author: LESLIE B. YATES, Justice.

text:
    A.H.D. HOUSTON, INC. d/b/a Centerfolds; D.N.W. Houston, Inc. d/b/a Gold Cup; D. Rankin, Inc., d/b/a Trophy Club; Texas Richmond Corporation d/b/a The Men’s Club; Ice Embassy, Inc., a Texas Corporation d/b/a The Colorado Bar & Grill; 9834 Jensen, Inc. d/b/a Harlem Knights n/k/a Gateway Regency, L.P. d/b/a Harlem Knights; 8503 North Freeway, Inc. d/b/a Fantasy Plaza a/k/a Fantasy Cabaret, n/k/a Verdant Ventures, L.P. d/b/a Fantasy Plaza; KQ Investments, Inc. d/b/a Amenity Cabaret n/k/a RCI, Inc. d/b/a XTC Cabaret; Trumps, Inc. d/b/a Rick’s Cabaret; Atcoxnm Services, Inc. d/b/a Broadstreets n/k/a Trumps Inc. d/b/a Rick’s Cabaret North, Appellants v. The CITY OF HOUSTON, Appellee.
    No. 14-08-00758-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 24, 2010.

      Albert Thomas Van Huff, David A. Fur-low, Nelson T. Hensley, Kevin R. Pennell, Houston, for appellants.
    Dwayne R. Day, John M. Helms, Arturo Michel, Patrick Zummo, Cory Matthew Krueger, Houston, for appellee.
    Panel consists of Justices YATES, SEYMORE, and BROWN.
   OPINION

LESLIE B. YATES, Justice.

This appeal concerns an ordinance enacted in 1997 by appellee the City of Houston that strengthened existing regulations for issuing permits to operate sexually-oriented businesses (“SOBs”). Appellants are ten SOB owners who were denied, in whole or in part, their requests for additional time to recoup their investments before being subject to the ordinance. They sought judicial review of these decisions, and the trial court upheld the decisions. Appellants argue that the trial court applied an incorrect standard of review and erred in refusing to require the hearing officers who denied their requests to make fact findings. They also contend that the conduct of the hearing officers violated their rights to due process and due course of law and the proceedings were violative of the separation of powers clause in the Texas Constitution. We affirm.

BACKGROUND

In 1997, the City of Houston enacted Ordinance 97-75. This ordinance amended existing ordinances regulating SOBs, including those regulating where SOBs could be located. Appellants held valid permits to operate SOBs, but under the new ordinance, appellants could no longer operate in their current locations. To give business owners affected by the new ordinance time to recoup their investments and adjust to the new regulations, the ordinance did not go into effect for 180 days. Furthermore, the ordinance contains a procedure known as amortization whereby an affected business owner could apply for additional time to operate under the existing regulations by proving it needed that time to recoup his investment. Each appellant applied for additional time and, at a hearing, provided evidence to a hearing officer to justify its request. The hearing officers denied appellants’ requests, either in whole or in part. The ordinance provides that anyone aggrieved by such a decision can seek judicial review immediately following the decision.

Meanwhile, many SOB owners, including all appellants, brought a federal lawsuit challenging the constitutionality of the ordinance under many different theories. See N.W. Enters., Inc. v. City of Houston, 27 F.Supp.2d 754 (S.D.Tex.1998), rev’d in part, 352 F.3d 162 (5th Cir.2003). After a decade of litigation, including two trips to the Fifth Circuit, the constitutionality of nearly every part of the ordinance was upheld. The federal district court entered judgment on January 31, 2007. The business owners filed several post-judgment motions, including a motion to amend or make additional findings and to alter or amend the judgment. The federal district court denied these motions on March 29, 2007.

The City and the SOB owners agreed that amortization hearings would continue during the pendency of the federal constitutional litigation but that any judicial review of those decisions would be stayed until entry of a final judgment. After the federal district judge denied the post-judgment motions, appellants filed the present judicial review suit in Texas district court. The trial court affirmed the hearing officers’ decisions regarding appellants’ requests for additional time to recoup their investments, and this appeal followed.

ANALYSIS

A. Timeliness

Before we analyze appellants’ issues, we begin with the City’s cross-issue. The City argues that appellants’ judicial review suit is untimely. The parties reached an agreement, which was entered as an agreed order in federal district court, that judicial review of the amortization decisions would be stayed until there was a final judgment in the federal case. The order provided that upon “entry of a final judgment,” the judicial review process would begin according to the procedures set forth in the ordinance. The ordinance provides that any judicial review is to begin “immediately” following an adverse decision and states that any decision is not enforceable for twenty days in order to give the aggrieved party an opportunity to seek judicial review. Therefore, according to the City, the time frame for judicial review began on January 31, 2007, when the federal court entered the judgment. Because appellants did not seek judicial review within twenty days of this date but rather waited until twenty days after the federal court denied its post-judgment motions, the City argues that the judicial review suit is untimely. We disagree with the City’s analysis.

In their agreement, the parties included a provision that the period of time for stay of judicial review ends with entry of a final judgment. Because the agreement was made in federal court, we will look to federal law regarding finality of judgments. Though the judgment entered on January 31, 2007 may have been a final judgment at the time of entry, that changed when the owners filed several post-judgment motions, including a motion to amend or make additional findings under Federal Rule of Civil Procedure 52(b) and a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). Such motions destroyed the finality of the judgment because the court’s ruling on the motions could obviate the need for an appeal. See Leishman v. Associated Wholesale Elec. Co., 318 U.S. 203, 205-06, 63 S.Ct. 543, 87 L.Ed. 714 (1943); Whitaker v. City of Houston, 963 F.2d 831, 836 (5th Cir.1992); Brown v. United Ins. Co. of Am., 807 F.2d 1239, 1242 (5th Cir.1987) (per curiam); see also In re X-Cel, Inc., 823 F.2d 192, 193 (7th Cir.1987). However, the federal district court’s denial of the post-judgment motions re-established the finality of the judgment. See Whitaker, 963 F.2d at 836; Brown, 807 F.2d at 1242; see also Simmons v. Reliance Standard Life Ins. Co. of Tex., 310 F.3d 865, 867 (5th Cir.2002). Accordingly, we conclude that the end of the judicial review stay began when the district court denied the post-judgment motions and therefore, appellants’ judicial review suit was timely. We overrule the City’s cross-issue.

B. Standard of Review

Appellants complain that the trial court applied an improper standard in its judicial review of the hearing officers’ decisions. The trial court reviewed the hearing officers’ decisions for substantial evidence, which is a limited, deferential standard requiring only more than a mere scintilla of evidence to uphold the decisions. See Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex.2000). Appellants argue that this standard is improper and that the trial court should have conducted a de novo review with a new hearing, presentation of evidence, and fact finding by the trial court. We disagree.

Neither the ordinance nor any other governing statute specifies the type or details of the judicial review procedure to be applied. Therefore, we look to case law for guidance. Appellants cite the following case in support of their de novo judicial review theory, City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871 (1949). Lurie concluded that de novo review was required in that case, but it did so because the case involved a taking of property. See id. at 874. Appellants do not contend in this appeal that the application of the ordinance constitutes a taking. See SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1278 (5th Cir.1988) (stating that City’s SOB regulation is not a taking because it does not prevent all reasonable uses of the property); see also N.W. Enters., 352 F.3d at 186. Moreover, Lurie specifically held that in a licensing situation, substantial evidence review was appropriate. See 224 S.W.2d at 874. Therefore, because this case involves a permit/licensing situation rather than a taking of property, we hold that substantial evidence is the proper standard of review. See Webworld Mktg. Group, L.L.C. v. Thomas, 249 S.W.3d 19, 24 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (applying substantial evidence standard of review in affirming trial court’s decision upholding denial of permit to SOB); see also City of Dallas v. Furrh, 541 S.W.2d 271, 273 (Tex.App.-Texarkana 1976, writ refd n.r.e.) (noting general rule that judicial review of agency decision, “whether pursuant to a statutory or inherent right, is generally limited to a determination of whether the administrative agency’s action is supported by substantial evidence”); accord City of Dallas v. Stevens, 310 S.W.2d 750, 755 (Tex.App.-Dallas 1958, writ refd n.r.e.). The trial court did not err in conducting a substantial evidence judicial review, and we overrule appellants’ issues in this regard.

C. Fact Findings

Appellants next complain that the trial court erred in not remanding with instructions for the hearing officers to make findings of fact explaining the basis of their decisions. The hearing officers sent a letter to each appellant containing language stating that after “carefully considering]” the records, evidence, and testimony submitted, the request for an extension was denied. Appellants requested that the hearing officers provide fact findings to explain why their requests were not granted in full, but the hearing officers refused, with the City contending that there was no requirement for the hearing officers to do so.

On appeal, appellants argue that the hearing officers were required to make findings of fact and disclose the thought processes and motivations for their decisions. ' However, the ordinance does not require that level of detail. The ordinance states that an owner invoking the amortization procedures must “prove[] that he will be unable to recoup his investment in the business” by the effective date of the ordinance. The ordinance then requires the hearing officer to grant or deny the request, and if granting, to provide a specific date for the extension to end. A hearing officer’s negative decision on this narrow issue — of whether the owner met its burden of proving inability to recoup his investments in time — constitutes an implied finding that the owner did not meet its burden of proof. Although appellants cite Texas Rule of Civil Procedure 296 in arguing that fact findings are mandatory in response to a request, the rules of civil procedure apply to district courts, and appellants cite no authority to suggest they should also apply to a municipal, non-judicial officer. The same is true of the fact-finding requirement provided in Government Code section 2001.141, which applies only to state agencies. See Tex. Gov’t Code Ann. §§ 2001.001, .141 (Vernon 2008).

Appellants maintain that detailed fact findings are a necessary prerequisite to conduct a substantial evidence review, relying on Morgan Drive Away, Inc. v. Railroad Commission of Texas, 498 S.W.2d 147 (Tex.1973). The court in Morgan discussed the value of fact findings in conducting substantial evidence judicial review of an administrative decision. See id. at 150. However, Morgan arose in the context of a statute specifically requiring that the administrative agency make “full and complete findings of fact pointing out in detail” the problems with the services and facilities at issue in that case. Id. There is no such provision in this ordinance. See Tex. Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 449, 450-51 (Tex.1984) (emphasizing the importance of statutory language in determining the scope of an agency’s fact finding requirements). Morgan does not hold that detailed fact finding is required for every agency decision subject to judicial review. Appellants complain that the absence of detailed fact findings undermines their judicial review because they are forced to guess at the basis of the hearing officers’ decisions. Further, they insist that without such fact findings, the trial court was forced to improperly speculate about what a reasonable hearing officer could have concluded to conduct its substantial evidence review. But the trial court did exactly what was required. If the evidence provides a basis for a reasonable administrative agency to have concluded as it did, then administrative action must be affirmed in a substantial evidence judicial review. See City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d 179, 186 (Tex.1994) (“In conducting a substantial-evidence review, we must determine whether the evidence as a whole is such that reasonable minds could have reached the conclusion the agency must have reached in order to take the disputed action.”); accord AEP Tex. Cent. Co. v. Pub. Util. Comm’n of Tex., 258 S.W.3d 272, 279-80 (Tex.App.-Austin 2008, pet. filed); Tex. Alcoholic Beverage Comm’n v. Mini, Inc., 832 S.W.2d 147, 150 (Tex.App.Houston [14th Dist.] 1992, writ denied). This is consistent with appellate review of other types of fact findings, such as a jury’s finding of a particular amount of damages. The jury is not required to explain why it awarded what it did, and its award will be upheld on appeal if the conclusion reached is within the range of evidence presented at trial. See Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 219 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Though detailed fact findings are common in an agency setting and can aid litigants and trial courts in conducting judicial review, they are not inherent to the judicial review process. Thus, there is no basis for concluding that the trial court erred in not requiring the hearing officers to make detailed fact findings. We overrule appellants’ issues in this regard.

D. Substantial Evidence

Having determined that substantial evidence is the proper standard for judicial review and that additional fact findings were unnecessary, we must now determine whether the trial court conducted a proper substantial evidence review. The substantial evidence rule is a limited standard of review and grants significant deference to agency expertise. R.R. Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex.1995); Tex. Dep’t of Pub. Safety v. Guajardo, 970 S.W.2d 602, 605 (Tex.App.-Houston [14th Dist.] 1998, no pet.). “The true test is not whether the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency.” City of El Paso, 883 S.W.2d at 185; see also Guajardo, 970 S.W.2d at 605. Substantial evidence is more than a mere scintilla of evidence, but the record may actually preponderate against the agency decision and nonetheless amount to substantial evidence. Montgomery Indep. Sch. Dist., 34 S.W.3d at 566; Torch Operating Co., 912 S.W.2d at 792-93. The agency’s findings, inferences, conclusions, and decisions are presumed to be supported by substantial evidence, and the party appealing the agency decision has the burden of proving otherwise. City of El Paso, 883 S.W.2d at 185. If evidence can support either affirmative or negative findings, the agency’s decision must be upheld. Charter Med.-Dallas, 665 S.W.2d at 453; Guajardo, 970 S.W.2d at 605.

Appellants all argue that the trial court improperly speculated about what a reasonable hearing officer could have determined. However, as discussed above, looking at what a reasonable hearing officer could have concluded is entirely appropriate. See City of El Paso, 883 S.W.2d at 186; AEP, 258 S.W.3d at 279-80; Mini, Inc., 832 S.W.2d at 150. Beyond this general assertion, only appellants Ice Embassy, Inc. and Texas Richmond Corporation make any specific argument to refute the trial court’s explanation of how the decisions of the hearing officer, who happened to be the same for both of those appellants, were supported by substantial evidence.

Ice Embassy and Texas Richmond each had the burden to prove that they needed additional time to recoup their investment before complying with the ordinance. The trial court provided several reasons for each appellant explaining why, based on the evidence presented, the hearing officer could have reasonably rejected its calculation of the amount of additional time needed. For example, both Ice Embassy and Texas Richmond asserted that they had realized “zero” return on their investment and asked for 282 years (Ice Embassy) and 106 years (Texas Richmond) to recoup their investments. The trial court stated that a reasonable hearing officer could have found that such an exaggerated request was not credible. We agree. It is not unreasonable to determine that business owners did not invest in a business with no expectation of recovering on their investment for more than a century. The rejection of Ice Embassy and Texas Richmond’s conclusions that more than 100 years was necessary to recoup their investments could also naturally lead to a rejection of the evidence upon which that conclusion was based. Further, the trial court pointed out several specific problems that a reasonable hearing officer could have had with appellants’ evidence. For example, each submitted a lease to show an obligation to stay in its current location and that relocation could subject it to liability for breach of contract. However, both leases were between the business owner and a related entity, and the signatures for landlord and tenant on each lease were signed by the same person. As the trial court noted, a reasonable hearing officer could have concluded that appellants were unlikely to face liability for breach of contract under these circumstances. Additionally, the evidence appellants submitted showed that both had paid officers and stockholders substantial sums in prior years, including at least one payment of more than $500,000. Appellants argue that large executive salaries are common and that these executives earned this money. However, as the trial court stated, it would not have been unreasonable to conclude that such high payments were at least in part a return on investment rather than a salary obligation. The trial court also noted that appellants included in the calculations of amounts invested in the business items that a reasonable hearing officer could have concluded were not in fact investments, including contingent liabilities (in the form of reserves for potential future litigation) and relocation and moving expenses.

After reviewing the record, we conclude there is more than a mere scintilla of evidence to support the hearing officers’ actions. We further conclude it was not unreasonable for the hearing officer to reject Ice Embassy’s and Texas Richmond’s calculations and to find that they had not met their burden of proving they needed time to recoup their investments. For these reasons, we overrule appellants’ issues regarding whether there was substantial evidence to support the hearing officers’ determinations and the trial court’s application of substantial evidence judicial review.

E. Constitutional Issues

Appellants assert two constitutional arguments. First, they contend that the ordinance violates the separation of powers clause of the Texas Constitution because judicial review without detailed fact finding is ineffective and because the hearing officers, who were from the police department vice squad, were usurping a judicial function. Second, they argue that the lack of detailed fact findings from the hearing officers violates their rights to due process and due course of law under the United States and Texas Constitutions because they are forced to guess at the hearing officers’ motivations for declining their amortization requests.

The City asserts that these constitutional arguments are barred by res judicata. We agree. The doctrine of res judicata bars a second action by the same parties on matters actually litigated in a prior suit as well as claims that, through the exercise of due diligence, could have been litigated. See Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 58 (Tex.2006). The federal litigation involved a variety of facial constitutional challenges, including several challenges to the amortization scheme. See N.W. Enters., 27 F.Supp.2d at 765-66, 817-23. A facial eon-stitutional challenge alleges that a statute is always unconstitutional in all its applications, whereas an as-applied challenge involves the constitutionality of the statute to the particular party. See City of Corpus Christi v. Pub. Util. Comm’n of Tex., 51 S.W.3d 231, 240-41 (Tex.2001). Appellants recognize that all facial constitutional challenges should have been brought in the federal litigation but contend that their challenges in this suit are as-applied and therefore not barred by res judicata. We disagree. The root of each constitutional challenge lies in the very structure of the ordinance. Appellants complain about the lack of detailed fact findings, but, as discussed above, the ordinance does not require detailed fact findings. Appellants complain about executive branch hearing officers usurping a judicial function, but the ordinance specifically requires that permit applications and requests for amortization extensions be made to the police department vice squad. Because these complaints would apply equally to all businesses seeking amortization extensions and judicial review, we conclude that they are facial challenges that could and should have been brought in the federal litigation. See SDJ, 837 F.2d at 1271, 1278 (characterizing due process challenges to portion of SOB ordinance requiring police chief involvement as a facial challenge); Hallco, 221 S.W.3d at 58-61 (finding res judicata barred claim because components of claim in second suit were known and fixed at time of first suit and all claims arise from the same subject matter); see also Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630 (Tex.1992) (“Any cause of action which arises out of [the] same facts should, if practicable, be litigated in the same lawsuit.”). Thus, we conclude appellants’ constitutional claims are barred by res judica-ta.

Even if not barred by res judicata, appellants’ constitutional claims fail on the merits. The separation of powers provision of the Texas Constitution applies only to the branches of state, not local, government. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 72 (Tex.2000); Bradford v. Pappillion, 207 S.W.3d 841, 843 n. 2 (Tex. App.-Houston [14th Dist.] 2006, no pet.). Therefore, there can be no separation of powers issue as to this ordinance.

As to their due process claims, appellants are correct that due process applies to the administrative process. See Rector v. Tex. Alcoholic Beverage Comm’n, 599 S.W.2d 800, 800-01 (Tex. 1980). The ultimate test of due process in an administrative hearing is the presence or absence of the rudiments of fair play. State v. Crank, 666 S.W.2d 91, 94 (Tex.1984). Appellants cite no authority supporting their contention that denial of a request for fact findings, which are not even required under this ordinance, can constitute a due process violation. The cases they cite involve such things as swearing and cross-examining witnesses, which indisputably do not apply here. See Rector, 599 S.W.2d at 800. Appellants were given a hearing with full notice and allowed to present any evidence they saw fit. See Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex., 294 S.W.3d 276, 285 (Tex.App.-Austin 2009, no pet.) (noting that due process requires notice and an opportunity to be heard). Appellants have presented no evidence that the hearing officers were biased. See SDJ, 837 F.2d at 1278 (finding no due process violation in police chief administering SOB requirements in part because there was no evidence that the police chief could not be neutral); see also Gilder v. Meno, 926 S.W.2d 357, 364 (Tex.App.-Austin 1996, writ denied) (stating that due process claim failed in part because appellant presented no evidence that board members were biased). Indeed, the hearing officers allowed some of the appellants a period of time to recoup their investments, which suggests consideration of individual circumstances rather than a rubber-stamp denial. Moreover, judicial review is available and in fact was conducted very thoroughly in this case, with the trial court reversing and remanding as to two business owners who were denied their amortization requests. See SDJ, 837 F.2d at 1278 (stating that SOB ordinance provided judicial review of police chiefs actions and therefore did not implicate due process concerns). We find nothing fundamentally unfair about this process.

For these reasons, we overrule appellants’ issues alleging separation of powers and due process violations.

CONCLUSION

We conclude that appellants timely filed their judicial review suits and therefore overrule the City’s cross-issue. The trial court correctly applied the substantial evidence standard of review and correctly found that substantial evidence supports the hearing officers’ decisions, which were not required to be accompanied by detailed fact findings. Moreover, appellants’ constitutional arguments are barred by res judicata and are otherwise without merit. For these reasons, we overrule all of appellants’ issues and affirm the trial court’s judgment.

      .The district court enjoined enforcement of a portion of the ordinance. See 27 F.Supp.2d at 813. The Fifth Circuit reversed that determination and remanded for further proceedings. See N.W. Enters., Inc. v. City of Houston, 352 F.3d 162, 197 (5th Cir.2003). On remand, the district court ruled in favor of the City on January 31, 2007, and the Fifth Circuit affirmed. See Ice Embassy, Inc. v. City of Houston, No. 4:97-cv-00196, 2007 WL 397447 (S.D.Tex. Jan. 31, 2007), aff'd, 236 Fed.Appx. 118 (5th Cir.2007), cert. denied, 552 U.S. 1258, 128 S.Ct. 1658, 170 L.Ed.2d 356 (2008).

      . The present case is a consolidation of nine different judicial review actions filed by a total of twelve plaintiffs.

      . Although the ordinance does not specifically state when judicial review suits are due, the City argues that, based on the language and intent of the ordinance, any judicial review suit is due within twenty days of the date of decision. For purposes of this appeal, none of the appellants have disputed this theory.

      . The Government Code provides detailed procedures for judicial review of agency decisions. See Tex. Gov't Code Ann §§ 2001.171-.178 (Vernon 2008). However, these provisions are specifically limited to decisions of state agencies. See id. § 2001.171.

      . At oral argument, appellants argued that all judicial review necessarily presupposes findings of fact and conclusions of law, citing the definition of "judicial review” in Black’s Law Dictionary. Though the third definition is "[a] court’s review of a lower court's or administrative body’s factual or legal findings,” the first one more generally refers to "[a] court's power to review the actions of other branches or levels of government.” Black's Law Dictionary 924 (9th ed. 2009). Further, as appellants have noted in this appeal, judicial review can be de novo, and in such a case, the agency's fact findings (or lack thereof) are irrelevant because the reviewing body must conduct a new trial. See Key W. Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 842 (1961). Thus, we reject the notion that the very concept of judicial review necessarily implies detailed findings of fact to review.

      .In their joint brief, appellants A.H.D. Houston, Inc., D.N.W. Houston, Inc., and D. Rankin, Inc. purport to challenge the trial court's explanations, but they provide no analysis in their brief. Rather, they state that ''[f]or the reasons set forth in Appendix 16,” they are entitled to remand. Appendix 16 is a list of objections they filed in the trial court to the City’s proposed findings of fact and conclusions of law. This is insufficient. All arguments must be in the briefs; incorporating by reference arguments made in another document does not present an issue for appellate review. See Young v. Neatherlin, 102 S.W.3d 415, 423 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

      . Ice Embassy and Texas Richmond do not even attempt to argue that the number of years requested for recoupment was reasonable, only that it was justified by their fear of the future consequences of the ordinance.

      . Further, the day before the ordinance passed, Texas Richmond entered into a lease addendum extending its lease over twelve more years with an increase in rent, despite being aware of the ordinance well before its passage date. The hearing officer could have rationally discounted this expense as unreasonable.

      . Ice Embassy and Texas Richmond also argue that a stay of enforcement to allow proper fact findings would protect their rights under the First Amendment. We need not consider this argument because we have concluded they are not entitled to a remand for fact findings.

      . See U.S. Const, amend. XIV, § 1; Tex Const art. I, § 19. Although the federal due process and Texas due course of law clauses are worded differently, there is no meaningful distinction between the two, and we apply general due process concepts to analyze both types of claims. See Univ. of Tex. Med. Ctr. at Houston v. Titan, 901 S.W.2d 926, 929 (Tex. 1995).

      . Appellants argue the City has waived its res judicata defense because it was not pleaded. The City had no obligation to plead res judicata as an affirmative defense except in response to a preceding pleading. See Beiry v. Berry, 786 S.W.2d 672, 673 n. 3 (Tex. 1990). Here, none of the appellants filed a pleading collaterally attacking the federal judgment. Appellants argue that one petition "pled the existence" of the federal litigation, but that was only a reference to the agreement to stay judicial review of the hearing officers' decisions and gave no indication that appellants would seek to undermine that judgment. In fact, appellants made no constitutional challenges in the judicial review litigation until it filed a motion for new trial, and res judicata need only be pleaded in response to an allegation in a pleading, not a motion. See Elliott v. Elliott, 797 S.W.2d 388, 391-92 (Tex.App.Austin 1990, no writ).


source: Caselaw Access Project

author: Justice MOSELEY.

license: Public Domain

text:
    MOTOR CAR CLASSICS, LLC, d/b/a Dream Car Classics and Art Weiss, Appellants, v. Ronald E. ABBOTT, Appellee.
    No. 06-09-00113-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted June 8, 2010.
    Decided June 25, 2010.

      Michael P. Kelly, Law Offices of Michael P. Kelly, Dallas, for appellants.
    Mark Freís, Mark H. How, How, Freís, et ah, Dallas, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

I. BACKGROUND

In pursuit of his interest in becoming a collector of classic automobiles, Ronald E. Abbott, a resident of Lamar County, Texas, decided to purchase a 1962 Cadillac Eldorado Biarritz convertible (the Eldorado) he found in an advertisement placed on eBay Motors by Motor Car Classics, LLC, d/b/a Dream Car Classics, a Florida limited liability company (Dream Car). The eBay advertisement identified the Dream Car website, which contained numerous photographs of the Eldorado, along with numerous descriptive representations accompanying each photograph, such as “everything works,” “immaculate throughout,” and “serviced-tuned-ready to go.” After perusing the photographs and reading the advertisement’s details, Abbott contacted Art Weiss, a salesman for Dream Car, via electronic mail to confirm the information contained in the advertisement and to ask follow-up questions. Weiss responded to Abbott’s e-mail address in Texas, including an e-mail dated January 13, 2009, wherein Weiss stated that Abbott could rely on “[ejvery word” of text in the Dream Car advertisement describing the Eldorado.

Upon Weiss’s recommendation, Abbott retained the services of William Trier to conduct an inspection of the Eldorado in Florida. Trier’s inspection report concluded that the Eldorado was in very good condition, with a value of $55,500.00. Abbott ultimately agreed to purchase the Eldorado, sight unseen, for the sum of $40,000.00 and thereafter wire transferred the funds to Dream Car in Florida. A purchase contract was then signed by Abbott’s agent in Texas (Abbott was out of the country at the time) and the Eldorado was delivered to Abbott at his request and expense, on January 27, 2009, in Lamar County, Texas.

Upon delivery of the Eldorado, Abbott noted a number of problems which were not disclosed prior to the sale and unsuccessfully attempted to rescind the contract. Abbott thereafter sued Dream Car, Weiss, and Trier in Lamar County, Texas, alleging causes of action for rescission, breach of contract, misrepresentation, and violation of the Texas Deceptive Trade Practices Act.

In March 2009, Weiss filed an unverified pro se answer on his own' behalf, and purportedly on behalf of Trier, in which he alleged the trial court lacked personal jurisdiction over the defendants. In the meantime, Abbott served requests for admissions to Dream Car, Weiss, and Trier. Dream Car filed its verified special appearance on June 29, 2009. The following day, Abbott filed a motion for summary judgment against each of the three defendants. Trier filed a verified special appearance on July 8, 2009.

Dream Car’s special appearance was set for hearing, which took place on August 25, 2009. Following the hearing, the trial court entered an order which indicated that it considered the special appearances filed on behalf of Dream Car and on behalf of Trier, and denied both. Consideration was given to the affidavit filed in support of the Dream Car special appearance and the response filed by Abbott.

Immediately following the hearing on Dream Car’s special appearance, the trial court entertained Abbott’s motion for summary judgment filed against Dream Car, Weiss, and Trier. At the conclusion of that hearing, the trial court granted summary judgment against each of the three defendants and issued its written order granting summary judgment on September 10, 2009. The judgment holds the defendants jointly and severally liable of the sum of $90,000.00, plus $6,000.00 in attorney’s fees and additional contingent fees on appeal. Dream Car and Weiss contend on appeal (1) that the trial court erred in finding it had jurisdiction over them; (2) that the trial court erred in denying their special appearances; and (3) that the trial court abused its discretion by granting summary judgment based on deemed admissions with a pending motion to strike deemed admissions. We affirm the trial court’s order finding that Dream Car and Weiss are subject to jurisdiction in the State of Texas, and affirm the trial court’s grant of summary judgment against them.

II. BURDEN OF PROOF AND STANDARD OF REVIEW

In a suit against a nonresident defendant, the initial burden of proof is on the plaintiff to plead sufficient allegations to bring the defendant within the provisions of the Texas long-arm statute. See Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex.2010). When a plaintiff meets its pleading burden, the burden of proof shifts to the nonresident defendant, who must then negate all possible grounds for personal jurisdiction alleged by the plaintiff. Id; BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2002). Personal jurisdiction is a question of law, which we review de novo. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009). In resolving this question of law, a trial court must often resolve questions of fact. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex.2002). Our courts of appeals may review the fact findings for both legal and factual sufficiency. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). We review de novo the trial court’s legal conclusions. Marchand, 83 S.W.3d at 794. Where the record contains no findings of fact and conclusions of law (as in this case), we must imply all findings of fact necessary to support the trial court’s judgment that are supported by the evidence. Id. at 795.

III. ANALYSIS

A. Personal Jurisdiction

Dream Car is a Florida limited liability corporation. Weiss is presumably a Florida resident. The Texas long-arm statute permits the exercise of personal jurisdiction over a nonresident defendant, limited by the federal constitutional requirements of due process. Id. Personal jurisdiction over a nonresident defendant is properly exercised within the confines of due process when (1) the defendant has established minimum contacts with Texas and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

The purpose of the minimum contacts analysis serves to protect a nonresident from being hailed into court when his relationship with Texas is too attenuated to support jurisdiction. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). Thus, a nonresident defendant must have “purposefully availed” himself of the privileges and benefits of conducting business in Texas to establish sufficient contacts with Texas to confer personal jurisdiction. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Xenos Yuen v. Fisher, 227 S.W.3d 193, 200 (Tex.App.-Houston [1st Dist.] 2007, no pet.). The defendant’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into court in Texas. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980). A defendant is not subject to jurisdiction here if its Texas contacts are random, fortuitous, or attenuated. Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). It is the quality and nature of the defendant’s contacts, rather than their number, that are important to the minimum contacts analysis. Id. at 230 n. 11.

Personal jurisdiction may be based either on specific jurisdiction or general jurisdiction. For a court to exercise specific jurisdiction over a nonresident defendant, two requirements must be met: (1) the defendant’s contacts with the forum must be purposeful, and (2) the cause of action must arise from or relate to those contacts. Id. at 227; Coleman, 83 S.W.3d at 806. General. jurisdiction exists when the defendant’s contacts with Texas “are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state.” Marchand, 83 S.W.3d at 796. General jurisdiction therefore permits a forum to exercise jurisdiction over a defendant even if the cause of action did not arise from or relate to a defendant’s contacts with the forum. Coleman, 83 S.W.3d at 806-07. This is a more demanding minimum contacts analysis than specific jurisdiction. Id. at 807.

B. Jurisdiction: Dream Car

Dream Car contends the trial court erred in overruling its special appearance contesting the jurisdiction of the Texas court. The affidavit of Andrew M. Denis, manager and member in the company of Motor Car Classics, LLC, d/b/a Dream Car Classics, indicates that Dream Car does not direct market in Texas, nor does it advertise in a way that specifically targets Texans; Dream Car does not have a physical office or location in Texas and is not required to maintain a registered agent in Texas; none of Dream Car’s officers, employees, or agents have traveled to Texas pertaining to this matter or any other business matter of Dream Car; the Eldorado was shipped to Texas at the direction and expense of Abbott; the percentage of Dream Car’s total sales to Texas residents is approximately six percent since 2005 where 13 of 205 cars sold nationwide were sold to Texas residents. The evidence further indicates that Abbott located the Eldorado on an eBay Motors advertisement by Dream Car Classics. The eBay advertisement identified the Dream Car website, which contained a number of representations regarding the condition of the Eldorado (claimed now to be false) along with photographs of the Eldorado. In essence, eBay provided a portal through which Abbott contacted Dream Car; the actual purchase, however, did not take place on eBay or through eBay. Abbott initiated contact with Dream Car. The Dream Car website shows classic vehicles to customers like Abbott throughout the world. In addition, Abbott initiated e-mail correspondence with Weiss (a Dream Car employee) and received Weiss’s e-mail responses at his residence in Texas. It is also alleged that Dream Car’s website is sufficiently interactive to support jurisdiction over Dream Car.

(1) Do Deemed Admissions Establish Jurisdiction Over Dream Car?

Despite the evidence submitted via the Denis affidavit contesting jurisdiction over Dream Car, Abbott contends admissions deemed against Dream Car are sufficient to establish jurisdiction. We agree.

Abbott maintains that his request for admissions were deemed admitted, having been served on Dream Car on April 6, 2009, and never having been answered. Dream Car does not contest this assertion. Rule 198.2(a) of the Texas Rules of Civil Procedure requires that a responding party must serve a written response to request for admissions on the requesting party “within 30 days after service of the request, except that a defendant served with a request before the defendant’s answer is due need not respond until 50 days after service of the request.” Tex.R. Civ. P. 198.2(a). Whether Dream Car’s responses were due in thirty or in fifty days after service is immaterial here, since responses to Abbott’s request were not made. Rule 198.3 states that the trial court may permit a party to withdraw an admission if the party shows good cause for the withdrawal and the court finds that the party relying on the deemed admissions will not be unduly prejudiced. Tex.R. Civ. P. 198.3. Dream Car did not file a motion to strike or to withdraw the deemed admissions. The admissions therefore are a part of the record before this Court. The following request for admissions were, inter alia, deemed admitted:

• Admit that Dream Car Classics conducts business in the State of Texas.
• Admit that Dream Car Classics seeks business in and from residents and/or entities in the State of Texas.
• Admit that Dream Car Classics conducted business in Texas with regard to the transaction made the basis of this lawsuit.
• Admit that Weiss is the sales manager for Dream Car Classics.
• Admit that Weiss sought business in and from the State of Texas on behalf of Dream Car Classics.

Dream Car maintains that the trial court could not base its jurisdictional decision on the foregoing deemed admissions because the deemed admissions involve purely legal issues and thus have no effect. Boulet v. State, 189 S.W.3d 833, 838 (TexApp-Houston [1st Dist.] 2006, no pet.) (rule regarding request for admissions does not contemplate or authorize admissions to questions involving points of law); see also Fort Bend Cent. Appraisal Dist. v. Hines Wholesale Nurseries, 844 S.W.2d 857, 858-59 (TexApp.-Texarkana 1992, writ denied) (request for admissions may ask party to admit or deny an issue of fact or mixed issue of fact and law, but not purely legal issue).

Here, the request does not seek admissions of purely legal issues. That is, if a request were to ask a party to admit that he was subject to the jurisdiction of the Texas court, that request would involve a purely legal issue. See Marchand, 83 S.W.3d at 794 (whether trial court has personal jurisdiction over defendant is legal issue). However, the requests at issue do not focus on the legal question of whether Dream Car is subject to the jurisdiction of the Texas court. Instead, and most pointedly, the requests focus on Dream Car’s conduct of business in the State of Texas with regard to “the transaction made the basis of this lawsuit,” i.e., the chain of events, including all representations and negotiations, resulting in and including the sale of the Eldorado to Abbott. At most, such requests involve the application of law to fact, which is permissible under Rule 198.1 of the Texas Rules of Civil Procedure. Rule 120a directs that, “The court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony.” Tex.R. Civ. P. 120a(3) (emphasis added). Requests for admissions are a part of the discovery process. The trial court, after having reviewed the deemed admissions, determined the legal question of whether it had jurisdiction over Dream Car. The record before us supports that conclusion.

This case presents issues similar to those resolved by our sister court in Southwest Aviation Specialities, L.L.C. v. Wilmington Air Ventures IV, Inc., No. 02-08-062-CV, 2008 WL 4938334 (Tex.App.Fort Worth, Nov. 20, 2008, pet. denied) (mem. op.). In that case, defendants, both Oklahoma residents, were sued in Texas state court on breach of contract claims. The plaintiff alleged that the defendants conducted some work under the contracts while they were at an airport in Fort Worth. When the defendants failed to timely respond to requests for admissions which established minimum contacts with the forum, the requests were deemed admitted. Id. at *4-5. The Fort Worth court concluded that the deemed admissions provided a basis for the trial court to exercise specific personal jurisdiction. Id. Likewise, the deemed admissions in this case describe relevant contacts by Dream Car and Weiss (on behalf of Dream Car) that were purposeful rather than random, fortuitous, or attenuated. Because these contacts were purposeful and because the cause of action arises from these contacts, the trial court had specific jurisdiction over Dream Car. See Guardian Royal, 815 S.W.2d at 227; Coleman, 83 S.W.3d at 807.

Because we so find, we do not reach the question of whether the trial court could have exercised specific or general jurisdiction over Dream Car in the absence of the deemed admissions.

(2) Traditional Notions of Fair Play and Substantial Justice

Once we determine the minimum contacts requirement is met, we must still consider whether the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice. Guardian Royal, 815 S.W.2d at 226; Rudzewiez, 471 U.S. at 475-76, 105 S.Ct. 2174. These factors include (1) the burden on the defendant, (2) the interests of the forum state in adjudicating the dispute, (3) the plaintiffs interest in obtaining convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. Guardian Royal, 815 S.W.2d at 228. In this portion of the inquiry, it is the defendant’s job to present “a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Rudzewicz, 471 U.S. at 479, 105 S.Ct. 2174; Guardian Royal, 815 S.W.2d at 231.

Applying the named factors, we recognize there would be some burden on Dream Car in defending itself in a Texas lawsuit. However, we also recognize that distance is not so important a factor now as it has been historically. Because Abbott is a Texas resident, this State has an inherent interest in protecting its citizens and providing them with a remedy for alleged violations of the law within this State. Abbott also has an inherent interest in pursuing the lawsuit locally, rather than being required to travel to Florida to pursue his interests — perhaps under a different set of laws than those of his resident state. The factor of efficiency does not appear to be an issue in any respect. The final factor involves the shared interest of the states in furthering fundamental substantive social policies. This factor is likewise not implicated in this case. We conclude that the contacts involving Dream Car are not so attenuated as to violate concepts of due process.

C. Summary Judgment: Dream Car

Dream Car and Weiss (collectively designated “appellants”) contend that the trial court abused its discretion by granting summary judgment based on deemed admissions with a pending motion to strike deemed admissions. This point of appeal is somewhat confusing, in light of the fact that only Weiss, and not Dream Car, filed a motion to strike deemed admissions. For clarity’s sake, we will address the grant of summary judgment as to Dream Car and as to Weiss separately, as different issues are brought to bear with respect to each appellant.

Dream Car contends the trial court committed reversible error in using the deemed admissions to grant summary judgment because due process concerns are implicated when a party uses deemed admissions in an attempt to subvert the presentation of a case on the merits, citing Wheeler v. Green, 157 S.W.3d 439, 443 (Tex.2005). In that case, a pro se litigant’s rights as joint managing conservator of her daughter were terminated and she was found liable for malicious prosecution of the child’s father in a summary judgment based on sixty-four deemed admissions. The pro se defendant in Wheeler filed responses to the request for admissions twenty-seven days after she received them, thirty-five days after the mailbox rule deemed that they were served on her, thus making them two days late. Id. at 441. The plaintiff then filed a motion for summary judgment based only upon the deemed admissions and failed to inform the court that the defendant had responded. Id. The Texas Supreme Court determined that even though Wheeler never filed a motion to withdraw deemed admissions or a motion to allow a late response to the summary judgment, the arguments and requests in her motion for new trial were sufficient to put the trial court on notice of that complaint. Id. at 442. Nothing in the record suggested that prior to the grant of summary judgment, Wheeler actually realized that her responses were late and that she needed to move to withdraw deemed admissions. “On this record, the lower courts could have concluded that Sandra was wrong on her dates and wrong on how to correct them, but not that either was the result of intent or conscious indifference,” noting that such conclusion might well be warranted if the same mistakes had been made by a lawyer. Id.

This case is distinguished from Wheeler in a number of respects. Here, Dream Car was not acting in a pro se capacity. While a motion to strike deemed admissions was filed on behalf of Weiss, no such motion was filed on behalf of Dream Car. Unlike Wheeler, Dream Car should have been aware that it never responded to the request for admissions and that it needed to file a motion to withdraw those admissions. Abbott’s motion for summary judgment, filed on June 30, 2009, unequivocally states that “Defendant’s failure to respond to the discovery results in the admissions being deemed admitted.” The hearing on this motion did not take place until August 25, 2009. Thus, there was ample opportunity to file a motion to withdraw the deemed admissions subsequent to the filing of the summary judgment and prior to the hearing on same.

Even though the standard for withdrawing deemed admissions is based upon a showing of good cause and no undue prejudice to the opposing party, the trial court is not obligated to sua sponte withdraw deemed admissions. While this Court does not endorse the use of deemed admissions to preclude presentation of the merits of a case, we also may not conclude that the trial court erred in failing to withdraw deemed admissions in the absence of a request to do so.

We do not believe, however, that the failure to file a motion to withdraw deemed admissions is necessarily determinative of the outcome here. Even in the absence of the deemed admissions, the un-controverted summary judgment evidence is sufficient to support the judgment against Dream Car. A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See Tex.R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004).

However, when the summary judgment order does not specify the ground or grounds relied on for its ruling, and its judgment rests on more than one independent ground asserted by the mov-ant, the aggrieved party must assign error to each ground, or the judgment will be affirmed on the ground to which no complaint is made. Bridges v. Citibank, No. 2-06-081-CV, 2006 WL 3751404 (Tex.App.-Fort Worth, Dec.21, 2006, no pet.) (mem. op.); Scott v. Galusha, 890 S.W.2d 945, 948 (Tex.App.-Fort Worth 1994, writ denied). Here, the trial court’s order granting summary judgment did not specify the ground relied on for its ruling. The motion for summary judgment asserts two independent grounds for the grant of judgment: (1) the deemed admissions; and (2) the substantive claims asserted against Dream Car — breach of contract, violation of the Texas Deceptive Trade Practices Act, and resulting damages and attorney’s fees. These substantive claims are supported by the uncontroverted affidavits of Abbott and his attorney. In order to assign error to a ground supporting the motion for summary judgment, the nonmovant must present the ground to the trial court in opposition to the motion for summary judgment. State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex.1986). Dream Car made no such challenge in the trial court or on appeal. We, therefore, affirm the order granting summary judgment on the substantive grounds left unchallenged.

D. Jurisdiction: Weiss (Refusal to Withdraw Deemed Admissions)

Weiss filed a pro se answer which initially contested the jurisdiction of the Texas court, thus satisfying the due order of pleading requirement set forth in Rule 120a of the Texas Rules of Civil Procedure. Dawson-Austin v. Austin, 968 S.W.2d 319, 322-23 (Tex.1998).

As pointed out previously, Abbott propounded requests for admissions to each of the three defendants; none of the defendants responded in a timely manner. Therefore, the requests for admissions were deemed to have been admitted. Tex.R. Civ. P. 198.2(c). Those deemed admissions, among other things, founded the basis for establishing the jurisdiction of the Texas court over each of the defendants.

Of the defendants in the lawsuit, only Weiss filed a motion to strike the deemed admissions. In that motion, Weiss explained that the existence of the request for admissions first came to the attention of his attorney on June 29, 2009; the request for admissions was omitted from the packet of other papers initially transmitted by Weiss in Florida to his attorney in Texas.

Although Abbott’s motion for summary judgment was originally set for hearing on July 22, 2009, it was rescheduled for August 25, 2009, the same date set for the hearing on the special appearances. On the day the motion for summary judgment and the hearing on the special appearances were considered by the trial court, Weiss filed the motion to strike the deemed admissions. The trial court denied the motion and treated the admissions to have been deemed.

Although trial courts have broad discretion to permit or deny withdrawal of deemed admissions, they cannot do so arbitrarily, unreasonably, or without reference to guiding rules or principles. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.1996). A ruling on whether to strike deemed admissions will only be set aside upon a showing of clear abuse of discretion. Employers Ins. of Wausau v. Halton, 792 S.W.2d 462, 464 (Tex.App.-Dallas 1990, writ denied). In order to obtain the relief of withdrawing deemed admissions, the proponent of that relief must show (1) good cause and (2) no undue prejudice. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex.2005) (per curiam) (citing Tex.R. Civ. P. 166a(c), 198.3).

“Good cause” is established when the failure to respond is accidental or the result of a mistake, rather than intentional or the result of conscious indifference. Stelly, 927 S.W.2d at 622. Under his sworn pleadings, Weiss maintained that the lack of the transmission of the request for admissions to his attorney was inadvertent, due to a mistake on Weiss’s part. It would appear that Weiss met the requirement of showing good cause.

However, good cause does not stand alone. “Undue prejudice bars withdrawal of deemed admissions. Tex.R. Civ. P. 169(2); Stelly, 927 S.W.2d at 622. Delay of trial is considered a factor in determining prejudice against a party. See N. River Ins. Co. of New Jersey v. Greene, 824 S.W.2d 697, 701 (Tex.App.-El Paso 1992, writ denied).” Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 357 (Tex.1998).

As noted above, Weiss’s attorney asserts that the existence of the deemed admissions first came to his notice on June 29, 2009, but filed no pleading to withdraw the deemed admissions until the date set for hearings, over two months after the discovery of the inadvertence. Had this issue been addressed reasonably expeditiously by promptly filing a motion to withdraw the deemed admissions, this may have obviated the need for the hearing on the motion for summary judgment, which was likewise set for the same date. The trial court could well have determined that the purpose in delaying the filing of the motion to withdraw the deemed admissions had delay of a final hearing as its primary goal. Because delay of trial is a factor to consider in determining whether prejudice to the other party can result, we determine that it was within the discretion of the trial court to deny the request.

Accordingly, the Texas court has jurisdiction over Weiss based upon the deemed admissions.

E. Summary Judgment: Weiss

Weiss maintains that the trial court abused its discretion by granting summary judgment based on deemed admissions with a pending motion to strike deemed admissions. As explained in the preceding section, the trial court acted within its discretion to deny Weiss’s request to withdraw the admissions deemed against him. However, even if the trial court had granted the motion to strike Weiss’s deemed admissions, that would not resolve the issue of whether the summary judgment entered against Weiss can stand.

In his brief on appeal, Weiss contends that the trial court should not have granted summary judgment because he made a good cause showing as to why the request for admissions was not answered. This statement is based on the inaccurate premise that the summary judgment is based solely on the deemed admissions. As discussed previously in this opinion, the summary judgment was also based upon substantive claims submitted to the trial court and supported by competent summary judgment evidence. On appeal, Weiss contests Abbott’s affidavit in support of the summary judgment. In particular, Weiss takes issue with paragraph ten of the Abbott affidavit wherein Abbott opines on the value of the Eldorado:

As the owner of the Eldorado, it is my opinion that on the date I purchased it, that it had a market value in Lamar County, Texas of $10,000.00, and as a result, I have been damaged in the sum of $30,000.00.

Weiss claims this is a wholly unfounded opinion that was challenged in the trial court.

The trial court correctly overruled Weiss’s objection to paragraph ten of the Abbott affidavit. A property owner can testify as to the market value of his property even though he cannot qualify to testify about the value of like property belonging to someone else. See Porras v. Craig, 675 S.W.2d 503, 504 (Tex.1984). The court in Porras explained further:

Even an owner’s testimony, however, is subject to some restrictions. In order for a property owner to qualify as a witness to the damages to his property, his testimony must show that it refers to market, rather than intrinsic or some other value of the property. This requirement is usually met by asking the witness if he is familiar with the market value of his property.

Id. at 504-05.

Abbott testified in his affidavit as to the market value of his Eldorado. This is competent evidence under Porras. Because we determine the trial court had discretion to deny the motion to withdraw deemed admissions, and because we overrule the sole basis upon which Weiss has contested the Abbott affidavit, we are compelled to affirm the order granting summary judgment.

We affirm the judgment of the trial court.

      . Weiss initially filed his answer contesting personal jurisdiction on a pro se basis; thereafter, in July 2009, Michael P. Kelly (attorney for Dream Car) filed a notice of appearance as counsel for Weiss.

      . These problems are alleged to include an inoperative heater, power seats, horn, power door locks, cruise control, power windows, fuel gauge, transmission indicator, and radio; numerous nicks, scratches, and dents; poor suspension; rusty underside and exhaust system, which were covered with new paint; pitted body chrome; and rusted gas tank. In addition, it is alleged that the Eldorado will not run over thirty miles per hour for more than two to three miles at a time.

      . Suit was filed on February 5, 2009.

      . This pleading, which contested personal jurisdiction, was not filed on behalf of Dream Car, and in fact makes no mention of Dream Car. However, the letter transmitting this pleading to Abbott’s attorney was signed by Andrew Denis, manager of Dream Car. Denis also signed tire certificate of service on this pleading.

      . On April 6, 2009, Abbott served each defendant with 113 separate requests for admissions. Abbott states in his affidavit that:
      Following Defendants’ answer to the Petition, on April 6, 2009, I served Plaintiff's First Requests for Admission and Requests for Production (the "Discovery”). The Discovery contained clear instructions on the timeframe to respond, the rules by which the same are governed, and the place to send responses, but as of June 25, 2009, Defendants have failed to respond to the Discovery.
      The defendants did not contest the fact or propriety of service of said requests for admissions in the trial court; likewise, no such complaint is raised on appeal.

      . Evidence relied upon in the summary judgment motion included the affidavit of Mark H. How (attorney for Abbott) with attached requests for admissions served on each of the three defendants together with Abbott's affidavit, with the attached report of the condition of the Eldorado authored by Trier.

      . Trier did not file a notice of appeal, and is not an appellant here.

      . The record reflects that Dream Car’s special appearance was reset from an earlier date until August 25. The record neither reflects a request for hearing on Weiss’s special appearance, nor is there an order setting hearing on same. Michael Kelly, attorney for both Dream Car and Weiss, did not purport to represent Weiss at the hearing on Dream Car’s special appearance, and presented argument only on behalf of Dream Car.

      . The record neither reflects a request for hearing on Trier’s special appearance, nor is there an order setting hearing on same.

      . Abbott's response relied largely on the requests for admissions served on Dream Car, Weiss, and Trier. Neither Dream Car nor Trier contend the requests were not deemed admitted.

      . An order resetting the hearing on the motion for summary judgment was entered on July 14, resetting the hearing previously set for July 22 to August 25, 2009. No objection to this setting was made by Dream Car, Weiss, or Trier. At the hearing, Kelly (attorney for Dream Car and Weiss) requested a continuance of the summary judgment hearing. Discussion on the record at the hearing reflects that Kelly and counsel for Abbott agreed to resetting the hearing on the motion for summary judgment. The trial court therefore denied the oral request for continuance.

      . The summary judgment stated that:
      [Ojne of the basis [sic] of the Plaintiff's Motion for Summary Judgment were Requests for Admission served upon Defendants on or about April 6, 2009, which as of the date of the hearing on Plaintiff's Motion for Summary Judgment, had not been responded to in any form. The Court further notes that on the date of this hearing, Weiss filed his Motion to Strike Deemed Admissions, which the Court considered untimely under the circumstances existing in this cause.
      The Court further notes that although Plaintiff's Motion for Summary Judgment has been on file since June 30, 2009, and has had the aforementioned two separate settings, the Defendants have filed no response to said Summary Judgment as contemplated by Tex.R. Civ. P. 166a. The Court notes that Weiss did file, on or about August 16, 2009, Objections and Special Exceptions to Plaintiff Ronald E. Abbott’s Motion for Summary Judgment (the “Weiss Objections”). The Court further notes that on or about August 18, 2009, Weiss filed that certain Defendant's Response to Plaintiff's Motion for Summary Judgment ("Weiss Response”).
      Upon consideration of Plaintiff's Motion for Summary Judgment, the Weiss Objections, the Weiss Response, and the argument of counsel, the Court is of the opinion that Plaintiff's Motion for Summary Judgment should be granted....

      . Dream Car expressed the concern that because it was appearing specially in the case, "there are only so many things a party can do...." While we acknowledge the truth of that statement, a nonresident defendant may file motions related to jurisdictional discovery and seek the trial court’s ruling on disputes that may affect the evidence presented at the special appearance hearing without waiving its special appearance. Tex.R. Civ. P. 120a; Huynh v. Nguyen, 180 S.W.3d 608 (Tex.App.Houston [14th Dist.] 2005, no pet.). A motion to set aside deemed admissions falls within this category.

      . Requests for admissions can encompass any matter within the scope of discovery, "including statements of opinion or of fact or of the application of law to fact....” TexR. Civ. P. 198.1.

      . In Southwest Aviation, as in this case, the defendants had ample opportunity to file a motion to withdraw their admissions, but failed to do so.

      . The order stated that:
      Upon consideration of Plaintiff's Motion for Summary Judgment, the Weiss Objections, the Weiss Response, and the argument of counsel, the Court is of the opinion that Plaintiff’s Motion for Summary Judgment should be granted and that the following Summary Judgment should be entered.

      . In this regard, we note that a trial court cannot grant summary judgment simply because of a lack of response by the nonmovant. A summary judgment must be legally sufficient even if no response is on file. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Swedlund v. Banner, 970 S.W.2d 107, 109-10 (Tex.App.Corpus Christi 1998, pet. denied). Courts are required, however, to take uncontroverted proper summary judgment evidence as true. See Medlock v. Comm’n for Lawyer Discipline, 24 S.W.3d 865, 870 (Tex.App.-Texarkana 2000, no pet.). There is no claim here that the uncontroverted summary judgment evidence was improper.

      .Rule 120a requires that a special appearance must be filed "prior to motion to transfer venue or any other plea, pleading or motion. ...” Tex.R. Civ. P. 120a.

      . The lack of hearing specific to Weiss's special appearance was not called to the attention of the trial court. Even though avoidance of waiver could have been accomplished by filing a motion to correct the trial court's order, the special appearance Weiss filed did not contain verified evidence in support of his position that the Texas court did not have jurisdiction.

      . We do not reach the question of whether the trial court could have exercised specific or general jurisdiction over Weiss in the absence of deemed admissions. Further, we conclude that the contacts involving Weiss are not so attenuated as to violate concepts of due process.

      . Weiss complains of being in a "catch 22” situation because a foreign defendant risks waiver of his special appearance in "responding to anything.” We disagree. Rule 120a specifically permits participation in the discovery process without the risk of waiving a special appearance. The motion to strike deemed admissions never put Weiss at risk of waiving a special appearance.

      . The order granting summary judgment states that "one of the basis [sic] of the Plaintiff's Motion for Summary Judgment were Requests for Admission served upon Defendants on or about April 6, 2009, which as of the date of the hearing on Plaintiff's Motion for Summary Judgment, had not been responded to in any form.”


author: Justice FITZGERALD.

text:
    Matthew R. POLLARD, Independent Executor of the Estate of Marie A. Merkel, Appellant, v. Rupert M. POLLARD, Appellee.
    No. 05-09-01087-CV.
    Court of Appeals of Texas, Dallas.
    June 25, 2010.

      R.W. Calloway, Nicole P. Wolff, Mary C. Burdette and Scott D. Weber, Calloway, Norris, Burdette & Weber, PLLC, Dallas, TX, Appellant.
    Don Duane Ford, Ford & Mathiason LLP, Rupert M. Pollard, Dallas, TX, for Appellee.
    Before Justices BRIDGES, FITZGERALD, and FILLMORE.
   OPINION

Opinion By

Justice FITZGERALD.

Matthew R. Pollard, as the Independent Executor of the Estate of Marie A. Merkel (the “Executor”), appeals the trial court’s June 12, 2009 order that he deliver a full and complete accounting of the Estate to Rupert M. Pollard (“Pollard”). Because we conclude the accounting order is not appealable, we dismiss this appeal for lack of jurisdiction.

Merkel died on October 10, 2004. At the time of her death, she and Pollard were parties to a divorce action in district court. Pollard and the Executor have continued to litigate concerning whether the couple was still married at the time of Merkel’s death.

Merkel’s will was admitted to probate on February 14, 2005. On January 31, 2008, counsel for Pollard sent a letter to counsel for the Executor demanding an accounting of the Estate pursuant to Section 149A of the Texas Probate Code. That section provides:

At any time after the expiration of fifteen months from the date that an independent administration was created and the order appointing an independent executor was entered by the county court, any person interested in the estate may demand an accounting from the independent executor. The independent executor shall thereupon furnish to the person or persons making the demand an exhibit in writing, sworn and subscribed by the independent executor, setting forth in detail:
1. The property belonging to the estate which has come into his hands as executor.
2. The disposition that has been made of such property.
3. The debts that have been paid.
4. The debts and expenses, if any, still owing by the estate.
5. The property of the estate, if any, still remaining in his hands.
6. Such other facts as may be necessary to a full and definite understanding of the exact condition of the estate.
7. Such facts, if any, that show why the administration should not be closed and the estate distributed.

Tex. Pkob.Code Ann. § 149A(a) (Vernon 2003). The Executor took the position — in a Motion in Limine filed with the court and in a letter to Pollard — that Pollard was not an “interested person” within the meaning of the statute and thus was not entitled to an accounting. An “interested person,” in this context, is an heir, devisee, spouse, creditor, or any other having a property right in, or claim against, the estate being administered. Id. § 3(r).

Pollard subsequently filed a Motion for Accounting, arguing he was an interested person because he was married to Merkel at the time of her death, and asking the court to order the Executor to make the accounting. See id. § 149A(b) (procedure for obtaining enforcement of demand for accounting). In its June 12, 2009 order, the trial court found that Pollard is an interested person in this case because he was married to Merkel at the time of her death. The court ordered Pollard to deliver a full and complete accounting of the Estate. The Executor appealed. Pollard has filed a Motion to Dismiss for Want of Jurisdiction and Motion for Appellate Sanctions.

As a rule, parties may only appeal from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Probate proceedings are an exception to the “one final judgment” rule; in probate proceedings more than one ap-pealable judgment can be rendered on discrete issues. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.2006). However, not every interlocutory order in a probate case is appealable. Id. The Texas Supreme Court has adopted a two-step test for determining when a probate order is appeal-able:

[1] If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and ap-pealable, that statute controls. [2] Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

Id. (citing Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995)).

No statute declares an order for an accounting to be final and appealable. And the order for an accounting is not part of any proceeding other than the overall independent administration of the Estate: Pollard demanded “an accounting of this estate,” and the trial court ordered “a full and complete accounting of this Estate.” Unquestionably, the pleadings in this case raise issues and involve parties that have not been disposed of in the Estate’s administration overall; the parties agree the administration remains open at this time. Accordingly, it would appear the order for an accounting is interlocutory. See id.

This conclusion is supported by the very nature of the accounting sought by Pollard. A section 149A accounting includes matters that clearly anticipate further action within the administration. See, e.g., Tex. Prob.Code §§ 149A(a)(4) (debts and expenses, if any, still owing by the estate), 149A(a)(5) (property of the estate, if any, still remaining in the executor’s hands), 149A(a)(7) (“such facts, if any, that show why the administration should not be closed and the estate distributed”). Section 149A also provides for “subsequent demands” for accountings. Id. § 149A(c). The interested person could demand periodic accountings as often as every twelve months. See id. This concept of ongoing reporting runs contrary to any notion of finality. Finally, Pollard’s request for an accounting did not seek distribution of any portion of the Estate. Compare id. § 149A (“Accounting”), with id. § 149B (“Accounting and Distribution”). Thus, if Pollard’s section 149A accounting motion and order were severed from the remainder of the Estate’s administration, there would be no resolution of his claim. See De Ayala, 193 S.W.3d at 578 (supreme court urged parties to seek severance when judgment would resolve party’s claim to eliminate ambiguity about finality). The court’s accounting order merely provides Pollard with information about the Estate’s administration. Like the interlocutory order in De Ayala, the accounting order “is more like a prelude than a finale.” See id. at 578-79.

We conclude the trial court’s accounting order does not resolve any independent phase of the proceedings. It is not final and appealable. Accordingly, we grant Pollard’s motion and dismiss this appeal for lack of jurisdiction. However, we see no evidence that the Executor’s appeal was brought solely for purposes of delay as Pollard contends. On the contrary, the Executor clearly wishes to challenge the reasoning behind the trial court’s signing the order for an accounting. This is not the time for that challenge, and we deny Pollard’s motion for sanctions for bringing a frivolous appeal.

      . This section provides:
      In addition to or in lieu of the right to an accounting provided by Section 149A of this code, at any time after the expiration of two years from the date that an independent administration was created and the order appointing an independent executor was entered, a person interested in the estate may petition the county court, as that term is defined by Section 3 of this code, for an accounting and distribution. The court may order an accounting to be made with the court by the independent executor at such time as the court deems proper. The accounting shall include the information that the court deems necessary to determine whether any part of the estate should be distributed.

        Id. § 149B(a).


author: Justice LANG-MIERS.

text:
    2327 MANANA LLC and Jerry Spencer, L.P., Appellants, v. SUMMIT ELECTRIC SUPPLY CO., INC., Appellee.
    No. 06-09-00107-CV.
    Court of Appeals of Texas, Dallas.
    June 25, 2010.

      John L. Gamboa, Acuff, Gamboa & White, L.L.P., Fort Worth, TX, for Appellants.
    Bill Ervin Davidoff, Dallas, TX, for Ap-pellee.
    Before Justices RICHTER, LANG-MIERS, and MURPHY.
   OPINION

Opinion By

Justice LANG-MIERS.

Appellants 2327 Manana LLC (Manana) and Jerry Spencer, L.P. (Spencer) appeal from a final judgment granting summary judgment in favor of appellee Summit Electric Supply Co., Inc. (Summit) on Summit’s claim for declaratory judgment to enforce a deed restriction. We affirm.

Background

In February 2006, Summit, as seller, and Saeed Mahboubi “and/or assigns,” as buyer, entered into a commercial contract for the sale of two adjacent tracts of land located in Dallas, Texas (the property) for a purchase price of approximately $1.25 million. The sale contract stated that “[i]t is understood and accepted that this property shall be deed restricted against any sexually oriented business.” Mahboubi later assigned the sale contract to Semira Rezaie. In June 2006, before the sale to Rezaie closed, Rezaie agreed to immediately “flip” the property to Spencer for a purchase price of $1.6 million.

On August 3, 2006, Summit, as grantor, signed a special warranty deed conveying the property to Rezaie (the first deed). Under the heading “Exceptions to Conveyance and Warranty,” the first deed states, in relevant part, as follows:

Restrictions: The property may not be used for purposes of, nor may it be leased for purposes of, sexually oriented business of any kind.
Grantor, as the fee simple owner of the Property, establishes the Restrictions as covenants, conditions, and restrictions, whether mandatory, prohibitive, permissive, or administrative, to regulate the structural integrity, appearance, and uses of the Property and the improvements placed on it. Granter and Grantee stipulate that (a) the Restrictions touch and concern the Property; (b) privity of estate exists by reason of the ownership of the Property; (c) notice is given by filing this instrument in the real property records of the county in which the property is situated; and (d) the Restrictions are reasonable, their purposes being for the common benefit of Grantor, Grantee, and the Affected Property Owners, who are affected by the structural integrity, appearance, and uses of the Property. The Restrictions run with the land making up the Property, are binding on Grantee and Grantee’s successors and assigns forever, and inure to the benefit of Grantor, Grantee, Affected Property Owners, and their successors and assigns forever.

The sale from Summit to Rezaie closed on August 4, 2006 at a title company. The sale from Rezaie to Spencer closed later that day at a different title company. At the second closing, Rezaie signed a special warranty deed dated August 4, 2006 conveying the property to Spencer (the second deed). The second deed did not identify any exceptions or restrictions to conveyance. Rezaie also signed a document in which she represented and warranted that the property “is completely and totally free of any deed restrictions whatsoever.” The first deed was filed and recorded in the official public records of Dallas County on August 25, 2006. The second deed was filed and recorded in the official public records of Dallas County on August 7, 2006.

Shortly after Spencer bought the property it leased the property to Manana, and Manana posted a notice in front of the property stating that it intended to operate a sexually oriented business on the property, prompting Summit to file suit. Unaware that Rezaie had sold the property to Spencer, who had leased it to Manana, Summit initially filed a suit for injunctive relief and attorneys’ fees against Manana. Manana answered and identified Spencer as the owner of the property. Spencer filed a petition in intervention asserting a claim for declaratory judgment and attorneys’ fees, in which it essentially alleged that it bought the property before the first deed was filed in the county real property records, and that it was a bona fide purchaser for value and without notice of the deed restriction. Summit amended its petition to add a claim for declaratory judgment and attorneys’ fees against Spencer and Manana.

The Judgment

Summit moved for summary judgment against Spencer and Manana on its claims for injunctive relief and declaratory judgment. As its first ground for summary judgment, Summit argued that it was entitled to judgment as a matter of law on both claims because the deed restriction is in Spencer’s chain of title. As its second ground for summary judgment, Summit argued that it was also entitled to judgment as a matter of law on its claim for injunctive relief because the same broker represented Mahboubi, Rezaie, and Spencer in the sales transactions, and their broker had constructive knowledge of the deed restriction that can be imputed to Spencer. Spencer and Manana responded to Summit’s motion, arguing that the deed restriction cannot be enforced against them. The trial court granted summary judgment in favor of Summit on its claim for declaratory judgment and denied summary judgment on Summit’s claim for in-junctive relief. The partial summary judgment declares that the first deed is valid, and that the restriction in that deed prohibits Spencer and any subsequent purchaser from using the property for the purpose of a sexually oriented business of any kind. Summit withdrew its claim for injunctive relief and the trial court conducted a bench trial on Summit’s claim for attorneys’ fees under the declaratory judgments act. The trial court signed a final judgment acknowledging its earlier summary judgment and awarding attorneys’ fees to Summit.

Issue on Appeal

The parties agree that the single issue we must decide in this appeal is whether the restriction- contained in the first deed is enforceable against Spencer and Manana as a matter of law.

Standard of Review

We review a trial court’s grant of a traditional summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). We do not consider evidence that favors the movant’s position unless it is uncontroverted. Hasty v. Keller HCP Partners, L.P., 260 S.W.3d 666, 669 (Tex.App.-Dallas 2008, no pet.).

Analysis

Spencer and Manana argue that the deed restriction is unenforceable against them because it was not filed in the real property records at the time Re-zaie conveyed the property to Spencer and because there is no evidence that Spencer was aware of the deed restriction when it bought the property. We disagree.

In Cooksey v. Sinder, 682 S.W.2d 252 (Tex.1984) (per curiam), the Texas Supreme Court recognized two rules relating to the purchase of real property: “A purchaser is charged with knowledge of the provisions and contents of recorded instruments. Purchasers are also charged with notice of the terms of deeds which form an essential link in their chain of ownership.” Id. at 253; see also Peters v. Clements, 46 Tex. 114, 123 (1876) (“subsequent purchasers are bound by the recitals in the deeds through which they claim”). The second rule recognized in Cooksey applies regardless of whether the prior deeds were recorded, and regardless of whether the purchaser read the prior deeds or had any actual knowledge of their contents. See generally City of Dallas v. Rutledge, 258 S.W. 534, 539 (Tex.Civ.App.-Dallas 1924, no writ) (“The law of notice is that a purchaser of land must take notice of all instruments recorded or unrecorded in his chain of title or affecting title, and is bound by all recitals therein, although in fact ignorant of the contents.”); Matthews v. Rains County, 206 S.W.2d 852, 854 (Tex.Civ.App.-Amarillo 1947, writ refd n.r.e.) (“[The purchaser] is bound by every matter contained in or fairly disclosed by any instrument which forms an essential link in the chain of title under which he claims ... even though he had never read these instruments or had any actual knowledge of their contents, and this would be true regardless of whether the instruments were recorded.”).

In Smith v. Bowers, 463 S.W.2d 222 (Tex.Civ.App.-Waco 1970, no writ), for example, Robert Smith sued Sarah Bowers seeking an injunction to enforce a deed restriction against the use of mobile homes. In response, Bowers argued that she was not subject to that deed restriction because her deed did not contain any restrictions, and she took her property without any knowledge of the restriction. Id. at 223. After a bench trial, the trial court found that the restriction was contained in Bowers’s chain of title, because Bowers bought the property from the Mitchells, and the earlier deed conveying the property to the Mitchells was made subject to the restriction against the use of mobile homes. Id. Nevertheless, due to a perceived defect relating to the recording of the restriction, the trial court concluded that Bowers did not have actual or constructive notice of the restriction, and denied Smith’s request for an injunction. Id. at 224. On appeal, our sister court reversed the trial court’s judgment, explaining that “recordation or non-recordation” was “not material to the issue of constructive notice” because the restriction was specifically referred to in the Mitchells’ deed, which was in Bowers’s chain of title. Id. at 225. Likewise, in Thompson v. Keys, 162 S.W. 1196 (Tex.Civ.App.-Fort Worth 1913, no writ), our sister court held that subsequent purchasers who were unaware of a preexisting vendor’s lien on their property were nevertheless “chargeable in law with notice of the vendor’s lien” because it was “duly reserved” in an earlier, unrecorded deed in their chain of title. Id. at 1196-97.

Applying the law to the facts of this case, because the restriction against the use or lease of the property for purposes of a sexually oriented business was contained in the first deed, and because the first deed forms an essential link in Spencer’s chain of title, Spencer and Manana are bound by that restriction regardless of Re-zaie’s or Spencer’s actual knowledge of that restriction, and regardless of the fact that the first deed was not recorded before Spencer purchased the property. See Smith, 463 S.W.2d at 225; Thompson, 162 S.W. at 1197; see also Rutledge, 258 S.W. at 539; Matthews, 206 S.W.2d at 854; see generally Cooksey, 682 S.W.2d at 253.

Spencer and Manana also suggest that the language of the first deed defeats Summit’s claim for declaratory judgment because the first deed “has a specific provision that notice of the restriction was to be effective only upon filing and recording of the deed,” which had not occurred at the time that Rezaie signed and conveyed the second deed to Spencer. We disagree with Spencer and Manana’s characterization of the language in the first deed. The first deed states that “notice is given by filing this instrument in the real property records of the county in which the property is situated” — it does not state that notice of the deed restriction is effective “only upon filing and recording of the deed.” Moreover, the recital in the first deed simply paraphrases the first rule recognized in Cooksey, and found in the property code, that filing an instrument in the proper county’s real property records constitutes notice to all persons of that instrument. See Tex. Prop.Code Ann. § 13.002(1) (Vernon 2004); Cooksey, 682 S.W.2d at 253. It does not preclude Summit from enforcing a deed restriction in Spencer’s chain of title.

Conclusion

We conclude that the trial court properly granted summary judgment in favor of Summit on its claim for declaratory judgment. As a result, we affirm the trial court’s judgment.

      . Summit also added Rezaie as a defendant in an amended petition and asserted claims against her for fraud, civil conspiracy, and breach of contract. Summit nonsuited its claims against Rezaie before the trial court signed the final judgment in this case.

      . More specifically, the deed conveying the property to the Mitchells stated that the conveyance "was made subject to the properly restrictions of record in Vol. 603, p. 635 Deed Records of Hunt County,” and the deed restrictions found on that page of the county records "provided that 'no mobile homes will be accepted’ ... 'in the residential area of Shawnee Shores as designated in the plat filed in the Courthouse of Hunt County, Greenville, Texas.'" Smith, 463 S.W.2d at 223-24.

      . We do not address Spencer and Manana's alternative argument that there is a fact issue regarding whether the broker who represented Mahboubi, Rezaie, and Spencer had constructive knowledge of the deed restriction that can be imputed to Spencer for two reasons. First, Summit raised the issue of the broker’s knowledge as a ground for summary judgment on its claim for injunctive relief, not its claim for declaratory judgment. And after the trial court denied summary judgment on Summit’s claim for injunctive relief, Summit withdrew that claim. Second, our resolution of Spencer and Manana's alternative argument about the broker's knowledge would not change the disposition of this appeal. See TexR.App. P. 47.1.