author: SAM GRIFFITH, Justice.

text:
    Dr. Lee Roy MATHIS, v. H.E. “Buster” BARNES, Appellee.
    No. 12-08-00340-CV.
    Court of Appeals of Texas, Tyler.
    July 14, 2010.

      Susan Hays, for Appellant.
    Brent Howard, Tyler, for Appellee.
   OPINION

SAM GRIFFITH, Justice.

Dr. Lee Roy Mathis appeals the trial court’s take nothing judgment entered in favor of Appellee H.E. Buster Barnes. In two issues, Mathis contends that the evidence is legally and factually insufficient to support the trial court’s take nothing judgment and this court should render injunc-tive relief against Barnes. We affirm in part, reverse and remand in part, and dismiss for want of jurisdiction in part.

Background

Mathis and Barnes own adjoining property in rural Anderson County, Texas. Lake Creek runs through the two properties at a point where Barnes’s property lies approximately six inches lower in elevation than Mathis’s property. For some time, Mathis had sought to cultivate “pristine wetlands” on the portion of his property close to Barnes’s property. Due to multiple beaver dams on Mathis’s property and in spite of seasonal rainfall variations, it was “full of water year round[,]” with “very limited” seasonal fluctuation. As a result, the property was a watering, nesting, and roosting place for waterfowl.

In mid to late 2006, Barnes constructed an earthen road on his property. The road, in effect, served as a dam where it crossed Lake Creek. According to Barnes’s testimony, he initially incorporated two twenty-eight inch culverts into the road. However, even though Barnes testified that he had constructed numerous roads in the past, he did not consult an engineer regarding his construction of this road.

By October 2006, Lake Creek’s water flow increased and water began to rise on Barnes’s property upstream of the road. By November 3, 2006, the water had crossed the property line between Mathis’s and Barnes’s properties.

On November 4, 2006, Mathis contacted Barnes concerning the rising water and asked him to modify the road to permit sufficient flow of the water to alleviate the flooding. Barnes met with Mathis and his son, Rusty, about the problem.

As time passed, the water continued to rise. By mid December, the water was several feet high at the fence line and had begun to crest at some of the beaver dams. Rusty contacted Barnes about the problem, and Barnes responded that he would add another culvert to the road. Thereafter, Barnes installed another twenty-eight inch culvert in the road above the two previously installed culverts. In mid to late December 2006, the road gave way to the waters of Lake Creek. The waters retreated from Mathis’s property revealing the remnants of many of the beaver dams that did not survive. As a result of the destruction of the beaver dams, the property retains a significantly smaller amount of water than it once did. Furthermore, the duck sightings on or above the property have been greatly reduced.

Mathis filed the instant suit on January 26, 2007 alleging that Barnes was liable to him for nuisance, trespass, negligence, and gross negligence. Specifically, Mathis claimed that Barnes’s actions permanently damaged 409.27 acres of his land, thereby reducing its fair market value, which resulted in actual damages. Mathis further sought injunctive relief. The trial court granted Mathis both a temporary restraining order and, later, a temporary injunction, prohibiting Barnes from repairing the breached road across Lake Creek. The matter proceeded to a jury trial. At trial, Barnes did not dispute that he built the road across Lake Creek. The parties presented conflicting evidence regarding the monetary value of the property before and after the flooding. The testimony can be summarized as follows: Mathis put on testimony of various witnesses supporting that the value of the property was greatly diminished; Barnes’s witness, a real estate appraiser, testified that the value of the property was the same both before and after the incident.

Ultimately, the jury found that Barnes was not liable for nuisance, trespass, negligence, or gross negligence. Thereafter, the trial court entered a take nothing judgment against Mathis. Mathis filed a motion for new trial, which the trial court denied. This appeal followed.

Legal Sufficiency

In his first issue, Mathis argues that the evidence is legally and factually insufficient to support the jury’s finding of no liability with regard to his causes of action for nuisance, trespass, and negligence. Mathis further argues that the evidence conclusively establishes his claim for gross negligence.

Standard of Review

If a party with the burden of proof challenges the legal sufficiency of an adverse finding, we must determine whether the complaining party has demonstrated on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). In a “matter of law” challenge, we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, we will examine the entire record in order to determine whether the contrary proposition is established as a matter of law. Id. We will sustain the issue if the contrary proposition is conclusively established. Id. The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). In making this determination, we must credit favorable evidence if a reasonable finder of fact could, and disregard contrary evidence unless a reasonable finder of fact could not. Id. at 827. The finder of fact is the sole judge of the credibility of the witnesses and the weight to be assigned to their testimony. See Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 557 (Tex.App.Tyler 2007, pet. denied) (citing City of Keller, 168 S.W.3d at 819). The finder of fact is free to believe one witness and disbelieve another, and reviewing courts may not impose their own opinions to the contrary. Id. Accordingly, we must assume that the finder of fact decided all credibility questions in favor of the findings if a reasonable person could do so. Id. If a reasonable finder of fact could have done so, we must assume that the finder of fact chose what testimony to disregard in a way that favored the findings. See Canal, 238 S.W.3d at 557 (citing City of Keller, 168 S.W.3d at 820). A finder of fact “may disregard even uncontradicted and unimpeached testimony from disinterested witnesses” where reasonable. Canal, 238 S.W.3d at 557 (quoting City of Keller, 168 S.W.3d at 819-20).

Moreover, it is within the finder of fact’s province to resolve conflicts in the evidence. Canal, 238 S.W.3d at 557 (citing City of Keller, 168 S.W.3d at 820). Consequently, we must assume that, where reasonable, the finder of fact resolved all conflicts in the evidence in a manner consistent with the findings. Id. Where a reasonable finder of fact could resolve conflicting evidence either way, we must presume the finder of fact did so in favor of the findings. Canal, 238 S.W.3d at 557 (citing City of Keller, 168 S.W.3d at 821). Where conflicting inferences can be drawn from the evidence, it is within the province of the finder of fact to choose which inference to draw, so long as more than one inference can reasonably be drawn. Id. Therefore, we must assume the finder of fact made all inferences in favor of the findings if a reasonable person could do so. Id.

Nuisance

Mathis first argues that the evidence conclusively establishes that Barnes is liable to him for creating a private nuisance. A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex.2004); Warwick Towers Council of Co-Owners v. Park Warnick, L.P., 298 S.W.3d 436, 444 (Tex.App.-Houston [14th Dist.] 2009, no pet.). “Nuisance” refers to a kind of damage done, rather than to any particular type of conduct. City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex.1997). A private nuisance affects an individual or a small number of individuals rather than the public at large. See Walker v. Tex. Elec. Serv., 499 S.W.2d 20, 27 (Tex.App.-Fort Worth 1973, no writ). An actionable nuisance may arise from an invasion of another’s interests attributable to activity that is intentional, negligent, or abnormal and out of place in its surroundings. Warwick, 298 S.W.3d at 444.

To prove an action for private nuisance, the plaintiff must establish that the nuisance caused some injury. See Walton v. Phillips Petroleum, Co., 65 S.W.3d 262, 270 (Tex.App.-El Paso 2001, pet. denied). A nuisance may result in two types of injury: (1) physical harm to the plaintiffs property, as by the encroachment of a damaging substance or by the property’s destruction or (2) physical or emotional harm to the plaintiff. See Aguilar v. Morales, 162 S.W.3d 825, 836 (Tex.App.-El Paso 2005, pet. denied); Union Pac. Res. v. Cooper, 109 S.W.3d 557, 560 (Tex.App.-Tyler 2003, pet. denied); Walton, 65 S.W.3d at 270. A nuisance that impairs comfortable enjoyment of real property may give rise to damages for personal discomfort and annoyance. See Cain v. Rust Indus. Cleaning Servs., 969 S.W.2d 464, 470 (Tex.App.-Texarkana 1998, pet. denied). A plaintiff is injured by a nuisance when the plaintiff suffers emotional harm from the deprivation of the enjoyment of his property, such as by fear, apprehension, offense, or loss of peace of mind. See id.

In the case at hand, Question 2 of the court’s charge made the following inquiry of the jury:

Did H.E. “Buster” Barnes create a nuisance which caused damage to Dr. Lee Roy Mathis’[s] land?
A “nuisance” substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy the land. A “nuisance” may occur as:
1. Physical harm to property;
2. Physical harm to a person or his or her property, such as an assault to his or her senses or by other personal injury; and/or
3. Emotional harm to a person from the deprivation of the enjoyment of his or her property, such as by fear, apprehension, offense[,] or loss of peace of mind.

The jury answered “No” in response to Question 2.

Barnes contends that the jury was entitled to find that Barnes’s action did not damage Mathis’s land. In support of his contention, Barnes notes that (1) Mathis’s pleadings allege that Barnes’s actions permanently damaged 409.27 acres of his land, thereby reducing its fair market value, (2) Mathis submitted Question 2, which makes reference to a nuisance, that “caused damage,” and (8) finally, Question 5 of the court’s charge inquires of the jury concerning the “market value” of Mathis’s property immediately before and immediately after the occurrence in question. Thus, according to Mathis, the jury was entitled to conclude, for the purpose of its answer to Question 2 that Barnes’s creation of a nuisance did not “cause damage” to Mathis’s land if it determined that the nuisance did not result in a reduction of the land’s fair market value. We disagree.

The word “damage” means “injury” or “loss” caused by the negligence, design, or accident of one person to another in respect to the latter’s person or property. See Black’s Law DictionaRY 389 (6th ed.1990). The word “damage” is to be distinguished from its plural, “damages,” which means a compensation in money for a loss or damage. See id. We understand “damage” to encompass every loss or diminution of what is a man’s own, occasioned by the fault of another. Id. Mathis pleaded “permanent” injury. However, no liability question in the court’s charge made inquiry concerning any permanent damage or injury. Furthermore, Question 5’s inquiry concerning market value could not serve to define “damage” for the jury because the jury was instructed to answer Question 5 only if it answered “yes” to Questions 1, 2, or 3. See Herrera v. Balmo-rhea Feeders, Inc., 539 S.W.2d 84, 87 (Tex.Civ.App.-El Paso 1976, writ refd n.r.e.) (court presumes jury followed trial court’s instructions in charge).

In the instant case, Question 2 inquired whether Barnes created a nuisance that caused damage to Mathis’s land. The evidence of record is uncontradicted that (1) Barnes constructed the road across Lake Creek, (2) the road Barnes constructed disrupted the creek’s natural flow, (3) the waters of Lake Creek rose upstream of the road and eventually crossed the Barnes-Mathis property line, flooding a portion of Mathis’s land. Furthermore, the evidence is conclusive that Mathis had owned the property for approximately forty years and used the land in question as a site on which to cultivate wetlands, which facilitated his further use of the land as a watering, nesting, and roosting place for waterfowl. Finally, the evidence is uncon-troverted that, after the flood waters receded, the beaver dams that once occupied the property were no longer functional. As a result, the property retains a significantly smaller amount of water than it once did and duck sightings on or above the property have been greatly reduced. Thus, based on our review of the record, we conclude that the evidence conclusively established that Barnes created a nuisance that caused physical damage to Mathis’s property. Consequently, we hold that the evidence is legally insufficient to support the jury’s “No” answer to Question 2 of the court’s charge.

Trespass

Mathis next argues that the evidence conclusively establishes that Barnes is liable to him for trespass. Question 3 of the court’s charge inquired of the jury concerning trespass as follows:

Did H.E. “Buster” Barnes cause damage to Dr. Mathis’[s] land by trespassing on Dr. Lee Roy Mathis’[s] land.
A trespass is any unauthorized intrusion or invasion of private premises or land of another, committed when a person enters another’s land without consent; or alternatively, unauthorized entry upon land of another. For purposes of a trespass claim, entry need not be in person, but may be made by causing or permitting something to cross the boundary of the property of another.

The jury answered “No” in response to Question 3.

Trespass to real property is defined as an unauthorized entry upon the land of another. See Cain v. Rust Indus. Cleaning Servs., 969 S.W.2d 464, 470 (Tex. App.-Texarkana 1998, pet. denied); Stone Res. v. Barnett, 661 S.W.2d 148, 151 (Tex.App.-Houston [1st Dist.] 1983, no writ). Every unauthorized entry is a trespass even if no damage is done. Aguilar v. Trujillo, 162 S.W.3d 839, 851 (Tex.App.-El Paso 2005, pet. denied) (citing Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 827 (Tex.1997)); see also Johnson v. Phillips Petroleum Co., 93 S.W.2d 556, 558-59 (Tex.App.-Amarillo 1936, no writ) (presumed that some injury resulted from trespass even if damages are nominal because every unauthorized entry on property considered a trespass). A trespass can be either by entry of a person on another’s land or by causing or permitting a thing to cross the boundary of the premises. Aguilar, 162 S.W.3d at 851.

It is undisputed that Mathis owned land adjoining Barnes’s land and that the properties were divided by a fence. As set forth above, the evidence is uncontroverted that (1) Barnes constructed the road across Lake Creek, (2) the road Barnes constructed disrupted the creek’s natural flow, (3) the waters of Lake Creek rose upstream of the road and eventually crossed the Barnes-Mathis property line, flooding a portion of Mathis’s land. The record is further conclusive that Barnes was aware that the waters of Lake Creek had encroached on Mathis’s property upstream of the road he constructed. Based on our review of the record, we conclude that the evidence at trial conclusively established that the road Barnes constructed caused the waters of Lake Creek to enter upon Mathis’s property. Damage or injury is presumed as a result of the trespass. See Johnson, 93 S.W.2d at 558-59. Consequently, we hold that the evidence is legally insufficient to support the jury’s “No” answer to Question 3 of the court’s charge.

Negligence

Mathis next argues that the evidence conclusively establishes that Barnes is liable to him for negligence. Question 1 of the court’s charge inquired of the jury with regard to negligence as follows:

Did the negligence, if any, of H.E. “Buster” Barnes proximately cause the damage, if any, to Dr. Lee Roy Math-ises] land?

The jury answered “No” in response to Question 1.

Governing Law

The elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. Roberts v. TXU Energy Retail Co. LP, 171 S.W.3d 901, 903 (Tex.App.-Beaumont 2005, no pet.). A legal duty is breached when a defendant does not meet the required standard of care. On appeal, Mathis cites Texas Water Code, section 11.086, which he contends imposed a legal duty upon Barnes not to divert or impound surface water such that it damages the land of another. See Tex. Water Code Ajnn. § 11.086 (Vernon 2008). Ordinarily, if the duty imposed by a statute creates civil liability for its violation, the standard of care will be defined by the statute. See, e.g., Sheppard v. Judkins, 476 S.W.2d 102, 109 (Tex.App.-Texarkana 1971, writ refd n.r.e.) (violation of statute that requires person to stop at stop sign constitutes negligence per se). Thus, the jury would ordinarily be asked not whether the defendant acted reasonably, but only whether the defendant violated the statute. See Carter v. William Sommemlle & Son, Inc., 584 S.W.2d 274, 278 (Tex.1979). However, in the instant case, the jury was never asked to consider whether Barnes, by his conduct, violated section 11.086. Rather, the jury was instructed concerning the duty to use ordinary care. Because no party has challenged the trial court’s submission of Question 1 on appeal, we will conduct our analysis of the legal sufficiency of the evidence to support the jury’s answer to Question 1 with regard to the charge given the jury. See Wolff, 94 S.W.3d at 530.

“Ordinary care,” is defined as what a person of ordinary prudence would or would not have done under the same or similar circumstances. See Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.1984). In deciding whether there is a common law duty, courts apply the risk-utility test. See Foster v. Denton Indep. Sch. Dist., 73 S.W.3d 454, 465 (Tex.App.-Fort Worth 2002, no pet.). The factors used when applying the risk-utility test are the risk, foreseeability, and likelihood of injury balanced against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 405 (Tex.2009). When these factors are balanced, the most important factor to consider is the foreseeability of the risk. See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987).

Foreseeability requires only that the general danger be foreseeable, not the exact sequence of events that produced the harm. See Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex.1999). The test for foreseeability is whether (1) the injury is of a general character that might reasonably have been anticipated and (2) the injured party is situated in relation to the wrongful act so that injury to him or one similarly situated might reasonably have been foreseen. See id.

The components of proximate cause are (1) cause-in-fact and (2) foreseeability. See Western Invs. v. Urena, 162 S.W.3d 547, 551 (Tex.2005); IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). The test for cause-in-fact, or “but for” causation, is whether the negligent act or some omission was a substantial factor in bringing about injury and whether the injury would have occurred without the act or omission. Western Invs., 162 S.W.3d at 551; Mason, 143 S.W.3d at 799. The evidence must be sufficient for the jury to determine within a reasonable probability that the plaintiffs injury would not have occurred but for the defendant’s negligence. See Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970). There is no cause-in-fact when the defendant’s negligence did nothing more than furnish a condition that made the injury possible or when the defendant’s conduct is too remotely connected with the plaintiffs injury. See Mason, 143 S.W.3d at 799. To prove foreseeability, the plaintiff must establish that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. See Doe v. Boys Chibs, 907 S.W.2d 472, 478 (Tex.1995); PPC Transp. v. Metcalf, 254 S.W.3d 636, 642 (Tex.App.-Tyler 2008, no pet.). Foreseeability requires only that (1) the injury be of a general character that might reasonably have been anticipated and (2) the injured party be situated in relation to the wrongful act so that the injury to him or to someone similarly situated might reasonably have been foreseen. See Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 551 (Tex.1985); PPC Transp., 254 S.W.3d at 642.

Finally, with regard to “damage,” we iterate that the term “damage,” which was not defined in the court’s charge, means every loss or diminution of what is a man’s own, occasioned by the fault of another.” See Black’s Law Dictionary 389.

Breach of Legal Duty

We first consider whether Barnes breached a legal duty owed to Mathis. Here, the record is conclusive that the area between the Barnes and Mathis properties was “bottomland” with Mathis’s land lying only six inches higher in elevation than Barnes’s. The record further conclusively indicates that Barnes knew the land in question had flooded numerous times between the time when he purchased the property in 2005 and the time he built the road in 2006. Finally, it is uncontroverted that subsequent to Barnes’s constructing the road, the water level rose upstream of the road and flooded Mathis’s property.

However, the record also indicates that Barnes constructed the road across Lake Creek when the creek bed was dry. Further, there was evidence before the jury that Barnes had previous experience building roads utilizing culverts. Additionally, the evidence reflects that Barnes employed drainage pipes in his construction of the road at issue so as to allow the waters of Lake Creek to pass through it. There was evidence pertaining to whether anywhere from one to four twenty-eight inch culverts would permit adequate flow of the waters of Lake Creek. However, there is, at best, conflicting evidence concerning whether a person of ordinary prudence would have foreseen, as the record reflects Barnes did not, that the culverts he employed to allow for the passage of Lake Creek’s waters would be less than adequate to prevent flooding upstream of the road. Moreover, there is, at best, conflicting evidence supporting that a person of ordinary prudence would have constructed the road so as to allow for more drainage than did Barnes.

In sum, the record does not conclusively demonstrate that an ordinarily prudent person would have foreseen that the construction of an earthen road across a creek bed, where measures were taken to allow for passage of the creek waters through the road, would, in spite of the measures taken, flood the neighboring property. Therefore, we conclude that the evidence does not conclusively demonstrate that Barnes breached his duty of ordinary care owed to Mathis. Accordingly, we hold that the jury’s answer to Question 1 was not legally insufficient.

Gross Negligence

Mathis next argues that the evidence conclusively establishes that Barnes is hable to him for gross negligence. Question 4 of the court’s charge inquired of the jury concerning gross negligence as follows:

Do you find by clear and convincing evidence that the damage, if any, to Dr. Lee Roy Mathis’[s] land resulted from gross negligence?
“Clear and convincing evidence” means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.
“Gross negligence means an act or omission by H.E. “Buster” Barnes,
a) Which when viewed objectively from the standpoint of H.E. “Buster Barnes at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
b) Of which H.E. “Buster” Barnes has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Gross negligence includes two elements: (1) viewed objectively from the actor’s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998); see Transportation Ins. Co. v. Monel, 879 S.W.2d 10, 23 (Tex.1994). Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence. Ellender, 968 S.W.2d at 921. Under the first element, “extreme risk” is not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. Id. Under the second element, actual awareness means that the defendant knew about the peril, but his acts or omissions demonstrated that he did not care. Id. (citing Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993)). Circumstantial evidence is sufficient to prove either element of gross negligence. See Moriel, 879 S.W.2d at 22-23; Alexander, 868 S.W.2d at 327. Mathis cites Boatman v. Lites, 970 S.W.2d 41 (Tex.App.-Tyler 1998, no pet.) and Bily v. Omni Equities, Inc., 731 S.W.2d 606 (Tex.App.-Houston [14th Dist.] 1987, wit refd n.r.e.) in support of his proposition that even where a defendant did not originally intend that his actions result in an impounding of water upon the plaintiffs land, the second element of gross negligence is supported where the plaintiff intentionally permitted the impounding to continue.

In Boatman, the Boatmans built a “berm” that diverted surface water off of their property and onto the Liteses’ neighboring property. See Boatman, 970 S.W.2d at 46. When the Liteses asked the Boatmans to remove the berm, they refused to do so. Id. This court summarized the ensuing exchanges between the parties as follows:

Approximately one year prior to the filing of this suit, the [Liteses] hired counsel to write the Boatmans, requesting that they refrain from diverting surface water. Mr. Boatman testified that he ignored the letter and thought it was ridiculous. When further pressed as to why he thought the request was ridiculous, he said “because I’m me and that’s the way I think.” After the trial court issued a temporary injunction ordering the Boatmans to remove the berm, they did not remove the dirt, but spread it out, further building up their property. When Mr. Lites attempted to talk to Mr. Boatman about the berm and the erosion problems, Mr. Boatman used profanity against him. The erosion caused by the building of the berm covered an area approximately seven feet by twenty feet. The eroded property was located at the extreme corner of the [Liteses’] property opposite from their home and not located within the vicinity of any other structures. On numerous occasions, the [Liteses] attempted to repair the damage done to their land, but were unable to do so.

Id. Considering the foregoing, this court concluded that (1) there was evidence that both the Liteses and the trial court informed the Boatmans that the diversion of surface water was causing damage to the Liteses’ property, (2) the Boatmans denied that they had even built the berm despite evidence to the contrary, and (3) there was evidence that the Boatmans did not comply with the temporary injunction to refrain from diverting water from their property. See id. Accordingly, the court held that there was sufficient evidence to support a finding that the Boatmans were subjectively aware that they were creating a risk of damage to the Liteses’ property. See id.

Bily likewise involved the diversion of surface waters by Omni onto Bily’s property. See Bily, 731 S.W.2d at 609. There, it was undisputed that Bily informed Omni and its owners, the Smiths, that their construction had blocked drainage from his property. Id. at 614. Further, Bily’s attorney provided Omni with a copy of section 11.086 of the Texas Water Code. Id. W.T. Smith, the majority shareholder of Omni who oversaw its operations, admitted that he made no effort to correct the problem other than to file criminal complaints against Bily after the temporary injunction had been granted. See id. The court of appeals held that this was “some evidence, and factually sufficient evidence,” to support a finding that Omni and the Smiths acted with conscious indifference to Bily’s rights. See id.

In the instant case, it is undisputed that Barnes was aware that the waters of Lake Creek had risen upstream of the road he constructed and had crossed the Barnes-Mathis property line, flooding a portion of Mathis’s land. Barnes testified that he would never have constructed the road across Lake Creek had he known it would cause damage to Mathis’s property. However, unlike the defendants in Bily and Boatman, the record here indicates that Barnes cooperated with Mathis concerning the flooding problem. Furthermore, Barnes testified that he installed an additional culvert in order to alleviate the flooding on Mathis’s land, a remedy he had previously discussed with Rusty. Ultimately, Barnes’s attempt to solve the problem was unsuccessful, but his attempt is nonetheless some evidence that would reasonably support the jury’s finding that he did not act with conscious indifference with regard to the flooding of Mathis’s property. As such, we conclude that there was not conclusive evidence of gross negligence. Accordingly, we hold that the jury’s “No” answer to Question 4 should not be disturbed.

Factual Sufficiency

We test the factual sufficiency of the evidence by examining the entire record to determine whether a finding is clearly wrong and unjust. See Kinder Morgan North Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 437 (Tex.App.-Texarkana 2006, no pet.). When considering a factual sufficiency challenge to a jury’s verdict, we must consider and weigh all the evidence, not just that evidence which supports the verdict. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id,.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We are not a fact finder. See Justiss, 202 S.W.3d at 437. Accordingly, we may not pass on the witnesses’ credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Ellis, 971 S.W.2d at 407. If we find the evidence is factually insufficient, we must clearly state why the jury’s finding is insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

In his brief, Mathis iterates the evidence underlying the damage he sustained as well as the evidence concerning the drainage methods Mathis employed in his construction of the road. Mathis further notes that Jerry Fontaine, a civil engineer, testified that even four twenty-eight inch culverts would have been inadequate to handle the water flow on Lake Creek.

We have examined the entirety of the record; we have considered and weighed all of the evidence. In so doing, we are mindful that we may not pass on the witnesses’ credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. See Jackson, 116 S.W.3d at 761. Based on our review of the record, we have not determined that any evidence tending to contradict the evidence supporting the jury’s findings, including Fon-taine’s testimony, is of such character so as to cause us to conclude that the jury’s “No” answer to Question 1 is clearly wrong and unjust. Thus, we hold that the evidence is not factually insufficient to support the jury’s “No” answer to Question 1.

Summation of Issue 1

We have concluded that the evidence is legally insufficient to support the jury’s “No” answer to Questions 2, and 3 of the court’s charge. We have further held that the jury’s “No” answers to Questions 1 and 4 should not be disturbed. Accordingly, Mathis’s first issue is sustained in part and overruled in part.

Injunctive Relief

In his second issue, Mathis argues that because the evidence conclusively establishes his claims, we should issue injunctive relief to prevent any future im-poundment of the surface waters. We initially note that Mathis has neither cited authority nor made argument in support of his second issue. See Tex.R.App. P. 38.1(i). Thus, Mathis has waived the issue.

Even so, we note that our authority to issue writs of injunction is limited to occasions where doing so is necessary to enforce our jurisdiction. See Tex. Gov’t Code Ann. § 22.221(a) (Vernon 2004); Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex.1989) (purpose of writ of injunction is to enforce or protect appellate court’s jurisdiction); In re Sheshtawy, 161 S.W.3d 1, 1 (Tex.App.-Houston [14th Dist] 2003, orig. proceeding). We may also grant injunctive relief to preserve the subject matter of a pending appeal or if a failure to grant relief would result in the appeal becoming moot. See Becker v. Becker, 639 S.W.2d 23, 24 (Tex.App.-Houston [1st Dist.] 1982, orig. proceeding). We do not have jurisdiction to issue a writ of injunction merely to preserve the status quo or prevent loss or damage to one of the parties during the appeal. Id.; Pace v. McEwen, 604 S.W.2d 231, 233 (Tex.Civ.App.-San Antonio 1980, orig. proceeding). Thus, even had Mathis not waived the issue, we are without jurisdiction to grant the injunctive relief Mathis requests.

Conclusion

We have sustained Mathis’s first issue in part and overruled it in part. We lack jurisdiction to grant the relief requested in Mathis’s second issue. Mathis has prayed that we reverse the trial court’s judgment, render judgment on liability, and remand the matter for a new trial on damages only. Because liability is contested, we cannot order a separate trial solely on damages. See Tex.R.App. P. 44.1(b). Accordingly, we reverse the trial court’s judgment with regard to Mathis’s causes of action for nuisance and trespass and remand those causes of action for a new trial. We dismiss Mathis’s request for injunctive relief for want of jurisdiction and affirm the remainder of the trial court’s judgment.

      . The parties’ terminology varies with regard to Barnes's construction across Lake Creek. For ease of reference, we refer to Barnes’s structure as the road. The record reflects that at the time the road was constructed, Lake Creek was diy at the construction site.

      . An action can be both a trespass and a nuisance. See Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 509 (Tex.App.-Eastland 2008, no pet.).

      . We recognize that the entry must be physical, intentional, and voluntary. See Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex.App.Fort Worth 2006, pet. denied). However, the definition submitted to the jury does not contain this element, and the submission of Question 3 has not been challenged on appeal. As such, we do not include it in our consideration of the sufficiency of the evidence. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex.2002) (when party in civil case raises proper objection to improper juiy charge or instruction, appellate court measures sufficiency of evidence against jury charge or instruction that should have been given; if no objection made, or if incorrect objection made, appellate court measures sufficiency of evidence against jury charge or instruction actually given).

      . Because we have held that the evidence is legally insufficient to support the jury's “No” answer to Questions 2 and 3 of the court’s charge, we need not consider Mathis’s arguments concerning die factual sufficiency of the evidence with regard to these findings. See Tex.R.App. P. 47.1.


source: Caselaw Access Project

author: Justice FILLMORE.

license: Public Domain

text:
    Kathy WEBB, Appellant, v. Kevin VOGA, Jonathon Cox, Matthew Kolodzie, Tammy Duke, Denise Tombaugh, Kristi Underwood, Sally Stone, and Glenbrook Owners Association, Inc., Appellees.
    No. 05-09-00074-CV.
    Court of Appeals of Texas, Dallas.
    July 15, 2010.

      Robert and Kathy Webb, McKinney, Timothy E. Baker, Law Office of Timothy E. Baker, Allen, for appellant.
    R. Michael Northrup, Cowles & Thompson, P.C., Dallas, for appellee.
    Before Justices MOSELEY, BRIDGES, and FILLMORE.
   OPINION

Opinion by

Justice FILLMORE.

Appellant Kathy Webb (Webb) appeals the trial court’s summary judgment in favor of appellees Kevin Voga, Jonathon Cox, Matthew Kolodzie, Tammy Duke, Denise Tombaugh, Kristi Underwood, Sally Stone, and Glenbrook Owners Association, Inc. We reverse the judgment as to Webb’s causes of action and render judgment dismissing this case for lack of subject matter jurisdiction.

Background

Appellee Glenbrook Owners Association, Inc. (the Association) is the Texas nonprofit corporation and the association defined in the Declaration of Covenants and Assessments and Amendments thereto for Glenbrook Estates (Covenants). Webb sued the Association and seven individual lot owners and members of the Association, appellees Voga, Cox, Kolodzie, Duke, Tombaugh, Underwood, and Stone (Lot Owners) in Webb v. Voga, Cause No. 219-00025-2008, 219th Judicial District Court, Collin County, Texas. Webb sought a declaratory judgment that the Association had abandoned and waived enforcement of the Covenants and sought to enjoin the Lot Owners’ alleged continued violations of the Covenants.

Webb also sued the Association in county court in the case styled Webb v. Glen-brook Owners Association, Inc., Cause No. 004-01016-2008, County Court at Law No. 4, Collin County, Texas. In that suit, Webb sought disclosure of information from the Association pursuant to section 207.003 of the property code.

The district court lawsuit and the county court lawsuit were consolidated in the district court lawsuit. The Association and the Lot Owners filed a traditional and a no-evidence motion for summary judgment. Without specifying the ground or grounds for granting the summary judgment, the trial court granted summary judgment in favor of appellees on Webb’s causes of action. Webb appealed the final summary judgment.

Subject Matter Jurisdiction

Subject matter jurisdiction is an issue that may be raised for the first time on appeal and may not be waived by the parties. Tex. Ass’n of Bus. v. Tex. Air Control BdL, 852 S.W.2d 440, 445 (Tex.1993). Standing is a component of subject matter jurisdiction; therefore, standing cannot be waived and may be raised for the first time on appeal. Id.; Tex. Lottery Comm’n v. Scientific Games Int’l, Inc., 99 S.W.3d 376, 380 (Tex.App.-Austin 2003, pet. denied). Moreover, we must ascertain that subject matter jurisdiction exists even if the parties have not questioned it. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 853-54 (Tex.2000).

We review the issue of standing de novo. Scientific Games Int’l, 99 S.W.3d at 380. Standing is generally a question of law determined from the pleadings. West v. Brenntag Sw., Inc., 168 S.W.3d 327, 334 (Tex.App.-Texarkana 2005, pet. denied). When an appellate court sua sponte reviews standing of a party, the court construes the petition in favor of the party, and if necessary, reviews the entire record to determine if any evidence supports standing. Tex. Ass’n of Bus., 852 S.W.2d at 446; see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex.2000) (review of standing is not limited to pleadings when plaintiff required to prove jurisdiction facts).

Standing deals with whether a litigant is the proper person to bring a lawsuit. Brenntag Sw., 168 S.W.3d at 334; see also Gleason v. Taub, 180 S.W.3d 711, 713 (Tex.App.-Fort Worth 2005, pet. denied) (without breach of legal right belonging to plaintiff, that plaintiff lacks standing.) To establish standing, one must show a justiciable interest by alleging an actual or imminent threat of injury peculiar to one’s circumstances and not suffered by the public generally. Benker v. Tex. Dep’t of Ins., 996 S.W.2d 328, 330 (Tex.App.-Austin 1999, no pet.); see also Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984). As stated by the United States Supreme Court, the question of standing is whether the party invoking jurisdiction has “a personal stake” in the outcome of the controversy. Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Traditionally, courts have held that this “personal stake” must exist at the commencement of the litigation and continue throughout the lawsuit’s existence. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). As to each of Webb’s causes of action against the Association and her cause of action against the Lot Owners, Webb’s ownership of property in Glenbrook Estates was critical to her standing to maintain her claims.

In her pleading against the Association and the Lot Owners, Webb stated that: she resides and owns property in a subdivision knowm as Glenbrook Estates; all of the real property referenced in her lawsuit is part of Glenbrook Estates and is subject to a mandatory homeowners association governed by the Association; and the Covenants proscribe “certain activities and uses among the owners of the real property in the Glenbrook Estates.”

Webb sued the Association seeking a declaratory judgment that the Association waived or abandoned the right to enforcement of the Covenants. A declaratory judgment “requires a justiciable controversy as to the rights and status of parties actually before the court for adjudication, and the declaration sought must actually resolve the controversy.” Brooks v. Northglen Ass’n, 141 S.W.3d 158, 163-64 (Tex.2004). Texas courts do not have the authority to render judgments that merely constitute advisory opinions. Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex.1998). An opinion is advisory when the judgment sought would not constitute specific relief to a litigant or affect legal relations. Brinkley v. Tex. Lottery Comm’n, 986 S.W.2d 764, 767 (Tex.App.-Austin 1999, no pet.).

Section 37.004 of the Uniform Declaratory Judgments Act provides that:

A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a) (Vernon 2008). The Covenants define “member” to “mean and refer to each Owner of a Lot” within Glenbrook Estates. “Owner” is defined as “the owner of record, whether one or more persons or entities, of fee simple title to any Lot.” The Covenants provide that “[e]ach and every Owner shall automatically become a Member of the Association. Membership in the Association shall be appurtenant to and may not be separated from ownership of a Lot.” See Northglen Ass’n, 141 S.W.3d at 162 (trial court had jurisdiction over declaratory judgment action by property owners against homeowners association). Accordingly, unless Webb is an owner of a lot within Glenbrook Estates, she does not have standing to seek a declaration whether the Association waived enforcement of certain Covenants.

Webb alleged the Lot Owners violated the Covenants and she sought to enjoin them from continuing to violate the Covenants. “In Texas the law is well settled to the effect that in order to claim or enforce a restrictive covenant on another’s land, it is necessary for the party claiming the restriction to show its existence and further that it was for the benefit of his land.” McCart v. Cain, 416 S.W.2d 463, 465 (Tex.Civ.App.-Fort Worth 1967, writ refd n.r.e.). “In every case where parties seek to enforce a restrictive covenant, the burden of proof is upon them to establish that the covenant was imposed on defendant’s land for the benefit of land owned by them.” Reagan Nat’l Adver. of Austin, Inc. v. Capital Outdoors, Inc., 96 S.W.3d 490, 495 (Tex.App.-Austin 2002, pet. denied) (quoting Davis v. Skipper, 125 Tex. 364, 371, 83 S.W.2d 318, 321-22 (1935)). This means that, generally, an interested property owner may enforce a restrictive covenant, Giles v. Cardenas, 697 S.W.2d 422, 427 (Tex.App.-San Antonio 1985, writ refd n.r.e.), and would have standing to bring suit to enforce deed restrictions. Anderson v. New Prop. Owners’ Ass’n of Newport, 122 S.W.3d 378, 384-85 (Tex.App.-Texarkana 2003, pet. denied).

In her suit against the Association pursuant to chapter 207 of the property code, Webb alleged the Association was statutorily required to provide information she requested. See Marauder Corp. v. Beall, 301 S.W.3d 817, 820 (Tex.App.-Dallas 2009, no pet.) (party suing under statute must establish standing or right to make a claim under the statute). Section 207.003 provides a list of subdivision information that a property owners’ association shall deliver to “the owner, owner’s agent, or title insurance company or its agent” after a written request from “an owner, owner’s agent or title insurance company or its agent acting on behalf of the owner.” Tex. Prop. Code Ann. § 207.003(a) (Vernon Supp. 2009). Section 207.001(3) defines “owner” to mean “a person who owns record title to property in a subdivision or the personal representative of an individual who owns record title to property in a subdivision.” Tex. Prop.Code Ann. § 207.001(3) (Vernon 2007).

We must determine whether Webb had standing as an owner of a Glenbrook Estates lot to confer subject matter jurisdiction over her causes of action. We review the entire record to determine if any evidence supports Webb’s standing. See Tex. Ass’n of Bus., 852 S.W.2d at 446.

Webb filed a motion for summary judgment on her chapter 207 claim against the Association. In her affidavit in support of her motion for summary judgment, Webb attested she “own[sj land which has a mandatory homeowners association.” In response to Webb’s motion for summary judgment, the Association asserted Webb’s motion should be denied because, among other reasons, Webb is not named as an owner on the General Warranty Deed conveying the property she allegedly owned in Glenbrook Estates. The Association filed summary judgment evidence including the affidavit of Michael G. Oddo in which he attested, “The property at issue in this case is 17 Glenbrook Circle, Lucas, Texas. Kathy Webb is not named as an owner of the subject property on the General Warranty Deed conveying the property on August 26, 2004.” Oddo’s affidavit attached a copy of the recorded warranty deed conveying the property to Robert Webb.

In appellees’ verified First Amended Original Answer in Webb’s suit for declaratory relief and injunction, the appellees raised the affirmative defense that Webb could not recover in the capacity in which she sued and that Webb is not the recorded owner of title to real property in Glen-brook Estates, a member of the Association’s Board, or a person authorized or delegated the right to enforce deed restrictions within Glenbrook Estates. The record also contains the affidavit of Tombaugh, vice president and treasurer of the Association, in support of appellees’ motion for summary judgment, in which Tombaugh attested to her personal knowledge that Robert Webb is the owner of the property in Glenbrook Estates purportedly owned by Webb.

The record contains no response from Webb to the challenges to her pleadings that she purportedly owns property in Glenbrook Estates. Webb did not raise further argument or evidence in support of her standing to bring these claims. The validity and operative effect of the warranty deed were unchallenged by Webb in the record. See Bland Indep. Sch. Dist., 34 S.W.3d at 555 (plaintiff did not dispute veracity of evidence produced by defendants and court took evidence as conclusive of certain essential facts).

Because Webb’s standing to bring these actions is not readily apparent from the record, and because our jurisdiction as well as that of the trial court depends on that issue, we requested briefing from the parties on that issue. Webb filed a jurisdictional letter brief. Thereafter appellees filed a response contending Webb lacks standing.

We are unpersuaded by the arguments in the jurisdictional brief Webb filed with this Court. Webb’s contention that she had standing in a representative capacity for the record title owner is unfounded. Webb’s suits as consolidated were brought in her individual capacity and not as a representative or fiduciary of the record title owner, and there is no pleading or evidence in the record to support a contention that Webb brought claims other than on her own behalf. Further, Webb acknowledges Robert Webb as the record owner of the property at all relevant times. In her jurisdictional brief, Webb alludes to deed records purporting to support her contention that she has standing to bring the claims she asserted against the Association and the Lot Owners. However, such purported documents are not in the record before this Court.

The evidence shows Webb was not a property owner. We conclude that Webb lacked standing for her causes of action against the Association and the Lot Owners and, therefore, the trial court lacked subject matter jurisdiction over those causes of action. See Tex. Ass’n of Bus., 852 S.W.2d at 445. If a judgment is void because the trial court lacked jurisdiction, we must vacate the judgment and dismiss the case. Tex.R.App. P. 43.2(e); City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex.1985) (per curiam) (“If the trial court lacks subject matter jurisdiction, the appellate court can make no order other than reversing the judgment of the court below and dismissing the cause.”).

Accordingly, we reverse the trial court’s judgment as to Webb’s causes of action and render judgment dismissing this case for lack of subject matter jurisdiction.

      . Robert Webb, Webb’s husband, was not a party to Webb's suit against the Association pursuant to chapter 207 of the property code. In Webb’s suit against the Association and the Lot Owners for declaratory and injunctive relief, Robert Webb was for the first time named as a plaintiff in the First Amended Petition filed shortly before submission of the Association's motion for summary judgment. Robert Webb filed a notice of appeal. However, appellees filed a motion to dismiss Robert Webb’s appeal. Neither Robert Webb nor Webb filed a response to appellees' motion to dismiss Robert Webb's appeal. Further, Robert Webb did not file an appellate brief. At submission of the appeal, counsel for Robert Webb and Webb announced the waiver of the issue of Robert Webb’s status as an appellant and stated that it was Webb’s position that Robert Webb was not before this Court. Without deciding whether Robert Webb was a proper party in the underlying case, we dismissed Robert Webb’s appeal for want of prosecution. See Tex.R.App P. 38.8(a)(1) & 42.3(b); see also West End API, Ltd. v. Roth-pletz, 732 S.W.2d 371, 373 (Tex.App.-Dallas 1987, writ ref'd n.r.e) (relief not prayed for on appeal cannot be granted).

      . "A ‘restrictive covenant’ is a negative covenant that limits permissible uses of land.” Voice of Cornerstone Church Corp. v. Pizza Property Partners, 160 S.W.3d 657, 665 (Tex.App.-Austin 2005, no pet.).

      . The trial court denied Webb’s motion for summary judgment.


author: Justice RICHTER.

text:
    Mariano MORENO, Appellant, v. Sergio SILVA, Appellee.
    No. 05-09-00624-CV.
    Court of Appeals of Texas, Dallas.
    July 20, 2010.

      Frank P. Hernandez, Dallas, TX, for Appellant.
    Jeffrey L. Clark, Kelsoe, Anderson, Khoury & Clark, Dallas, TX, for Appellee.
    Before Justices RICHTER, LANG-MIERS, and MURPHY.
   OPINION

Opinion By

Justice RICHTER.

This is an appeal from the trial court’s order granting summary judgment in favor of Sergio Silva. In two issues, appellant Mariano Moreno contends the trial court abused its discretion by denying his motion for a continuance and granting Silva’s motion for summary judgment. Finding no reversible error, we affirm the trial court’s judgment.

I. BACKGROUND

Silva sued Moreno to recover money Moreno owed him. The trial court ordered the parties to mediation. At mediation the parties entered into a written settlement agreement that required Moreno to pay Silva the sum of $24,500 within one year, on or before November 27, 2008. The agreement stated that the case would be administratively closed and dismissed with prejudice if Moreno fully paid Silva. The settlement agreement was signed by Moreno, Silva, and both of their attorneys. The trial court granted an agreed motion to administratively close the case on December 31, 2007.

Moreno failed to pay Silva in accordance with the settlement agreement. On December 4, 2008, Silva filed a motion to reopen the case. The trial court granted Silva’s motion to reopen on December 10, 2008. On December 10, 2008, Moreno’s attorney filed a motion to withdraw as counsel for Moreno, due to an unmanageable conflict of interest between attorney and client. The trial court granted the motion to withdraw on January 12, 2009.

On December 11, 2008, Silva filed a second amended original petition, adding a claim for breach of the written settlement agreement. Moreno did not file an answer to Silva’s second amended original petition. On January 22, 2009, Silva filed a motion for summary judgment. Moreno did not file a response to Silva’s motion for summary judgment. The motion was scheduled to be heard on February 19, 2009, but was postponed to March 2, 2009, at the request of Moreno.

On the date of the hearing, Moreno filed a document titled “Defendant’s Verified Motion For Continuance.” In his pro se motion, which was not verified, Moreno stated he needed additional time to hire a new attorney to file an answer to the amended second petition and the motion for summary judgment. Moreno also asserted that although he signed the settlement agreement, he did so under duress and later advised his attorney that he did not agree with it. Moreno refused to sign the final draft of the settlement agreement.

After hearing the arguments of the parties, the trial court denied Moreno’s motion for continuance and granted Silva’s motion for summary judgment. A final judgment was signed on March 2, 2009.

On April 1, 2009, Moreno filed a pro se motion for reconsideration of the trial court’s ruling on Silva’s motion for summary judgment and Moreno’s motion for continuance, and a pro se response in opposition to Silva’s motion for summary judgment. On May 6, 2009, Moreno filed an affidavit in support of his motion for reconsideration. On May 18, 2009, Silva filed a response objecting to Moreno’s motion for reconsideration. Silva also asserted that because seventy-five days had passed, Moreno’s motion was overruled by operation of law on May 18, 2009. At a hearing on May 22, 2009, the trial court ruled from the bench that Moreno’s motion for reconsideration was overruled by operation of law. The trial court also signed an order denying Moreno’s motion for reconsideration. This appeal followed.

II. DISCUSSION

Although we construe pro se pleadings and briefs liberally, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978); Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex.App.-Dallas 2008, no pet.). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. In re N.E.B., 251 S.W.3d 211, 212 (Tex.App.Dallas 2008, no pet.).

Motion for Continuance

In his first issue, Moreno asserts the trial court abused its discretion by refusing to grant his pro se motion for continuance. The denial of a motion for continuance is reviewed under an abuse of discretion standard. General Motors v. Gayle, 951 S.W.2d 469, 476 (Tex.1997) (orig. proceeding); Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 858 (Tex.App.-Dallas 2008, no pet.). The trial court’s ruling will not be reversed unless the record shows a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). After reviewing the entire record, we may reverse for abuse of discretion only if we determine the trial court’s ruling was clearly arbitrary and unreasonable. BMC Software Belg., N.V. v. Marehand, 83 S.W.3d 789, 800 (Tex. 2002).

Pursuant to rule 251, a trial court may grant a continuance for sufficient cause supported by affidavit or by consent of the parties. Tex.R. Civ. P. 251. According to Moreno’s motion, he requested the continuance because he needed additional time to hire a new attorney. Moreno cites Villegas v. Carter to support his argument that the trial court abused its discretion by denying his motion for continuance. See Villegas, 711 S.W.2d at 626-27. In Ville-gas, the Texas Supreme Court concluded that the trial court should have either denied the attorney’s motion to withdraw two days before trial or granted Villegas’ request for a continuance to hire a new attorney. Id. at 627. When a trial court allows an attorney to voluntarily withdraw, it must give the party time to obtain new counsel and time for the new counsel to investigate the case and prepare for trial. Id. at 626. In contrast to Villegas, Moreno had sufficient time within which to obtain new counsel but did not take steps to do so. Moreno’s attorney filed a motion to withdraw on December 11, 2008. Moreno did not object to his attorney’s motion to withdraw. The motion to withdraw was granted on January 12, 2009. At Moreno’s request, the trial court rescheduled the hearing on Silva’s motion for summary judgment from February 19 to March 2. There is nothing in the record to suggest that Moreno tried to hire a new attorney after his attorney withdrew. Instead, at the hearing on March 2, 2009, Moreno told the trial court he had not hired a new attorney or filed a response to Silva’s motion for summary judgment because he had been talking to Silva and thought they were going to work out a deal.

Furthermore, Moreno’s motion for continuance was not verified or supported by affidavit. Id.; see also Gamer, 244 S.W.3d at 858. Moreno titled his motion “Defendant’s Verified Motion for Continuance” and suggests it meets the requirements for an affidavit because he included the statement, “I affirm under the penalties of perjury that the foregoing representations are true.” However, there is no evidence that Moreno made such statements in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statements in the document. See Serrano v. Ryan’s Crossing Apartments, 241 S.W.3d 560, 564-65 (Tex.App.-El Paso 2007, pet. denied). If a motion for continuance is not verified or supported by affidavit, we will presume the trial court did not abuse its discretion in denying the motion. Villegas, 711 S.W.2d at 626; Garner, 244 S.W.3d at 858.

We conclude the trial court did not abuse its discretion in denying Moreno’s motion for continuance. Tex.R. Civ. P. 251; Garner, 244 S.W.3d at 859. We resolve Moreno’s first issue against him.

Summary Judgment

Moreno contends the trial court erred in granting summary judgment in favor of Silva on the breach of the settlement agreement because “no legal foundation existed for the summary judgment at the time it was filed or at the time it was granted by the trial court.” Moreno asserts he raised a genuine issue of fact in his motion for continuance by his statement that although he signed the settlement agreement, he did so under duress and later advised his attorney that he did not agree with it.

The standard for reviewing a traditional motion for summary judgment is well established. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); Ling v. BDA & K Bus. Servs., Inc., 261 S.W.3d 341, 345 (Tex.App.-Dallas 2008, no pet.). We review a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 576 (Tex.App.-Dallas 2007, no pet.). A party moving for a traditional summary judgment is charged with the burden of establishing there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). Once the movant establishes that he is entitled to judgment as a matter of law, the burden shifts to the nonmovant to present evidence which raises a genuine issue of material fact. See City of Houston v. Clear Creek Basin Autk, 589 S.W.2d 671, 678 (Tex.1979). A nonmovant who wishes to assert an affirmative defense must urge the defense in the response and provide enough evidence to create a fact issue on each element of the defense. Rate v. Dillard’s, Inc., 214 S.W.3d 767, 768 (Tex.App.-Dallas 2007, no pet.).

Silva’s motion for summary judgment was based solely on Moreno’s breach of the settlement agreement entered into by the parties during mediation. To prove his claim for breach of contract, Silva was required to establish: (1) the settlement agreement was a valid contract; (2) he performed his obligations under the agreement; (3) Moreno failed to perform his obligations; and (4) he was damaged by Moreno’s breach. Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Association, 205 S.W.3d 46, 55 (Tex.App.-Dallas 2006, pet. denied). Silva’s summary judgment evidence consisted of Silva’s affidavit, the signed settlement agreement, and the affidavit of Silva’s attorney. Silva identified the parties to the agreement, identified their signatures, and summarized the terms of the settlement agreement. Silva also described his own performance and Moreno’s failure to perform. Additionally, the motion and affidavits detailed Silva’s damages in the amount of $24,500, plus $5,000 in attorney’s fees.

Moreno did not file a response to Silva’s motion. His only “summary judgment evidence” opposing Silva’s summary judgment motion consisted of unsupported, conclusory statements made in the motion for continuance he filed on the day of the hearing. Moreno’s motion for continuance was not competent summary judgment evidence. Laidlaw Waste Systems (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995) (pleadings are not competent evidence, even if sworn or verified); Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex.1971) (pleadings, even if sworn, are not summary judgment evidence).

Even if we were to construe Moreno’s motion for continuance as summary judgment evidence, it was not filed timely. See Tex.R. Civ. P. 166a(c). Moreno did not seek leave of court for the late filing of his so-called evidence. Rule 166a(c) permits the late filing of summary-judgment evidence but only with leave of court. Id.; see also Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996). Where nothing in the record indicates that late filing of summary judgment response or evidence was with leave of court, we presume the trial court did not consider the response or evidence. See Benchmark Bank, 919 S.W.2d at 663; INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex.1985); Mathis v. RKL Design/Build,, 189 S.W.3d 839, 842-43 (Tex.App.-Houston [1st Dist.] 2006, no pet.). The record does not reflect the trial court signed an order granting Moreno leave to file late evidence. Thus, at the hearing on Silva’s motion for summary judgment, the only summary judgment evidence before the trial court was Silva’s affidavit, the signed settlement agreement, and the affidavit of Silva’s attorney.

After the trial court granted Silva’s motion for summary judgment, Moreno filed a motion for reconsideration and a response in opposition to Silva’s motion for summary judgment. Moreno’s motion for reconsideration sought leave of the trial court to file a late response in opposition to Silva’s motion for summary judgment. A month later, Moreno filed an affidavit in support of his motion for reconsideration. Notwithstanding its title, the affidavit restates and supplements Moreno’s response in opposition to Silva’s motion for summary judgment. There is nothing in the record to indicate the trial court granted leave for Moreno to file a late response and a late supporting affidavit. Therefore, we presume Moreno’s response and affidavit were not properly before the trial court. See Benchmark Bank, 919 S.W.2d at 663; Mathis, 189 S.W.3d at 842-43. We will not consider as grounds for reversal any summary judgment evidence not expressly presented to the trial court by written motion, answer, or other response. Mathis, 189 S.W.3d at 843.

Once Silva established that he was entitled to judgment as a matter of law, the burden shifted to Moreno to present evidence which raised a genuine issue of material fact. See Clear Creek Basin Auth., 589 S.W.2d at 678. Because Moreno did not present competent summary judgment evidence that raised a genuine issue of material fact, the trial court did not err when it granted summary judgment in favor of Silva. See Rabe, 214 S.W.3d at 768. We resolve Moreno’s second issue against him.

III. CONCLUSION

The trial court did not err when it denied Moreno’s motion for continuance and granted Silva’s motion for summary judgment. The judgment of the trial court is affirmed.


author: Justice MYERS.

text:
    McAFEE, INC., Appellant, v. AGILYSYS, INC., Appellee.
    No. 05-08-01168-CV.
    Court of Appeals of Texas, Dallas.
    July 21, 2010.
    Rehearing Overruled Aug. 26, 2010.

      Mark A. Shank, Vanessa Jean Rush, Gruber Hurst Johansen & Hail LLP, Dallas, TX, for Appellant.
    Robert M. O’Boyle, Strasburger & Price LLP, Austin, TX, for Appellee.
    Before Justices O’NEILL, LANG-MIERS, and MYERS.
   OPINION

Opinion By

Justice MYERS.

McAfee, Inc. appeals the summary judgment on its claims in favor of Agilysys, Inc. McAfee brings two issues asserting the trial court erred (1) by granting Agily-sys’s motion for summary judgment and (2) by awarding Agilysys court costs and considering awarding Agilysys attorney’s fees. We reverse the trial court’s judgment in part and affirm in part, and we remand the cause to the trial court for further proceedings.

BACKGROUND

In 1997, McAfee and Agilysys’s predecessors signed an agreement called the Systems Integration Purchase Agreement. Under this agreement, Agilysys agreed to oversee the manufacturing, shipping, servicing, and support for McAfee’s products to McAfee’s customers. The agreement was supplemented by “Statement[s] of Services & Expectations.”

The issue in this case is Agilysys’s responsibility for extended warranties. The Statement of Services and Expectations contained a warranty provision stating Agilysys provided a thirty-day warranty from the date of shipping and that any manufacturer’s warranties were passed on to McAfee. The Statement also said that although Agilysys itself did not provide extended-warranty services or on-site repairs, it had an agreement with another company, Barrister GIS, to provide extended warranties and repairs, and that it “outsourced” the warranty service to Barrister.

McAfee purchased many extended warranties from Agilysys that were “outsourced” to Barrister. Barrister invoiced Agilysys for the warranties, and Agilysys billed McAfee, but for a greater amount than Barrister charged. During the course of McAfee and Agilysys’s business relationship, McAfee paid Agilysys over $900,000 for extended warranties, and Agi-lysys retained over $300,000 from McAf-ee’s purchases of the extended warranties. Agilysys’s vice president and corporate counsel, Rita Thomas, testified in her deposition that the additional revenues were to cover Agilysys’s administrative costs for the Barrister warranties and “in taking a little profit.”

In August 2004, McAfee stopped using Agilysys to provide its products, and in March 2005, McAfee and Agilysys signed a settlement and release agreement terminating all their agreements except for specifically named agreements. The agreements extending beyond the release included the warranties for any products purchased by McAfee from Agilysys.

On August 29, 2005, Hurricane Katrina destroyed Barrister’s repair facilities in Louisiana. Barrister was unable to provide its warranty services thereafter. Agilysys denied it had any continuing responsibility for the pre-paid extended warranties. In March 2007, McAfee sued Agilysys and Barrister. McAfee later nonsuited all its claims against Barrister.

McAfee’s claims against Agilysys included breach of contract, breach of fiduciary duty, money had and received, unjust enrichment, and promissory estoppel. McAfee sought damages of either the amount it expended to repair the broken units or the amount it prepaid for the warranties in effect in August 2005. Agi-lysys moved for summary judgment, asserting that as a matter of law it had no duty to McAfee for the prepaid extended warranties and that McAfee had no evidence to support its claims. The trial court granted Agilysys’s motion for summary judgment and rendered a take-nothing judgment against McAfee on its claims.

CHOICE OF LAW

The Systems Integration Purchase Agreement provided, “This Agreement shall be governed and construed in accordance with the laws of the state of Ohio.” McAfee contends the law of Ohio applies to this case, and Agilysys does not dispute the validity of the choice-of-law provision. Generally, courts apply the parties’ choice of law provided the law of the chosen state bears some reasonable relationship to the parties and the transaction. See DeSantis v. Wackenhut, 793 S.W.2d 670, 677-78 (Tex.1990); Lockheed Martin Corp. v. Gordon, 16 S.W.3d 127, 133-34 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). In applying a contractual choice-of-law provision, Texas courts apply the substantive law of the choice-of-law provision but apply Texas law to matters of remedy and procedure. Autonation Direct, com, Inc. v. Thomas A. Moorehead, Inc., 278 S.W.3d 470, 472 (Tex.App.-Houston [14th Dist.] 2009, no pet.). Procedure includes standards of review. Id.

Agilysys is an Ohio corporation, and the Systems Integration Purchase Agreement stated that the address of the Agilysys predecessor that signed the Agreement was in Ohio. The substantive laws of Ohio and Texas at issue in this case are consistent, so application of either state’s substantive law leads to the same result.

SUMMARY JUDGMENT

In its first issue, McAfee asserts the trial court erred in granting Agilysys’s motions for summary judgment because Agi-lysys failed to establish as a matter of law that it had no liability for Barrister’s failure to provide the extended-warranty services or a genuine issue of material fact exists regarding Agilysys’s liability.

Standard of Review

The standard for reviewing a traditional summary judgment is well established. Nixon v. Mr. Prop. Mgmt Co., 690 S.W.2d 546, 548-49 (Tex.1985); Private Mini Storage Realty, L.P. v. Larry F. Smith, Inc., 304 S.W.3d 854, 858 (Tex.App.-Dallas 2010, no pet.). Defendants who move for summary judgment must show the plaintiffs have no cause of action. Defendants may meet this burden by either disproving at least one essential element of each theory of recovery or conclusively proving all elements of an affirmative defense. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). After the movants have established a right to summary judgment, the burden shifts to the nonmovants to present evidence creating a fact issue. Denson v. Dallas County Credit Union, 262 S.W.3d 846, 849 (Tex.App.Dallas 2008, no pet.). When multiple grounds for summary judgment are raised and the trial court does not specify the ground or grounds relied upon for its ruling, the appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Red Roof Inns, Inc. v. Murat Holdings, L.L.C., 223 S.W.3d 676, 684 (Tex. App.-Dallas 2007, pet. denied).

We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See Tex.R. Civ. P. 166a(i); Flood v. Katz, 294 S.W.3d 756, 762 (Tex.App.-Dallas 2009, pet. denied). Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. See Flood, 294 S.W.3d at 762. When analyzing both traditional and no-evidence summary judgments, we consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the movant. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). “More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions.” Id. (quoting Merrell Dow Pharms., Inc. v. Hauner, 953 S.W.2d 706, 711 (Tex.1997)). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).

Breach of Contract

McAfee asserts the trial court erred in granting Agilysys’s motion for summary judgment on McAfee’s breach-of-contract cause of action. The essential elements of a breach-of-contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach. Jarupan v. Hanna, 173 Ohio App.3d 284, 878 N.E.2d 66, 73 (2007); B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex.App.Houston [1st Dist.] 2009, pet. denied). Neither party disputes the validity of the contract. McAfee presented some evidence that it performed by paying for the optional-cost extended warranties, and that it sustained damages. The disputed issue is whether the defendant, Agilysys, breached the contract.

When construing a contract, our primary goal is to determine the parties’ intent as expressed in the terms of the contract. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 797 N.E.2d 1256, 1261 (2008); Chrysler Ins. Co. v. Greenspoint Dodge of Houston, Inc., 297 S.W.3d 248, 252 (Tex.2009); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Contract language that can be given a certain or definite meaning is not ambiguous and is construed as a matter of law. Chrysler Ins. Co., 297 S.W.3d at 252; Coker, 650 S.W.2d at 393; see Westfield Ins. Co., 797 N.E.2d at 1261. A contract is ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. Weiss v. St. Paul Fire & Marine Ins. Co., 283 F.3d 790, 796 (6th Cir. 2002) (applying Ohio law); Coker, 650 S.W.2d at 393; United Protective Servs., Inc. v. W. Vill. Ltd. P’ship, 180 S.W.3d 430, 432 (Tex.App.-Dallas 2005, no pet.). We review an unambiguous contract de novo. Chrysler Ins. Co., 297 S.W.3d at 252. When a contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument becomes a fact issue. Coker, 650 S.W.2d at 394; Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 56 (Tex.App.-Dallas 2006, pet. denied).

In its motion for summary judgment, Agilysys asserted contractual documents consisting of the Systems Integration Purchase Agreement, the Statement of Services and Expectations, Barrister’s service terms and conditions for its warranty services, and the March 2005 settlement agreement established as a matter of law that Agi-lysys was not liable to McAfee on its claims.

Section 8.1 of the Systems Integration Purchase Agreement stated that Agilysys warranted the products to be free from defects in its workmanship and assembly for ninety days and that the company provided no other warranty. The Statement of Services and Expectations contained the following information about warranties:

8 Warranty Statement & Returned Materials Authorization Process 8.1 Warranty Statement
[Agilysys] offers a workmanship warranty on systems that ... is valid for 30 days from time of shipment. All components integrated by [Agilysys] carry an original manufacturer’s warranty. The Manufacturer’s warranty is passed through to [McAfee], [Agilysys] does not provide any warranty services past 30 days nor does it provide break/fix warranty services.
[Agilysys] has an agreement with Barrister GSN (Global Services Network) for DOA [dead on arrival] and extended warranty delivery services.... This optional-cost warranty service is outsourced by [Agilysys] to Barrister GSN. Barrister terms and conditions of this warranty will need to be accepted by [McAfee] prior to bundling warranty services with [McAfee]’s product.

Barrister’s “terms and conditions” provided that Agilysys was “not liable for Services provided by Barrister.” The March 2005 settlement agreement provided that all agreements between the parties were terminated except for certain provisions, including “for any products purchased by McAfee from Agilysys where the warranty for such products extends beyond the termination of the Purchase Agreement, such warranties will continue in full force and effect until such warranties expire by their own terms.”

Agilysys argues the language in section 8.1 of the Statement of Services and Expectations, that it “does not provide any warranty services past 30 days nor does it provide break/fix warranty services,” bars McAfee’s claim that it was liable on the extended warranties. Agilysys argues it had no liability under the settlement agreement’s provision that warranties survived the termination of the parties’ agreements because, at the time of the March 2005 settlement agreement, more than thirty days had passed since Agilysys last provided equipment to McAfee in August 2004. Thus, Agilysys argues, by the time of the settlement agreement, all of Agily-sys’s thirty-day warranties had expired, and it provided no other warranties that could have existed beyond the date of the settlement agreement.

McAfee argues the Statement of Services and Expectations does not exclude Agilysys from liability on the extended warranties. The document states Agilysys “does not provide any warranty services past 30 days nor does it provide break/fix warranty services.” However, it also states that Agilysys had an agreement with Barrister for “extended warranty delivery services,” which Agilysys “outsourced” to Barrister. McAfee argues “outsourced” meant Agilysys promised to provide the extended-warranty services (if purchased) through its contract with Barrister; Agilysys argues “outsourced” meant it was not promising to provide the warranty services but was stating the services were provided by Barrister. Thus, whether Agilysys was entitled to summary judgment on McAfee’s breach-of-contract claim depends on whether a genuine issue of material fact exists concerning the meaning of the word “outsourced.”

According to dictionaries, the word “outsource” means to procure goods or services by contract from an outside source or to contract work out, often in order to cut costs. The dictionaries’ definitions do not address the issue in this case, namely, the liability of the outsourcing party for the nonperformance of the company to whom the service is outsourced.

The parties presented evidence of the meaning of the word “outsource” in the electronics and computer industry. McAf-ee’s summary judgment evidence included the affidavit of Dr. Richard Blanchard, an expert in the electronics and computer industry. Dr. Blanchard testified about the meaning of “outsourced” in that industry:

Based upon my experience in and exposure to the industry, I know that the common industry custom, usage, and meaning of the term “outsourcing” is one party — the outsourcing company— contracting with an outside third party to provide or arrange for one or more services or products that the outsourcing company would then provide to its customer(s). With respect to rights, duties, and obligations of the parties, a party that “outsources” part of its contractual duties to a third party nonetheless remains responsible to the purchaser for the work being outsourced.

Agilysys’s vice president and corporate counsel, Rita Thomas, testified in her deposition that the word “outsourced” in the Statement of Services and Expectations “means that [Agilysys] does not provide these services and that there is a third party that [Agilysys] is going to get involved here that will contract directly with McAfee to provide those services. That’s all it means.”

These differing definitions of “outsourced” reveal the presence of an ambiguity in the parties’ contract. Under Dr. Blanchard’s definition, the Statement of Services and Expectations stated that Agi-lysys would procure a provider for the warranty services, that the provider with whom it contracted was Barrister, and that Agilysys remained responsible for those services. Under the definition testified to by Rita Thomas, the Statement of Services and Expectations stated that Agilysys did not provide the extended warranty services and that those services would be provided by a third party, Barrister, who would contract directly with McAfee. Under Thomas’s definition, Agilysys had no responsibility for the warranty services.

Agilysys also asserted it had no liability because the terms and conditions of the Barrister warranties, which the Statement of Services and Expectations stated McAf-ee had to agree to, stated Agilysys was “not liable for Services provided by Barrister.” The issue in this case is not Agily-sys’s liability for the warranty services provided by Barrister; instead, the issue is Agilysys’s liability for Barrister’s failure to provide any warranty services. We conclude this provision does not conclusively establish Agilysys’s lack of liability in this case.

We conclude a genuine issue of material fact exists regarding the meaning of the word “outsourced” and Agilysys’s liability for Barrister’s inability to perform the purchased extended-warranty services. We hold the trial court erred in granting Agilysys’s motion for summary judgment on McAfee’s breach-of-contract cause of action.

McAfee’s Equitable Causes of Action

McAfee also asserted the trial court erred in granting Agilysys’s motion for summary judgment on the causes of action for unjust enrichment, money had and received, and promissory estoppel. Unless there is evidence of fraud, bad faith, or illegality, these theories of recovery are not applicable when an express contract governs the subject matter of the dispute. See Doctors Hosp. 1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 636-37 (Tex.App.-Houston [14th Dist.] 2004, pet. abated); Burlington N. Ry. Co. v. Sw. Elec. Power Co., 925 S.W.2d 92, 97 (Tex.App.-Texarkana 1996), aff'd, 966 S.W.2d 467 (Tex.1998); see Resource Title Agency, Inc. v. Morreale Real Estate Services, Inc., 314 F.Supp.2d 763, 772 (N.D.Ohio 2004) (citing Ullmann v. May, 147 Ohio St. 468, 72 N.E.2d 63, 66 (1947)); Kashif v. Cent. State Univ., 133 Ohio App.3d 678, 729 N.E.2d 787, 791-92 (1999). In this case, a contract exists, and it governs whether Agilysys is liable for Barrister’s failure to perform extended-warranty services. An ambiguity exists on that issue, but when that is resolved, the terms of the contract will govern the determination. As McAfee has not alleged fraud, bad faith, or illegality in the contract, we conclude the trial court did not err in granting Agilysys’s motion for summary judgment on McAfee’s causes of action for unjust enrichment, money had and received, and promissory estoppel.

Breach of Fiduciary Duty

McAfee also alleged Agilysys was liable for the tort of breach of fiduciary duty. Agilysys asserted in its motion for summary judgment that no fiduciary relationship existed between the parties as a matter of law.

There are two types of fiduciary relationships: formal fiduciary relationships that arise as a matter of law, such as partnerships and principal-agent relationships, and informal fiduciary relationships or “confidential relationships” that may arise from moral, social, domestic, or personal relationships. Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 593-94 (Tex.1992); see Cairns v. Ohio Sav. Bank, 109 Ohio App.3d 644, 672 N.E.2d 1058, 1062 (1996). A fiduciary relationship is an extraordinary one and will not be created lightly. In re Estate of Kuykendall, 206 S.W.3d 766, 771 (Tex.App.-Texarkana 2006, no pet.). The mere fact that one party to a relationship subjectively trusts the other does not indicate the existence of a fiduciary relationship. Id.; see also Crim Truck & Tractor Co., 823 S.W.2d at 595 (“[M]ere subjective trust alone is not enough to transform arms-length dealing into a fiduciary relationship.”). A person is justified in believing another to be his fiduciary “only where he or she is accustomed to being guided by the judgment and advice of the other party, and there exists a long association in a business relationship, as well as a personal friendship.” Pabich v. Kellar; 71 S.W.3d 500, 505 (Tex.App.-Fort Worth 2002, pet. denied); see Stone v. Davis, 66 Ohio St.2d 74, 419 N.E.2d 1094, 1098 (1981) (“A fiduciary relationship ... may arise out of an informal relationship where both parties understand that a special trust or confidence has been reposed.”).

McAfee alleged the fiduciary relationship arose because “Agilysys agreed to act as McAfee’s agent to ... arrange for Barrister (or some other party) to provide the work required to fulfill Extended Warranties.” An agent is one who is authorized by a person or entity to transact business or manage some affair for the person or entity. Townsend v. Univ. Hosp.-Univ. of Colo., 83 S.W.3d 913, 921 (Tex.App.-Texarkana 2002, pet. denied); see Berge v. Columbus Cmty. Cable Access, 136 Ohio App.3d 281, 736 N.E.2d 517, 531 (1999). The critical element of an agency relationship is the right to control, and the principal must have control of both the means and details of the process by which the agent is to accomplish his task in order for an agency relationship to exist. Townsend, 83 S.W.3d at 921; see Berge, 736 N.E.2d at 531.

Agilysys asserted the parties agreed in the Systems Integration Purchase Agreement that no agency relationship would exist:

17.12 Relationship of Parties. The relationship of [Agilysys] and [McAfee] as established under this Agreement shall be and at all times remain one of independent contractors, and neither party shall at any time or in any way represent itself as being an agent or other representative of the other party or as having authority to assume or create obligations or otherwise act in any manner on behalf of the other party.

McAfee argues this provision did not expressly disavow an agency relationship but merely agreed that they would not represent themselves to third parties as agents of each other. However, the provision shows it was the parties’ intent that they not be agents for one another. McAfee does not argue and did not come forward with evidence that it was the parties’ intent to establish an agency relationship with McAfee having the right to control the details of Agilysys’s performance of the agreement. Accordingly, McAfee has failed to raise a genuine issue of material fact concerning the existence of an agency relationship. We conclude the trial court did not err in granting Agilysys’s motion for summary judgment on McAfee’s claim of breach of fiduciary duty.

We sustain McAfee’s first issue as to its claim for breach of contract and overrule it in all other respects.

ATTORNEY’S FEES AND COSTS

In its second issue, McAfee asserts the trial court erred in awarding Agilysys $20,000 costs of court and erred in considering awarding Agilysys attorney’s fees. Agilysys sought an award of costs and attorney’s fees from McAfee’s suit for declaratory judgment, which McAfee non-suited. The trial court held a hearing on whether an award of costs and attorney’s fees to Agilysys for defending itself against McAfee’s declaratory judgment action would be equitable and just. The court determined “that each side should bear its own attorneys’ fees, but that Agi-lysys should be awarded taxable court costs, which the parties have stipulated to be the amount of $20,000.” On appeal, McAfee argues that neither attorney’s fees nor costs of court could be awarded under Ohio’s declaratory judgment statutes. See Ohio Rev.Code Ann. § 2721.16(A)(1)(a).

Under the Texas Declaratory Judgments Act, “the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008). Under the Ohio Declaratory Judgments Act, “the court may make an award of court costs as is equitable and just.” Ohio Rev.Code Ann. § 2721.11. However, under Ohio law, “A court of record shall not award attorney’s fees to any party on a claim or proceeding for declaratory relief’ except in certain situations, none of which apply in this case. Id § 2721.16(A)(1); see Gen. Accident Assurance Corp. v. Motorists Mut. Ins. Co., 2 Ohio App.2d 234, 207 N.E.2d 670, 671 (1965).

The trial court did not award Agi-lysys any attorney’s fees. Therefore, even if the consideration of awarding attorney’s fees was error, it did not probably cause the rendition of an improper judgment or prevent McAfee from properly presenting its case to this Court. Accordingly, the error, if any, in considering awarding Agi-lysys attorney’s fees is not reversible. Tex.R.App. P. 44.1(a).

McAfee also asserts the trial court erred in awarding Agilysys its costs because “Agilysys has failed to identify any basis in Ohio law for a recovery of court costs.” The issue, however, is whether the trial court abused its discretion in awarding Agilysys court costs, not whether Agilysys identified a basis in Ohio law for a recovery of costs. See Gottlieb & Sons, Inc. v. Hanover Ins. Co., No. 64559, 1994 WL 144539, *8 (Ohio Ct.App. Apr. 21, 1994); Martin v. Lovorn, 959 S.W.2d 358, 362 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Because both Texas and Ohio’s declaratory judgments acts permit a trial court to award costs as are “equitable and just,” and McAfee makes no argument on appeal that the award was not equitable and just, we conclude the trial court did not err in awarding Agilysys its costs under the declaratory judgment statutes. We overrule McAfee’s second issue.

CONCLUSION

We reverse the trial court’s judgment as to McAfee’s breach-of-contract cause of action, and we remand that cause of action to the trial court for further proceedings. In all other respects, we affirm the trial court’s judgment.

      . Agilysys’s predecessors were Pioneer-Standard Electronics, Inc. and KeyLink Systems, and McAfee’s predecessor was Network General Corporation. For ease of reference, the parties shall be referred to as “Agilysys” and "McAfee” regardless of the entity’s name at the time.

      . McAfee also alleged a cause of action against Agilysys titled "Willful Misconduct.” The trial court granted Agilysys's motion for summary judgment on that cause of action, but McAfee does not discuss that cause of action in its brief on appeal. Accordingly, any error in the granting of Agilysys's motion for summary judgment on that cause of action is waived. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 120-21 (Tex.1970); Smith v. Tilton, 3 S.W.3d 77, 83, 87 (Tex.App.-Dallas 1999, no pet.) (“Because appellant's brief does not challenge this possible ground for summary judgment, she has waived any error with respect to the entry of summary judgment on her claim for intentional infliction of emotional distress arising from the dun letters episode.”).

      . See http://www.merriam-webster.coni/ dictionary/outsource ("to procure (as some goods or services needed by a business or organization) under contract with an outside supplier”); http://dictionary.oed.com ("to obtain (goods, a service, etc.) by contract from an outside source; to contract (work) out.”); The American Heritage Dictionary of the English Language 1251 (4th ed. 2006) ("To send out (work, for example) to an outside provider or manufacturer in order to cut costs”); see also Random House Webster’s Unabridged Dictionary 1377 (2nd ed.2001) (defining "outsourcing” as "the buying of parts of a product to be assembled elsewhere, as in purchasing cheap foreign parts rather than manufacturing them at home.”).


author: Justice MOSELEY.

text:
    In re BEHRINGER HARVARD TIC MANAGEMENT SERVICES LP, Behringer Harvard Holdings, LLC, and Harvard Property Trust, LLC, Relators.
    No. 05-10-00624-CV.
    Court of Appeals of Texas, Dallas.
    July 21, 2010.
    Bobby G. Pryor and Dana Glenn Bruce, Pryor & Bruce, Rockwall, TX, for Relator.
    Kenneth W. Biermacher, Boyd A. Mouse and Kevin P. Perkins, Kane, Russell, Coleman & Logan P.C., Dallas, TX, for Real Party in Interest.
    Before Justices MOSELEY, FRANCIS, and FILLMORE.
   OPINION

Opinion by

Justice MOSELEY.

Relators filed this mandamus proceeding after the trial court entered an order appointing a special master to conduct an in camera review of certain documents. We conclude the trial court abused its discretion in appointing the special master and relators have no adequate remedy by appeal. We therefore conditionally grant the writ of mandamus.

In order to obtain mandamus relief, relators must show both that the trial court has abused its discretion and that they have no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex.2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). “[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.” Walker, 827 S.W.2d at 840.

Under Rule 171 of the Texas Rules of Civil Procedure, “[t]he court may, in exceptional cases, for good cause appoint a master in chancery ... who shall perform all the duties required of him by the court, and shall be under orders of the court, and have such power as the master of chancery has in a court of equity.” Tex.R. Civ. P. 171. However, a special master may not be appointed merely because “a case is complicated or time-consuming, or [because] the court is busy.” Simpson v. Canales, 806 S.W.2d 802, 811 (Tex.1991) (orig. proceeding); see also In re Bob Thompson Constr., Inc., No. 05-99-00359-CV, 1999 WL 236474, at *1 (Tex.App.Dallas 1999, orig. proceeding) (granting mandamus when trial court’s order recited that there was good cause to appoint master but failed to include finding that case was exceptional).

In this case, the trial court’s order states that good cause exists to appoint a special master because of her trial schedule and the complexities of discovery in this case. The trial court did not, however, find that the case was exceptional. The reasons given by the trial court for appointment of the special master are exactly those that were disapproved in Simpson and Bob Thompson. Relators have thus met the first requirement necessary for mandamus relief. Further, rela-tors have no adequate remedy at law if the document review is conducted by the special master rather than by the trial court. Relators have therefore met the second requirement to obtain mandamus relief.

Accordingly, we conditionally grant the relators’ petition for writ of mandamus. A writ will issue only in the event the trial court fails to vacate the portion of her May 17, 2010, “Amended Order Regarding the Behringer Harvard Parties’ Appeal of Associate Judge’s Decision and the Thomas Parties’ Partial Appeal of Associate Judge’s Decision” that appoints a special master.