author: ANNE GARDNER, Justice. SUE WALKER, Justice,

text:
    LEASE FINANCE GROUP, LLC, Appellant, v. Randy CHILDERS, Arlington Motor Cars USA, and JP Morgan Chase Bank, N.A., Appellees.
    No. 2-09-010-CV.
    Court of Appeals of Texas, Fort Worth.
    March 18, 2010.

      Mark C. Snyder, Guest & Associates, PC, Irving, TX, for Appellant.
    Franklin W. Cram, Franklin W. Cram PC, Mansfield, TX, Truman E. Spring, Jr., Dallas, TX, for Appellees.
    Panel: GARDNER, WALKER, and McCOY, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellant Lease Finance Group, LLC (“LFG”) appeals a judgment of garnishment in favor of Appellees Randy Childers and Arlington Motor Cars USA against JP Morgan Chase Bank, N.A. (“Chase”). LFG contends in three issues that the trial court erred by denying LFG’s motion to set aside judgment and for new trial. We reverse and remand.

II. Factual and Procedural Background

AMC obtained a default judgment against LFG on May 2, 2008, in the amount of $24,500. On September 12, 2008, AMC filed an application for writ of garnishment naming Chase as garnishee and seeking to garnish funds held by Chase for LFG. The trial court issued the writ on September 15, 2008, and Chase was served with the writ on September 19, 2008. Chase filed its original answer on October 7, 2008. AMC and Chase then submitted an “agreed” judgment of garnishment to the trial court that was signed by counsel for AMC and Chase; the “agreed” judgment was not signed by LFG.

The trial court signed the judgment of garnishment on October 10, 2008. The judgment stated in the first paragraph:

The Court, having found that Judgment-Defendant [LFG] has been properly served with a copy of the Writ of Garnishment in accordance with Rule 663a and has failed to answer or to otherwise enter an appearance in this garnishment suit, is of the opinion that judgment should be rendered in accordance with the pleadings on file and as set forth herein.

Unaware of the October 10 judgment of garnishment, LFG filed its “Original Answer and Motion to Dissolve Writ of Garnishment” on October 24, 2008. LFG first learned of the October 10 judgment of garnishment at the hearing on its motion to dissolve on November 3, 2008.

LFG thereafter filed a “Motion to Set Aside Judgment in Garnishment and for New Trial” on November 7, 2008, claiming it was not served in strict compliance with the rules of civil procedure. LFG submitted an affidavit, by its attorney, Mark Snyder, in support of the motion. Snyder stated in the affidavit that he told AMC’s attorney, Franklin Cram, on either October 6 or October 7, 2008, that he would not accept service of the writ of garnishment on behalf of LFG. Snyder also averred that he received a faxed letter from Cram on October 9, 2008. The October 9, 2008 letter enclosed a copy of an undated facsimile to LFG forwarding the writ of garnishment and application for writ of garnishment. Snyder further testified that he was unaware AMC had moved forward with the judgment of garnishment on October 10, 2008, and that he incorrectly calculated LFG’s answer day as if responding to service of citation rather than a writ of garnishment.

LFG attached a copy of the October 9, 2008 letter from Cram as an exhibit to Snyder’s affidavit. In the October 9, 2008 letter to Snyder, Cram stated: “I am enclosing the fax I sent [to LFG].” Although the enclosed facsimile included the writ of garnishment, the application for writ of garnishment, and an affidavit from Child-ers, the October 9, 2008 letter did not set forth the date on which AMC sent the facsimile to LFG. Further, the enclosed facsimile is not dated and does not include facsimile-transmission information indicating when AMC sent it; the only facsimile-transmission information relates to the facsimile sent by Cram to Snyder on October 9, 2008, the day before the trial court signed the agreed judgment.

The trial court conducted a hearing on LFG’s Motion to Set Aside Judgment in Garnishment and for New Trial on December 5, 2008. Although LFG contested notice under rule 663a in its motion, AMC did not offer evidence of notice at the hearing or in a written response. The trial court orally denied LFG’s motion at the end of the hearing, and this appeal followed.

III. Service of Writ of Garnishment on LFG

In its first and second issues, LFG argues the trial court erred by denying its motion to set aside judgment and for new trial because there is no evidence in the record that LFG was properly served with notice of the writ of garnishment, or, alternatively, the notice LFG received was untimely. In response, AMC contends the trial court correctly denied LFG’s motion because the judgment recites notice was proper under rule 663a, there is no minimum notice required under rule 663a, and LFG failed to prove that it was not served in compliance with rule 663a.

A. Standard of Review

A trial court’s order denying a motion to set aside a default judgment or for new trial is reviewed under an abuse of discretion standard. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984); Martinez v. Martinez, 157 S.W.3d 467, 469 (Tex.App.-Houston [14th Dist.] 2004, no pet.). The trial court abuses its discretion if it acts without reference to any guiding rules or principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997).

B. Applicable Law

“A writ of garnishment impounds the alleged money, property, or credits of the debtor.” Mendoza v. Luke Fruia Invs., Inc., 962 S.W.2d 650, 651 (Tex.App.-Corpus Christi 1998, no pet.) (citing Beggs v. Fite, 130 Tex. 46, 52, 106 S.W.2d 1039, 1042 (1937)). “The writ of garnishment affords a harsh remedy. It was not known to the common law, but is purely statutory.” Walnut Equip. Leasing Co. v. J-V Dirt & Loam, 907 S.W.2d 912, 914 (Tex.App.-Austin 1995, writ denied). “For this reason, garnishment proceedings cannot be sustained unless they strictly conform to the statutory requirements and related rules.” Id. Specifically, “[t]he garnishor must strictly comply with the requirement that it serve the debtor, and its failure to comply is not a mere irregularity.” Id. “Without proper service of the writ on the debtor, no control or custody of his property can be gained by his answer.” Mendoza, 962 S.W.2d at 652.

Rule 663a of the rules of civil procedure states, in relevant part: “The defendant shall be served in any manner prescribed for service of citation or as provided in Rule 21a with a copy of the writ of garnishment, the application, accompanying affidavits and orders of the court as soon as practicable following the service of the writ.” Tex.R. Civ. P. 663a; see also Hering v. Norbanco Austin I, Ltd., 735 S.W.2d 638, 641 (Tex.App.-Austin 1987, writ denied). Actual knowledge or a voluntary appearance by the debtor is insufficient and does not waive rule 663a’s requirement of service of the writ. Walnut Equip. Leasing Co., 907 S.W.2d at 914; Hering, 735 S.W.2d at 642; see also Requena v. Salomon Smith Barney, Inc., No. 01-00-00783-CV, 2002 WL 356696, at *3 (Tex.App.-Houston [1st Dist.] March 7, 2002, no pet.); Mendoza, 962 S.W.2d at 652. Although rule 663a does not entitle a debtor to a minimum of twenty days’ notice as with service of an original petition, Mullins v. Main Bank & Trust, 592 S.W.2d 24, 26 (Tex.Civ.App.-Beaumont 1979, no writ), the debtor does have the right to service of the writ of garnishment and related documents “as soon as practicable following the service of the writ” on the garnishee. Tex.R. Civ. P. 663a.

C. Analysis

LFG argues the trial court erred by denying its motion to set aside and for new trial because there is no evidence in the record that LFG was served with notice of the writ of garnishment, or, alternatively, that the notice LFG received was untimely. Before addressing LFG’s issues, we must first address AMC’s contentions that there is sufficient evidence of service because the judgment recites service was proper under rule 663a, that there is no minimum notice required under rule 663a, and that LFG had the burden to prove it was not properly seived under rule 663a.

1. No Presumption of Service from Recitation in Judgment

AMC contends there is sufficient evidence of sendee because the judgment recites LFG was served in compliance with rule 663a. Although a recitation of due notice in a judgment is some, but not conclusive, evidence of proper notice of trial settings and hearings, see Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex.App.-Houston [1st Dist.] 1997, pet. denied), the rule does not apply to default judgments. In an attack upon a default judgment, a recitation of - due service in the judgment does not lead to a presumption of due service. Morris v. Zesati, 162 S.W.3d 669, 671 (Tex.App.-El Paso 2005, no pet.) (citing McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965)). Instead, the plaintiff must “prove that the defendant was served in the required manner.” Id.

Here, the judgment in garnishment is analogous to a default judgment because the trial court signed the judgment in garnishment before LFG answered or otherwise appeared. See Tex.R. Civ. P. 239 (providing trial court may render default judgment on the pleadings against a defendant that has not filed an answer); see also Crowe v. Ware, No. 05-96-01294-CV, 1998 WL 258398, at *1-2 (Tex.App.-Dallas May 22, 1998, no pet.) (treating judgment in garnishment as default judgment on appeal by judgment debtor claiming lack of service under rule 663a). While the judgment debtor is not a necessary party to the garnishment action, the rules require that he be served under rule 663a. Hering, 735 S.W.2d at 642 (citing Horse-ley, Collecting on Judgments (State Bar of Texas Professional Development Program 1981)).

“Rule 663a is unambiguous in its requirement that the debtor be given notice of the garnishment and of his rights to regain his property.” Id. at 641. “[Gjarnishment proceedings cannot be sustained unless they strictly conform to the statutory requirements and related rules.” Walnut Equip. Leasing Co., 907 S.W.2d at 914. “[N]o control or custody of [a judgment debtor’s] property can be gained by his answer” without proper service of the writ. Mendoza, 962 S.W.2d at 652. The creditor’s failure to strictly comply with the pertinent rules “is fatal to its judgment in the garnishment action.” Hering, 735 S.W.2d at 641 (emphasis in original). We believe the rule applicable to default judgments should apply to judgments in garnishment and hold that a recitation of due service in a judgment in garnishment does not lead to a presumption of due service. See generally Morris, 162 S.W.3d at 671. In this case, LFG attacked the default judgment in garnishment by contending AMC did not serve LFG in compliance with rule 663a. Thus, even though the judgment in garnishment recites that LFG was properly served under rule 663a, there is no presumption of valid service.

2. Rule 663a Requires Service As Soon As Practicable

AMC next contends rule 663a does not establish a prescribed period in which a garnishor must serve a writ of garnishment on the debtor. We disagree. Rule 663a specifically requires service on the judgment debtor “as soon as practicable following service of the writ” on the garnishee. Tex.R. Civ. P. 663a. “As soon as practicable” is not susceptible to a definitive definition equally applicable in all cases, but we note that a fifteen-day delay before serving the debtor does not satisfy the strict requirements of rule 663a. See Requena, 2002 WL 356696, at *4. Thus, we reject AMC’s contention that rule 663a does not establish a prescribed period in which the garnishor must serve the debtor.

3. AMC had the Burden to Prove Proper Service

AMC also argues the trial court correctly denied LFG’s motion to set aside judgment and for new trial because LFG failed to prove it was not served in compliance with rule 663a. In doing so, AMC ineor-rectly assumes LFG had the burden to prove it was not properly served under the rule.

Rule 663a permits service on the debtor “as provided in Rule 21a.” Tex.R. Civ. P. 663a. Under rule 21a, all notices, other than citation, may be served by delivering a copy to the party either in person, by agent, or by certified or registered mail to the party’s last known address or by fax to the party’s current telecopier address. Tex.R. Civ. P. 21a. “A certificate by a party or an attorney of record, or the return of an officer, or the affidavit of any person showing service of a notice shall be prima facie evidence of the fact of service.” Id. Rule 21a further provides that “the party or attorney of record shall certify to the court compliance with this rule in writing over signature and on the filed instrument.” Id. (emphasis added); see also Crowe, 1998 WL 258398, at *1 (noting certificate of service on file at time of garnishment judgment established service by regular mail although certified mail was returned unopened).

However, where the record does not contain a certificate of service, an officer’s return, or an affidavit showing service of notice, there is no presumption of receipt, and the party contending it properly sent notice has the burden of proving proper notice under rule 21a. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex.2005); see Crowe, 1998 WL 258398, at *2 (citing Walnut, 907 S.W.2d at 915 and Hering, 735 S.W.2d at 642 and holding rule 663a requires proof that debtor was properly served under rule 21a). Because AMC did not file a certificate of service, an officer’s return, or an affidavit showing service, AMC had the burden to prove proper service under rule 21a. Mathis, 166 S.W.3d at 745.

4. AMC Did Not Prove It Served LFG As Soon As Practicable

We next consider whether the record contains sufficient evidence that AMC served LFG in compliance with rule 663a. It is undisputed that AMC did not serve LFG in a manner prescribed for service of citation. Thus, if AMC properly served LFG, AMC must have done so “as provided in Rule 21a.” See Tex.R. Civ. P. 663a. In this case, the combination of rules 21a and 663a required AMC to deliver a copy of the writ of garnishment to either LFG (or its duly authorized agent) or LFG’s attorney of record as soon as practicable after service on the garnishee on September 19, 2008. See Tex.R. Civ. P. 21a, 663a.

First, AMC has not shown that it served LFG by serving LFG or its duly authorized agent as soon as practicable. The only evidence of service in the record is the October 9, 2008 letter and its enclosed facsimile. The October 9, 2008 letter states, “I am enclosing the fax I sent to [LFG],” but it does not set forth the date AMC claims it sent the enclosed facsimile to LFG. The enclosed facsimile is not dated, and it does not include any facsimile-transmission information to indicate when AMC sent it. While the lack of a date on the facsimile does not necessarily defeat the fact of service under rule 21a, the lack of a date does mean AMC has not shown that it served LFG “as soon as practicable” as required by rule 663a. See Tex.R. Civ. P. 663a.

Second, AMC has not shown that it served LFG as soon as practicable through LFG’s attorney of record. The record reflects- AMC’s attorney sent the undated facsimile as an enclosure to the October 9, 2008 letter to Snyder. Assuming without deciding that Snyder was LFG’s attorney of record on October 9, 2008, we note that the garnishee, Chase, was served on September 19, 2008, and that the trial court signed the judgment in garnishment on October 10, 2008. Thus, AMC served a copy of the writ of garnishment on LFG’s attorney twenty days after service on the garnishee and one day before the trial court signed the judgment in garnishment. However, nothing in the record explains the twenty-day delay in service. Under these circumstances, we hold AMC failed to prove that it served LFG through its attorney “as soon as practicable” as' required by rule 663a. Tex.R. Civ. P. 663a; see also Requena, 2002 WL 356696, *3^4 (holding garnishor did not serve judgment debtor “as soon as practicable” where gar-nishor could have reasonably served judgment debtor fifteen days before it did).

AMC’s failure to prove it strictly complied with rule 663a is fatal to its judgment in garnishment. “It has long been the law of this State that if a judgment-creditor intends to avail himself of the State’s aid in effecting a deprivation of property, he must strictly comply with the pertinent rules.” Hering, 735 S.W.2d at 641. Because the record does not reflect service of the writ of garnishment on LFG as soon as practicable in compliance with rule 663a, the trial court abused its discretion in denying LFG’s motion to set aside and for new trial. We sustain LFG’s first and second issues.

IV. Conclusion

Having sustained LFG’s first and second issues, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

WALKER, J., filed a dissenting opinion.

SUE WALKER, Justice,

dissenting.

I respectfully dissent.

The final garnishment judgment at issue recites that the judgment-debtor in the underlying garnishment proceeding, Appellant Lease Finance Group, LLC (LFG) was given proper notice of the garnishment proceeding by the judgment creditors, Appellees Randy Childers and Arlington Motor Cars USA (collectively referred to herein as AMC). The judgment specifically states that “[t]he Court found that Judgment-Defendant Lease Finance Group, LLC has been properly served with a copy of the Writ of Garnishment in accordance with Rule 663a.” LFG filed a motion for new trial. LFG’s motion for new trial does not allege that it failed to receive notice-at best, LFG’s motion for new trial claims that the notice it received was defective in some unspecified way.

The trial court conducted a hearing on LFG’s motion for new trial. At that hearing, LFG bore the burden to establish that it was entitled to a new trial — that is, to offer evidence supporting its global allegation made in LFG’s motion for new trial that its attorney did not believe that the notice given to LFG was valid. LFG failed to do so. Although provided -with the opportunity, LFG did not call any LFG employee to testify at the motion for new trial hearing that LFG did not receive notice. Nor did LFG present to the trial court an affidavit from any LFG officer or employee affirmatively stating that LFG had not received notice. LFG offered no evidence in support of its motion for new trial.

LFG instead relied exclusively on an affidavit of its current attorney, Mark Snyder, that was attached to LFG’s motion for new trial. Snyder’s affidavit does not allege that LFG did not receive notice. Snyder’s affidavit indicates the opposite— that copies of the required documents were faxed directly to LFG at some time prior to the signing of the judgment of garnishment. See Tex.R. Civ. P. 663a (authorizing service of the writ of garnishment on the judgment debtor as provided in rule 21a); Tex.R. Civ. P. 21a (authorizing service by “telephonic document transfer to the recipient’s current telecopier number”).

Although Snyder’s affidavit does aver that the notice given to LFG was — in some unidentified way — not in compliance with rule 663a of the rules of civil procedure, at the motion for new trial hearing LFG offered no explanation of exactly how the notice was purportedly not in compliance with rule 663a and offered no evidence in support of this contention. Assuming this broad, global allegation that notice did not comply with rule 663a preserved a complaint that notice to LFG was not provided as soon as practicable, LFG nonetheless failed to introduce any evidence of this alleged fact. See Tex.R. Civ. P. 663a (requiring notice be given to judgment debtor “as soon as practicable following the service of the writ”). Because LFG did not prove or swear on what date it received the faxed notice (nor did LFG deny receiving the faxed notice), no evidence exists in the record of the date on which LFG received the faxed notice. In the absence of evidence of the date on which LFG received the faxed notice, no evidence exists that LFG did not receive it as soon as practicable.

Because LFG failed to meet its burden of offering evidence, or at least a sworn allegation, that it either did not receive the notice faxed to it or that the notice was faxed to it on a date certain — that was not as soon as practicable, no evidence exists in the record before us that is contrary to the judgment’s recitation of proper notice. In the absence of evidence in the record contrary to the judgment’s recitation of proper notice, we are required to presume that proper notice was given.

The majority refuses to apply this presumption, claiming the garnishment judgment is akin to a default judgment. I cannot agree; under the rules of civil procedure, a garnishment judgment entered in the absence of an answer from a judgment debtor is not a default judgment. Under the rules of civil procedure, LFG, the judgment debtor, is not a party to the garnishment suit. See Tex.R. Civ. P. 659 (providing that garnishment suit is docketed with plaintiff as plaintiff and garnishee as defendant). Under the rules of civil procedure, LFG as the judgment debtor does not file an answer in the garnishment suit. See Tex.R. Civ. P. 665 (providing that the answer filed by the garnishee shall be under oath); Tex.R. Civ. P. 667 (providing default judgment may be entered if garnishee, not judgment debtor, fails to file answer). And finally, the majority’s holding that every garnishment proceeding in which a judgment debtor chooses not to participate is a “default judgment” thwarts the very purpose underlying garnishment proceedings — to permit judgment creditors to collect monies owed to them pursuant to a final, already-litigated judgment.

Because LFG failed to meet its initial motion for new trial burden of presenting evidence or a sworn allegation that LFG did not receive notice or the date on which LFG did receive notice so that the trial court could determine whether that notice was provided as soon as practicable, I would hold that the trial court did not abuse its discretion by denying LFG’s motion for new trial. I would affirm the trial court’s judgment of garnishment. Because I am in the minority, I respectfully dissent.

      . We will collectively refer to Appellees Child-ers and Arlington Motor Cars USA as "AMC.”

      . Chase, the garnishee in the trial court, is an appellee in this case but did not file a brief.

      . There is no reporter's record from the November 3 hearing or written order on LFG’s motion to dissolve writ of garnishment.
      However, the trial court’s docket sheet indicates the trial court denied LFG’s motion to dissolve writ of garnishment.

      . AMC filed a written response to LFG's motion on the day of the hearing, but AMC did not submit any evidence with the response.

      . The trial court stated: "I’m going to deny the motion for new trial and let the parties proceed on the bill of review question.” The bill of review proceeding filed by LFG is not before this court, and we express no opinion on the merits of that proceeding.

      . We address LFG's first and second issues together because they involve the same questions of law and fact.

      .AMC also argues LFG waived its notice arguments by not raising them in its motion to set aside and for new trial. We disagree. LFG specifically stated on the first page of its motion that a "judgment in garnishment is subject to being set aside” where the "judgment debtor has not been give[n] proper notice of a garnishment pursuant to Rule 663a of the Texas Rules of Civil Procedure” and that "[t]he notice allegedly given to [LFG] did not comply with Rule 663a.”

      . In this appeal from the trial court’s denial of LFG's motion to set aside judgment and for new trial, we express no opinion as to which party bears the burden of proof on a motion under rule 664a. See Tex.R. Civ. P. 664a (permitting trial court to dissolve or modify writ of garnishment upon sworn motion by judgment debtor or other intervening party claiming interest in garnished property). Our holding applies only to proof of timely service under rule 663a “as provided in Rule 21a” in the absence of a certificate of service, an officer’s return, or other prima facie proof of service. See Tex.R. Civ. P. 663¾ 21a.

      . It is unclear from the record whether LFG, as of October 9, 2008, had retained Snyder to represent LFG in the garnishment action or whether LFG had only retained Snyder to file a bill of review to attack the underlying judgment. Because it does not affect our holding, we assume Snyder represented LFG in the garnishment action as of October 9, 2008.

      . Because we sustain LFG’s first and second issues and hold AMC did not serve LFG in compliance with rule 663a, we need not address LFG's third issue in which it contends it satisfied the second and third elements of the Craddock test for overturning default judgments. See Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988) (where there is no actual or constructive notice of a trial setting, a party need not show “he had a meritorious defense as a condition to granting his motion for new trial”); In re Marriage of Runberg, 159 S.W.3d 194, 200 (Tex.App.-Amarillo 2005, no pet.) (applying Lopez to both the second and third elements of the Craddock test).

      . LFG’s motion for new trial states that “Lwjhere a judgment debtor has not been give [sic] proper notice of a garnishment pursuant to Rule 663a of the Texas Rules of Civil Procedure, the judgment in garnishment is subject to being set aside.” And the motion alleges that LFG’s attorney Mark Snyder “did not believe that a valid notice of the Garnishment Action had been made upon [LFGJ in that the notice as represented to him by Plaintiffs’ counsel did not comply with Rule 663a of the Texas Rules of Civil Procedure.” Nowhere in LFG’s motion for new trial does it allege that it received no notice.

      . The majority inexplicably places the initial burden of proof at LFG’s motion for new trial hearing on the judgment creditor, AMC. It is true that once the party claiming lack of notice or service (here LFG) makes a sworn allegation of lack of notice or comes forward with evidence or testimony supporting an allegation of lack of notice, then the burden shifts to the opposing party (here AMC) to prove proper service or notice. See, e.g., Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex.2005) (explaining that "testimony by Lockwood's counsel that notice was sent did not contradict Mathis’s testimony that notice was never received ") (emphasis added). But the initial burden of proof is upon the party claiming lack of notice; in Mathis, the party claiming lack of notice met his initial burden by providing testimony that notice was never received. Id. Likewise, contrary to the majority's position, notice is not automatically defective for the failure to include a rule 21a certificate of service; in this situation the party claiming lack of notice must still meet his initial burden of proof by coming forward with a sworn allegation or evidence that notice was not received before the burden shifts to the opposing party to prove proper notice was given. Id.; see also Campsey v. Campsey, 111 S.W.3d 767, 771-72 (Tex.App.-Fort Worth 2003, no pet.) (explaining it is the appellant’s initial burden to overcome the presumption of proper notice and that the presumption “may not be discharged by mere allegations, unsupported by affidavits or other competent evidence”); Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex.App.-Dallas 1993, no writ) (same). LFG did not meet this initial burden.

      .Snyder refused to accept rule 663a service on LFG, claiming he was not LFG's attorney in the garnishment proceeding at that time. Apparently, Snyder subsequently became LFG’s attorney in the garnishment proceeding as he swore in his affidavit that he had miscalculated LFG’s response date in the garnishment proceeding and filed a motion for new trial along with his affidavit for LFG in the garnishment proceeding.

      . Specifically, Snyder swore that
      Plaintiffs' attorney transmitted a fax to me on October 9, 2008, which he advised was the fax transmittal of notice to the Garnishment to [LFG]....

      The alleged transmittal [sic] the judgment debtor, as contained in the fax did not comply with the requirements of Rule 663a, but was instead merely a copy of an undated fax transmittal dated [sic] the Writ of Garnishment and the Application for Writ of Garnishment.

      . In the only case cited by the majority, the judgment debtor established a date on which he received the required notice; then the trial court held that the notice was not provided as soon as practicable. See Requena v. Salomon Smith Barney, No. 01-00-00783-CV, 2002 WL 356696, at *4 (Tex.App.-Houston [1st Dist.] Mar. 7, 2002, no pet.) (not designated for publication) (explaining that the judgment debtor "was not served with a copy of the writ until June 27, 2000, a day after the trial court began its hearing”). Here, no date of receipt was proved by LFG; the majority’s holding that the notice faxed to LFG was not provided as soon as practicable is pure speculation.

      . See, e.g., Gen. Elec. Capital Assurance Co. v. Jackson, 135 S.W.3d 849, 853 (Tex.App.Houston [1st Dist.] 2004, pet. denied) (explaining that court order, which recited that all persons entitled to citation were properly cited, was entitled to presumption of correctness in absence of evidence to the contrary); In re B.D., 16 S.W.3d 77, 80 (Tex.App.-Houston [1st Dist.l 2000, pet. denied) (applying presumption of regularity when the judgment indicated that notice had been given and there was no evidence to the contrary in the record); Osborn v. Osborn, 961 S.W.2d 408, 411-13 (Tex.App.-Houston [1st Dist.] 1997, writ denied) (explaining that recitation of proper notice in judgment constitutes some, but not conclusive, evidence that proper notice was given).


source: Caselaw Access Project

author: Opinion By Justice MORRIS.

license: Public Domain

text:
    Delores PETTY and Bill Petty, Appellants, v. Dr. Rudolf CHURNER, M.D., Appellee. Heritage Eye Center, Appellant, v. Delores Petty and Bill Petty, Appellees.
    No. 05-09-00096-CV.
    Court of Appeals of Texas, Dallas.
    March 23, 2010.
    Rehearing Overruled May 25, 2010.

      Brent R. Walker, Aldous Law Firm, Dallas, TX, for Appellants.
    Bill Liebbe, Tyler, TX, for Appellee.
    Before Justices MORRIS, O’NEILL, and FILLMORE.
   OPINION

Opinion By Justice MORRIS.

This is an appeal in a health care liability ease. Delores and Bill Petty were the plaintiffs in the trial court below, and Dr. Rudolf Churner, M.D. and Heritage Eye Center were the defendants. After Dr. Churner and Heritage each filed motions to dismiss the Pettys’ claims, the trial court granted Dr. Churner’s motion but denied Heritage’s. Now the Pettys and Heritage both contend the trial court erred. Our review focuses on whether the expert reports filed by the Pettys were sufficient to satisfy the requirements of section 74.351 of the Texas Civil Practice and Remedies Code. After examining the record under the applicable standard of review, we conclude the trial court properly dismissed the claims asserted against Dr. Churner. We also conclude the trial court erred in denying Heritage’s motion to dismiss. Accordingly, we affirm the trial court’s order in part and reverse and remand it in part.

I.

Delores and Bill Petty filed suit against Dr. Churner and Heritage seeking damages for injuries allegedly sustained during an operation. They alleged that on March 7, 2006, Delores Petty underwent cataract surgery performed by Dr. Churner. At the end of the surgery, Dr. Churner injected Petty’s eye with a Kenalog solution prepared by an employee of Heritage. According to the Pettys, the employee “failed to use strict sterile technique” in preparing the solution resulting in the solution being contaminated with streptococcus mitis. The Pettys claimed the injection caused Delores to develop en-dophthalmitis resulting in loss of vision in her left eye.

The Pettys asserted claims for negligence against both Dr. Churner and Heritage. They alleged Dr. Churner was negligent in “failing to adopt, implement, and enforce policies and procedures for compounding Kenalog solution under strict sterile techniques.” They further alleged Dr. Churner was negligent in “failing to supervise the employee or technician of Heritage Eye Center who was acting as his agent in compounding the Kenalog solution to assure that [it] was not contaminated with bacteria.” In addition to the direct liability claims against Dr. Churner, the Pettys also asserted vicarious liability claims against both him and Heritage stating that “the technician who compounded the Kenalog solution ... was an employee of Heritage” and that “the employee/technician who was compounding the Kenalog solution ... was the agent or employee of Dr. Churner.” They claimed the unnamed technician was negligent in “failing to strictly adhere to established policies and procedures to assure that the compounding of the Kenalog solution was done under septic [sic] technique” and in “contaminating the Kenalog solution that was to be used and injected into the left eye of Plaintiff Delores Petty.”

Pursuant to section 74.351 of the Texas Civil Practice and Remedies Code, on September 4, 2008, the Pettys served Dr. Churner and Heritage with expert reports to support their claims. The proffered reports included a report prepared by Dr. David A. Pegues, M.D., an epidemiologist, a second report prepared by Dr. Lloyd V. Allen, Ph.D., a registered pharmacist, and Dr. Churner’s medical records relating to Delores Petty’s surgery. Dr. Churner and Heritage objected to the reports and moved to dismiss the Pettys’ claims on the ground that the reports did not fulfill the requirements of 74.351 and did not constitute a good faith effort to do so. The Pettys responded that, when read together, the reports met the statute’s requirements. In the alternative, they requested a thirty-day grace period to cure any deficiencies.

Following a healing, the trial court granted Dr. Churner’s motion to dismiss holding that the expert reports were “totally insufficient” as to him. The trial court, however, denied Heritage’s motion concluding the reports were otherwise sufficient. In this appeal, the Pettys challenge the trial court’s ruling in favor of Dr. Churner, and Heritage challenges the ruling unfavorable to it.

II.

We first address Heritage’s argument that the trial court abused its discretion in denying its motion to dismiss. We review a trial court’s order on a motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001). A trial court has no discretion in determining what the law is or in applying the law to the facts. See Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.App.-Dallas 2007, no pet.). An abuse of discretion occurs if the trial court clearly failed to analyze and determine the law correctly or applied the law incorrectly to the facts. Id.

Heritage contends the trial court abused its discretion in denying its motion to dismiss because the Pettys’ expert reports were deficient in numerous ways. The trial court may grant a motion challenging the sufficiency of an expert report only if it appears to the court, after a hearing, that the report does not represent a good faith effort to comply with the statutory definition of an expert report. See Whitworth v. Blumenthal, 59 S.W.3d 393, 396 (Tex.App.-Dallas 2001, pet. dism’d by agr.). To constitute a good faith effort, the report must provide, for each defendant, a fair summary of the expert’s opinions on each of the elements set forth in the statutory definition of an expert report: standard of care, breach of that standard, and causation. See Tex.Civ. Prac. & Rem.Code Ann. § 74.351(r)(6) (Vernon Supp. 2009); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). The report cannot merely state the expert’s conclusions about these elements but must explain the basis of the statements, linking the conclusions to the facts. See Bowie, 79 S.W.3d at 52. In determining a report’s sufficiency, the court may not look beyond the report itself because all information relevant to the inquiry should be contained within the document’s four corners. Id.

Among the numerous deficiencies asserted by Heritage is that the Pettys’ reports fail to demonstrate the causal relationship between Heritage’s alleged failure to meet the applicable standard of care and Delores Petty’s injury. The Pettys respond that the reports read together adequately show a causal connection. The Pettys are correct that the reports may be considered together in determining whether they provided a report meeting the statutory requirements. See Walgreen Co. v. Hieger, 248 S.W.3d 183, 186 n. 2 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). However, an expert whose report may be considered for one statutory element may not be qualified to offer an opinion on the other statutory elements necessary for a sufficient expert report. See id.

Pursuant to section 74.403 of the Texas Civil Practice and Remedies Code, only a physician may testify as an expert on the issue of causation. Tex. Civ. Prac. & Rem.Code Ann. § 74.403 (Vernon 2005). In this case, one of the reports submitted by the Pettys was prepared by Dr. Lloyd Allen, a pharmacist. Because Dr. Allen is not a physician, his report cannot be considered in determining whether the reports submitted by the Pettys adequately show a causal connection between the alleged negligence and injury. See Hieger, 243 S.W.3d at 186 n. 2.

The remaining documents relied upon by the Pettys include a report prepared by Dr. David Pegues and Dr. Churner’s medical records relating to Delores Petty’s surgery. The report by Dr. Pegues generally summarizes the outbreak of endophthalmitis at Heritage Eye Center on March 7, 2006. The report states that, of the sixteen patients operated on by Dr. Churner that day, eleven “developed early post-operative endophthalmitis requiring vitrectomy and instillation of intravitreal antibiotics.” The report also notes that “[a] number of the patients suffered significant visual loss.” Dr. Pegues concludes,

Although no information was available on the compounding practices or facility, the finding of multiple genetically unique Streptococcal species commonly found in human normal oral flora strongly suggest that the multidose 60-mL syringe of Kenalog solution was contaminated with oral secretions during compounded [sic] by the pharmacist at Heritage Eye Center. Dispensing the compounded medication into unit-dose syringes that then were administered to 16 patients resulted in endophthalmitis with a high attack rate of 68% and substantial morbidity.

Nowhere in the report does Dr. Pegues discuss a causal connection between the oral secretions in the contaminated Kena-log solution and the specific injuries Delores Petty claims to have suffered. Indeed, Dr. Pegues does not discuss Delores Petty at all. The only portion of the report discussing the condition of Dr. Churner’s patients shows that, of the patients that contracted endophthalmitis, the specific bacteria found in their infections varied or, in two cases, could not be determined. We are not permitted to fill in the gaps in a report by drawing inferences or guessing what the expert likely intended. See Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.).

The Pettys point to Dr. Churner’s medical records as providing the necessary link in the causal chain between the contaminated Kenalog solution and Delores Petty’s injuries. In response, Heritage vigorously argues that the Pettys cannot rely on Dr. Churner’s medical files to satisfy their statutory burden because bulk medical records cannot constitute an expert report. See Maxwell v. Seifert, 237 S.W.3d 423, 427 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). The Pettys contend they are not relying on the records in bulk, but on only three adverse event “reports” found in Dr. Churner’s file.

First, we note that the adverse event reports relied upon by the Pettys do not appear to have been created by Dr. Churner. As stated above, an expert opinion on causation must be rendered by a physician. See Tex. Civ. Prac. & Rem.Code Ann. § 74.403 (Vernon 2005). The Pettys acknowledge that the reports are not in Dr. Churner’s handwriting, but they contend he necessarily adopted them because they are contained in his medical files. The Pettys cite no authority for this proposition and we have found none.

Even if an adverse event report contained in medical records could qualify alone as part of the Pettys’ statutorily required expert report, a question we do not answer here, the documents relied upon do not contain any opinions or conclusions about the cause of Delores Petty’s endophthalmitis and do not mention her alleged loss of vision. The first report states only that Delores Petty suffered an intraocular infection. The next report states that Delores Petty was one of the eleven patients affected by endophthalmi-tis and the “BSS used to mix/diluted Kena-log” was “thought to be involved.” Finally, the third report states that the cultures taken from both the patient and the syringe used to dilute the Kenalog “resulted in a growth of strept mitis.” The report also states that “a sterile syringe from the same lot also grew strept mitis.” Neither Dr. Pegues’s report nor the reports in Dr. Churner’s file mentions any action by a Heritage employee or how such action could have caused Delores Petty’s alleged injuries. Although one of the adverse event reports suggests that the Kenalog solution mixed by the Heritage employees was “thought to be involved” in her endo-phthalmitis, this statement is far from a reasoned opinion or conclusion on causation. A description of possible causation does not constitute a good faith effort to comply with the statute. See Hieger, 243 S.W.3d at 186.

In addition, the last adverse event report relied upon by the Pettys states that a culture taken from a sterile syringe in the same lot used by Dr. Churner on March 7 also grew strept mitis. This suggests that the microbial contamination that may have caused Delores Petty’s injury was a result of insufficient sterilization by the syringe manufacturer. Accordingly, to the extent the report can be viewed as addressing causation at all, it suggests that Delores Petty’s infection was caused by the condition of the syringe and not the actions of Heritage’s employees. While Dr. Pegues’s report discusses why it is likely the Kenalog solution was contaminated by oral secretions, there is nothing in Dr. Pegues’s report opining that Delores Petty’s specific infection was caused by the oral secretions rather than the already contaminated syringe.

Simply stated, there is no report or combination of reports submitted by the Pet-tys that provides a fair summary of an expert’s opinion on the causal relationship between Heritage’s alleged negligence and Delores Petty’s injury. We conclude, therefore, that the trial court abused its discretion in refusing to grant Heritage’s motion.

Having concluded that the trial court erred, we must now address the relief to which Heritage is entitled. Heritage asks the Court to reverse the trial court’s order and render judgment dismissing the Pet-tys’ claims. The Pettys respond by requesting a thirty-day extension under section 74.351(c) of the Texas Civil Practice and Remedies Code to cure any deficiencies in the reports. Whether we can remand the cause to the trial court to determine if the Pettys are entitled to a thirty-day extension depends upon whether their timely filed reports are considered merely deficient or “no report at all.”

A trial court may grant an extension under section 75.341(c) only to a party that has failed to serve an expert report because the report they timely filed is found to be deficient. See Tex. Civ. Prac. & Rem.Code Ann. § 75.341(c) (Vernon Supp. 2009). If a party fails to serve an expert report in any form within the time permitted, the trial court has no discretion to grant an extension and must dismiss the claims. See id. § 75.341(b). The issue that has been discussed, but not directly resolved, by the Texas Supreme Court is whether a timely served report may be so deficient that it constitutes no report at all thereby precluding the trial court from granting an extension.

In Ogletree v. Matthews, the supreme court appeared to divide the “universe of possible reports” into two categories: deficient and absent. See Ogletree v. Matthews, 262 S.W.3d 316, 320 (Tex.2007) (J. Willett concurring). In his concurring opinion, Justice Willett stated that a third category of report should be recognized: a report so lacking in the necessary elements that it does not rise to the level of being a report at all. See id. at 323. Justice Willett opined that granting a “grossly substandard filing pitched as a bona fide report” the same status as a report that is merely deficient in some respect would “inadvertently expand the availability of the thirty-day extension provided by section 74.351(c) beyond what the Legislature intended.” Id. at 322-23. To date, no such “third category” has been recognized by the supreme court and this Court has declined to do so. See Cook v. Spears, 275 S.W.3d 577, 581 (Tex.App.-Dallas 2008, no pet.). Even if such a third category existed, it is clear that it would be extremely limited. Such a report would in all likelihood need to “bear no resemblance to Chapter 74’s definition of an expert report,” “not purport to have any relationship to a health care liability or malpractice case,” or contain “none of the statutorily prescribed contents.” See In re Watkins, M.D., 279 S.W.3d 633, 635 & 639 (Tex.2009) (Jefferson, J., concurring); Lewis v. Funderburk, 253 S.W.3d 204, 211 (Tex.2008) (Willett, J., concurring).

In Lewis v. Funderburk, the supreme court found the expert report deficient because the expert who created the report was not qualified to do so. Notably, the court remanded the cause to the trial court stating that the deficiency could be “cured” with a different report by a new expert. See Lewis, 253 S.W.3d at 208. Given this precedent, we conclude the Pet-tys’ report, though insufficient to meet the requirements of section 74.351(r)(6) in some ways, is not so deficient as to constitute no report at all. Accordingly, we reverse the trial court’s order with respect to Heritage and remand the claims to that court for further proceedings. See Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex.2008).

We next consider the Pettys’ appeal of the trial court’s order granting Dr. Churner’s motion to dismiss. The issues presented are largely the same as those presented in Heritage’s appeal. The one distinction is that, in addition to the vicarious liability claims, the Pettys also asserted direct liability claims against Dr. Churner. Those direct liability claims, as set forth in the Pettys’ petition, assert that Dr. Churner was negligent in “failing to adopt, implement, and enforce policies and procedures for compounding Kenalog solution under strict sterile techniques” and in “failing to supervise the employee or technician of Heritage Eye Center who was acting as his agent in compounding the Kenalog solution to assure that [it] was not contaminated with bacteria.” The Pettys’ expert report did not address these direct liability claims. We conclude, therefore, that the trial court properly dismissed those claims.

The Pettys appear to acknowledge that they did not serve Dr. Churner with an expert report addressing the direct liability claims. They argue, however, that Dr. Churner is directly liable for the actions of the employees who compounded the Kenalog solution under section 157.001 of the Texas Occupations Code. Section 157.001 allows a physician to delegate a medical act to a qualified and properly trained person acting under the physician’s supervision. See Tex. Occ.Code Ann. § 157.001(a) (Vernon 2004). The delegating physician remains responsible for the medical acts of the person performing them. Id. § 157.001(b). The Pettys argue that “by using this statute, [they] only need show in their expert reports that the persons who did the medical act were negligent.”

The Pettys’ argument is essentially that section 157.001 allows them to convert their vicarious liability claims into direct liability claims while still applying a vicarious liability standard to their expert reports. When a party’s health care claim asserts purely vicarious liability, a report that adequately implicates the actions of the defendant’s agents or employees is sufficient. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex.2008). For a physician’s liability to arise under section 157.001, however, the medical act delegated to the agent or employee must be one that “a reasonable and prudent physician would find within the scope of sound medical judgment to delegate.” This requirement necessarily implicates a standard of care to be applied to the physician, not just the agent or employee, and requires an expert medical opinion addressing the doctor’s actions. The Pettys’ reports contain no such opinion.

As for the Pettys’ vicarious liability claims against Dr. Churner, they are identical to those asserted against Heritage. For all of the reasons we concluded above that the Pettys’ expert reports were insufficient with respect to Heritage, they are equally insufficient as to Dr. Churner. The Pettys request the case be remanded to the trial court to allow it to consider their motion for an extension under 74.351(c). The Pettys moved for such an extension below when the trial court held that their reports were insufficient as to Dr. Churner. The trial court necessarily denied their motion for extension when it dismissed the claims against Dr. Churner. Accordingly, the Pettys stand in a different procedural posture with respect to Dr. Churner than they do with Heritage. The Pettys present no argument addressing how the trial court erred in refusing to grant them an extension. They have, therefore, waived any such argument. See Tex.R.App. P. 38.1(h).

Based on the foregoing, we reverse the trial court’s order to the extent it denies Heritage Eye Care Center’s motion to dismiss and remand those claims for further proceedings. We affirm the trial court’s order in all other respects.

      . The report states “[o]f the 11 patients with clinical endophthalmitis, 9 had either a positive culture for Streptococcus species [Streptococcus mitis (6) or viridans streptococci (2) ] or a vitreal fluid gram stain demonstrating gram-positive cocci; two patients had negative vitreal fluid cultures but may have been receiving antimicrobial therapy at the time of culture.”

      . The Pettys appear to request that this Court grant them a thirty-day extension. The appropriate remedy, however, is to remand the cause to the trial court to consider granting an extension. See Benson v. Vernon, 303 S.W.3d 755, 759-61 (Tex.App.-Waco 2009, no pet. h.).


author: BOB McCOY, Justice.

text:
    NATIONAL CITY MORTGAGE COMPANY, Appellant, v. Carolyn A. ADAMS, Appellee.
    No. 2-08-352-CV.
    Court of Appeals of Texas, Fort Worth.
    March 25, 2010.

      Brown McCarroll, L.L.P., Richard A. Illmer, and Kevin Koronka, Dallas, TX, for appellant.
    Griffith, Jay & Michel, LLP, and Thomas M. Michel, Fort Worth, TX, for appel-lees.
    Panel: LIVINGSTON and McCOY, JJ.
   OPINION ON REHEARING

BOB McCOY, Justice.

I. Introduction

In one issue, Appellant National City Mortgage Company (“NCM”) asserts that the trial court erred by failing to enter a judgment awarding NCM its attorneys’ fees. While we deny NCM’s motion for rehearing, we withdraw our earlier opinion and judgment of February 25, 2010, and substitute the following. We affirm.

II. Factual and Procedural History

In March 2003, Appellee Carolyn A. Adams contracted with Steve Paulsen Properties, Ltd. for the construction of a new home. In April 2003, she obtained financing for the construction through NCM, executing a Construction/Permanent Loan Agreement (the “Loan Agreement”), a Promissory Note (the “Note”) in the amount of $202,800, and a Disbursement Authorization form, which allowed NCM to disburse funds to Paulsen upon NCM’s receipt of either a written or verbal draw request from Paulsen or Carolyn.

On September 12, 2003, Carolyn’s son, Murray Adams, met with Paulsen to discuss the completion date of Carolyn’s house. During the conversation, Paulsen advised Murray that there had been some delays but that he intended to personally supervise the job from that point on. Two days later, during a telephone conversation with Paulsen, Murray claimed that Paulsen quit the job and told Murray to contact a lawyer. Paulsen, on the other hand, claimed that he only told Murray that he was not going to complete the job because Murray had threatened to kill him.

On September 15, 2003, Murray called NCM’s home office in Ohio and spoke with Charles Dixon about Paulsen quitting the job. Dixon allegedly confirmed that there were no draws pending at that time and that NCM would no longer honor Paul-sen’s draw requests. Dixon also instructed Murray to have Carolyn contact NCM’s Southlake office and inform someone there that Paulsen had quit the job. The next morning, Carolyn called the Southlake office and spoke with Bonnie Doran, the district manager. Carolyn informed Do-ran that Paulsen had quit the job and that NCM should no longer honor Paulsen’s draw requests.

On September 17, 2003, Paulsen submitted a request for disbursement to NCM in the amount of $33,320. On September 18, 2003, Larry Bracken, Carolyn’s attorney, faxed a letter to Paulsen and to NCM’s Southlake office instructing NCM that no more payments were to be made to Paul-sen and requesting that Paulsen or another builder complete the construction by October 14, 2003, or that other accommodations be made. On that same day, NCM paid Paulsen the $33,320 he had requested the day before.

Subsequently, Carolyn sued NCM for declaratory relief, breach of contract, deceptive trade practices, conspiracy, common law unreasonable collection efforts, and violation of the Texas Debt Collection Practices Act (“TDCPA”). NCM filed a counter-claim for contractual indemnity. At trial, the only claims against NCM submitted to the jury were breach of contract and purported violations of the TDCPA.

After a trial on the merits, the jury found that: (1) NCM did not breach the Loan Agreement with Carolyn, (2) NCM did not violate the TDCPA, and (3) Carolyn was not entitled to attorney’s fees against NCM. The jury also found that a reasonable and necessary fee for the services of NCM’s attorneys was $174,500.

On March 7, 2008, NCM and Paulsen filed a joint motion for entry of judgment consistent with the jury’s verdict. Thereafter, Carolyn filed a motion for judgment notwithstanding the verdict (“JNOV”) and a response and objection to NCM and Paulsen’s motion for entry of judgment. In her motion, Carolyn asserted ten grounds on which the trial court should disregard the jury’s verdict and enter a take nothing judgment. Of those ten grounds, only four were applicable to NCM: 1) the jury’s answer to jury question number one should be disregarded because the answer “yes” was marked out and “no” was written beside it with scribbled initials; 2) the jury’s answer to jury question number twenty should be disregarded because jury question number one was conflicting, incomplete, and unresponsive; 3) the jury’s answer to jury question number twenty should be disregarded because there was legally and factually insufficient evidence to warrant the submission of question number twenty; and 4) the jury’s answers to jury questions one through twenty should be disregarded because the trial court erroneously instruet-ed the jury concerning the dollar amount of Carolyn’s contractual damage claim; thereby, commenting on the weight of the evidence.

On June 5, 2008, the trial court entered a judgment that all parties take nothing by way of their claims, with court costs to be taxed against Carolyn. One week later, the trial court entered an order denying NCM and Paulsen’s joint motion for entry of judgment. Subsequently, NCM filed a motion to alter, modify, or amend judgment, arguing that, as a matter of law, NCM was entitled to recover all of its attorneys’ fees. NCM’s motion was overruled by operation of law. See Tex.R. Civ. P. 329b(c). This appeal followed.

III., Discussion

In its sole issue, NCM argues that the trial court abused its discretion because the award of attorneys’ fees to NCM was mandatory under the Loan Agreement and Texas law. In response, Carolyn asserts that this court must affirm the trial court’s denial of attorneys’ fees because NCM appeals from a JNOV and NCM failed to challenge all the grounds upon which the trial court could have entered a JNOY. This case, however, is procedurally awkward in that it does not fit within the traditional standard of review for JNOV.

Here, NCM does not challenge the trial court’s setting aside of the jury verdict and entering a judgment in conflict with that verdict — a challenge requiring this court to look at the jury’s findings. Instead, NCM complains about the trial court’s failure to determine, as a matter of law, that NCM was entitled to attorneys’ fees — a legal issue, requiring no inquiry into the jury’s findings. See Holland v. Wal-Mart Stores, 1 S.W.3d 91, 94 (Tex.1999) (holding that the determination of whether attorneys’ fees are available in a particular case is a question of law, which is reviewed by this court under the de novo standard). Thus, the JNOV standard is inapplicable.

A trial court’s determination of whether to award attorneys’ fees is reviewed for abuse of discretion. See Armstrong v. Steppes Apartments, Ltd., 57 S.W.3d 37, 50 (Tex.App.-Fort Worth 2001, pet. denied), cert. denied, 536 U.S. 951, 122 S.Ct. 2645, 153 L.Ed.2d 823 (2002). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004). A trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). A trial court’s erroneous legal conclusion, even in an unsettled area of law,- is an abuse of discretion. Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex.2001) (orig. proceeding); Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex.1996) (orig. proceeding).

Generally, a party may not recover attorneys’ fees unless such an award is authorized by statute or contract. Tony Gullo Motors 7, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex.2006); GXG, Inc. v. Texacal Oil & Gas, 977 S.W.2d 403, 424 (Tex.App.Corpus Christi 1998, pet. denied). NCM asserts that the Loan Agreement between itself and Carolyn is a contract that contains language making the award of attorneys’ fees to NCM mandatory. The language at issue provides:

(xvii) That [NCM] will be reimbursed for all expenses of any kind, including without limitation attorney’s fees, that may be incurred by [NCM] in connection with or arising out of this agreement ...
(xviii) [CAROLYN] AGREES THAT [NCM] AND ITS AGENTS AND ATTORNEYS WILL BE INDEMNIFIED AND HELD HARMLESS FROM ANY AND ALL ACTIONS, CLAIMS, DEMANDS, DAMAGES, COSTS, EXPENSES, AND OTHER LIABILITIES, INCLUDING WITHOUT LIMITATION ATTORNEY’S FEES, THAT ANY SUCH PARTIES MAY INCUR OR THAT IN ANY WAY RELATE TO OR ARISE OUT OF THE CONSTRUCTION OF THE IMPROVEMENTS, INCLUDING WITHOUT LIMITATION THOSE ARISING OUT OF THE NEGLIGENCE OF [NCM]. [Emphasis in original.]

When, as here, we construe a written contract, we “ascertain the true intent of the parties as expressed in the instrument.” See Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). In deciding whether a contract is ambiguous, we consider the written instrument as a whole and determine if it is subject to more than one reasonable interpretation in light of the circumstances present at the time of its formation. Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997). If the contract can be given a certain or definite legal meaning, it is not ambiguous and should be construed as a matter of law. Id.; CBI Indus., 907 S.W.2d at 520.

The provision of the Loan Agreement under (xviii) is clearly one of indemnity, and neither party argues otherwise. An indemnity ■ agreement arises from a promise by the indemnitor to safeguard or hold harmless the indemnitee against existing or future loss, liability, or both. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex.1993), rev’d on other grounds, 858 S.W.2d 505 (Tex.1993); Wallerstein v. Spirt, 8 S.W.3d 774, 779 (Tex.App.-Austin 1999, no pet.); Derr Constr. Co. v. City of Houston, 846 S.W.2d 854, 858 (Tex.App.-Houston [14th Dist. 1992, no writ). Such is the plain intent of the quoted language of the Loan Agreement.

That being said, a defining characteristic of an indemnity agreement is that it “does not apply to claims between the parties to the agreement.” Wallerstein, 8 S.W.3d at 780 (citing Derr Constr., 846 S.W.2d at 858). “[A] contract of indemnity does not relate to liability claims between the parties to the agreement but, of necessity, obligates the indemnitor to protect the indemnitee' against liability claims of persons not a party to the agreement.” Dresser Indus., Inc., 821 S.W.2d at 362-63.

Thus, because both NCM and Carolyn are parties to the indemnity agreement, the agreement, as a matter of law, does not obligate Carolyn to pay NCM its attorneys’ fees incurred in defending itself against Carolyn’s claims and in prosecuting its counterclaim against Carolyn. See MRO Southwest, Inc. v. Target Corp., 2007 WL 4403912, at *3 (Tex.App.-San Antonio Dec. 19, 2007, pet. denied) (mem. op., not designated for publication) (holding defendant could not recover attorneys’ fees incurred in defending the suit based on indemnity provision because the provision did not apply to claims between the parties to the agreement); see also Baird v. Lease Acquisition Partners, Inc., No. 03-99-00773-CV, 2000 WL 1508263, at *4 (Tex.App.-Austin Oct. 12, 2000, no pet.) (not designated for publication) (concluding the same based on similar indemnity provision). Consequently, the trial court did not abuse its discretion by refusing to award NCM its attorneys’ fees under the Loan Agreement and Texas law. Accordingly, we overrule NCM’s sole issue.

IV. Conclusion

Having overruled NCM’s sole issue, we affirm the trial court’s judgment.

      . Jury question number one asked, "Did [NCM] fail to comply with terms of the Construction/Permanent Loan Agreement?”

      . Jury question number twenty asked, "What is a reasonable fee for the necessary services of [NCM’s] attorneys in this case, stated in dollars and cents?"

      . A trial court may disregard a jury verdict and render judgment notwithstanding the verdict ("JNOV") if no evidence supports the jury's findings on issues necessary to liability or if a directed verdict would have been proper. See Tex.R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003); Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991). In determining whether the trial court erred by rendering a JNOV, we view the evidence in the light most favorable to the verdict under the well-settled standards that govern legal sufficiency review. See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003).

      . Although the record reflects that NCM used language from this reimbursement provision in its petition, NCM did not plead reimbursement of its attorneys’ fees but, instead, pleaded contractual indemnity. Specifically, NCM pleaded
      COUNT 1-CONTRACTUAL INDEMNITY
      9. NCM incorporates paragraphs 1 through 8 as is set forth herein fully verbatim. [Paragraphs 1 through 8 set forth the factual and procedural background of the case.]
      10. Adams agreed to indemnify and hold NCM harmless from any and all claims arising out of the Loan Agreement. The claims which are the subject matter of this lawsuit arise out of the Loan Agreement. NCM has been forced to incur attorney[s'] fees, costs, and other expenses to defend this lawsuit.
      11. Adams's conduct has, therefore, proximately caused damage to NCM in an amount in excess of the minimum jurisdictional limit of the Court.
      NCM concluded by asking the trial court to enter a judgment in its favor for, among other things, reasonable and necessary attorneys’ fees. Because NCM pleaded only contractual indemnity for its attorneys' fees, it is not entitled to an award of attorneys' fees under the Loan Agreement’s reimbursement provision. See Smith v. Deneve, 285 S.W.3d 904, 916 (Tex.App.-Dallas 2009, no pet.) ("[W]hen a party pleads a specific ground for recovery of attorney's fees, the party is limited to that ground and cannot recover attorney's fees on another, unpleaded ground.”).

      . For convenience, we have substituted ‘‘NCM” for “Lender” and "Carolyn” for "Borrower" in the quoted version of the Loan Agreement’s provision.


author: Opinion by Justice FITZGERALD.

text:
    HOLLY PARK CONDOMINIUM HOMEOWNERS’ ASSOCIATION, INC., Appellant, v. Rene LOWERY, Appellee.
    No. 05-08-01366-CV.
    Court of Appeals of Texas, Dallas.
    March 26, 2010.
    Rehearing Overruled May 21, 2010.

      Marc D. Markel, Amy Vanhoose, Pamela W. Montgomery, David M. Kriewaldt, Houston, for appellant.
    Frank E. McLain, Dallas, for appellee.
    Before Justices FITZGERALD, MURPHY, and MYERS.
   OPINION

Opinion by Justice FITZGERALD.

Rene Lowery sued the Holly Park Condominium Homeowners’ Association, Inc. (the “Association”) alleging wrongful foreclosure. The trial court granted summary judgment in Lowery’s favor, and the Association appeals. In a single issue, the Association contends the trial court erred in granting the motion because its foreclosure of Lowery’s condominium unit complied with Texas law and with all governing documents. We affirm the trial court’s judgment.

Background

The material facts in this case are not in dispute. Holly Park Condominiums recorded its declaration in 1979. The Association administers the operation and management of the condominiums. Lowery owned a condominium in Holly Park, but, beginning in January 2007, she failed to pay her monthly assessment. In August of 2007, after giving Lowery notice of default, the Association conducted a nonjudicial foreclosure on her condominium and then sold the property.

Lowery sued for wrongful foreclosure and sought a declaratory judgment finding the non-judicial foreclosure void. The parties filed cross motions for summary judgment. Lowery’s motion contended that only a judicial foreclosure was permitted under her declaration. It contended further that the Texas statutes governing condominium regimes did not abrogate this specific contractual right. The Association — in its response to Lowery’s motion and in its own motion — argued its nonjudicial foreclosure was valid and authorized by statute.

The trial court did not rule on the Association’s motion. It granted Lowery’s motion, concluding that Lowery was entitled to a judicial declaration:

a. that the Texas Uniform Condominium Act and in particular Section 82.113, does not abrogate Plaintiffs rights stated under Article II, Section 4 of Condominium Bylaws, which bylaws are incorporated in the Condominium Declaration, and which require judicial foreclosure of the Condominium Association’s lien against Plaintiffs Condominium Unit.
b. that Defendant Holly Park Condominium Association Homeowner’s Association’s non-judicial foreclosure on the condominium unit made the subject of this litigation, that is Unit 141, Building B of Holly Park Condominium Regime, situated in Dallas, Dallas County, Texas, commonly known as 7510 Holly Hill (“the Condominium Unit”), be set aside and held for naught; and,
c. that the enforcement of any assessment lien held by Holly Park Condominium Homeowner’s Association, Inc., shall be by judicial foreclosure in accordance with Article II, Section 4, of the Condominium Bylaws, which bylaws are incorporated in the Condominium Declaration and consequently, the non-judicial foreclosure by Holly Park Condominium Homeowner’s Association, Inc., violates said Article II, Section 4.

The trial court also awarded Lowery attorney’s fees. The court then severed the declaratory judgment from the remainder of the case. The Association appeals.

Standard of Review and Applicable Law

The standard for reviewing a summary judgment is well established: the party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and she is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). We uphold a summary judgment on any ground supported by the evidence and pleadings. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). In this case, we must determine the meaning and applicability of various statutory provisions governing condominium regimes. In construing statutes, we ascertain and give effect to the Legislature’s intent as expressed by the language of the statute. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006).

The parties agree fundamentally on what substantive law applies in this case. Because the Holly Park condominium regime was created before January 1, 1994, it is governed primarily by the Condominium Act (the “Old Act”), codified at chapter 81 of the Texas Property Code. See Tex. Prop.Code Ann. § 81.0011(a). However, the condominium regime is also governed by the Uniform Condominium Act (the “Uniform Act”), codified at chapter 82 of that code, to the extent provided by section 82.002. Id. § 81.0011(b). Section 82.002, in turn, sets forth a list of specific provisions in the Uniform Act that apply to pre-1994 condominium regimes. Those listed provisions apply only to events and circumstances occurring after January 1, 1994, and they “do not invalidate existing provisions of the declaration, bylaws, or plats or plans of a condominium for which the declaration was recorded before January 1,1994.” Id. § 82.002(c).

Among the listed provisions of the Uniform Act that conditionally apply to the Holly Park condominium regime is section 82.118, which addresses assessments levied by an association against a unit owner. See id,. The Old Act does not provide an association with any method of enforcing its owners’ obligation to pay assessments, with the single exception of an association’s claim for unpaid assessments against sales proceeds when an owner sells her unit. Id. § 81.208. But section 82.113 of the Uniform Act, titled “Association’s Lien for Assessments,” provides that an assessment levied by an association is a personal obligation of the owner, secured by a continuing lien on the condominium unit. Id. § 82.113(a).

Lowery’s Right to Judicial Foreclosure

Lowery’s claim of a right to judicial foreclosure involves the interplay of statutory and contractual provisions. Specifically, the existence of such a right depends upon the interpretation of section 82.113 and Lowery’s own declaration. Not surprisingly, the parties encourage us to interpret these provisions differently.

Lowery’s Declaration

Section 3 of Holly Park’s bylaws, which have been incorporated fully into the declaration, initially addresses the issue of assessment obligations in a manner consistent with the Old Act. It provides that unpaid assessments will bear interest, and it grants the Association the right to collect those unpaid assessments, plus interest, from sales proceeds in accordance with the Old Act. See id. § 81.208 (codification of Tex.Rev.Civ. Stat. Ann. art. 1301a, § 18, specifically referenced in declaration). But Lowery’s declaration goes further than the Old Act in this regard. Section 4 states:

In addition to the remedies set forth above, the assessments, together with interest, costs, and reasonable attorney’s fees, shall be a charge on the Apartment-Home and shall be a continuing lien upon the Apartment-Home against which such assessment is made. Enforcement of such lien shall be by judicial foreclosure, however, such proceedings shall not be commenced until the assessment is ninety (90) days past due. (Emphasis added.)

Thus, the Association has considerably more authority under the declaration than it would have had under the Old Act alone. The Association can employ the judicial process to foreclose its lien on the unit of an owner in default. Lowery maintains this judicial foreclosure represents the outer limit of the Association’s right to enforce its assessment lien.

Section 82.113(e)

The Uniform Act gives an association the right “to foreclose its lien judicially or by nonjudicial foreclosure pursuant to its power of sale created by this chapter or the declaration.” Id. § 82.113(e). The Uniform Act also provides that by acquiring a unit, an owner grants the association a power of sale in connection with its hen. Id. § 82.113(d). The Association relies on this statutory grant of the rights to foreclose judicially or nonjudicially and to sell the unit thereafter. It argues these statutory rights trump any limitation in Lowery’s declaration.

Lowery argues that subsection (e)’s grant of the right to foreclose judicially or nonjudicially is limited by the language immediately preceding it: “Except as provided by the declaration, an association shall exercise its power of sale pursuant to section 51.002.” Id. § 82.113(d). According to Lowery, this sentence means the subsection (e) authority to foreclose judicially or nonjudicially operates “[ejxcept as provided by the declaration.” We cannot agree. Subsection (d) deals with the power of sale, not with the foreclosure process that precedes sale of the property. The plain language of the quoted sentence — as well as its placement in subsection (d)— indicates the sentence speaks only to the issue of sale, not to the method of foreclosure.

Nor does the reference to section 51.002, governing sale of property pursuant to a contract lien (i.e., a nonjudicial foreclosure), limit the applicability of subsection (d). The sentence concerns the manner in which the newly granted power of sale is to be exercised. The drafters of the Uniform Act looked to this previous legislative construct, which outlines procedures for the sale, including requirements of notice and of a particular time and place for the sale. Id. at 51.002. Section 51.002 safeguards the integrity of the sale of property. Subsection (e)’s final sentence, likewise, provides safeguards for the sale of property: the sale must follow these statutory procedures unless the parties have agreed in their declaration that other procedures will govern. Id. at § 82.113(e). Although the provision means an owner cannot be faced with a sale of her condominium at an undisclosed location at an unknown time, it does not limit an association’s right to choose its method of foreclosure.

Conditional Application of Section 82.113(e)

We have concluded that section 82.113(e) represents a broad grant of authority, which is not limited by the language of section 82.113(d). However, the application of section 82.113(e) is not completely unlimited. As we discussed above, section 82.113 applies to the Holly Park condominium regime only because the Uniform Act specifically includes the section in its list of provisions that apply to condominiums created before that act’s effective date. See id. § 82.002(c). And that application is clearly conditional: section 82.113 can be applied only to the extent that it does not invalidate existing provisions of Lowery’s declaration or bylaws. See id.

The declaration in this case balanced the interests of the parties on the issue of unpaid assessments. It specifically provided the Association with an assessment lien and a method of enforcing that lien, although the Old Act did not provide either of those mechanisms. At the same time, the declaration assured Lowery that she would have her day in court before her property could be sold for unpaid assessments. This was the parties’ agreement; it is laid out in an existing provision of the bylaws, incorporated into the declaration. Any application of section 82.113(e) that allowed nonjudicial foreclosure without Lowery’s approval would upset the balance for which the parties contracted. It would invalidate an existing provision of the declaration or bylaws and, thus, would violate the property code. See id.

The Association relies on a provision in the Uniform Act stating that “[ejxcept as expressly provided by this chapter, provisions of this chapter may not be varied by agreement, and rights conferred by this chapter may not be waived.” Id. § 82.004. But Lowery’s declaration did not vary the Uniform Act; the Uniform Act did not even exist until some fifteen years after that declaration was filed. Section 82.004 can only be read to apply to agreements or waivers that occur after the act’s effective date, January 1, 1994. And because section 82.004 is not among the provisions listed in section 82.002 as being applicable to regimes created before that date, it does not even apply to the declaration in this case going forward.

Conclusion

The Uniform Act provides broad grants of authority to condominium associations to enforce assessment liens as they choose. But for condominium regimes created before the Uniform Act’s effective date, the association’s authority is limited by specific existing provisions to the contrary in the owner’s declaration. Lowery’s declaration allows only judicial foreclosure of assessment liens. Thus, section 82.113(d)’s provision allowing nonjudicial foreclosure does not apply in her case. The trial court did not err by granting summary judgment for Lowery. We overrule the Association’s single issue and affirm the trial court’s judgment.

      . We reject the Association's post-submission suggestion that section 82.002(c) requires section 82.113 (and presumably all sections listed in section 82.002(c)) to apply unless it "invalidate[sj wholly the condominium associations’ declarations and bylaws.” The statute clearly refers to the invalidation of "existing provisions” of the declaration or bylaws. Id. at 82.002(c).


author: PATRICK A. PIRTLE, Justice.

text:
    Beverly J. SHUMATE, Appellant, v. Mike C. SHUMATE, Appellee.
    No. 07-09-0165-CV.
    Court of Appeals of Texas, Amarillo, Panel C.
    March 30, 2010.

      Vincent E. Nowak, Mullin Hoard & Brown L.L.P., Amarillo, for Appellant.
    James L. Abbott Jr., Abbott & Cates, Amarillo, for Appellee.
    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
   OPINION

PATRICK A. PIRTLE, Justice.

Appellant, Beverly J. Shumate, appeals from the trial court’s order granting summary judgment in favor of Appellee, Mike C. Shumate, in her action for enforcement of their final decree of divorce: By a sole issue, she contends the trial court erred in granting summary judgment and refusing to enforce or clarify the decree. We affirm.

Procedural Background

On July 29, 2006, the trial court signed the parties’ final decree of divorce. Relevant to this appeal is the following portion of the decree:

IT IS ORDERED AND DECREED that the husband, MIKE C. SHUMATE, shall pay, as a part of the division of the estate of the parties, and shall indemnify and hold the wife and her property harmless from any failure to so discharge, these items:
H-l The following debts, charges, liabilities, and obligations:
1. Debt owed to American Express Open Business Account;
2. Debt owed to Citi Advantage Visa Signature credit card;
3. Debt owed to Citi Platinum Select credit card;
12. Southwest Airlines Chase Visa credit card # 5505.
IT IS ORDERED that MIKE C. SHU-MATE shall make every effort possible to transfer the above listed credit card accounts into his name only, and remove BEVERLY J. SHUMATE’S name from any such accounts.

On October 17, 2006, Appellant filed her Petition for Enforcement of Final Decree of Divorce in which she alleged that Appel-lee had violated the terms of the decree by failing to pay the amounts due on the above-referenced credit cards for the months of May 2006, June 2006, July 2006, August 2006, and September 2006. She requested that Appellee be held in contempt, jailed, and fined for the alleged violations. She also sought a money judgment for the unpaid balances and “if the Court finds that any part of the order sought to be enforced is not specific enough to be enforced by contempt,” she sought a clarifying order “restating the terms ... in a manner specific enough to allow enforcement by contempt....”

Appellee filed a traditional motion for summary judgment alleging he was entitled to judgment as a matter of law because there were no genuine issues of material fact. He further alleged the credit card obligations were not enforceable by contempt and he cannot be considered a constructive trustee of any community assets regarding those obligations. The motion is supported by affidavits and answers to interrogatories reflecting that no payments have been made on the credit cards since May 2006.

Appellant filed a response to Appellee’s motion alleging the uncontroverted evidence (Appellee’s Amended Responses to Requests for Admissions in which he admitted he had not made any payments on the credit card accounts) established he was in contempt of the court’s order and requested that summary judgment be denied. Based on affidavits and discovery, the trial court granted Appellee’s motion for summary judgment.

By a sole issue, Appellant maintains the trial court erred in granting summary judgment. We disagree.

Standard of Review

We review the trial courts granting of a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). In our review, we apply these well established rules:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997), citing Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985).

For a party to prevail on a motion for summary judgment he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005). A movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex.1986), or negate at least one essential element of the non-movant’s cause of action. Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001); Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.-Houston [1st Dist.] 1996, writ denied). Issues that the non-movant contends preclude the granting of a summary judgment must be expressly presented to the trial court by written answer or other written response to the motion and not by mere reference to summary judgment evidence. McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex.1993). Issues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal. Tex.R. Civ. P. 166a(c). Further, all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. Casso v. Brand, 776 S.W.2d at 553. When a summary judgment does not specify or state the grounds relied on, the summary judgment will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Analysis

As a general rule, a person who willfully disobeys a valid court order is guilty of contempt and subject to imprisonment for a prescribed period and until he complies with the order. Ex parte Gorena, 595 S.W.2d 841 (Tex.1979). Relying on Ex parte Hall, 854 S.W.2d 656 (Tex.1993), Appellant argues she was entitled to have the merits of her case heard because the granting of summary judgment in favor of Appellee was improper given his admission of failure to comply with the terms of the decree by failing to pay certain third-party debts. Ex parte Hall, however, involved an order to pay spousal and child support which is statutorily enforceable by contempt. Id. at 658. An order to pay a debt, however, is not generally enforceable through contempt because it violates Article I, § 18 of the Texas Constitution’s prohibition against imprisonment for failure to pay a debt.

The fact that a party to a divorce was ordered to pay an obligation owed to a third-party, as part of the division of the community estate, does not transform that obligation into one enforceable by coercive contempt. See In re Henry, 154 S.W.3d 594 (Tex.2005) (husband’s obligation to pay past-due property taxes, imposed as a part of the division of community property, was an order to pay a debt owed to a third-party and, therefore, not enforceable by confinement for contempt because to do so would violate Article I, § 18 of the Texas Constitution’s prohibition against imprisonment for failure to pay a debt). In deciding whether a spouse’s obligation to pay a third-party debt was enforceable by contempt, the Supreme Court distinguished those situations where specific funds to pay the debt existed, or where particular community property from which the debt was to be paid was specified. In each of those situations, the spouse being awarded the property holds that property as a constructive trustee for the benefit of the other spouse. In such a situation, failure to surrender that property pursuant to the divorce decree would be enforceable by contempt because it is not considered payment of a debt. Id. at 597. The surrendering spouse is not paying a debt, but rather turning over property rightfully due another under the terms of the divorce decree. Id.

In the underlying case, the divorce decree did not specify what funds would be used to pay the credit card debt or if funds were available to do so. Without identification of existing funds, Appel-lee is not a constructive trustee holding property that rightfully belongs to Appellant. Resultantly, Appellee’s obligation to make credit card payments is merely a debt owed to the credit card companies. See generally Ex parte Chacon, 607 S.W.2d 317, 319 (Tex.Civ.App.-El Paso 1980, orig. proceeding) (noting that payment of federal taxes is in the nature of a debt owed the government). The fact that the obligation was imposed under the divorce decree does not transform the obligation into one enforceable by contempt. In re Henry, 154 S.W.3d at 597-98. We conclude that the imposition of certain credit card obligations on Appellee in the divorce decree constitutes debts which are unenforceable by confinement for contempt. See Ex parte Chacon, 607 S.W.2d at 319 (a judgment which provides for the payment of money to be earned in the future, rather than directing payment of money found by the court to be in existence, is not enforceable by contempt).

Appellant also sought a money judgment from Appellee for the unpaid balances on the credit cards. Notwithstanding that the decree provided for indemnification, Appellant has not demonstrated she paid any credit card debt imposed on Appellee by the decree. The debts are an obligation owed to the credit card companies and not to Appellant. See generally Rush v. Montgomery Ward, 757 S.W.2d 521, 523 (Tex.App.-Houston [14th Dist.] 1988, writ denied) (recognizing that Texas courts have consistently held that a division of the community estate may not prejudice the rights of creditors to satisfy a community debt). Consequently, Appellant was not entitled to a money judgment.

Appellant also asserted by her motion for new trial that the trial court’s summary judgment did not dispose of all her claims to enforce the decree. Although she sought a clarification order in her petition for enforcement, it was conditioned upon the trial court finding that if any part of the order sought was not specific enough to be enforced by contempt, it be clarified. The trial court could not have made such a finding because the relief sought by Appellant is prohibited by Article I, § 18 of the Texas Constitution. We conclude the trial court did not err in granting Appellee’s motion for summary judgment and overrule Appellant’s sole issue.

Accordingly, the trial court’s summary judgment is affirmed.

      . A general assignment of error in granting summary judgment is permitted. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

      . Article I, § 18 provides "(n]o person shall ever be imprisoned for debt."


author: GUADALUPE RIVERA, Justice.

text:
    Johnnie Lee CARTER, Appellant, v. PARK RIDGE APARTMENTS, Appellee.
    No. 08-08-00154-CV.
    Court of Appeals of Texas, El Paso.
    March 31, 2010.

      Johnnie Lee Carter, El Paso, TX, pro se.
    Harrel L. Davis III, Gordon, Mott & Davis, P.C., El Paso, TX, for Appellee.
    Before McCLURE, J., RIVERA, J., and GUADERRAMA, Judge.
   OPINION

GUADALUPE RIVERA, Justice.

Johnnie Lee Carter appeals the trial court’s nunc pro tunc order on his motion for nonsuit, and order granting summary judgment, in favor of Park Ridge Apartments. Finding Carter failed to comply with the briefing requirements in Rule 38.1 of the Texas Rules of Appellate Procedure, we determine that nothing is presented for review and therefore, affirm the trial court’s judgment.

BACKGROUND

Carter sued Park Ridge Apartments for conversion and violations of the Texas Property Code, Texas Utilities Code, and the Texas Fair Housing Act. In response, Park Ridge counterclaimed for breach of lease agreement, seeking damages.

On March 5, 2008, Park Ridge moved for’ summary judgment on its counterclaim, and the trial court set a hearing on the motion for April 3, 2008. Prior to the scheduled hearing, Carter filed a notice of nonsuit, notifying the court and “all parties to this suit that he [was] taking a nonsuit without prejudice of his entire case against all defendants.... ” The trial court, on April 2, 2008, granted Carter’s nonsuit and dismissed the case without prejudice. Later, on April 7, 2008, the court entered a nunc pro tunc order, clarifying that only Carter’s claims against Park Ridge were nonsuited, not that Park Ridge’s counterclaim against Carter was dismissed.

On April 3, 2008, the trial court entertained a hearing on Park Ridge’s summary judgment motion. The record does not reflect that Carter filed a response to Park Ridge’s motion for summary judgment, nor does it show whether he appeared at the hearing. The trial court granted summary judgment in favor of Park Ridge, and it is from that order, and the court’s nunc pro tunc order on Carter’s motion for nonsuit, that Carter now appeals.

ANALYSIS

On appeal, Carter brings fourteen points of error, challenging: (1) whether service of citation was proper on Park Ridge; (2) whether the attorney representing Integrity Asset Management, the property management company and nonparty to the suit, could also represent Park Ridge; (3) whether Integrity Asset Management profited from its “deception;” (4) whether a nonparty may respond to discovery directed at another; (5) whether Park Ridge properly served him with its motion for summary judgment; (6) whether the trial court properly considered Park Ridge’s motion for order nunc pro tunc on his motion for nonsuit; (7) whether Park Ridge’s attorney acted unethically; (8) whether Park Ridge violated Rule 13 by filing pleadings without good faith; (9) whether Park Ridge violated Rule 21 when its motion for summary judgment did not appear on the docket; (10) whether Park Ridge timely served him with its motion for summary judgment; (11) whether Integrity Asset Management had standing absent filing a third-party petition; (12) whether he was given adequate time to prepare after Park Ridge filed its motion for summary judgment; (13) whether Integrity Asset Management could file a cross complaint; and (14) whether the trial court erred by serving notice of its nonsuit on counsel for Integrity Asset Management, who did not represent Park Ridge. However, Carter’s brief provides no argument or discussion for any of his issues save one quote from the Supreme Court’s per curiam opinion in University of Texas Medical Branch at Galveston v. The Estate of Darla Blackmon, 195 S.W.3d 98, 100 (Tex.2006), which simply notes the general rules applicable to a nonsuit. Carter has not provided any legal analysis or argument in support of the specific contentions he raises.

Although we must construe Carter’s brief liberally, as he is appearing pro se, Carter still must comply with all applicable briefing rules. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.); Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.-El Paso 2006, no pet.); Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.App.-El Paso 2007, pet. struck); Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet. denied); Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex.App.-Amarillo 2003, pet. denied); Clemens v. Allen, 47 S.W.3d 26, 28 (Tex.App.-Amarillo 2000, no pet.); Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex.App.-Texarkana 1997, no pet.); Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561 (Tex.App.-Dallas 2007, no pet.). Thus, his brief must contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 38.1(f), (i). We will not make Carter’s arguments for him. See Robertson v. Southwestern Bell Yellow Pages, Inc., 190 S.W.3d 899, 903 (Tex.App.-Dallas 2006, no pet.); Beard v. Beard, 49 S.W.3d 40, 67 (Tex.App.-Waco 2001, pet. denied). When, as here, the brief contains no arguments or citations to legal authority analogous to those contentions uttered at bar, nothing is presented for review. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); Valadez, 238 S.W.3d at 843; Martinez, 218 S.W.3d at 844; Plummer, 93 S.W.3d at 931; Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Accordingly, we overrule Carter’s issues as inadequately briefed.

CONCLUSION

Having overruled Carter’s issues, we affirm the trial court’s judgment.

GUADERRAMA, Judge, sitting by assignment.