author: KENT C. SULLIVAN, Justice.

text:
    Michael VALLS, Appellant, v. JOHANSON & FAIRLESS, L.L.P., et al., Appellees.
    No. 14-08-00449-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 3, 2010.

      Herbert W. Fortson, Houston, for appellant.
    J. Mike Johanson, Sugarland, Mark Wham, Spring, Joe House, Richmond, for appellees.
    Panel consists of Justices YATES, BOYCE, and SULLIVAN.
   OPINION

KENT C. SULLIVAN, Justice.

Appellant, Michael Vails, agreed to settle a business dispute with his former employer and business partner — appellees Prime Directional Systems, L.L.C. (“Prime”) and Ernie Parker, respectively — by accepting a contingent financial interest in their ongoing lawsuit against an unrelated entity. When that lawsuit settled, however, Vails was left out of the distribution of settlement proceeds. He sued Prime and Parker for breach of the settlement agreement and also sued his opponents’ attorneys, who had drafted the agreement, for professional negligence, breach of fiduciary duty, conspiracy to defraud, and negligent misrepresentation.

The trial court granted summary judgment on all of appellant’s claims, prompting this appeal. We hold Prime and Parker did not demonstrate their entitlement to judgment as a matter of law; therefore, we reverse the summary judgment as to them and remand Valls’s breach-of-contract claims for further proceedings. However, because Vails has not raised a valid cause of action permitting him to sue opposing counsel, we affirm that portion of the summary judgment.

I.

Background

Appellant Vails was a founding member of Prime Directional Systems, L.L.C., and also served as its president until his employment was terminated for reasons that are unclear. He sought benefits under a severance package that allegedly was to pay him three years’ salary, and also asked Prime to repay a promissory note allegedly owed to him.

In response, Prime proposed a different agreement to settle his claims. At that time, Prime and Parker were embroiled in other litigation (hereafter, the “Tensor lawsuit”) against an unrelated entity, Tensor/Allied Signal, from whom they were seeking damages for fraud and misrepresentation. To compromise his employment claims, Vails accepted a contingent interest offered by Prime and Parker in any recovery obtained in their ongoing suit against Tensor.

The parties’ agreement (hereafter, the “Settlement Agreement”) consists of a three-page letter written by appellee Mike Johanson — one of the attorneys representing Prime and Parker — and addressed to Valls’s attorney, Steve Bryant. The letter recites a somewhat complicated arrangement for the division of any money recovered in the Tensor lawsuit. In summary, Vails was to receive the first $500,000— and an additional percentage of any amount in excess of $500,000 — of any “net recovery.” However, the parties dispute the manner in which “net recovery” should be calculated. Their disagreement stems from the fact that the Settlement Agreement proposes one formula for this calculation, but a contingent fee agreement (hereafter, the “CFA”) between Prime, Parker, and their attorneys recites a different method for determining “net recovery.” The difference between these two formulas is not inconsequential.

Specifically, two paragraphs at the end of the Settlement Agreement describe the calculation of “net recovery,” using hypothetical numbers representing possible verdicts and lawsuit expenses. In those sections, “net recovery” is said to be calculated by deducting lawsuit expenses first and attorney’s fees second. The remainder would then be split by Vails, Prime, and Parker according to the earlier terms of the Settlement Agreement. However, the CFA reverses the order of those deductions. Under that contract, “net recovery” was to be determined by withdrawing attorney’s fees first and lawsuit expenses second.

Under either document, attorney’s fees were listed at forty percent. However, the order in which attorney’s fees and lawsuit expenses were to be deducted is of some significance. Under the Settlement Agreement, the attorneys would effectively share the burden of forty percent of lawsuit expenses because those costs were to be paid before attorney’s fees; under the CFA, however, the attorneys would not participate in paying any expenses. In this case, because expenses ultimately exceeded $500,000, the seemingly minor difference in wording between these two contracts actually resulted in a dramatically different outcome for Vails.

The Tensor lawsuit settled for $1,600,000 and, according to appellees, lawsuit expenses totaled $571,037.44. Given these figures, Valls’s recovery, if calculated under the Settlement Agreement, would be $511,737.75. However, he actually received no money because the lawsuit proceeds were instead distributed according to the formula contained in the CFA. After Vails questioned the manner in which the settlement proceeds were disbursed, the appellees — -Prime, Parker, and their attorneys — filed a declaratory judgment action in district court. Vails counterclaimed against Prime and Parker for breach of contract, and also sued the Lawyers for negligence, conspiracy to defraud, breach of fiduciary duty, and negligent misrepresentation.

The trial court granted summary judgment on Valls’s counterclaims, which were then severed into a separate lawsuit. After that judgment became final, Vails timely filed this appeal. Raising two issues, Vails challenges summary judgment on his contract claims against Prime and Parker and his tort claims against the Lawyers.

II.

Standard of Review

We review the trial court’s summary-judgment order under well-established standards. See Seidner v. Citibank (S.D.) N.A., 201 S.W.3d 332, 334 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). To prevail by summary judgment, a movant must prove its right to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). If the evidence demonstrates the movant’s entitlement to summary judgment, the burden then passes to the non-movant to raise a genuine issue of material fact to defeat the motion. See Va. Power Energy Mktg., Inc. v. Apache Corp., 297 S.W.3d 397, 402 (Tex.App.Houston [14th Dist.] 2009, pet. denied).

In this case, Vails did not respond to the appellees’ motion for summary judgment; as a result, he may challenge only the legal sufficiency of the summary-judgment grounds expressly raised in the motion:

The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant’s summary judgment proof is legally insufficient. The movant still must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. Summary judgments must stand on their own merits, and the non-movant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant’s right.
While it would be prudent and helpful to the trial court for the non-movant always to file an answer or response, the non-movant needs no answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient [a]s a matter of law to support summary judgment.

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979) (footnote omitted) (citations omitted); see Tello v. Bank One, N.A., 218 S.W.3d 109, 118-19 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

On appeal, we are to review the summary-judgment motion and evidence de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Thus, we must consider the evidence in the light most favorable to the non-movant— here, Vails — while indulging reasonable inferences and resolving doubts in this favor. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005); Va. Power, 297 S.W.3d at 402.

III.

Analysis

In his first issue, Vails challenges the summary judgment disposing of his breach-of-contract action against Prime and Parker. His second issue is devoted to the summary judgment on his tort claims against the Lawyers. We will address each category of claims separately.

A. Breach-of-Contract Claims against Prime and Parker

In their motion for summary judgment, Prime and Parker argued they did not breach the Settlement Agreement, as a matter of law, because they complied with its material terms. Stated differently, they contend some portions of the Settlement Agreement are enforceable but others are not. In their view, Vails cannot enforce the following provisions that describe, using hypothetical numbers, the calculation of Valls’s share of any recovery:

By way of example, assuming a $75,000,000 verdict and/or settlement in favor of Prime and Ernie Parker, assuming $500,000 in out-of-pocket expenses (which come “off the top ”), the net to the clients would be 60% of $74,500,000, or $44,700,000. The first $500,000 of that $44,700,000 would go directly to Mr. Vails. Mr. Vails would then receive ten percent (10%) of the next $5,000,000 in “net” recovery to the client ($500,000). Mr. Vails would then receive seventeen percent (17%) of the remaining “net” recovery to the client ($39,200,000) for a total of $6,664,000. Mr. VaUs’[s] total recovery under that scenario would be $7,664,000.
As we discussed, we feel very strongly about this lawsuit and expect a substantial recovery either by way of settlement or judgment; however, for purposes of illustration only, if we were to assume a $20,000,000 verdict and/or settlement in favor of Prime and Ernie Parker, assuming $500,000 in out-of-pocket expenses, the “net” to the clients would be sixty percent (60%) of $19,500,000 or $11,700,000. Under this scenario, Mr. Vails would receive the first $500,000 of the money due to the clients, and then would receive an addition [sic] ten percent (10%) of the next $5,000,000 ($500,-000) along with seventeen percent (17%) of the final $6,200,000 ($1,054,000) for a total of $2,054,000.

Prime and Parker concede they did not comply with these distribution provisions. However, they contend these paragraphs should be disregarded as unenforceable because they were introduced only as an “example” or “illustration.” In response, Vails asks us to interpret the Settlement Agreement to give effect to all of its provisions, including the paragraphs quoted above. We will consider this dispute under general contract-interpretation principles.

Our primary goal in interpreting a contract, of course, is to ascertain and give effect to the parties’ intent as expressed in the contract. Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 30 (Tex.2008); Ayres Welding Co. v. Conoco, Inc., 243 S.W.3d 177, 180 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). We are to presume the parties intended for every clause to have some effect. See Heritage Res., Inc. v. Nations-Bank, 939 S.W.2d 118, 121 (Tex.1996). Therefore, we must examine the entire contract with the goal of harmonizing and giving effect to all provisions so that none is rendered meaningless. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006); Ayres Welding, 243 S.W.3d at 181.

In their brief, Prime and Parker cite no authority, nor have we found any, suggesting we can disregard, as a meaningless “example,” the portion of the Settlement Agreement that contains the formula for calculating Valls’s share of any recovery. In their motion for summary judgment, Prime and Parker referred to Enterprise Leasing Co. of Houston v. Barrios, 156 S.W.3d 547 (Tex.2004), Ogden v. Dickinson State Bank, 662 S.W.2d 330 (Tex.1983), and Lavaca Bay Autoworld, L.L.C. v. Marshall Pontiac Buick Oldsmobile, 103 S.W.3d 650 (Tex.App.-Corpus Christi 2003, no pet.), for the proposition that courts may disregard some contract provisions in favor of other conflicting clauses that contribute more meaningfully to the parties’ agreement. See Lavaca Bay, 103 S.W.3d at 659.

However, those authorities are not instructive here because they address a different situation in which the contract contains two clauses that are in apparent conflict, a scenario not present here. See Enterprise Leasing, 156 S.W.3d at 549 (instructing courts, in the event of a conflict, to give preference to operative clauses rather than the title of a contract provision); Ogden, 662 S.W.2d at 332 (“[T]he Court will not strike down any portion of the contract unless there is an irreconcilable conflict.”) (emphasis added); Lavaca Bay, 103 S.W.3d at 659 (“[WJhen differences exist between terms in the same instrument, those that contribute most essentially to the agreement are entitled to greater consideration.”) (emphasis added). Here the Settlement Agreement contains no such internal conflict because it recites only one method for calculating “net recovery.” Therefore, because the cases cited by Prime and Parker in their summary-judgment motion pertain only to inconsistent terms within the same agreement, they do not apply here.

Instead, the summary-judgment evidence reveals a conflict only between the inconsistent formulas recited in two separate documents: the Settlement Agreement, to which Vails was a party, and the CFA, to which he was not. However, we may not consider the CFA as a part of the agreement between Prime, Parker, and Vails because that document is neither signed by Vails nor referred-to in the Settlement Agreement. See Owen v. Hendricks, 433 S.W.2d 164, 167 (Tex.1968); Ikon Office Solutions, Inc. v. Eifert, 2 S.W.3d 688, 693 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Cavazos v. Cavazos, 941 S.W.2d 211, 214 (Tex.App.-Corpus Christi 1996, writ denied). To the contrary, the Settlement Agreement indicates Valls’s recovery would be as provided by “the terms and conditions of this Agreement.”

Therefore, properly applying contract-interpretation principles, we must construe the Settlement Agreement to give effect to all provisions so that none are rendered meaningless, including the paragraphs describing the calculation of “net recovery.” See Seagull Energy, 207 S.W.3d at 345; Heritage Res., 939 S.W.2d at 121; Ayres Welding, 243 S.W.3d at 181. Because Prime and Parker acknowledge they did not comply with those provisions, they were not entitled to summary judgment from Valls’s breach-of-contract claims. See Tex.R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548. Accordingly, we sustain Valls’s first issue and turn to his tort claims against the Lawyers.

B. Tort Claims against Opposing Counsel

Vails also filed suit against the attorneys for Prime and Parker, accusing them of wrongdoing in connection with the preparation of the Settlement Agreement and distribution of settlement proceeds. Some of his chosen legal theories — professional negligence and breach of fiduciary duty — require proof of an attorney-client relationship between Vails and opposing counsel, an allegation the Lawyers deny. They successfully moved for summary judgment on these claims, arguing they did not agree to represent Vails and therefore owed no legal duty to him. See, e.g., Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (“An attorney in Texas ... is not liable to non-client third parties for legal malpractice.”). Vails appeals from that ruling.

Appellant also insists that, even in the absence of an attorney-client relationship, he may still sue opposing counsel for their allegedly negligent misrepresentations in the Settlement Agreement. In response, the Lawyers argue Vails could not justifiably rely, as a matter of law, on statements made by opposing counsel in an adversarial setting. The trial court agreed with the Lawyers and granted summary judgment as to negligent misrepresentation.

1. Professional Negligence and Breach of Fiduciary Duty

We begin with appellant’s accusations of professional negligence and breach of fiduciary duty. Both legal theories require proof that the defendant in fact owed some legal duty to the plaintiff arising from the relationship between the parties. See Lundy v. Masson, 260 S.W.3d 482, 501 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (noting the requisite elements of a breaeh-of-fiduciary-duty claim include a fiduciary relationship between the plaintiff and defendant); Rangel v. Lapin, 177 S.W.3d 17, 22 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (“A legal malpractice action is based upon negligence and requires proof of ... a legal duty[.]”).

Vails seeks to overcome that evidentiary hurdle by claiming he became the Lawyers’ de facto client when he signed the Settlement Agreement. That is, because his interests became aligned with Prime’s and Parker’s once he acquired a financial stake in their lawsuit, he concludes the Lawyers owed professional duties to him, too. He cites no authority, nor have we found any, suggesting an attorney owes professional duties to all those whose financial interests may be aligned with his client’s. Cf. Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 844 n. 6 (Tex.1994) (holding a liability insurer, despite its financial interest in the litigation, was not the client of the attorney hired to represent its insured). Therefore, we analyze his claim under the common law relevant to the formation of an attorney-client relationship.

In a general sense, an attorney-client relationship arises from a lawyer’s agreement to render professional services to a client. Greene’s Pressure Treating & Rentals, Inc. v. Fulbright & Jaworski, L.L.P., 178 S.W.3d 40, 43 (Tex.App.-Houston [1st Dist.] 2005, no pet.). The parties should clearly and expressly agree to the nature of the work to be done and the compensation to be paid. See Hill v. Bartlette, 181 S.W.3d 541, 547 (Tex.App.-Texarkana 2005, no pet.). Occasionally, that agreement may be implied from the parties’ conduct. See Perez v. Kirk & Corrigan, 822 S.W.2d 261, 265 (Tex.App.Corpus Christi 1991, writ denied). For example, an attorney-client relationship may arise by implication if the lawyer knows a person reasonably expects him to provide legal services but does nothing to correct that misapprehension. See Span Enters. v. Wood, 274 S.W.3d 854, 857-58 (Tex.App.-Houston [1st Dist.] 2008, no pet.).

Whether the agreement is express or implied, however, there still must be some manifestation that both parties intended to create an attorney-client relationship; therefore, one party’s mistaken belief is not sufficient, by itself. See Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Roberts v. Healey, 991 S.W.2d 873, 880 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). Accordingly, we examine the parties’ statements and actions under an objective standard rather than their subjective beliefs. See Roberts, 991 S.W.2d at 880.

Because Vails contends the Settlement Agreement created an attorney-client relationship, we begin with that document. We note the Agreement repeatedly identifies Prime and Parker, but not Vails, as the “client” or “clients” of the Lawyers. In addition, the Agreement does not suggest any additional work the Lawyers might perform apart from their already existing plans to prosecute the claims on behalf of Prime and Parker. The contract does not obligate Vails to compensate the Lawyers for these services. See Hill, 181 S.W.3d at 547-48 (concluding no fact issue existed where putative client was not required to pay attorney’s legal fees). The Agreement also contemplated that any contact or communication between the Lawyers and Vails would come only through the latter’s attorneys.

Further, the entire appellate record contains no request by Vails, or agreement by the Lawyers, to represent him at any time. Cf. Perez, 822 S.W.2d at 265 (holding fact issue existed where attorneys allegedly stated they were Perez’s lawyers and “were going to help him”). To the contrary, the record consistently shows that, both before and after the execution of the Settlement Agreement, Vails continued to be represented by his own attorneys.

We hold Vails has not raised a genuine issue of material fact as to his professional-negligence and breach-of-fiduciary-duty claims against opposing counsel. Therefore, we overrule that part of appellant’s second issue.

2. Negligent Misrepresentation

Notwithstanding the foregoing, a non-client still may sue an attorney for negligent misrepresentation:

One who, in the course of his business, profession, or employment, or in any transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.1999) (emphasis added) (quoting Restatement (Second) of Torts § 552(1) (1977)).

Here, Vails accused the Lawyers of negligently misrepresenting, in the Settlement Agreement, the method by which they planned to deduct attorney’s fees and expenses from any recovery in the Tensor lawsuit. In response, the Lawyers do not quarrel with the allegation that the Settlement Agreement contains a misrepresentation. However, they argue Valls’s reliance on their misrepresentation, if any, was not justified because the statements were offered in an adversarial setting.

Vails acknowledges the well-settled rule that a party may not justifiably rely on an opposing attorney’s statements made in an adversarial setting, such as litigation. See McCamish, 991 S.W.2d at 794; Ortiz v. Collins, 208 S.W.3d 414, 422 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (holding party to an arms-length transaction must protect his own interests and cannot excuse his failure to do so on “mere confidence in the honesty and integrity of the other party”) (citation omitted). However, he argues (1) the question of justifiable reliance is a question of fact and therefore inappropriate for summary judgment, and (2) the record does not reflect the nature of the relationship between the parties when the Settlement Agreement was prepared. On the record presented, we must reject both arguments.

Vails cites McMahan v. Greenwood, for his broad proposition that “justification of reliance is a question of fact” to be decided by a jury. 108 S.W.3d 467 (Tex.App.Houston [14th Dist.] 2003, pet. denied). McMahan, however, does not go that far. Instead, this Court decided only that a fact issue existed as to one party’s reliance on statements made before the parties’ relationship became adversarial. “Here, while statements made during settlement negotiations were likely made in an adversarial context, statements made [previously] during the formation and operation of [the company] most likely were not.” Id. at 497 (emphasis added).

Moreover, this Court has repeatedly decided issues of justifiable reliance as a matter of law. See Ortiz, 203 S.W.3d at 422 (“We hold that, as a matter of law, the parties’ relationship remained adversarial, and thus any reliance by Ortiz on statements made by appellees during the negotiation process was unjustified and unreasonable.”) (emphasis added); Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 443 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (affirming summary judgment because party was not justified in relying on opposing counsel’s representations “given the adversarial nature of the parties’ relationship”). Therefore, we disagree with the suggestion that a fact-finder must always decide whether a party’s reliance on a misrepresentation was justified.

As to appellant’s second argument, the evidence does not suggest anything other than an adversarial relationship between the parties at the time the alleged misrepresentation took place. When the Settlement Agreement was prepared, the parties were in the midst of negotiations to prevent the onset of litigation between them. Courts have repeatedly held a party may not justifiably rely on statements made by opposing counsel during settlement negotiations. See Ortiz, 203 S.W.3d at 422; McMahan, 108 S.W.3d at 497; see also Garcia, 876 S.W.2d at 849 (‘We recognize that settlement negotiations are adversarial and that reasonable negotiation often involves hard bargaining by both sides.”). Here, the negotiation process involved an arms-length transaction in which both sides were represented and advised by their own counsel. See Ortiz, 203 S.W.3d at 422.

Admittedly, the parties later set aside their grievances, at least temporarily until the distribution of settlement proceeds prompted a renewal of hostilities. However, at the time the Settlement Agreement was drafted, the parties’ relationship was adversarial. Therefore, appellant was not justified in relying on statements made by opposing counsel during that time period. Accordingly, we overrule appellant’s second issue and affirm the summary judgment as to the Lawyers.

IV.

Conclusion

Appellees openly acknowledge the Settlement Agreement “inadvertently reverse[s]” the order in which attorney’s fees and lawsuit expenses were to be deducted from the total recovery. Yet, that was the deal apparently struck by the parties and, on this record, Prime and Parker have not proven as a matter of law that they could freely disregard the agreed-upon formula in favor of another that Vails' never saw and did not ratify. Accordingly, we must reverse summary judgment as to them and remand Valls’s breach-of-contract claims for further proceedings.

However, even assuming the admitted mistake could be deemed professional negligence, as appellant alleges, Vails simply is not among those entitled to sue the Lawyers for negligence because he was not their client. See Alpert, 178 S.W.3d at 405. That rule is motivated by important public policy concerns:

An attorney has a duty to zealously represent his clients within the bounds of the law.... If an attorney could be held liable to an opposing party for statements made or actions taken in the course of representing his client, he would be forced constantly to balance his own potential exposure against his client’s best interest. Such a conflict hampers the resolution of disputes through the court system and the attainment of justice.

Id. (citing Bradt v. West, 892 S.W.2d 56, 71-72 (Tex.App.-Houston [1st Dist.] 1994, writ denied)); see also Am. Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480, 484 (Tex.1992) (“Texas courts have been understandably reluctant to permit a malpractice action by a nonclient because of the potential interference with the duties an attorney owes to the client.”).

Accordingly, only a client may sue his lawyer for professional negligence. See Alpert, 178 S.W.3d at 405. Por that reason, and because the record does not support a negligent-misrepresentation case against his opponents’ counsel, we affirm the trial court’s judgment as to appellant’s tort claims against appellees Mike Johan-son, Joe House, Mark Wham, Johanson & Fairless, L.L.P., and House & Wham, L.L.P.

      . In their motion for summary judgment, Prime and Parker admitted, "[I]n the settlement agreement ... the order of the deduction of attorney's fees and expenses from the total recovery was inadvertently reversed" from the method described in the CFA.

      . This number may be derived by deducting lawsuit expenses of $571,037.44 from the total $1,600,000 settlement, producing a remainder of $1,028,962.56. After removing forty percent of that amount for attorney’s fees, the remaining sixty-percent share— $617,377.54 — was left to be divided among Vails, Prime, and Parker. According to the Settlement Agreement, Vails would receive the first $500,000 of this "net recovery,” as well as ten percent of the remaining $117,377.54, or $11,737.75. Thus, his total recovery under the Settlement Agreement would be $511,737.75.

      . Forty percent of the total was withdrawn for attorney’s fees, leaving $960,000. After lawsuit expenses of $571,037.44 were deducted, the remaining "net recovery” to be shared between Vails, Prime, and Parker totaled only $388,962.56. However, the parties’ agreement recited that, if Vails were to receive less than $500,000, the Settlement Agreement would be treated as null and void so that Vails would receive no portion of the Tensor settlement but could still pursue his employment-related claims against Prime and Parker. Because the “net recovery" under the CFA was less than $500,000, Prime and Parker invoked the clause in the Settlement Agreement and Vails received nothing.

      . The lawyer appellees include Johanson and his firm, Johanson & Fairless, L.L.P., Joe House, Mark Wham, and their firm, House & Wham, L.L.P. To the extent necessary, we will sometimes refer to these parties collectively as the "Lawyers.”

      .In their first reply point, appellees contend Vails waived his right to appeal from the summary judgment by failing to respond to the motion. In support, they cite one of the trial court's local rules which states, "Failure to file a response [to a motion] may be considered a representation of no opposition.” Fort Bend (Tex.) Civ. Dist. Ct Loe. R. 3.3.2.
      However, although a district court may enact local rules governing practice in that court, a local rule may not conflict with the Texas Rules of Civil Procedure and cannot be used to decide the merits. See Tex.R. Civ. P. 3a; Approximately $14,980.00 v. State, 261 S.W.3d 182, 188-89 (Tex.App.-Houston [14th Dist.] 2008, no pet.); Approximately $1,589.00 v. State, 230 S.W.3d 871, 874 (Tex.App.-Houston [14th Dist.] 2007, no pet.). We cannot apply Local Rule 3.3.2 in such a fashion as to trump Rule 166a(c), which obligates the summary-judgment movant to prove his entitlement to summary judgment, or to decide the merits of Valls's appeal. See Tex.R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Approximately $14,980.00, 261 S.W.3d at 189; Approximately $1,589.00, 230 S.W.3d at 874. Accordingly, we overrule appellees' first reply point.

      . Emphasis added.

      . In addition, Prime and Parker claim a defect in Valls’s notice of appeal precludes him from complaining about the summary judgment on his breach-of-contract claims. Specifically, they argue Vails was required to file a separate notice of appeal as to each ruling he intended to challenge on appeal, including an interlocutory order from April 2007 in which the trial court ruled the Settlement Agreement’s distribution provisions were unenforceable. We disagree. A notice of appeal need not identify every adverse interlocutory ruling the appellant intends to challenge; instead, the notice must state only the date of the judgment or order from which he appeals — in this case, the order granting summary judgment. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex.2008) (citing Tex.R.App. P. 25.1). We also note, parenthetically, that even if appellees’ novel interpretation of the rules were actually correct, dismissal of appeals for harmless procedural defects is disfavored. See id.; Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997); see also In re Brookshire Grocery Co., 250 S.W.3d 66, 73 (Tex.2008) (orig. proceeding) (Hecht, J., dissenting) ("This court has labored long and hard to remove as many procedural traps from our rules as possible. Litigants are entitled to have their disputes resolved on the merits, not on unnecessary and arcane points that can sneak up on even the most diligent of attorneys.”) (citation omitted).

      . During oral argument, appellees’ counsel conceded the Settlement Agreement contains no other method for calculating "net recovery" except for the formula recited in the "example” and "illustration” paragraphs.

      . Vails argues in the alternative that, if the Settlement Agreement and CFA were read together as one document, the conflict between their respective formulas creates an ambiguity to be resolved by the trier of fact rather than by summary judgment. However, because we cannot properly interpret these two documents together, we need not reach this alternative argument.

      .Emphasis added.

      . Appellant also contends the trial court erred by granting summary judgment on his conspiracy allegations against the Lawyers. However, Vails provides no substantive analysis or legal authority to support that conclusion; therefore, that argument has been waived. See Tex.R.App. P. 38.l(i); Clearview Props., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 142 (Tex.App.-Houston [14th Dist.] 2009, pet. denied).

      . For example, the letter Agreement was addressed not to Vails directly, but instead to his attorney, Steve Bryant. The Agreement also recites, "Mr. Vails will be paid through the Law Office of David Groner[.]” Finally, the Agreement concludes by instructing Bryant, "If this agreement is acceptable to you and your client, Michael W. Vails, please have Mr. Vails execute this agreement in the space below confirming his acceptance" (emphasis added).


source: Caselaw Access Project

author: CHARLES W. SEYMORE, Justice.

license: Public Domain

text:
    Hector Canales RODRIGUEZ d/b/a Cowboy Transport, Appellant, v. Jose VILLARREAL, Appellee.
    No. 14-08-00826-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 3, 2010.

      Warren W. Harris, Houston, for appellant.
    Vuk S. Vujasinovie, John C. Schwam-bach, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN.
   OPINION

CHARLES W. SEYMORE, Justice.

Hector Canales Rodriguez d/b/a Cowboy Transport appeals the portion of a judgment awarding exemplary damages to ap-pellee, Jose Villarreal. In two issues, Rodriguez contends the trial court erred by failing to apply the statutory exemplary-damages cap when rendering judgment on the jury’s verdict. Villarreal has filed a motion to dismiss the appeal and award sanctions, contending Rodriguez waived his right to appeal. We ordered the motion taken with the case. Because we agree the trial court erred by failing to apply the statutory exemplary-damages cap, we modify the judgment and affirm as modified. Because we conclude Rodriguez did not waive his right to pursue this appeal, we deny Villarreal’s motion to dismiss and for sanctions.

I. BACKGROUND

Villarreal sued Rodriguez for injuries sustained in a vehicle accident. During trial, the parties entered into what they characterized as a “high/low agreement.” They orally announced the agreement on the record as follows.

THE COURT: Are we ready to go forward or—
[RODRIGUEZ’S COUNSEL]: We need to make a record. Judge, defense counsel and [Villarreal's] counsel would like to announce an agreement of a high/low agreement in this case—
THE COURT: Okay.
[RODRIGUEZ’S COUNSEL]: —with the guaranteed recovery of [Villarreal] a minimal of a hundred thousand, maximum of 750,000. We will proceed forward and let the jury render a verdict and if the verdict comes in between 100 and 750, it will be the verdict.
[VILLARREAL’S COUNSEL]: We agree each party waives right to appeal. [RODRIGUEZ’S COUNSEL]: Fine, yes. So agreed.
THE COURT: Okay. I am not — and so if the jury returns a verdict that is within your high/low, that’s the verdict?
[VILLARREAL’S COUNSEL]: Right.
THE COURT: If it is outside on either side, your high/low agreement controls; is that right?
[RODRIGUEZ’S COUNSEL]: Correct. Correct. It’s a Rule 11 agreement for maximum and minimum.
THE COURT: Okay. All right. Okay.

A jury found that Rodriguez’s negligence proximately caused the accident and assessed $112,109 in compensatory damages, which consisted of $108,109 in economic damages and $4,000 in non-economic damages. The jury also found that Rodriguez was grossly negligent and assessed $550,000 in exemplary damages.

Subsequently, Villarreal filed a “Motion to Enforce Rule 11 Settlement Agreement and for Attorney’s Fees and Sanctions,” and both parties filed a motion for judgment. In essence, Villarreal asserted that the parties’ agreement required rendition of judgment for the full amount of compensatory and exemplary damages assessed by the jury. In contrast, Rodriguez argued that the agreement did not preclude application of the statutory exemplary-damages cap, which would mandate judgment for $220,218 in exemplary damages, as opposed to the $550,000 assessed by the jury. See Tex. Civ. Prac. & Rem.Code Ann. § 41.008(b) (Vernon Supp. 2009) (“Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: (1)(A) two times the amount of economic damages; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or (2) $200,000”).

On June 3, 2008, the trial court signed a judgment, reflecting the court interpreted the agreement as asserted by Villarreal and awarding him $112,109 in compensatory damages, $550,000 in exemplary damages, costs of court, and pre-judgment and post-judgment interest. Rodriguez timely filed a motion to modify the judgment, re-urging his contention that the exemplary-damages cap must be applied. The trial court denied the motion by written order.

II. Analysis

In his first issue, Rodriguez advances two somewhat interrelated reasons that the trial court erred by failing to apply the statutory exemplary-damages cap: (1) the high-low agreement was inapplicable because the conditions precedent were not triggered; or (2) even if the high-low agreement were applicable, the trial court incorrectly interpreted it. Rodriguez’s second issue is an alternative contention; he argues that, even if the high-low agreement were applicable, the trial court erred by refusing to apply the exemplary-damages cap because it can be waived only by express agreement. Villarreal contends that, not only did the trial court correctly interpret the parties’ agreement and refuse to apply the exemplary-damages cap, but Rodriguez waived his right to appeal the trial court’s judgment. Therefore, Villarreal requests that we dismiss the appeal and assess sanctions against Rodriguez.

A. The Parties’ Agreement

With respect to his first issue, Rodriguez contends the high-low agreement would be triggered only if the verdict fell outside its limits; i.e., if the verdict were less than $100,000, Villarreal was entitled to recover $100,000, and if the verdict were greater than $750,000, Villarreal’s recovery was limited to $750,000. Rodriguez contends the high-low agreement was inapplicable if a verdict fell between these amounts; thus the trial court was required to render judgment on the verdict by applying all legal concepts, including the exemplary-damages cap, that are ordinarily applicable when rendering judgment on a jury verdict.

A “high-low agreement” is “[a] settlement in which a defendant agrees to pay the plaintiff a minimum recovery in return for the plaintiffs agreement to accept a maximum amount regardless of the outcome of the trial.” Black’s Law Dictionary 746 (8th ed. 2004); see Baylor Coll. of Med. v. Camberg, 247 S.W.3d 342, 344 n. 1 (Tex.App.-Houston [14th Dist] 2008, pet. denied) (citing above Black’s Law Dictionary definition). A settlement agreement, including a high-low agreement, is a contract, and its construction is governed by legal principles applicable to contracts generally. Employers Reinsurance Corp. v. Gordon, 209 S.W.3d 913, 917 (Tex.App.Texarkana 2006, no pet.); ASI Techs., Inc, v. Johnson Equip. Co., 75 S.W.3d 545, 547 (Tex.App.-San Antonio 2002, pet. denied). If a contract is worded so that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous, and we construe it as a matter of law. See Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003).

Initially, we agree with Rodriguez’s contention that the high-low agreement was never triggered. The parties’ recitations, particularly the following response to the trial court’s question, made clear that the high-low agreement controlled only if the verdict fell outside its limits:

THE COURT: If it is outside on either side, your high/low agreement controls; is that right?
[RODRIGUEZ’S COUNSEL]: Correct. Correct. It’s a Rule 11 agreement for maximum and minimum.

Moreover, as a sister-state court recognized in a case cited by Rodriguez,

A high-low agreement, when initially reached by the parties in a litigation, is, in fact, a conditional settlement. The condition of the agreement is that the jury render a verdict that falls outside the range of the high-low agreement. When a verdict is rendered outside of the agreed-upon range, the condition is triggered and the “high” or the “low” becomes binding upon the parties as a settlement. By contrast, when a jury renders a verdict within the range of the high-low agreement, the condition is not met and the high-low agreement is rendered academic.

Cunha v. Shapiro, 42 A.D.3d 95, 837 N.Y.S.2d 160, 163 (N.Y.App.Div.2007) (emphasis added).

Villarreal frames his contention as an argument that the high-low agreement applied even if the verdict fell between $100,000 and $750,000 and Rodriguez agreed to pay the amount of any such verdict. However, the high-low agreement was clearly inapplicable to a verdict between its dollar limits considering the nature and purpose of such an agreement. See id.; Black’s Law Dictionary 746. Nevertheless, Villarreal repeatedly suggests that the parties reached a “settlement agreement” for payment of such a verdict. Consequently, the dispute is actually whether the parties’ overall Rule 11 agreement contained not only a high-low agreement but also an agreement that Rodriguez would pay the amount of any verdict between $100,000 and $750,000.

We disagree that the parties made an agreement that Rodriguez would pay the amount of any verdict between $100,000 and $750,000. The parties represented at both the outset and conclusion of their announcement that they were dictating a “high-low” agreement. They did not represent that they made any sort of compromise settlement relative to a verdict between the limits of the high-low agreement. The only language in their announcement relative to such a verdict was the following:

[RODRIGUEZ’S COUNSEL]: —with the guaranteed recovery of [Villarreal] a minimal of a hundred thousand, maximum of 750,000. We will proceed forward and let the jury render a verdict and if the verdict comes in between 100 and 750, it will be the verdict.
THE COURT: Okay. I am not — and so if the jury returns a verdict that is within your high/low, that’s the verdict? [VILLARREAL’S COUNSEL]: Right,

(emphasis added).

In his brief, Villarreal summarizes the above-cited statement by Rodriguez’s counsel as follows: “[W]e will proceed forward and let the jury render a verdict and if the verdict comes in between 100 and 750, it [the guaranteed recovery] will be the verdict.” Therefore, Villarreal contends that the word “it” in Rodriguez’s counsel’s statement referred to “the guaranteed recovery,” reflecting the parties agreed that the guaranteed recovery would be the amount of the verdict. We disagree. The only noun preceding “it” in this statement, to which “it” could have referred, was the word “verdict.” Accordingly, the parties merely stated that the verdict will be just that — “the verdict.”

Further, the trial court’s above-cited question and the answer thereto confirmed the parties did not agree that “the guaranteed recovery” will be “the verdict.” When the trial court asked, “a verdict that is within your high/low, that’s the verdict?,” Villarreal’s counsel acquiesced in the trial court’s summary and did not impose language ensuring “the guaranteed recovery” will be the amount of the verdict. We are not authorized to rewrite agreements to insert provisions parties could have included or to imply restraints for which they have not bargained. See Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 646 (Tex.1996).

Moreover, as Rodriguez asserts, the parties did not state that a verdict between $100,000 and $750,000 will be “the amount Rodriguez will pay,” “the judgment,” “the recovery,” or similar words to that effect. Villarreal offers no authority demonstrating a defendant’s agreement that a certain amount constitutes a “verdict” translates into the defendant’s “guarantee” to pay that amount to the plaintiff. To the contrary, the term “verdict” does not entail a guarantee that a party will recover the amount of damages found by the jury. A “verdict” is “a written declaration by a jury of its decision, comprehending the whole or all the issues submitted to the jury_” Tex.R. Civ. P. 290. Although a trial court must generally render judgment on a verdict, Tex.R. Civ. P. 300, the judgment “shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.” Tex.R. Civ. P. 301 (emphasis added); see Black’s Law DictionaRY 858 (8th ed. 2004) (defining “judgment” as a “court’s final determination of the rights and obligations of the parties in a case.”).

Consistent with this requirement, there are various legal principles, in addition to the exemplary-damages cap, that may apply when a trial court renders judgment on a verdict and cause the ultimate recovery to be less, or even more, than the total damages found by the jury. See, e.g., Tex. Civ. Prac. & Rem.Code Ann. § 33.012(a) (Vernon 2008) (providing that, relative to certain causes of action, trial court shall reduce amount of damages to be recovered by claimant by a percentage equal to his percentage of responsibility); id. § 33.012(b) (requiring trial court, when this provision is applicable, to reduce claimant’s recovery of damages by sum of all his settlements in the cause of action); Tex. Civ. Prac. & Rem.Code Ann. § 74.301 (Vernon 2005) (prescribing certain limits on damages recoverable in health-care liability suits); Tex. Fin.Code Ann. § 304.102 (Vernon 2006) (“A judgment in a wrongful death, personal injury, or property damage case earns prejudgment interest.”). In fact, Villarreal maintained he was entitled to, and indeed was awarded, pre-judgment interest although such award caused an ultimate recovery greater than the “verdict.” Accordingly, Rodriguez’s agreement that a verdict between $100,000 and $750,000 “will be the verdict” did not constitute an agreement that Villarreal is entitled to recover the amount of that verdict.

Villarreal also emphasizes the general concepts that a high-low agreement is considered a complete settlement, and Texas law favors enforcement of agreements between parties. See In re BP Prods. N. Am. Inc., 244 S.W.3d 840, 846 (Tex.2008). However, Rodriguez does not quarrel with these general principles. Rather, as Rodriguez correctly suggests, they are inapplicable here because the high-low agreement was not triggered, and there was no settlement agreement relative to a verdict between the limits of the high-low agreement. Instead, relative to any such verdict, the parties effectively recited that they would remain in the same positions they would have occupied if there had been no Rule 11 agreement.

Additionally, Villarreal raises two estoppel arguments. First, he cites the doctrine of estoppel by election, which has been recognized as the principle that a person will not be permitted to accept the beneficial part of a transaction and repudiate the disadvantageous part. See San Antonio Sav. Ass’n v. Palmer, 780 S.W.2d 803, 809 (Tex.App.-San Antonio 1989, writ denied). Villarreal suggests that this doctrine precludes Rodriguez from accepting the benefit of a high-low agreement, which limited his exposure if the verdict exceeded $750,000, but repudiating a purportedly concomitant agreement to pay the amount of a verdict between $100,000 and $750,000. However, the disadvantageous part of the high-low agreement to Rodriguez was the requirement that he pay $100,000 even if the verdict were less than this amount. Again, because Rodriguez made no agreement to pay a verdict between the limits of the high-low agreement, he does not seek to repudiate a disadvantageous portion of the agreement by requesting application of the exemplary-damages cap.

Next, Villarreal asserts the principle of quasi-estoppel, which precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.2000). The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced or from which he accepted a benefit. Id. However, because Rodriguez never agreed to pay the amount of any verdict between $100,000 and $750,000, he does not take an inconsistent position by insisting on application of the exemplary-damages cap before rendition of judgment on such a verdict.

Finally, Villarreal posits that Rodriguez waived application of the exemplary-damages cap by failing to expressly reserve this right when making the Rule 11 agreement. Villarreal relies on ASI Technologies, a products-liability case, in which the defendant seller and the defendant manufacturer entered into a high-low agreement with the plaintiff, specifying minimum and maximum recoveries. 75 S.W.3d at 546-47. The defendants then entered into a separate agreement whereby they apportioned between themselves the amount each would pay under the high-low agreement with the plaintiff. Id. at 547. The jury returned a verdict that exceeded the maximum limit of the high-low agreement, thus limiting the plaintiffs recovery to that amount. Id. The jury also found the manufacturer was liable to the plaintiff but found no liability on the part of the seller. Id. The seller sought statutory indemnity from the manufacturer pursuant to section 82.002 of the Texas Civil Practice and Remedies Code for the amount the seller paid pursuant,to the high-low agreement, plus its attorney’s fees, court costs, and pre-judgment interest. Id. at 547-48; see Tex. Civ. Prac. & Rem.Code Ann. § 82.002(a), (b) (Vernon 2005) (providing, in general, that manufacturer shall indemnify and hold harmless seller against loss arising out of a products-liability action, except for any loss caused by the seller’s conduct and defining “loss” to include court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages).

On appeal, the court held that, although the verdict-sharing agreement was silent with respect to statutory indemnity under section 82.002, the seller intentionally waived such a right because enforcing the statute would render the agreement meaningless. ASI Techs., 75 S.W.3d at 549. The court also noted that the seller could have easily included a provision in the verdict-sharing agreement whereby it reserved its right to statutory indemnity if it had so chosen. Id.

ASI Technologies is distinguishable from the present case because its defendants agreed to each pay a certain amount of the plaintiffs recovery; thus, the statutory indemnity sought by the seller would have directly altered their agreement by effectively causing the manufacturer to pay the entire recovery. See id. at 547-49. Once again, in the present case, the parties did not enter into an agreement that Rodriguez would pay a verdict which fell between the limits of the high-low agreement. Therefore, application of the exemplary-damages cap to such a verdict would not render meaningless any agreement of the parties. Consequently, Rodriguez did not waive his right to request application of the exemplary-damages cap by entering into the Rule 11 agreement.

Further, because the parties made no settlement agreement relative to such a verdict, Rodriguez was not required to reserve his right to later request application of any legal concepts ordinarily applicable to rendering judgment on a verdict. Rodriguez had already pleaded for application of the exemplary-damages cap and then reiterated his request after the jury returned the verdict.

In sum, the trial court misinterpreted the Rule 11 agreement by deciding it included a settlement agreement for payment of the amount of any verdict between $100,000 and $750,000. Accordingly, the trial court erred by refusing to apply the-exemplary-damages cap when rendering judgment on the verdict, as requested in Rodriguez’s motion to enter judgment.

B. Right to Appeal

However, our inquiry does not end here because Villarreal contends that Rodriguez waived his right to pursue this appeal. Villarreal emphasizes the general principle that the right to appellate review may be waived by agreement. See In re Long, 946 S.W.2d 97, 99 (Tex.App.-Texarkana 1997, no writ) (citing Johnson v. Halley, 8 Tex.Civ.App. 137, 27 S.W. 750 (1894, writ ref'd)). Again, Rodriguez does not disagree with this general concept. However, as he suggests, we must determine the scope of the waiver.

Although the parties stated, “[w]e agree each party waives right to appeal,” it is unclear whether they waived the right to appeal only a verdict subject to the high-low agreement or any verdict. Arguably, the waiver applied to only a verdict subject to the high-low agreement because the parties made clear they were making only a high-low agreement. Nevertheless, even if the waiver also applied to a verdict between the limits of the high-low agreement, the parties waived, at most, the right to appeal the “verdict” and not the right to appeal a judgment improperly rendered after the verdict.

Waiver is “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.” Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003) (per curiam). In determining if a waiver has in fact occurred, the court must examine the acts, words, or conduct of the parties, and it must be “unequivocally manifested” that it is the intent of the party to no longer assert the right. Dep’t of Protective and Regulatory Servcs. v. Schutz, 101 S.W.3d 512, 516 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (applying this rule when determining whether party waived right to appeal). In the present case, the entire agreement of the parties, in which waiver of the “right to appeal” was contained, concerned the consequences of a “verdict.” See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994) (recognizing that court must read all parts of a contract together to ascertain the parties’ agreement, and “[n]o one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions.”). The parties did not manifest an intent to relinquish the right to appeal the judgment in all circumstances.

We construe waiver of the right to appeal the verdict as relinquishing the right to raise issues which might vitiate the verdict such as challenges to sufficiency of the evidence to support the verdict, evi-dentiary rulings, or jury-charge errors. However, as Rodriguez asserts, construing the waiver as applying to any judgment rendered in this case could lead to an absurd result. See Lane v. Travelers Indem. Co., 391 S.W.2d 399, 402 (Tex.1965) (refusing to construe contract in a manner that would produce absurd result); Pavecon, Inc. v. R-Com, Inc., 159 S.W.3d 219, 222 (Tex.App.-Fort Worth 2005, no pet.) (recognizing that, when possible, court will avoid a construction of contract which would lead to absurd result). For example, under Villarreal’s interpretation, the parties would have no recourse if the trial court rendered judgment for an arbitrary sum that was completely unrelated to the verdict or if the verdict had been subject to the high-low agreement, but the trial court rendered a judgment which failed to comport with the minimum or maximum recoveries. We recognize these scenarios were unlikely, but we cite them as examples of the reason that waiver of the right to appeal the verdict cannot translate to waiver of the right to appeal improper rendition of judgment on the verdict.

We note that a federal court has implicitly reached the same conclusion with respect to a similar waiver provision. In Vargo v. Mangus, 94 Fed.Appx. 941, 942 (3rd Cir.2004), the parties entered into a high-low agreement. Unlike the present case, the parties explicitly agreed that a verdict between the limits of the high-low agreement “will be the amount paid.” See id. After the jury returned a verdict between the limits of the agreement, the trial court rendered judgment for that amount and also granted the plaintiffs request for additional “delay damages.” Id. The court of appeals held that delay damages were improper because the parties’ agreement constituted a settlement for the amount of the verdict only, and the plaintiffs failed to reserve the right to seek delay damages. Id. at 943. Notably, like the present case, the agreement also contained a waiver of the right to appeal. Id. at 942. Although the court did not discuss any issues regarding the right to appeal, it expressly noted that the defendants were appealing the award of delay damages and not the jury’s verdict. Id. at 942-43 & n. 1. Consequently, because the court considered the merits of the appeal, it obviously believed the waiver did not apply to appeal of the trial court’s improper rendition of judgment on the verdict in violation of the parties’ agreement, as opposed to an appeal of the verdict itself. See id.

Villarreal primarily relies on In re Long, in which the court dismissed an appeal based on a waiver provision in the parties’ settlement agreement. 946 S.W.2d at 100. In re Long is not persuasive here because the provision in that case was much more specific than the language at issue in the present case. See id. at 98. The In re Long parties agreed to waive all rights to appeal from “any existing order,” which included the order of turnover from which the appeal was taken. Id. In contrast, the parties in the present case did not waive their right to appeal from “any judgment.” Accordingly, we conclude that Rodriguez did not waive his right to appeal the trial court’s failure to apply the statutory exemplary-damages cap when rendering judgment on the jury’s verdict.

In sum, we sustain Rodriguez’s first issue, and we need not consider his second issue. We modify the judgment to reduce the award of exemplary damages from $550,000 to $220,218 and affirm the judgment as modified. We deny Villarreal’s motion to dismiss and for sanctions.

      . We recognize Villarreal’s attorney did not expressly state that he agreed with each recitation by Rodriguez's counsel, and the trial court's questions regarding the announcement were not each answered by both counsel. Nonetheless, the parties do not dispute the entire announcement constituted their Rule 11 agreement. See Tex.R. Civ. P. 11 ("Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”). Rather, as we will discuss, the dispute involves interpretation of the agreement.


author: JOHN S. ANDERSON, Justice.

text:
    COMMINT TECHNICAL SERVICES, INC. and Keith Kelly, Appellants, v. Gene QUICKEL and Nevoda Star, LLC, Appellees.
    No. 14-09-00616-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 3, 2010.

      Hugh L. McKenney, Houston, for appellants.
    Karen Ensley, Darrell Wayne Smith, Dallas, for appellees.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
   OPINION

JOHN S. ANDERSON, Justice.

Appellants, Commint Technical Services, Inc. and Keith Kelly (Commint), appeal the trial court’s granting of a summary judgment in favor of appellees, Gene Quickel and Nevoda Star, LLC. We affirm as to Quickel and reverse and remand as to Nevoda Star.

Factual and PROCEDURAL Background

Quickel was employed by Commint from July 2005 through January 2007. Com-mint markets specialized computer software to various businesses and industries. Commint hired Quickel to provide installation of the specialized computerized software and onsite training and support. Commint claims that, pursuant to Quickel’s employment agreement, he was required to work exclusively for Commint. Additionally, Quickel executed non-compete agreements and confidentiality agreements.

Sometime in 2006, Commint decided to market a new line of a software called “Clarity”. To market the Clarity software, Commint was required to have a certified technician to install and conduct training on the new product. Commint asked Quickel to complete the three-week training course in July 2006. Quickel agreed to attend the training course as long as Com-mint agreed to pay him a training fee of $5,000, in addition to travel expenses in the amount of $4,700. Quickel attended the training course and obtained the certification, but claimed Commint failed to pay him the $9,700 per their agreement. Quickel avers that he terminated his employment in January 2007 and subsequently opened his own software sales and training business, Nevoda Star. Commint claims Quickel began operating Nevoda Star while still employed with Commint and that, as a result, Commint terminated Quickel’s employment.

On December 26, 2007, Quickel filed suit in Collin County, Texas against Commint and Commint’s president Keith Kelly, alleging breach of contract, quantum meruit, and defamation. The breach of contract claim and quantum meruit claim both arose from Commint’s alleged failure to pay Quickel for the Clarity training. The defamation claim alleged Commint and Keith Kelly published false statements to current and prospective clients of Quickel’s new business, Nevoda Star. Commint and Keith Kelly were served with citation in the Collin County lawsuit on January 14, 2008.

On January 16, 2008, two days after being served, Commint filed suit in Harris County against Quickel, Nevoda Star, and Carol Meeking. Commint alleged six different causes of action against Quickel and Nevoda Star, including: breach of contract; fraud; theft and conversion of trade secrets, proprietary information, and confidential information; disparagement and diversion of business; slander and libel; and conspiracy. All of Commint’s claims arise from Quickel’s departure from Com-mint and the development of his new business, Nevoda Star.

The Collin County suit filed by Quickel proceeded to trial on October 9, 2008. A final judgment was signed in favor of Quickel. No appeal was taken from the Collin County final judgment.

Back in Harris County, Quickel and Ne-voda Star filed a traditional motion for summary judgment on February 6, 2009. The basis of the motion was that Com-mint’s claims were compulsory counterclaims that Commint should have asserted in the Collin County suit and are therefore barred under the compulsory counterclaim rule and the doctrine of res judicata. Commint filed a response and objections to Quickel and Nevoda Star’s motion for summary judgment. Commint complained that the motion was not supported by permissible evidence. Additionally, Commint argued its claims were not compulsory counterclaims and were not barred by res judicata. On March 24, 2009, the trial court granted Quickel and Nevoda Star’s motion for summary judgment. This appeal followed.

Discussion

On appeal, Commint argues the trial court erred in granting summary judgment because: (1) its claims were not compulsory counterclaims; (2) its claims were not barred by res judicata; and (3) judgment in favor of Nevoda Star was not proper because it was not a party to the Collin County suit. Commint also complains the trial court erred by failing to sustain its objections to Quickel and Nevo-da Star’s summary judgment evidence.

I. Evidentiary Objections

In its response to Quickel and Nevoda Star’s motion for summary judgment, Commint asserted four objections to the summary judgment evidence and repeats the same objections on appeal. The trial court did not specifically rule on Com-mint’s objections; it only signed a broad order granting Quickel and Nevoda Star’s motion. We address each of Commint’s objections.

A. Applicable Law

To be considered by the trial or reviewing court, summary judgment evidence must be presented in a form that would be admissible at trial. See Hidalgo v. Sur. Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex.1971). A party must object in writing to the form of summary judgment evidence and place the objection before the trial court, or its objection will be waived. See Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d 944, 945 (Tex.1990). To complain on appeal about an objection to form, the party is required to not only object to form, but to secure a ruling on its objection by the trial court. Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex.App.-Houston [14th Dist.] 2000, no pet.). If the record does not show the party secured any rulings on its objections, the complaint will be waived on appeal. Id.

1. Background Facts

Commint objects to the background facts section contained in the summary judgment motion because it was not supported by any summary judgment evidence. The background facts are a part of the summary judgment motion and are not evidence. See Trinity Universal Ins. Co. v. Patterson, 570 S.W.2d 475, 478 (Tex.Civ.App.-Tyler 1978, no writ) (holding summary judgment motion itself is not competent summary judgment evidence). Therefore, this objection is without merit.

2. Collin County Petition

Commint contends the Collin County petition attached to the summary judgment motion is not proper summary judgment evidence. The only basis for Commint’s objection is that the petition is not “proper” summary judgment evidence. This is an objection to form. See Tex.R. Civ. P. 166a(f); Jones v. Jones, 888 S.W.2d 849, 852 (Tex.App.-Houston [1st Dist.] 1994, no writ). Because it is an objection to form and Commint failed to secure a ruling on it, Commint has waived this objection on appeal. See Hou-Tex, 26 S.W.3d at 112.

3. Collin County Final Judgment

Commint also objects to the October 15, 2008 Collin County final judgment attached to the summary judgment motion. As stated above the only difference between the two judgments is that the December 11, 2008 judgment expressly denies Quickel’s defamation claims. Both judgments were admitted into evidence by trial court. We do not see how the entrance of the earlier signed judgment caused Commint harm. Therefore, the trial court did not abuse its discretion in admitting this evidence.

4. Deposition Excerpts

Finally, Commint objects to the Keith Kelly deposition excerpt that was attached as evidence to the summary judgment motion. Commint contends the deposition excerpt was not properly authenticated. This is an objection to form. See Tex.R. Civ. P. 166a(f); Nichols v. Lightle, 153 S.W.3d 563, 569 (Tex.App.-Amarillo 2004, pet. denied). Commint failed to secure a ruling from the trial court on this objection; therefore, it is waived. See Hou-Tex, 26 S.W.3d at 112.

For the above reasons, all of Commint’s objections to the summary judgment evidence are overruled.

II. Summary Judgments

Under the traditional summary judgment standard of review, a movant has the burden to show there are no genuine issues of material fact, and he is entitled to judgment as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and we make all reasonable inferences in his favor. Id. We review the trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiffs causes of action or if it conclusively establishes all elements of an affirmative defense. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995).

The compulsory counterclaim rule and the doctrine of res judicata are affirmative defenses. Therefore, Quickel and Nevoda Star had the burden to plead and prove all elements of each of their affirmative defenses. See Weiman v. Addicks-Fairbanks Rd. Sand Co., 846 S.W.2d 414, 419 (Tex.App.-Houston [14th Dist.] 1992, writ denied); Tex.R. Civ. P. 94.

A. Summary judgment in favor of Quickel

1. Compulsory Counterclaims

It has long been the policy of the courts and the legislature of this state to avoid multiplicity of lawsuits. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 246 (Tex.1988). The need for judicial economy is acute because the dockets of our trial courts are overburdened, and litigants must wait far too long for their cases to be heard. Id. at 246-47. In keeping with the policy to avoid multiple lawsuits, Texas Rule of Civil Procedure 97(a), regarding compulsory counterclaims, was promulgated. Id. at 247. The Texas Supreme Court has adopted a six-part test for determining whether a counterclaim is compulsory rather than permissive. In Wyatt, the Supreme Court stated that a counterclaim is compulsory only if:

(1) it is within the jurisdiction of the court; (2) it is not at the time of filing the answer the subject of a pending action; (3) the action is mature and owned by the pleader at the time of filing the answer; (4) it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; (5) it is against an opposing party in the same capacity; and (6) it does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

Id. If a claim meets these elements it must be asserted in the initial action. Id. A defendant’s failure to assert a compulsory counterclaim precludes its assertion in later actions. Id.

2. Analysis

Commint only contests components (2) and (4) of the Texas Supreme Court’s test for compulsory counterclaims. We first address component (2).

a. The subject of a pending action.

In addressing this issue, we are confronted with an interesting question of law, which appears to be issue of first impression in Texas. The problem is the test adopted by the Texas Supreme Court results in a different outcome than a direct application of Rule 97(a). Rule 97(a) defines a “compulsory counterclaim” as:

any claim within the jurisdiction of the court, not the subject of a pending action which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction....

Tex.R. Civ. P. 97(a). Rule 97(a) provides that the claim not be “the subject of a pending action which at the time of filing the pleading the pleader has against any opposing party”, while the Court stated the claim must not be “at the time of filing the answer the subject of a pending action”. Tex.R. Civ. P. 97(a) (emphasis added); Wyatt, 760 S.W.2d at 247 (emphasis added). Commint argues that according to the Texas Supreme Court’s wording of the compulsory counterclaim test, their claims are not compulsory because at the time they were required to file an answer in Collin County, an action was already pending in Harris County — -the action they filed two days after being served. However, under Rule 97(a), their Harris County claims would be barred because at the time of filing their pleading in Harris County, there was already an action pending in Collin County.

Following Commint’s argument, parties could easily escape the application of the compulsory counterclaim rule by following the course of action taken by Commint. After being served with notice of the lawsuit, a party could then race to the courthouse and file a similar action against the opposing party before his answer was due in the original suit, without triggering the compulsory counterclaim rule. We conclude the Texas Supreme Court did not intend through an application of its compulsory counterclaim test, that it would create such an easy path of avoidance and thereby increase the number of lawsuits filed. Therefore, we will apply the language from Rule 97(a), regarding this component of the Supreme Court’s test. Consequently, we conclude that because there was another action pending at the time Commint filed its petition in Harris County, Commint’s claims are barred by this component of the compulsory counterclaim rule.

b. Arising out of the same transaction or occurrence.

Commint argues its claims were not compulsory because they did not arise from the same transaction or occurrence as the Collin County suit. Commint focuses on the fact that the Collin County breach of contract claims arise only out of the contract regarding Clarity training; while Commint’s Harris County claims span a longer time period and involve broader issues.

We apply a logical relationship test to determine whether counterclaims arise out of the same transaction or occurrence. Jack H. Brown & Co. v. Nw. Sign Co., 718 S.W.2d 897, 400 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). The logical relationship test is met when the same facts, which may or may not be disputed, are significant and logically relevant to both claims. Id.

The facts underlying the Collin County defamation claim depend on the same facts as the claims alleged in the Harris County suit. The Collin County defamation claim alleges that from the time Quickel terminated his employment at Commint, Com-mint and its employees published false statements and accusations about Quickel. Quickel alleged the defamatory statements included accusations of both criminal and civil wrongs and accusations of personal dishonesty. These accusations mirror the claims alleged by Commint in the Harris County suit. In its Harris County petition, Commint alleges Quickel breached his employment contract by using trade secrets and other confidential information to begin his new company, Nevoda Star. Additionally, Commint complains Quickel made fraudulent misrepresentations to customers and employees of Commint for the benefit of Nevoda Star. Furthermore, Commint alleges Quickel made disparaging comments about Commint in order to divei’t business to Nevoda Star. Both the Harris County claims and the Collin County defamation claims arise from the breakdown of the employment relationship between Commint and Quickel. Therefore, the same facts or disputed facts are needed to prove and/or defend allegations in both cases. Because the same facts would be needed in both cases, we conclude the claims meet the logical relationship test. See Jack H. Brown & Co., 718 S.W.2d at 399-400 (stating the purpose of logical relationship test is to prevent relitigation of the same facts).

For the reasons above, we hold Com-mint’s Harris County claims were compulsory counterclaims that should have been brought in the Collin County action. Accordingly, we hold the trial court did not err in granting summary judgment in favor of Quickel. Furthermore, we need not address Quickel’s alternate theory of defense, res judicata, because we may affirm the summary judgment if any of the theories presented to the trial court are meritorious. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004). Therefore, we affirm the summary judgment granted in favor of Quickel.

B. Summary Judgment in favor of Nevoda Star

Commint argues the trial court erred by granting summary judgment in favor of Nevoda Star because Nevoda Star was not a party to the Collin County suit. Com-mint contends the claims against Nevoda Star were not compulsory in Collin County nor had they already been adjudicated in Collin County. We agree summary judgment against Nevoda Star was improper because Nevoda Star failed to meet its summary judgment burden.

As the summary judgment mov-ant, Nevoda Star was required to prove all elements of its affirmative defense. Randall’s Food Mkts., 891 S.W.2d at 644. Nevoda Star moved for summary judgment on two different affirmative defense theories: the compulsory counterclaim rule and the doctrine of res judicata. One element of the compulsory counterclaim rule is that the counterclaim be against an opposing party in the same capacity. Wyatt, 760 S.W.2d at 247. The summary judgment evidence establishes that Nevo-da Star was not a party to the Collin County suit. Nevoda Star contends there is “clearly a close identity of parties” because Nevoda Star is Quickel’s business entity. This is not what is required by the rule. Nevoda Star was not a party to the Collin County suit, and even if we were to view Nevoda Star as Gene Quickel, they were not sued in the same capacity. See Community State Bank v. NSW Invs., L.L.C., 38 S.W.3d 256, 260 (Tex.App.-Texarkana 2001, pet. dism’d w.o.j.) (stating “capacity” as used in the context of the compulsory counterclaim rule as referring to the distinction between individual and representative capacities”). Thus, Nevoda Star failed to meet its summary judgment burden. Accordingly, summary judgment based on the compulsory counterclaim rule would not be proper. See KPMG Peat Marwick, 988 S.W.2d at 748.

To prevail on the affirmative defense of res judicata, Nevoda Star had to establish (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) subsequent action based on the same claims that were raised or could have been raised in the first action. Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex.1996). Nevoda Star made no argument regarding identity of parties in the res judicata portion of its motion. Therefore, Nevoda Star failed to prove that it was entitled to a summary judgment as a matter of law on the affirmative defense of res judicata. See KPMG Peat Marwick, 988 S.W.2d at 748.

Because Nevoda Star failed to meet its burden, summary judgment was improperly granted in its favor.

Conclusion

We affirm the judgment in favor of Quickel. We reverse judgment in favor of Nevoda Star and remand to the trial court for further proceedings consistent with this opinion.

      . Carol Meeking is a former employee of Commint. She left Commint and began working at Nevoda Star with Quickel. Meek-ing was never served with the Harris County suit and all claims against her have been severed from this cause of action.

      . There is some dispute about whether there were two different final judgments signed and which one controls. The only meaningful difference between the two judgments is that the later signed judgment awards a take nothing judgment to Quickel against Commint, on Quickel's claims of defamation "and that such claims are denied in their entirety.” The earlier signed judgment does not explain upon which cause of action Quickel was to recover; although, it was presumably the breach of contract claim, as the amount awarded matched the amount of damages sought for the breach of contract.


author: BRIAN QUINN, Chief Justice.

text:
    Steven Ray GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-0322-CR.
    Court of Appeals of Texas, Amarillo, Panel B.
    June 3, 2010.

      James B. Johnston, Easterwood, Boyd & Simmons, LLP, Hereford, TX, for Appellant.
    Rob Daniel, Assistant District Attorney, Plainview, TX, for Appellee.
    Before QUINN, C.J., and HANCOCK, J., and BOYD, S.J.

      . John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex Gov't Code Ann. § 75.002(a)(1) (Vernon Supp. 2009).

   Opinion

BRIAN QUINN, Chief Justice.

Steven Ray Garcia (appellant) appeals his conviction for driving while intoxicated, a third degree felony. His first two issues involve the trial court’s refusal to grant his motion to suppress evidence and to submit an article 38.23 instruction to the jury. His last issue involves the legal and factual sufficiency of the evidence supporting the verdict. We affirm.

Background

According to the record, Officer Dawn Paige Billingsly received a call from dispatch at around 1 a.m. about a disturbance caused by a purportedly intoxicated person. The alleged disturbance was at a local drug and alcohol rehabilitation center. The officer responded to the call and encountered Nancy Salinas standing outside the center with two other people. Salinas was the center employee who phoned the police. Moreover, she told Billingsly that the person about whom she called was “real intoxicated and disturbing the facility.” So too did she reveal that she knew the person’s identity, that he was the ex-boyfriend of another lady who worked at the center, that she knew the individual through NA and AA meetings, that he left the facility on foot, and that she believed him to be “highly intoxicated either by alcohol or drugs.” As she and the officer spoke, she also spied the individual (who happened to be appellant) enter a car and drive away. The officer’s attention was directed to appellant as he drove away, and this resulted in Billingsly radioing another policeman about appellant’s departure and direction of travel. The other officer, Reyes, encountered appellant and effectuated a stop.

As Reyes approached appellant, the latter began “yelling profanity” out of the driver’s side window. Appellant also had to be asked several times to exit his car before he complied. Furthermore, during their encounter, the officer noticed that appellant had eyes that appeared bloodshot, “red, glassy or watery.” He also smelled alcohol on appellant. Appellant also admitted to having drunk a few beers earlier. Based upon these observations and the information he had previously received, Reyes submitted appellant to various field sobriety tests. Appellant’s performance on those tests led to his arrest.

Issue One — Motion to Suppress

Appellant initially contends that the trial court erred in denying his motion to suppress. Allegedly, the circumstances failed to provide legal basis for the stop. This was so, the argument continues, because the information provided to Billingsly was nothing more than an uncorroborated tip founded upon hearsay uttered by Salinas. We disagree and overrule the issue.

Standard of Review

We review the trial court’s ruling on a motion to suppress under the standard discussed in Ford v. State, 158 S.W.3d 488 (Tex.Crim.App.2005). It requires us to give great deference to the trial court’s interpretation of historical fact and assessment of a witness’ credibility. Id. at 493. However, we need not give such deference to its application of the law to the facts, especially when those facts are undisputed. Neal v. State, 256 S.W.3d 264, 281 (Tex.Crim.App.2008). In that situation, we consider the matter de novo. Id.

Analysis

Whether the officers could legitimately stop appellant depended upon whether they had reasonable suspicion to believe that crime was afoot and appellant was involved in it. State v. Sheppard, 271 S.W.3d 281, 287 (Tex.Crim.App.2008). Moreover, the focus is not on whether the suspect actually committed the crime or the ultimate accuracy of the information upon which the officer relied. Indeed, a stop may still be lawful even if the facts on which it was based are ultimately found to be false or wrong. Icke v. State, 36 S.W.3d 913, 916 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). Rather, of import is the reasonableness of the officer’s belief that crime is afoot. Doyle v. State, 265 S.W.3d 28, 31 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd). And, here, the record shows that Billingsly was told at 1 a.m. of a purported disturbance by an intoxicated person at a rehabilitation center. When she arrived at the location, she encountered the person who made the call standing outside of the facility. That person not only described for the officer the suspect’s allegedly intoxicated conduct but also disclosed that she personally knew the person, i. e. appellant. So too did the officer see appellant leave the scene. Those circumstances were sufficient to enable a reasonable officer to rationally suspect that the person leaving, i.e. appellant, was involved in criminal activity. Consequently, the officers had reasonable suspicion to temporarily detain appellant.

Aside from the fact that Salinas’ information was based upon what others told her, appellant cites us to nothing of record indicating that a reasonable officer should have doubted her credibility. Nor do we have before us some unnamed source the reliability of which Billingsly was left to guess. Rather, before directing Reyes to detain appellant, the officer personally met with Salinas at the scene of the purported offense, discovered that she was the one who called the police, learned that she was an employee of the center whereat the disturbance allegedly occurred, learned that Salinas personally knew the person causing the disturbance, garnered data from Salinas about the nature of appellant’s conduct, and witnessed Salinas identify appellant at the scene. The trial court could have legitimately determined from these indicia that a reasonable officer had adequate basis to infer Salinas provided reliable information.

Nor is it of great moment that much of Salinas’ information about appellant being intoxicated and disruptive that evening came to her from others. Indeed, given the issue involved (that is, whether the circumstances were sufficient to enable an officer to objectively deduce that reasonable suspicion existed that crime was afoot), it is doubtful that her comments were even hearsay. This is so because they were not tendered at the suppression hearing to prove the matter asserted or that appellant was drunk and disturbing others. Instead, they served to illustrate what Billingsly knew or understood immediately before requesting appellant’s detention. See Benford v. State, 895 S.W.2d 716, 718 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (holding that the testimony was not hearsay because the information was not proffered for the truth of what was asserted but rather to show what the officer knew and acted upon). Additionally, we are cited to nothing of record suggesting that Billingsly knew the information being imparted by Salinas was secondhand. What we have instead is evidence of an officer responding to a call in the wee hours of the morning, talking with the caller about the misconduct of a third party, and being directed to the third party in question.

In sum, the record before us contains sufficient information to permit the trial court to hold that appellant’s stop was founded upon reasonable suspicion to believe that crime was afoot and appellant was entangled in it. Thus, we cannot say that the trial court erred in refusing to grant appellant’s motion to suppress.

Issue Two — Jury Instruction

In his second issue, appellant contends that the trial court erred in failing to submit to the jury an article 38.23 instruction regarding the legality of the stop. We disagree and overrule the issue.

In his brief, appellant contends that he was entitled to the instruction since a question arose with regard to the essential facts that led Reyes to effectuate the stop. What created this purported fact issue was the disclosure that Salmas’ information came from others, as opposed to her own interaction with appellant. Yet, appellant refers us to nothing of record suggesting that Salinas said something other than that attributed to her. Nor did we find such evidence or any other testimony raising a fact dispute with regard to why Billingsly ordered appellant’s detention. Thus, the trial court lacked basis to submit the instruction at issue. See Vennus v. State, 282 S.W.3d 70, 80 (Tex.Crim.App.2009) (stating that the trial court must submit an article 38.23 instruction when there is a factual dispute).

Third Issue — Sufficiency of the Evidence

In his final complaint, appellant asserts that the evidence was legally and factually insufficient to support his conviction for driving while intoxicated. This is so because the State supposedly failed to prove beyond a reasonable doubt that appellant was intoxicated “by not having the normal use of [his] mental or physical faculties by reason of the introduction of alcohol into the body.” We disagree and overrule the issue.

The record contains evidence showing that the police had been called because of a disturbance committed by an intoxicated person. When Reyes confronted appellant, the former smelled alcohol on the latter. So too did he see appellant’s bloodshot, glassy eyes and hear appellant admit to having consumed a few beers. Furthermore, appellant possessed all six of the horizontal-gaze nystagmus test clues indicative of inebriation. Appellant also was unable to perform other field sobriety tests. The jurors further heard the officer deduce (from appellant’s performance during the administration of the foregoing tests) that appellant lost the normal use of his physical or mental faculties due to his ingestion of alcohol. This is some evidence upon which a rational jury could deduce, beyond reasonable doubt, that appellant was driving while intoxicated. Furthermore, the evidence supporting that deduction was not so weak nor the contradictory evidence so strong as to render the verdict manifestly unjust. Thus, the claims of legal and factual insufficiency are rejected. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Watson v. State, 204 S.W.3d 404 (Tex.Crim.App.2006) (discussing the pertinent standards of review).

Accordingly, we affirm the judgment of the trial court.

      . The State argues that appellant failed to preserve the issue because he did not object at trial to the evidence garnered as a result of his detention. Yet, the record shows that appellant moved to suppress that evidence before trial, a hearing was held on the motion, and the trial court denied the request. These circumstances having occurred, appellant was not obligated to again object at trial. See Garza v. State, 126 S.W.3d 79, 84 (Tex.Crim.App.2004) (holding that one sufficiently preserves error if the complaint was the basis of an unsuccessful pretrial motion to suppress).

      . Article 38.23 of the Texas Code of Criminal Procedure states that "[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case" and that in "any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.” Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).