounting of revenues and profit derived from chaffhaye sales and a declaratory judgment regarding the sums owed by Mr. Thomas; breach of contract, for Mr. Thomas’s alleged failure to sell chaffhaye and deliver sums to Mr. Layton; and breach of fiduciary duty related to the Thomas/Layton partnership. Mr. Thomas then filed a counterclaim asserting that he had been underpaid following the Collier purchase. There was a bench trial.

In June 2007, the trial court entered a judgment in favor of Mr. Layton for net actual damages of $201,724.80. The court’s findings of fact and conclusions of law state that Mr. Layton was entitled to recover $239,618.80 based on his breach of contract claim and declaratory action seeking declaratory judgment determining sums Mr. Thomas owed him. The court also determined that Mr. Thomas was entitled to recover $37,893.50 from Mr. Layton on his breach of contract counterclaim.

The court’s findings of fact state that Mr. Thomas was the business’s managing partner, and thus he owed a duty to keep an accurate account of his transactions with the partnership. The court concluded that Mr. Thomas failed to keep an accurate account of his transactions with the partnership, and thus all doubts in respect to particular items had to be resolved against him on accounting.

In Issue One, Mr. Thomas challenges the court’s determination that Mr. Layton was entitled to recover $239,618.30 based on his breach of contract claim and declaratory action. This was based on its determination that Mr. Thomas sold 127,500 bags of chaffhaye. Mr. Thomas argues there was factually insufficient evidence to support the fact that he sold that much. He also complains that there was factually insufficient evidence to support the trial court’s disallowance of certain manufacturing expenses.

In an appeal from a bench trial, a trial court’s findings of fact “have the same force and dignity as a jury’s verdict upon questions.” Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). A trial court’s findings of fact may be reviewed for factual sufficiency under the same standard that is applied in reviewing evidence to support a jury’s answer. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). When findings of fact are filed and unchallenged, they are binding on an appellate court unless the contrary is established as a matter of law, or if there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986). In determining if a trial court’s findings of fact were factually sufficient, we review all evidence in the record, including evidence contrary to the verdict. Tierra Sol Joint Venture v. City of El Paso, 155 S.W.3d 503, 507 (Tex.App.-El Paso 2004, pet. denied). We may set aside the verdict only if the trial court’s finding is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Tierra Sol Joint Venture, 155 S.W.3d at 507. We may not substitute our judgment for that of the fact finder, even if we would have reached a different conclusion when reviewing the evidence. Id. When reviewing the factual sufficiency of the evidence supporting an adverse finding upon which the party did not have the burden of proof, the appellant must show that the evidence is insufficient to support the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). When appealing the factual sufficiency of the evidence supporting an adverse finding on which the party had the burden of proof, the appellant must show that the adverse finding is against the great weight and preponderance of the evidence. Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620-21 (Tex.2004).

A managing partner bears the burden to “dispel all doubts concerning his conduct toward the partnership or the other partners, and if he is unable to carry this burden all doubts will ordinarily be resolved against him.” Conrad v. Judson, 465 S.W.2d 819, 828 (Tex.Civ.App.-Dallas 1971, writ ref'd n.r.e.). The managing partner owes the duty to keep an accurate account of his transactions with or for the partnership. Id. If he fails to do so, all doubts with respect to particular items will ordinarily be resolved against him on an accounting. Id. Moreover, any doubts regarding the validity of credits he claims must be resolved against him. Id.

Mr. Thomas first challenges the trial court’s Findings of Fact Numbers Six, Seven, and Nine, the attached Exhibit A, as well as the resulting judgment, and argues that the evidence was factually insufficient to show Mr. Thomas sold 127,500 bags of chaffhaye and kept the sales proceeds. Specifically, he argues that Mr. Layton testified inconsistently regarding the number of bags produced during the four months of partnership. He claims Mr. Layton testified inconsistently as to whether his figure of 123,000 bags of Number One chaffhaye comprised of 20,000 bags acquired from Cimarron and 103,000 bags manufactured by the partnership; or 40,000 bags acquired from Cimarron and 83,000 bags manufactured by the partnership. Mr. Thomas also argues that the 127,500 figure did not account for the bags that remained in inventory and were transferred to Mr. Rader when he acquired the partnership.

Findings of Fact Number Six provided:

Based on the foregoing actions taken by each of the parties, the Court made a determination as to offsets and credits that each party is entitled to. Exhibits A & B are the Court’s worksheets. Exhibit C is Defendant’s account of expenses. Attached to Exhibit C, is the Court’s tabulations of allowed manufacturing expenses. The Court disallowed all expenses after January 30, 2004 because Railey [sic] took over the operation of the chaffhaye plant the following day.

The court found in Findings of Fact Number Seven that:

After allowing all offsets and credits, and after allowing Defendant reasonable expenses of the partnership, Plaintiff is entitled to recover damages from the Defendant in the amount of $239,618.30.

Findings of Fact Number Nine states:

Floyd Thomas is entitled to recover from Harold Layton total damages in the amount of $37,893.50. After offsetting the amount of the reimbursement awarded to Defendant, judgment should be entered in favor of Plaintiff for the net damages amount of $201,724.80.

Exhibit A attached to the trial court’s Findings of Fact and Conclusions of Law shows the court determined that Mr. Lay-ton is entitled to recover $239,618.30 in damages from Mr. Thomas based on the fact that Mr. Thomas sold 123,000 bags of Number One chaffhaye and 4,000/5,000 bags of Number Two chaffhaye, which totals 127,000 bags of chaffhaye.

At trial, Mr. Layton testified that after September 2003, the chaffhaye plant had an inventory of 120,000 Number One bags for sale. He testified that 40,000 of those bags constituted inventory left over from when they reacquired the plant from Mr. Collier, and after four months of operation, they produced 83,000 bags of chaffhaye. At one point during trial, Mr. Thomas’s counsel asked Mr. Layton, “if in fact the record shows that you bought 20,000 bags of inventory from Cimarron, then you would have manufactured 103,000 to get to this figure here?” Mr. Layton answered “right.”

Our review of the evidence shows that Mr. Layton never testified that the 127,500 figure comprised of 20,000 bags acquired from Cimarron and 103,000 bags manufactured by the partnership. Instead, these numbers were the result of a hypothetical question Mr. Thomas’s counsel had posed to Mr. Layton. Thus, Mr. Thomas’s contention regarding Mr. Layton’s alleged inconsistent testimony regarding the number of bags must fail.

Mr. Gerónimo Archunde, who acted as the plant manager under both Mr. Collier and the Thomas/Layton partnership, testified that from September 2008 through the first of 2004, the business produced 128,-000 Number One bags and 5,000 Number Two bags. Mr. Archunde further testified that the plant maintained daily production reports, and that the production figures could be confirmed by those reports, which he claimed to be in Mr. Thomas’s possession. However, Mr. Thomas first testified that he did not receive the production reports but then testified that he does not remember if he had the faxed copies of such reports. Mr. Thomas also did not account for 1,071 bags of the 2,960 that he had sold at Tripol, Inc., in 2004. Finally, Mr. Thomas testified that he was responsible for accounting for the money from the partnership’s operations as the managing partner of the partnership.

The evidence shows Mr. Thomas was the managing partner of the business, and he failed to account to the partnership for each transaction, a duty he owed to the partnership as the managing partner. See Conrad, 465 S.W.2d at 828. Because he failed to keep an accurate accounting, all doubts must be resolved against him. See id. Thus, any factual sufficiency argument, including the argument that the 127,000 figure did not account for the bags sold to Mr. Rader, fails. See Conrad, 465 S.W.2d at 828. The trial court’s determination that Mr. Thomas sold 127,500 bags of chaffhaye and kept the sales proceeds was not against the great weight and preponderance of the evidence. See Tierra Sol Joint Venture, 155 S.W.3d at 507.

Mr. Thomas next challenges the trial court’s Findings of Fact Numbers Six, Seven, and Nine, the attached Exhibit A, as well as the resulting judgment, by arguing that the evidence was factually insufficient to support the court’s disallowance of certain manufacturing expenses in calculating the damages award to Mr. Lay-ton. More specifically, he argues the trial court erred in concluding that all expenses incurred after January 30, 2004 were disallowed because Mr. Rader took over the plant’s operation the following day. He argues that he should have been allowed expenses for payments he made after January 30, 2004 for electricity, maintenance or repair of equipment, a quarterly payment to the Texas Workforce Commission, and a payment made before January 30, 2004 to Carlson Systems for bags allegedly delivered to the plant. Mr. Thomas contends that he had to stay on for about two or three months after Mr. Rader took over the business. He claims that he paid partnership expenses during this period because accounts receivable that had been incurred while the partnership was running the plant continued to come in, and he continued to deal with customer satisfaction issues arising from the partnership’s sales. Mr. Thomas also pointed to the contract the parties had made with Mr. Rader, which indicated that Mr. Rader assumed liability for all obligations and liabilities incurred after the closing date in April 2004.

At trial, in response to the question of whether Mr. Rader took charge of the plant after January 30, 2004, and gained possession of it, Mr. Thomas testified, “I guess he had.” Although the contract with Mr. Rader indicated April 6, 2004 as the closing date, the record shows that Mr. Rader took possession of the plant and began to run it in February 2004.

Further, despite Mr. Thomas’s claims that the disallowed expenses constituted the partnership’s expenses, he did not explicitly state or establish that they were the partnership’s expenses at trial. With respect to the specific payments he made after January 30, 2004 for electricity, maintenance or repair of equipment, and a quarterly payment to the Texas Workforce Commission, he did not provide any testimony at trial to establish that those expenses were incurred in connection with the partnership’s business. As such, all doubts regarding the validity of these expenses are resolved against him because he was the managing partner of the business. Accordingly, he is not entitled to said expenses. See Conrad, 465 S.W.2d at 828.

Ms. Candace Archunde first worked for Mr. Layton under Layton Farms for his plant, and when the plant returned to the Thomas/Layton partnership, she handled bookkeeping, payroll, and product shipping for the partnership. She testified that with regard to the payment made before January 30, 2004, to Carlson Systems for bags allegedly delivered to the plant, Carlson Systems did not deliver any chaffhaye bags to the plant after September 2003. At first, Ms. Archunde testified that the purchase of bags for the plant would not have been necessary because the bags Mr. Lay-ton and Pioneer Cattle Company had purchased previously were still available. However, she later testified that she did not know who purchased those bags. Mr. Layton testified that he did not believe Carlson Systems delivered any bags to the plant. He also testified that the partnership used bags indicating the name “Pioneer,” the name of Mr. Collier’s operation, and those bags were enough to meet the operation’s needs. In contrast, Mr. Thomas testified that there were no bags, and he had to order and pay for the chaffhaye bags. The evidence also contains an invoice from Carlson Systems for two types of bags, dated October 17, 2003, which indicates an order date of September 16, 2003, and a shipment date of October 8, 2003.

Again, because Mr. Thomas was the managing partner of the business, he had the burden to establish that the disallowed expenses were the partnership’s expenses in order to be entitled to them. See Conrad, 465 S.W.2d at 828. Although there is some contradictory evidence in the record regarding the payment to Carlson Systems for bags allegedly delivered to the plant, we conclude that the trial court’s disallowance of the aforementioned manufacturing expenses was not against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. See Tierra Sol Joint Venture, 155 S.W.3d at 507.

Issue One is overruled and the trial court’s judgment is affirmed.


text:
    In the Interest of S.K.H., T.P.T., and N.A.T., Children.
    No. 08-07-00356-CV.
    Court of Appeals of Texas, El Paso.
    March 17, 2010.
    Rehearing Overruled May 13, 2010.

      Heather A. Ronconi, Attorney at Law, El Paso, TX, for Appellants.
    John P. Mobbs, Attorney at Law, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Mr. Robert Holder and Mrs. Phyllis Holder (“the Holders”) appeal the trial court’s judgment in favor of Dana Thompson (“Ms. Thompson”) on her Petition for Interference with Possessory Interest in Child, Interference with Child Custody, and Intentional Infliction of Emotional Distress. The Holders challenge the trial court’s judgment on the basis of factual insufficiency. We affirm.

Ms. Thompson is the mother of S.K.H., T.P.T., and N.A.T. The Holders are the grandparents of S.K.H., T.P.T., and N.A.T. Ms. Thompson filed a Petition for Permanent Restraining Order and Petition for Liability for Interference with Possessory Right in October 2003. The trial court subsequently entered an Interim Restraining Order to restrain the Holders from removing the children from Ms. Thompson. In June 2004, Ms. Thompson filed an Amended Petition for Interference with Possessory Interest in Child, Interference with Child Custody, and Intentional Infliction of Emotional Distress specifically alleging the Holders had taken or retained possession of S.K.H. and concealed S.KH.’s whereabouts on a number of occasions. Ms. Thompson argued that this violated the order denying the Holders visitation rights.

The trial court heard evidence on Ms. Thompson’s Amended Petition in October 2006 and February 2007. At the conclusion of the hearings, the court entered a Report and Recommendation on Interference. In September 2007, the court entered judgment in favor of Ms. Thompson on her Amended Petition. The court issued Findings of Fact on November 19, 2007. In its Conclusions of Law, the court held: (1) the Holders violated Chapter 42 of the Texas Family Code, and were jointly and severally liable for damages; (2) the Holders interfered with lawful child custody; and (3) the Holders committed intentional infliction of emotional distress. The court ordered that Ms. Thompson was entitled to $110,320 in exemplary damages, $5,516.45 in actual damages, and $15,000 in attorney’s fees.

On appeal, the Holders contend the trial court erred because: (1) Ms. Thompson presented factually insufficient evidence at trial to support a finding of interference with possessory interest pursuant to Chapter 42 of the Texas Family Code; and (2) Ms. Thompson presented factually insufficient evidence to support the damages award.

In both of their issues, the Holders challenge the factual sufficiency of the evidence to support the trial court’s judgment.

Most orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex.App.-El Paso 2005, no pet.). However, an appellant may challenge the trial court’s findings of fact for legal and factual sufficiency of the evidence. Sotelo, 170 S.W.3d at 787. We review factual sufficiency challenges to the trial court’s findings in a bench trial under the same standards applied in reviewing evidence supporting a jury’s verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); In re Estate of Torrance, 991 S.W.2d 98, 101 (Tex.App.-El Paso 1999, no pet.). We will sustain a factual sufficiency challenge only if, after viewing all the evidence, the evidence is so weak or the verdict so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Eberle v. Adams, 73 S.W.3d 322, 327 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). We are mindful that we cannot substitute our opinion for that of the trier of fact and determine that it would have weighed the evidence differently or reached a different conclusion. Eberle, 73 S.W.3d at 327. We may not interfere with the fact finder’s resolution of conflicts in the evidence or pass on the weight or credibility of the witnesses’ testimony. Cass v. Stephens, 156 S.W.3d 38, 56 (Tex.App.-El Paso 2004, pet. denied).

In Issue One, the Holders contend Ms. Thompson failed to present factually sufficient evidence at trial to support a finding of interference with possessory interest pursuant to Texas Family Code Chapter 42.

The only relief an appellate court may grant an appellant who argues factual insufficiency is a new trial. Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 626 (Tex.2004). An appellate court cannot grant relief that an appellant does not pray for. See West End API, Ltd. v. Rothpletz, 732 S.W.2d 371, 374 (Tex.App.-Dallas 1987, writ ref'd n.r.e.).

In their Prayer, the Holders request us to reverse the trial court’s judgment and render judgment against Ms. Thompson “that she take nothing against Appellants.” Because they only requested a reversal and rendition in favor of them and did not ask for a new trial, we cannot grant them any relief. See Garza, 164 S.W.3d at 626; Rothpletz, 732 S.W.2d at 374.

In the interest of justice, even if we are able to grant relief to the Holders in this case, we have previously held that an appellant must attack all independent grounds supporting an adverse ruling. Fox v. Wardy, 224 S.W.3d 300, 304 (Tex.App.-El Paso 2005, pet. denied). If the appellant fails to do so, the appellate court will affirm the ruling. Id. When more than one legal conclusion independently supports a judgment or ruling, and the appellant only challenges one of those conclusions on appeal, an appellate court will overrule that challenge. Britton v. Texas Dept. of Criminal Justice, 95 S.W.3d 676, 681 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

Aside from her claim for interference with her possessory interest in violation of the Texas Family Code Chapter 42, Ms. Thompson also asserted claims of the common law tort of interference with child custody and the common law tort of intentional infliction of emotional distress. The trial court determined the Holders were liable on all three theories. However, the Holders challenge only the sufficiency of the evidence to support a finding of interference with possessory interest pursuant to Texas Family Code Chapter 42. Because the Holders did not attack all independent grounds supporting the trial court’s ruling, we must affirm the ruling. See Fox, 224 S.W.3d at 304; Britton, 95 S.W.3d at 681. Accordingly, we overrule Issue One.

In Issue Two, the Holders contend Ms. Thompson failed to present factually sufficient evidence to support the damages award. The Holders argue that both actual damages and exemplary damages are factually excessive.

Again, the only relief an appellate court may grant an appellant who argues factual insufficiency is a new trial, and we cannot grant relief that an appellant does not pray for. See Garza, 164 S.W.3d at 626; Rothpletz, 732 S.W.2d at 374. Because the Holders only requested a reversal and rendition and did not ask for a new trial in their Prayer, we cannot grant them any relief. See id.

Further, a brief must include “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. RApp.P. 38.1(i), 38.2(a)(1). In the first part of the Holders’ argument in Issue Two, they contend that the trial court’s actual damages award was factually excessive. However, because the Holders did not properly support their factual sufficiency argument with respect to the actual damages award with legal authorities and record, they have waived their challenge to the sufficiency of the evidence to support the trial court’s actual damages finding. See id. Accordingly, we overrule Issue Two.

Having overruled the Holders’ issues presented for review, we affirm the trial court’s judgment.