author: ELSA ALCALA, Justice.

text:
    Paul TOURADJI, Appellant, v. BEACH CAPITAL PARTNERSHIP, L.P., Playa Oil & Gas GP, LLC, Playa Oil & Gas, LP, and Gary M. Beach, Appellees.
    No. 01-09-00403-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 8, 2010.

      Elizabeth Ann Fitzwater, Sean O’Brien, Arkin Kaplan Rice LLP, New York, NY, Jeffrey A. Potts, Smyser Kaplan & Vesel-ka, L.L.P., Houston, TX, for Appellant.
    Robert Louis Theriot, Liskow & Lewis, Houston, TX, for Appellees.

      Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
   OPINION

ELSA ALCALA, Justice.

In this interlocutory appeal, appellant, Paul Touradji, appeals the trial court’s order denying his special appearance. Ap-pellees, Beach Capital Partnership, L.P., Playa Oil & Gas GP, LLC, Playa Oil & Gas, LP, and Gary M. Beach (collectively, “plaintiffs”) sued Touradji, a New York resident, and Touradji’s business Deep-Rock Venture Partners, LP, alleging claims for interference with contract and economic relations, fraud, breach of fiduciary duty, slander and libel, and intentional infliction of emotional distress. Tourad-ji filed a special appearance that the trial court denied. In two issues, Touradji contends the trial court erred by denying his special appearance because he is not subject to either specific or general jurisdiction in Texas. We conclude that Touradji is not subject to general jurisdiction in Texas but that he is subject to specific jurisdiction for some of the claims against him. More specifically, Touradji established minimum contacts with Texas and the claims for interference with contract, fraud, and breach of fiduciary duty sufficiently relate to those contacts to subject Touradji to personal jurisdiction in Texas. We also conclude plaintiffs failed to plead sufficient jurisdictional allegations concerning the claims for slander and libel and for intentional infliction of emotional distress to subject Touradji to personal jurisdiction in Texas. We affirm in part, reverse in part and remand this case to the trial court.

Background

This case involves a dispute over ownership of Playa Oil & Gas, LP, a Texas limited partnership, as well as control of its ongoing operations.

A. Overview of Entities Involved

Playa Oil & Gas, LP (“Playa LP”) is a Texas limited partnership with its principal place of business in Houston, Texas. Playa LP was established in 2005 by Gary M. Beach, a Texas resident, and Paul Touradji, a New York resident, through other entities as described below. The partners of Playa LP are its general partner, Playa Oil & Gas GP, LLC (“Playa GP”), and its limited partners, Beach Capital Partnership, L.P. (“Beach Capital”) and DeepRock Venture Partners, LP (“Deep-Rock”). Playa GP owns 0.1% of Playa LP, while Beach Capital owns 19.9% and Deep-Rock owns 80%.

Playa GP is a Texas limited liability company with its principal place of business in Houston, Texas. Playa GP, as the general partner of Playa LP, operates Pla-ya LP and manages its business affairs. Playa GP is run by four managers, one appointed by Beach and the remaining three by DeepRock. Touradji is a manager of Playa GP and, prior to this controversy, Beach was a manager and the CEO. Playa GP is wholly owned by Beach.

Beach Capital is a Texas limited partnership. Its principal place of business is Houston, Texas. Beach owns 100% of Beach Capital.

DeepRock is a Delaware limited partnership with its principal place of business in New York. Touradji indirectly owns 100% of DeepRock. DeepRock was created for the purpose of becoming a partner in Playa LP, for Touradji to manage his investment in Playa LP.

B. The Controversy

In 2008, after Playa LP had been operating almost three years, Touradji and DeepRock sought to restructure the parties’ relationship. Touradji and DeepRock declined to make any further investment in Playa LP unless DeepRock received 100% of Playa LP’s revenues until DeepRock’s entire investment had been recovered. In May 2008, Beach and Beach Capital executed an “Amended and Restated Agreement of Limited Partnership.” Touradji and DeepRock did not execute the agreement. Touradji and DeepRock also did not make any further investment in Playa LP.

Touradji, as one of the managers of Playa GP, authorized the sale of Playa LP assets, specifically, real property in East Texas, for approximately $41 million. Touradji also authorized the distribution of the $41 million in proceeds to DeepRock, but no distribution was made to the other limited partner, Beach Capital. By the terms of the partnership agreement, approximately $8.2 million of the proceeds should have been distributed to Beach Capital.

On September 26, 2008, Beach learned that the “Amended and Restated Agreement of Limited Partnership” had not been executed by Touradji or DeepRock. Beach and Beach Capital withdrew their consent to the amended agreement.

Plaintiffs filed this suit on October 1, 2008. A few days later, Touradji, acting on behalf of DeepRock, approved the “Amended and Restated Agreement of Limited Partnership” of Playa LP and appointed new managers of Playa GP, including re-appointing himself as manager. On October 10, 2008 Touradji, acting for DeepRock, sent a letter to plaintiffs in Texas notifying plaintiffs that he had appointed new managers and accepted new regulations for Playa GP.

On October 15, Touradji and the managers he had appointed removed Beach from control of the partnership, stripping him of his status as a manager and CEO. From the time of the October meeting, plaintiffs contend that Touradji and Deep-Rock have refused to cooperate in the operations of the partnership and “continued in their breaches of their duties to plaintiffs,” including preventing plaintiffs from receiving their fair share of revenue and destroying the remaining value of the partnership.

C. Special Appearance in the Trial Court

Touradji filed a special appearance asserting he is not subject to personal jurisdiction in Texas. Specifically, in his special appearance Touradji contends that he is not subject to specific jurisdiction in Texas because plaintiffs faded to plead sufficient jurisdictional allegations and he did not purposefully avad himself of the privilege of conducting business in Texas. Touradji also asserts his contacts with Texas are not extensive enough to subject him to general jurisdiction. In support of his special appearance, Touradji filed an affidavit in which he avers he is not a Texas resident, does not maintain a place of business in Texas, and does not own real property in Texas. Touradji also states he either made or received approximately 10 telephone calls with people in Texas and visited Texas approximately five times concerning the business of Playa LP.

Personal Jurisdiction and Special Appearance

A. Standard of Review

A legal conclusion concerning the existence of personal jurisdiction is a question of law subject to de novo review, but that conclusion must sometimes be preceded by the resolution of underlying factual disputes. Am. Type Culture Collection Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex.2002); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). “When ... the trial court does not issue fact findings, we presume that the trial court resolved all factual disputes in favor of its ruling.” Glattly v. CMS Viron Corp., 177 S.W.3d 438, 445 (Tex.App.Houston [1st Dist.] 2005, no pet.) (citing Am. Type Culture Collection, 83 S.W.3d at 805-06). However, “we review de novo if the underlying facts are undisputed or otherwise established.” Preussag Aktienge-sellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex.App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.).

B. Law of Special Appearance

A plaintiff bears the initial burden of pleading allegations sufficient to bring a non-resident defendant within the terms of the Texas long-arm statute. Kelly v. Gen. Interior Const., Inc., 301 S.W.3d 653, 658 (Tex.2010); Am. Type Culture Collection, 83 S.W.3d at 807. To establish jurisdiction over a nonresident defendant, the plaintiff must plead a “connection between the defendant’s] alleged wrongdoing and the forum state.” Kelly, 301 S.W.3d at 655. In a tort case, the plaintiff must plead that the defendant committed a tortious act in Texas. Id. at 659; Ji-Haw Indus. Co., Ltd. v. Broquet, — S.W.3d -,-(Tex.App.-San Antonio 2008, no pet. h.)

If the plaintiff pleads sufficient jurisdictional allegations, the nonresident defendant then assumes the burden of negating all bases of jurisdiction in those allegations. Kelly, 301 S.W.3d at 658; Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007). If the plaintiff does not plead sufficient jurisdictional facts, the defendant meets its burden to negate jurisdiction by proving it is not a Texas resident. Kelly, 301 S.W.3d at 658-59. The plaintiffs original pleadings as well as its response to the defendant’s special appearance can be considered in determining whether the plaintiff satisfied its burden. Wright v. Sage Eng’g, Inc., 137 S.W.3d 238, 249 n. 7 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). In conducting our review, we accept as true the allegations in the petition. Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex.App.-Houston [14th Dist.] 2008, pet. denied).

C. The Law of Personal Jurisdiction

A court may assert personal jurisdiction over a non-resident defendant if the requirements of the Due Process Clause of the United States Constitution and the Texas long-arm statute are both satisfied. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984); CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996). “Because the Texas long-arm statute reaches ‘as far as the federal constitutional requirements of due process will allow,’ the statute is satisfied if the exercise of personal jurisdiction comports with federal due process.” Preussag Aktienge-sellschaft, 16 S.W.3d at 113 (quoting CSR, Ltd., 925 S.W.2d at 594). We thus examine only whether a Texas court’s exercise of jurisdiction over Touradji would comport with the requirements of federal due process. See id.

To meet the requirements of federal due process, “the nonresident defendant must have purposefully established such minimum contacts with the forum state that it could reasonably anticipate being sued there.” Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985)). “If the nonresident defendant has purposefully availed itself of the privileges and benefits of conducting business in a state, it has sufficient contacts to confer personal jurisdiction.” Id. (citing Burger King, 471 U.S. at 475, 105 S.Ct. at 2183). “Random, fortuitous, or attenuated contacts do not suffice.” Id. (citing Burger King, 471 U.S. at 475, 105 S.Ct. at 2183).

To assess whether a non-resident defendant has purposefully availed himself of the privileges and benefits of conducting business in Texas, we examine three factors. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex.2005). First, only the defendant’s own actions may constitute purposeful availment; a defendant may not be haled into a jurisdiction based solely on the unilateral activities of a third party. Id. (citing Burger King, 471 U.S. at 475, 105 S.Ct. at 2183). Second, the defendant’s acts must be purposeful, and a showing of ran dom, isolated, or fortuitous contacts is insufficient. Id. (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984)). Third, a defendant must seek some benefit, advantage, or profit through his purposeful availment, because jurisdiction is based on notions of implied consent; that is, by seeking the benefits and protections of a forum’s laws, a non-resident consents to suit there. Id. (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)). The purposeful availment test should focus on “the defendant’s efforts to avail itself of the forum” and not “the form of the action chosen by the plaintiff.” Mold Mac, 221 S.W.3d at 576.

Minimum-contacts analysis is further divided into specific personal jurisdiction and general jurisdiction. Preussag Aktiengesellschaft, 16 S.W.3d at 114.

1. Specific Jurisdiction

A court may exercise specific personal jurisdiction over a non-resident defendant if (1) the non-resident purposely directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities there and (2) the controversy arises out of or is related to the non-resident’s contacts with the forum state. Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 343 (5th Cir.2004). The non-resident defendant’s purposeful conduct, not the unilateral acts of the plaintiff, must have caused the contact. See Helicópteros Nacionales de Colombia, S.A., 466 U.S. at 414, 104 S.Ct. at 1872. Foreseeability of an injury in Texas is not solely determinative, Mic-hiana Easy Livin’ Country, 168 S.W.3d at 789, but foreseeability of causing injury is “an important consideration” in deciding whether a nonresident defendant has purposefully established minimum contacts. BMC Software, 83 S.W.3d at 795.

Even if a non-resident has purposefully availed himself of the benefits of conducting business in Texas, there is no specific jurisdiction over the non-resident unless the cause of action “arises from or is related to an activity conducted within the forum.” BMC Software, 83 S.W.3d at 796. We focus our analysis on the relationship among the non-resident, the fo-rum, and the litigation to determine if the alleged liability arises from or is related to an activity conducted in Texas. Counter Intelligence, Inc. v. Calypso Waterjet Sys., Inc., 216 S.W.3d 512, 517 (Tex.App.-Dallas 2007, no pet. h.). The focus of the examination must be the nature of the contacts and the “nexus” that these contacts create with the forum state. McDermott v. Cronin, 31 S.W.3d 617, 621-22 (Tex.App.Houston [1st Dist.] 2000, no pet.). The “arises from or is related to” requirement of specific personal jurisdiction requires a “substantial connection” between the nonresident defendant’s contacts and the “operative facts of the litigation.” Mold Mac, 221 S.W.3d at 584-85. That is, the nonresident’s conduct must have been purposely directed towards or have occurred in the forum and must have a “substantial connection” with the litigation’s operative facts. Id.; Glattly, 177 S.W.3d at 447.

2. General Jurisdiction

General jurisdiction does not require that the cause of action relate directly to the defendant’s contacts with the forum. Preussag Aktiengesellschaft, 16 S.W.3d at 114 (citing CSR, Ltd., 925 S.W.2d at 595). To negate general jurisdiction a defendant must show that its contacts in Texas were not “continuous and systematic.” Id. To support general jurisdiction, the defendant’s forum activities must have been “substantial,” which requires stronger evidence of contacts than for specific jurisdiction. Id. The Texas supreme court has described it as a “more demanding minimum contacts analysis.” PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 168 (Tex.2007) (quoting CSR, Ltd. v. Link, 925 S.W.2d at 595). “Usually, ‘the defendant must be engaged in longstanding business in the forum state, such as marketing or shipping products, or performing services or maintaining one or more offices there; activities that are less extensive than that will not qualify for general in personam jurisdiction.’ ” Id. (quoting 4 ChaRles Alan Wright & Arthur R. Miller, Federal Praotice & Procedure § 1067.5 (2007)).

Analysis

A. General Jurisdiction

In his first issue, Touradji asserts the trial court erred by denying his special appearance because he is not subject to general jurisdiction in Texas. As noted above, general jurisdiction requires more substantial contacts with Texas than specific jurisdiction. PHC-Minden, 235 S.W.3d at 168. Here, the plaintiffs’ petition contains no allegations that Touradji had any longstanding or substantial business activities in Texas — such as marketing or shipping products or maintaining an office here. See id. Accordingly, Tourad-ji’s affidavit asserting he is not a Texas resident is sufficient to negate general jurisdiction as a basis for the trial court’s exercise of personal jurisdiction. See Kelly, 301 S.W.3d at 659. We sustain Tourad-jf s first issue.

B. Specific Jurisdiction

As a threshold matter, Tourad-ji asserts we must examine his special appearance concerning specific jurisdiction on a claim-by-claim basis. Although the Texas supreme court did not hold that specific jurisdiction must be analyzed for each specific claim, in Kelly, it analyzed the sufficiency of the jurisdictional allegations of the plaintiffs claims separately. See Kelly, 301 S.W.3d at 660 (addressing jurisdictional allegations for fraud claim separately from claim under Texas Property Code). In addition, the Fifth Circuit has held that the “arise from or related to” portion of the specific jurisdiction analysis must be conducted on a claim-by-claim basis to comply with due process when the claims are based on different forum contacts. Seiferth v. Helicópteros Atuneros, Inc., 472 F.3d 266, 274 (5th Cir.2006) (citing cases from First, Third, Eight, and Ninth Circuits); see also Barnhill v. Automated Shrimp Corp., 222 S.W.3d 756, 767 (Tex.App.-Waco 2007, no pet.) (following Seiferth). However, when separate claims are based on the same forum contacts, a separate analysis of each claim is not required. See Sutton v. Advanced Aquaculture Sys., Inc., 621 F.Supp.2d 435, 442 (W.D.Tex.2007) (distinguishing Seiferth on basis that plaintiffs claims all arose from same set of forum contacts); see also Davis Invs., VI, LP v. Holtgraves, No. 14-08-00222-CV, 2009 WL 975961, at *12 n. 7 (Tex.App.-Houston [14th District] Feb. 26, 2009, pet. denied) (agreeing “with other courts that generally a specific-jurisdiction analysis should be performed on a claim-by-claim basis” but declining to do so because plaintiffs claims all arose from same facts and defendant asserted single basis for his special appearance to each claim). In this case, neither party provides any argument or analysis concerning whether these claims arise from the same forum contacts or different ones. Plaintiffs’ pleadings do not clearly show that all the claims arise out of the same facts. Plaintiffs’ live petition contains a background section making certain allegations, but it also has separate sections for each cause of action that appear to discuss other allegations, so it is unclear whether those separate sections are discussing the same underlying facts for all the claims. We therefore examine the sufficiency of the jurisdictional allegations of each claim against Touradji separately in our specific jurisdiction analysis. See Kelly, 301 S.W.3d at 659-60. As discussed below, we conclude that not all of plaintiffs’ claims— specifically, the claims for slander and libel and for intentional infliction of emotional distress — are supported by sufficient jurisdictional allegations. The remaining claims for interference with contract and economic relations, fraud, and breach of fiduciary duty are based, in large part, upon the same contacts with Texas, namely, Touradji’s involvement with the ongoing operations of a Texas business. We therefore address the “arise from or related to” requirement of specific jurisdiction together for these claims. See Sutton, 621 F.Supp.2d at 442; see also Davis Invs., VI, LP, 2009 WL 975961 at *12 n. 7.

Within his issue concerning specific jurisdiction, Touradji asserts three reasons the trial court erred in denying his special appearance. First, Touradji asserts that plaintiffs failed to sufficiently allege jurisdictional facts to support each claim. Second, Touradji contends that under the supreme court’s opinion in Michiana, Touradji has not purposefully availed himself of doing business in Texas. Third, Touradji asserts that, even if his contacts were sufficient to support a finding of minimum contacts, his contacts are not substantially connected to the operative facts of this litigation to support jurisdiction under Moki Mao.

1. Sufficiency of Allegations

Plaintiffs alleged five causes of action against Touradji: (a) interference with contracts and economic relations; (b) fraud; (c) slander and libel; (d) breach of fiduciary duty; and (e) intentional infliction of emotional distress.

(a) Interference with Contract and Economic Relations

Concerning this cause of action, plaintiffs alleged Touradji and DeepRock communicated with plaintiffs in Texas. Plaintiffs also alleged Touradji executed a “consent” causing Playa GP, as general partner of Playa LP, to sell Texas properties to raise revenue. Plaintiffs further alleged Touradji caused distributions of this revenue to be made to DeepRock, but withheld any distribution to Beach Capital. Finally, plaintiffs alleged that Tour-adji has taken control of Playa GP and Playa LP and “failed to cooperate with and otherwise obstructed the operations of Playa LP.”

Unlike the allegations in Kelly, here plaintiffs pleaded that Touradji communicated with them in Texas. Touradji, acting as a manager for a Texas limited liability company, allegedly caused a Texas limited partnership to sell Texas property to raise revenue. Touradji then allegedly caused the distribution of those revenues from the Texas entities to DeepRock, and withheld any distribution to the other limited partner, Beach Capital, another Texas entity. We hold these allegations are sufficient to plead a connection between the alleged wrongful acts and Texas. See Pul-mosan Safety Equip. Corp., 273 S.W.3d at 839 (holding we accept allegations as true in reviewing special appearance); see also Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 340 (Tex.2009) (finding personal jurisdiction appropriate where defendant accepted transfer of Texas real property even though transaction occurred outside of Texas); TexVa, Inc. v. Boone, 300 S.W.3d 879, 889 (Tex.App.-Dallas 2009, pet. filed) (finding jurisdiction proper over nonresident defendants who formed partnership with Texas, later incorporated business under laws of Texas, served as officers and directors of that corporation, and allegedly breached fiduciary duties to Texas corporation and Texas shareholder).

(b) Fraud

Concerning the allegations of fraud, Touradji asserts the “bare assertions of fraud ..., without more, are neither material nor relevant in assessing contacts to determine personal jurisdiction over a nonresident defendant.” See Capital Fin. & Commerce AG v. Sinopec Overseas Oil & Gas, Ltd., 260 S.W.3d 67, 78 (Tex.App.-Houston 2008, no pet.) In Kelly, the supreme court found an allegation of fraud insufficient to invoke personal jurisdiction over the defendant when it did not mention Texas at all. Kelly, 301 S.W.3d at 656, 660. The allegation in that case stated “the material representations made by [defendant] were false and were made with the intention that [plaintiff] would rely thereon.” Id. at 655. In contrast, the allegations in this case are that Touradji made a representation to plaintiffs in Texas and that the representation concerned the ongoing operation of two Texas entities. These allegations specifically mention Texas, pleading a connection between Touradji’s allegedly wrongful acts and Texas. See id. at 655, 660. We hold these allegations are sufficient.

(c)Breach of Fiduciary Duty

In his brief to this court, Touradji specifically states that he “does not appeal the finding of specific jurisdiction over him with respect to the claims of breach of fiduciary duty, to the extent that such a duty arose by virtue of Touradji’s position as a Manager of Playa GP.” In their petition, the only allegation of fiduciary duties owed by Touradji made by plaintiffs is that “Touradji, as manager of Playa Oil & Gas GP, LLC, owes fiduciary duties to Plaintiff Playa Oil & Gas GP, LLC, and along with DeepRock, owes fiduciary duties to Playa Oil & Gas GP, LLC, Playa Oil & Gas LP, and Beach Capital Partnership, LP.” Because Touradji concedes there is jurisdiction over the breach of fiduciary duty claim on the only basis alleged by the plaintiffs, we affirm the trial court’s order denying Touradji’s special appearance with respect to breach of fiduciary duty claim.

(d)Slander and Libel

Concerning the slander and libel claims, Touradji asserts that plaintiffs’ “generalized allegations” of slander and libel, without any pleading that the “supposed statements were made in Texas or even to anyone who was located in Texas,” are insufficient. (Emphasis in original). In the facts section of their live pleading, plaintiffs alleged, “Paul Touradji has slandered and libeled Gary M. Beach by disseminating oral and written untrue and injurious statements, which were intended to be disseminated public[ly], including in Texas.” In the causes of action section, plaintiffs alleged, “Paul Touradji has slandered and libeled Gary M. Beach by uttering and causing the publication of untruths concerning Mr. Beach, which statements were injurious to his reputation and standing.” The only mention of Texas in these allegations is that the defamatory statements were intended to be made publicly “including in Texas.” There is no allegation of any connection to Texas. There is no allegation that the statements were made or disseminated in Texas. These allegations closely resemble the allegations of fraud in Kelly that pleaded no Texas conduct and no connection to Texas. See Kelly, 301 S.W.3d at 656, 660. We hold these allegations are insufficient.

(e)Intentional Infliction of Emotional Distress

Touradji asserts the same arguments concerning the allegations of intentional infliction of emotional distress as he does concerning the allegations of slander and libel. Plaintiffs alleged, “Paul Tourad-ji has threatened and slandered the other managers of Playa Oil <& Gas GP, LLC.... ” Plaintiffs also pleaded, “Paul Touradji has, on several occasions, threatened the managers and personnel of Playa Oil & Gas GP, LLC, with economic and bodily harm, such conduct being so intentional, extreme, and outrageous as to be utterly intolerable in a civilized community, causing severe emotional distress, injury and damages to Plaintiffs.” Like the allegations in Kelly, these allegations make no mention of Texas. These allegations contain no pleading of a connection between Touradji’s alleged wrongdoing and Texas. Kelly, 301 S.W.3d at 660. We hold these allegations are insufficient.

For the remaining analysis, we do not address the claims of intentional infliction of emotional distress or slander and libel because we have concluded the plaintiffs did not meet their initial burden of sufficiently alleging Touradji came within the terms of the Texas long-arm statute for those claims. See id. at 659. Nor do we address the claim of breach of fiduciary duty because Touradji has not appealed the trial court’s denial of his special appearance for that claim. For the remaining claims — interference with contract and economic relations and fraud — the burden is on Touradji to negate all bases of jurisdiction alleged by plaintiffs. See id.; Moki Mac River Expeditions, 221 S.W.3d at 574.

2. Purposeful Availment

Within this portion of his second issue, Touradji contends this case is governed by the Texas supreme court’s opinion in Mic-hiana. Touradji asserts we must look to “Texas-based conduct” and “where the defendant’s actions were carried out.” Although these are factors that could impact a personal jurisdiction analysis, the Supreme Court’s holding in Michiana is not so narrow.

(a) Michiana Easy Livin’ Country, Inc. v. Holten

In Michiana, the Texas supreme court held that the exercise of personal jurisdiction was not proper over Michiana because its sole contact with Texas was not the result of actions it directed towards Texas. Michiana Easy Livin’ Country, Inc., 168 S.W.3d at 794. Michiana, an Indiana company, received a phone call from Holten, a Texas resident. Id. at 784. Holten arranged to buy an RV from Michiana and to have it shipped to Texas at his own expense. Id. During the course of this phone call, Michiana allegedly made misrepresentations to Holten. Id. The supreme court rejected cases that upheld personal jurisdiction based on whether the defendant “directed a tort” towards Texas in a single phone call. Id. at 790-91. “First, the court explained the focus must remain on the relationship among the defendant, the forum, and the litigation,” but a “directing a tort” analysis shifts the focus to the relationship among the plaintiff, the forum, and the litigation. Id. at 790. Second, “directing a tort” analysis improperly focuses on the merits of the claim; the focus should be on the defendant’s contacts with Texas, not whether those contacts were tortious. Id. at 790-91. Third, focusing on whether the defendant directed a tort toward Texas could alter the outcome of jurisdictional analysis based on whether the plaintiff alleged a tort or a contract claim based on the same actions. Id. at 791. The supreme court disapproved of intermediate court holdings that “(1) specific jurisdiction is necessarily established by allegations or evidence that a nonresident committed a tort in a telephone call from a Texas number, or that (2) specific jurisdiction turns on whether a defendant’s contacts were tortious rather than the contacts themselves.” Id. at 791-92 (footnotes omitted).

The supreme court did not hold that specific jurisdiction turns only on “Texas-based conduct” and “where the defendant’s actions were carried out,” as Touradji asserts. Texas supreme court decisions since Michiana make this clear. In Moki Mac, the supreme court found sufficient minimum contacts over Moki Mae, an Arizona company. Moki Mae River Expeditions, 221 S.W.3d at 579. In that case the supreme court noted that a personal jurisdiction analysis must consider whether a nonresident defendant “purposefully directed action towards Texas.” Id. at 577. Among other activities, Moki Mac regularly advertised in Texas and solicited business from Texas residents through mass and targeted direct-marketing email campaigns. Id. at 577-78. In finding sufficient minimum contacts, the supreme court stated, “Moki Mac’s business with Texas residents stems from its marketing and advertising activities purposefully directed at gaining Texas customers, and it thus availed itself of doing business here.” Id. at 579.

The supreme court also found personal jurisdiction over a California company in Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex.2009). Retamco, a Texas company, sued Republic Drilling Company, a California corporation, over Republic receiving oil and gas wells and leases, allegedly in violation of the Uniform Fraudulent Transfer Act. Re-tamco Operating, Inc., 278 S.W.3d at 336. Republic filed a special appearance, asserting that it did not have minimum contacts with Texas because the allegedly fraudulent transfer occurred entirely outside of Texas. Id. at 336-37. The supreme court stated that “jurisdiction ... may not be avoided merely because the defendant did not physically enter the forum state.” Id. at 339 (quoting Burger King, 471 U.S. at 476, 105 S.Ct. at 2184). The supreme court noted that Republic knowingly and willingly entered into the transaction to accept real property in Texas, and that this was sufficient to constitute purposeful availment of doing business in Texas. Id. at 339-40. Thus, our focus is on Tourad-ji’s actions that were purposefully directed towards Texas, not solely on whether he physically performed those actions in Texas. See Retamco, 278 S.W.3d at 339; Moki Mac River Expeditions, 221 S.W.3d at 579.

(b) Touradji’s Contacts

Here, Touradji formed DeepRock for the sole purpose of becoming a limited partner in Playa LP, a Texas entity. The partnership agreement recites the principal place of business of Playa LP is Houston, Texas. The agreement also provides, “Applicable Law. This Agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Texas without regard to any choice of law principles.” (Emphasis in original). Although he signed the partnership agreement on behalf of DeepRock, the agreement shows Touradji knew he was becoming involved with a Texas entity, doing business in Texas and subject to the laws of Texas.

Touradji, in his individual capacity, also agreed to serve as a manager of Playa GP, another Texas entity. Playa GP’s sole purpose was to act as the general partner of Playa LP and carry out its business, which included oil and gas interests in Texas. Additionally, the articles of organization of Playa GP specifically invoke the provisions of the Texas Business Corporations Act concerning indemnification of the managers.

Touradji communicated with Beach, a Texas resident, and with Beach Capital, another Texas entity, concerning the ongoing business of Playa LP and Playa GP. Touradji consented to Playa LP’s sale of Texas oil and gas interests to raise revenue, which was distributed to DeepRock and not to the other limited partner, Beach Capital. Touradji also met with other managers of Playa GP to remove Beach as a manager and CEO of Playa GP.

(c) Analysis

Touradji purposefully directed his activities towards Texas. First, the actions stated above are Touradji’s actions, not the unilateral actions of some third party. See Retamco, 278 S.W.3d at 340 (finding nonresident defendant’s contact with Texas not result of unilateral activity of third party when defendant was “willing participant in a transaction with an affiliated Texas company to purchase Texas property”); TexVa, Inc., 300 S.W.3d at 889 (nonresident defendants’ Texas contacts not unilateral activity of third party where they formed partnership with Texas resident, later incorporated partnership under Texas law, agreed to serve as officers and directors of corporation, and traveled to Texas twice to discuss business). Second, Touradji’s contacts cannot be characterized as random, isolated, or fortuitous. See Retamco, 278 S.W.3d at 340 (finding nonresident defendant’s contact with Texas not “random, fortuitous, or attenuated” because defendant “reached out and created a continuing relationship in Texas” by knowingly accepting transfer of real property located in Texas); TexVa, Inc., 300 S.W.3d at 889 (finding nonresident defendants’ Texas contacts purposeful and not “random, isolated, or fortuitous” where defendants agreed to create ongoing business relationship with Texas residents, form Texas corporation, act as officers and directors of Texas corporation, and twice traveled to Texas to discuss ongoing business of corporation). Third, Touradji sought benefits, advantages, and profits through his purposeful availment of Texas. See Retamco, 278 S.W.3d at 340 (finding nonresident defendant sought “benefit, advantage or profit” in Texas by accepting real property located in Texas because defendant could enforce warranties and covenants related to real property, received revenue from property, and sold portion of property); TexVa, Inc., 300 S.W.3d at 889 (finding nonresident defendants’ acts in creating Texas corporation and ongoing business relationship with Texas residents “clearly sought to profit” from contact with Texas). We hold Touradji’s contacts were purposefully directed towards Texas.

We also note Touradji bears the burden of negating all bases of jurisdiction alleged by the plaintiffs. See Kelly, 301 S.W.3d at 659. Here, in his affidavit, Touradji admitted that he had approximately 10 phone calls to and from Texas discussing the ongoing business of Playa LP. Touradji also visited Texas five times for Playa LP business. Concerning the specific allegations of fraud (that Touradji made representations to plaintiffs in Texas) and interference with contract (that Touradji took control of Playa LP, obstructed its ongoing operations, and denied plaintiffs their share of revenues), Touradji avers, “To the extent that any of the aforementioned allegations occurred — and I deny any and all allegations of wrongdoing — Plaintiffs have not, and cannot, allege that any of the allegations with respect to me occurred in Texas.” As discussed above, physical presence in Texas is not the only basis for personal jurisdiction and plaintiffs’ allegations of fraud and interference with contract did sufficiently allege a Texas connection.

3. Substantial Connection

In this portion of his second issue, Touradji asserts that his contacts with Texas are not substantially connected to the operative facts of the litigation. In order to meet the final requirement for specific jurisdiction' — that the claims arise from or relate to the defendant’s contacts with Texas — there must be a substantial connection between those contacts and the operative facts of the litigation. Mold Mac, 221 S.W.3d at 584-85.

Touradji’s contacts with Texas all relate to the ongoing business of Playa GP and Playa LP. As discussed above, these contacts include communicating to Texas residents concerning the ongoing operations of Texas entities, consenting to the sale of Texas real property, causing distributions to be made from a Texas entity, removing Beach as a manager and officer of a Texas entity, and taking control of two Texas entities. The underlying litigation concerns whether, during the course of these activities, Touradji made fraudulent representations to Texas residents, breached fiduciary duties that he owed to Texas residents, or interfered with the business relationships and contracts of Texas residents. This is a sufficient basis to conclude the claims in this case are substantially related to Touradji’s purposeful contacts with Texas. See Tex Va, Inc., 300 S.W.3d at 890 (holding “no difficulty concluding” litigation concerning breach of business agreements and breach of fiduciary duty arose from or was related to defendants’ contacts that constituted ongoing business relationship with Texas). In addition, part of the alleged wrongdoing involves the sale of Texas real property and the disbursement of the proceeds from that sale to DeepRock from the Texas entities. See Retamco, 278 S.W.3d at 341 (suit concerning allegedly fraudulent transfer of Texas real property from Texas entity arises from or relates to Texas contacts even though transaction occurred outside of Texas). We hold the underlying litigation arises from or relates to Tourad-ji’s contacts with Texas.

Touradji relies upon two recent court of appeals cases to support his contention that he is not subject to specific jurisdiction. First, Touradji cites to Lamar v. Poncon, 305 S.W.3d 130 (Tex.App.-Houston [1st Dist.] 2009, pet. filed). In Lamar, the Lamars booked a vacation in Nicaragua. 305 S.W.3d at 133-34. While driving the Lamars from the airport to the resort, the driver fell asleep, severely injuring the Lamars in the ensuing accident. Id. The nonresident defendant allegedly made representations to the Lamars that their travel from the airport to the resort would be safe. Id. at 138-39. This court held specific jurisdiction was not present because there was no substantial connection between the representation and the operative facts of the litigation because the litigation would focus on whether the nonresident defendant and its driver were negligent in Nicaragua. Id. Unlike Lamar, the operative facts of this litigation revolve around the ongoing business operations of a Texas entity with its principal place of business in Texas. Touradji’s contacts relate directly to the facts of the litigation, and the focus of the litigation will not be on an accident or injury that occurred outside of Texas. Lamar is distinguishable and therefore not controlling in this case.

Touradji also cites to Proctor v. Buell, 293 S.W.3d 924 (Tex.App.-Dallas 2009, no pet.). In Proctor, the plaintiffs, Texas residents, alleged the defendants, including Proctor, fraudulently induced plaintiffs to invest $120,000 to acquire Texas property, of which plaintiffs would receive partial ownership. Proctor, 293 S.W.3d at 926. Proctor filed a special appearance that the trial court denied. Id. at 927. The court of appeals held the trial court erred because Proctor was not subject to specific jurisdiction in Texas. Id. at 932. Although Proctor contributed money to acquire the Texas property and profited from the allegedly wrongful sale of the property, the operative facts of the litigation would focus primarily on the alleged misrepresentations made to plaintiffs and the undisputed evidence showed that Proctor never communicated with plaintiffs in any way. Id. The court therefore held there was not a substantial connection between Proctor’s contacts and the operative facts of the litigation. Id. Here, plaintiffs have alleged that Touradji communicated with them concerning the operations of a Texas entity. This lawsuit involves those allegedly fraudulent communications. Further, it is undisputed that Touradji communicated with plaintiffs, both over the phone and while physically present in Texas. Proctor is distinguishable on the facts of the case.

We sustain Touradji’s second issue concerning the claims for slander and libel and for intentional infliction of emotional distress. We overrule Touradji’s second issue concerning the claims for fraud, breach of fiduciary duty, and interference with contract and economic relations.

Conclusion

We reverse the trial court’s denial of Touradji’s special appearance concerning the claims for slander and libel and for intentional infliction of emotional distress. We also reverse the trial court’s denial of Touradji’s special appearance concerning general jurisdiction. We affirm the trial court’s order in all other respects. We remand this case to the trial court for further proceedings.

      . See Tex. Civ. Prac. & Rem.Code Ann § 51.014(a)(7) (Vernon 2008) (authorizing interlocutory appeal of order denying special appearance).

      . U.S. Const, amend. XIV, § 1.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 2008).

      . Due process also requires that the exercise of personal jurisdiction over a nonresident defendant comport with fair play and substantial justice. Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex.App.-Hous-tón [1st Dist.] 2000, pet. dismd w.o.j.). Tour-adji does not assert that the exercise of personal jurisdiction over him would violate fair play and substantial justice. We therefore do not address this issue.

      . Plaintiffs assert that Touradji's concession that specific jurisdiction exists with respect to certain claims, discussed below, waives his special appearance with respect to all remaining claims. To support this assertion, plaintiffs cite to this Court's opinion in Glattly v. CMS Viron Corp., 177 S.W.3d 438 (Tex.App.Houston [1st Dist.] 2005, no pet.). In Glattly, we stated that the trial court properly denied Glattly’s special appearance if personal jurisdiction existed with respect to any claim asserted against him. Glattly, 177 S.W.3d at 447. We noted that Glattly had filed a special appearance "to the entire proceeding” rather than making a special appearance as to specific claims. Id.; see also Tex.R. Civ. P. 120a(l) ("A special appearance may be made as to an entire proceeding or as to any severa-ble claim involved therein.”). We also noted that Glattly’s personal jurisdiction briefing in the trial court did not assert separate arguments for separate causes of action brought against him or assert that any cause of action asserted against him was severable. Id. Glattly is distinguishable. Here, Touradji filed a brief with the trial court specifically asserting that different causes of action must be examined separately for personal jurisdiction and citing Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266 (5th Cir.2006). At the special appearance hearing, Touradji also specifically argued that specific jurisdiction must be established separately for each cause of action.

      . In his brief to this Court, Touradji states he is not appealing the trial court’s denial of his special appearance concerning the claim for interference with contract and economic relations, but only to the extent "this cause of action arises from Touradji’s actions as a manager of Playa GP.” (Emphasis in original). Unlike the claim for breach of fiduciary duty, discussed below, the allegations do not clearly limit this cause of action as arising from Touradji's role as a manager of Playa GP. We therefore address this claim on the merits of the jurisdictional issue.


source: Caselaw Access Project

author: J. HARVEY HUDSON, Senior Justice.

license: Public Domain

text:
    R.R. YALAMANCHILI, Appellant v. Chayn MOUSA, Appellee.
    No. 14-08-00491-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 22, 2010.
    Rehearing Overruled July 22, 2010.

      Elizabeth M. Bruman, Houston, for appellant.
    Kent Adams, Glenn Baer Huebner, Houston, for appellee.
    Panel consists of Justices FROST and BROWN and Senior Justice HUDSON.

       Senior Justice J. Harvey Hudson, sitting by assignment.

   OPINION

J. HARVEY HUDSON, Senior Justice.

Appellant R.R. Yalamanchili appeals the trial court’s order granting summary judgment on his nuisance and trespass claims against appellee Chayn Mousa. We affirm in part and reverse and remand in part.

BACKGROUND

Mousa owns a shopping center adjacent to a residential neighborhood, and Yala-manchili owns property in that neighborhood. In the spring of 2002, Yalamanchili discovered that his yard was retaining moisture, causing his plants and trees to die. Trees continued to die over the next several years. In April 2006, Yalamanchili suffered even more plant and tree loss as well as damage to his home’s foundation. He hired an engineer to investigate, and the investigation concluded that post-rain runoff water from Mousa’s shopping center was the cause of his problems. When asked in his deposition how often water accumulates on his property, Yalamanchili testified that “It’s predictable I believe with every rain of any magnitude.”

Yalamanchili sued Mousa on April 28, 2006, asserting claims for nuisance and trespass to land and requesting damages and a permanent injunction. Mousa moved for traditional summary judgment, asserting solely that Yalamanchili’s claims were barred by limitations, and the trial court granted Mousa’s motion. On appeal, Yalamanchili argues the trial court erred in granting summary judgment based on limitations.

SUMMARY JUDGMENT ON LIMITATIONS

A. Applicable Law

The standard for reviewing a summary judgment under Texas Rule of Civil Procedure 166a(c) is well established. The mov-ant must show there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); Lerner v. First Commerce Bank, 302 S.W.3d 16, 17-18 (Tex.App.-Houston [14th Dist.] 2009, no pet.). In conducting our review, we take as true all evidence favorable to the non-movant, and we make all reasonable inferences in the non-movant’s favor. KPMG Peat Marwick, 988 S.W.2d at 748; Lerner, 302 S.W.3d at 17-18.

To be entitled to summary judgment based on its limitations defense, the mov-ant must conclusively establish the date the cause of action accrued, negate the applicability of the discovery rule if applicable in the case, and prove as a matter of law that the non-movant’s claim is time-barred. See KPMG Peat Marwick, 988 S.W.2d at 748; Lerner, 302 S.W.3d at 17-18. If the movant establishes that the action is barred by limitations, the non-mov-ant must then put on proof that raises a fact issue on limitations to avoid summary judgment. KPMG Peat Marwick, 988 S.W.2d at 748; Lerner) 302 S.W.3d at 17-18.

Yalamanchili argues that the trial court erred in granting summary judgment as to its nuisance and trespass claims based on limitations. Both nuisance and trespass claims are governed by a two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp.2009); Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex.2004); W.W. Laubach Trust v. Georgetown Corp., 80 S.W.3d 149, 158 (Tex.App.-Austin 2002, pet. denied). The key issue in this case is when each cause of action accrued. When a cause of action accrues is a question of law. See Schneider, 147 S.W.3d at 270, 274-75.

B. Nuisance Claim

A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. Id. at 269. When a nuisance cause of action accrues depends on whether the nuisance is temporary or permanent. Id. at 270. “A permanent nuisance claim accrues when the injury first occurs or is discovered; a temporary nuisance claim accrues anetv upon each injury.” Id.

a. Temporary or Permanent Nuisance?

The parties disagree as to whether the alleged nuisance at issue is a temporary nuisance or a permanent one. The distinction is important as it controls how the statute of limitations will be applied in this case. See id. The key case in analyzing whether a nuisance is temporary or permanent is Schneider. A permanent nuisance involves an activity of such a character and existing under such circumstances that it will be presumed to continue indefinitely. See id. at 272. A temporary nuisance is of a limited duration, with it being uncertain whether any future injury will occur. See id.

Yalamanchili argues that the alleged nuisance is temporary solely because the runoff from Mousa’s shopping center occurs only during heavy rainfall and rainfall is by nature sporadic and unpredictable. We disagree. Yalamanchili’s petition states that “[tjhis re-occurring unabated water dumping is a permanent nuisance,” and his undisputed testimony established that water infiltrated his property “with every rain of any magnitude” for many years. This is sufficient to establish a permanent nuisance. As the Texas Supreme Court stated in Schneider,

Generally, if a nuisance occurs at least a few times a year and appears likely to continue, property values will begin to reflect that impact, and jurors should be able to evaluate it with reasonable certainty. Even if a nuisance causes annoyance only during certain weather conditions or certain months, annual experience should provide a sufficient basis for evaluating the nuisance. Absent evidence that current experiences are unrepresentative or about to change, such nuisances should be considered “permanent” as a matter of law.
[W]e hold that a nuisance should be deemed temporary only if it is so irregular or intermittent over the period leading up to the filing and trial that future injury cannot be estimated with reasonable certainty. Conversely, a nuisance should be deemed permanent if it is sufficiently constant or regular (no matter how long between occurrences) that future impact can be reasonably evaluated.

Schneider, 147 S.W.3d at 280-81; see also Mitchell v. Timmerman, No. 03-08-00320-CV, 2008 WL 5423268, at *6 (Tex.App.-Austin Dec. 31, 2008, no pet.) (mem. op.) (holding that flooding from every significant rain is permanent nuisance); Pope v. John Kiella Homes, No. 07-06-0146-CV, 2008 WL 1903332, at ⅝3-4 (Tex.App.Amarillo Apr. 30, 2008, no pet.) (mem. op.) (finding that flooding following heavy rains is a permanent nuisance). In addition, the structure creating the runoff, Mousa’s shopping center, is a permanent structure, and such a permanent source is presumed to result in a permanent nuisance. See Schneider, 147 S.W.3d at 283 (stating that a permanent source is presumed to result in a permanent nuisance but that this presumption can be rebutted by evidence that the nuisance activity causes injury only under circumstances so rare that, even when the activity occurs, it remains uncertain whether or to what degree the activity may ever occur again). We conclude that the alleged nuisance is permanent as a matter of law. See id. at 290-91 (finding alleged nuisance permanent as a matter of law based on air quality problems manifesting during wind and humidity to be permanent as matter of law).

b. Limitations as to Permanent Nuisance

Because the nuisance alleged is permanent, Yalamanehili’s cause of action accrued at least in 2002, when he first discovered damage to his plants and trees. See Schneider, 147 S.W.3d at 270. Yalamanchili argues that these injuries were not substantial and that the cause of action accrued later when he suffered greater injuries, such as the damage to his house’s foundation. However, “accrual occurs upon notice of injury, even if the claimant does not yet know the full extent of damages.” Id. at 279; accord Tenn. Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336, 338 (1954) (“Respondent’s cause of action accrued at the time petitioner began wrongfully discharging the water on the land, and not on the date when the extent of the damages to the land were fully ascertainable.”), cited with approval in Schneider, 147 S.W.3d at 279 n. 70.

Yalamanchili argues that the discovery rule applies to delay the accrual of his cause of action because he did not discover the source of the problem until he hired an engineer to investigate in 2006. The discovery rule, which rarely applies in nuisance cases, is a very narrow exception to the statute of limitations that tolls limitations when an injury is both inherently undiscoverable and objectively .verifiable. See Schneider, 147 S.W.3d at 279. The discovery rule tolls limitations only when discovery of an injury is impossible, not when, as here, some injury is known but the full extent of injury and cause are unknown. See id.; Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 435-36 (Tex.App.-Fort Worth 1997, pet. denied); Bayou Bend Towers Council of Co-Owners v. Manhattan Constr. Co., 866 S.W.2d 740, 743 (Tex.App.-Houston [14th Dist.] 1993, writ denied). Yalamanchili knew plants and trees were dying and knew he had moisture retention problems “with every rain of any magnitude.” Therefore, his cause of action accrued in 2002 when he became aware of these problems, and the discovery rule does not toll limitations on his nuisance claim.

Because Yalamanchili’s nuisance claim asserts a permanent nuisance and the discovery rule does not toll limitations, limitations ran on his nuisance claim by 2004, at the latest. Therefore, because he sued in 2006, Yalamanchili’s nuisance claim (in all respects other than the portion in which he requests a permanent injunction, which will be addressed below) was untimely, and the trial court did not err in granting summary judgment. We overrule Yala-manchili’s third through sixth issues to the extent he argues to the contrary, and because of these conclusions, we need not address the remaining arguments addressed in those issues.

c. Permanent Injunction for Nuisance

In his first issue, Yalamanchili argues that the trial court erred in granting summary judgment and entering a final judgment because Mousa’s summary judgment motion did not address his request for a permanent injunction. A judgment is final if it disposes of all parties and all claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 196 (Tex.2001). Yala-manchili’s petition asserted claims for nuisance and trespass, and Mousa moved for traditional summary judgment solely based on limitations as to “all” of Yala-manchili’s causes of action. The trial court granted Mousa’s motion “in all things.” The summary judgment motion did not mention the permanent injunction request. Yalamanchili argues that the permanent injunction request is a separate “claim” and that the trial court therefore erred in granting a full summary judgment because the motion did not cover the permanent injunction “claim.” However, a request for a permanent injunction is not a separate claim but merely an item of equitable relief. See Operation Reseue-Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 937 S.W.2d 60, 71 (Tex.App.-Houston [14th Dist.] 1996) (“To be entitled to permanent injunctive relief, the plaintiffs must plead and prove a valid cause of action against the defendants.”), aff'd as modified on other grounds, 975 S.W.2d 546 (Tex.1998). The only two claims in the petition are for nuisance and trespass, and Mousa moved for and was granted summary judgment on both of these claims. Therefore, the trial court did not err in granting a final summary judgment on the basis that the order granted more relief than was requested, and we overrule Yala-manchili’s first issue.

Yalamanchili argues in his second issue that even if the trial court granted summary judgment based on limitations as to his request for a permanent injunction, the trial court erred. We agree. Though the permanent injunction request is not a separate claim that required a separate summary judgment ground to make the order final and appealable, Mou-sa showed no basis for summary judgment as to the permanent injunction request. The sole ground for summary judgment presented was limitations. Limitations is not a defense to a request to permanently abate a nuisance. See Nugent v. Pilgrim’s Pride Corp., 30 S.W.3d 562, 575 (Tex.App.-Texarkana 2000, pet. denied); Jamail v. Stoneledge Condo. Owners Ass’n, 970 S.W.2d 673, 677 (Tex.App.-Austin 1998, no pet.). Mousa did not show that his summary judgment ground applied to Yala-manchili’s injunction request, and thus the trial court erred in granting summary judgment on this basis.

Mousa argues that damages and permanent injunctive relief for a permanent nuisance are mutually exclusive remedies and awarding both creates a double recovery, citing Schneider, 147 S.W.3d at 284. However, Mousa did not assert that ground in his motion for summary judgment, and this court cannot affirm summary judgment on a ground not asserted in the summary judgment motion. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993). Mousa also argues that Yalamanchili waived his argument that limitations does not apply to a request to permanently abate a nuisance because he did not make this argument to the trial court. It was Mousa’s burden, as movant, to establish his right to summary judgment, and the trial court cannot properly grant summary judgment on a legally insufficient ground, even if the non-movant fails to respond. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Tello v. Bank One, N.A., 218 S.W.3d 109, 118-19 (Tex.App.-Houston [14th Dist.] 2007, no pet.). Because limitations is an improper basis to grant summary judgment as to Yalamanchili’s permanent injunction request, the trial court erred in granting summary judgment on this basis, and Yalamanchili’s failure to point this out to the trial court does not waive the issue. See City of Houston, 589 S.W.2d at 678; Tello, 218 S.W.3d at 118-19.

The trial court erred in granting summary judgment as to the permanent injunction portion of Yalamanchili’s nuisance claim. We sustain Yalamanchili’s second issue.

C. Trespass Claim

In his seventh issue, Yala-manchili argues that the trial court erred in granting summary judgment based on limitations as to his trespass claim. Trespass to real property requires a showing of an unauthorized physical entry onto another’s property by some person or thing. Warwick Towers Council of Co-Owners v. Park Warwick, L.P., 298 S.W.3d 436, 447 (Tex.App.-Houston [14th Dist.] 2009, no pet.). A trespass cause of action accrues upon discovery of the first physical invasion of the thing on the plaintiffs property. See Mitchell Energy, 958 S.W.2d at 436; Waddy v. City of Houston, 834 S.W.2d 97, 102 (Tex.App.-Houston [1st Dist.] 1992, writ denied). Therefore, Yalamanchili’s cause of action accrued at least in 2002 when he noticed water invading his land as a result of drainage from the nearby shopping center.

Yalamanchili does not dispute this general rule but argues it does not apply because he alleged trespass as a continuing tort. The continuing tort doctrine is an exception to the statute of limitations for torts that are ongoing and continuous, creating a separate cause of action on each occasion. See W.W. Laubach Trust, 80 S.W.3d at 159; Mitchell Energy, 958 S.W.2d at 443. Mousa asserts that the continuing tort doctrine does not apply because it was not properly pleaded. We need not decide whether it was properly pleaded because even if it were, the continuing tort doctrine does not apply to permanent injury to land. See W.W. Laubach Trust, 80 S.W.3d at 159; Mitchell Energy, 958 S.W.2d at 443. We conclude that this case involves an alleged permanent injury to land and that, therefore, the continuing tort doctrine does not apply. See Mitchell Energy, 958 S.W.2d at 443. In addition, we note that courts have used a substantially similar analysis in addressing whether a nuisance is permanent and whether a trespass injury is permanent such that the continuing tort doctrine does not apply. See Pope, 2008 WL 1903332, at *4; Mitchell Energy, 958 S.W.2d at 443. Therefore, the trespass cause of action accrued at least by 2002 when Yalamanchi-li discovered moisture retention and dead plants and trees. Because Yalamanchili did not sue until over two years after his trespass cause of action accrued, the trial court did not err in granting summary judgment based on limitations. We overrule Yalamanchili’s seventh issue.

CONCLUSION

Mousa’s summary judgment motion did not allege a legally sufficient ground to entitle him to summary judgment as to the portion of Yalamanchili’s nuisance claim requesting a permanent injunction. We therefore reverse that portion of the trial court’s judgment and remand for further proceedings. The remainder of Yala-manchili’s claims, i.e., his trespass claim and the damages portion of his nuisance claim, were untimely filed and thus barred by limitations, and the trial court did not err in granting summary judgment as to them. We therefore affirm the remainder of the trial court’s judgment.

      . Yalamanchili argues in the alternative that the trial court’s order was not in fact final because it did not cover the permanent injunction request. If Yalamanchili were correct, the order would be interlocutory, and we would have no jurisdiction. See Lehmann, 39 S.W.3d at 195. However, we have concluded that the trial court’s summary judgment order is final because it granted summary judgment on the only two claims Yalamanchili pleaded, and therefore we have jurisdiction.


author: CHARLES W. SEYMORE, Justice.

text:
    BENCHMARK ENGINEERING CORPORATION, Appellant v. SAM HOUSTON RACE PARK, Appellee.
    No. 14-08-01167-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 29, 2010.
    Rehearing Overruled July 29, 2010.

      David H. Melasky, Houston, for appellant.
    Roy Alan Camberg, Jerry Pat Hughes Jr., Michael Chenier Sanders, Richard P. Hogan, Jr., Jennifer Bruch Hogan, Houston, for appellee.
    Panel consists of Justices SEYMORE, BROWN, and SULLIVAN.
   OPINION

CHARLES W. SEYMORE, Justice.

This appeal involves construction of a statute in which the legislature prescribed the content of a certificate of merit or affidavit required to pursue a cause of action for negligence against architects or engineers. See Tex. Civ. Prac. & Rem. Code § 150.001 et seq. Appellant, Benchmark Engineering Corporation (“Benchmark”), contends the trial court erred by denying its motion to dismiss for want of jurisdiction because (1) appellee, Sam Houston Race Park (“the Park”), failed to include the factual basis for professional-negligence claims in its certificate of merit, and (2) the certificate of merit is supported by the affidavit of an engineer who is not qualified to render certain expert opinions. We affirm.

I. Background

During the year 2007, the Park developed an outdoor concert venue within the infield area of its horse-racing facility. Benchmark was contracted to provide design and engineering services for the project. Other contractors were retained to perform the actual construction. Provisions for water drainage were contemplated in the design and engineering portion of the project. Sometime after the project was completed, the Park became dissatisfied with the effectiveness of water drainage at the construction site.

In May 2008, the Park sued Benchmark and other entities, alleging breach of contract, breach of express and implied warranties, negligence, negligent misrepresentation, and fraud. Relevant to this appeal, the Park alleges Benchmark was negligent in the design and construction of subsurface drainage for the infield. The Park attached a certificate of merit to its original petition as required under section 150.002(a). See Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws 348, 348 (amended 2009); Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009). The Park’s designated engineer, Ed Ulrich, included the following aver-ments and opinions in his affidavit:

Benchmark Engineering was negligent in the design and construction of the subsurface drainage at Sam Houston Race Park. Benchmark Engineers failed to make a detailed and thorough analysis of the subsurface conditions at the venue. The current design and construction resulted in site changes holding water and slow draining.... Also, there was no installation of a subsurface drainage system which would permit the concert venue area to drain and allow for concerts to proceed.

In response, Benchmark filed a motion to dismiss for want of jurisdiction pursuant to section 150.002(d), alleging numerous defects in the Park’s affidavit and certificate of merit. See Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009) (providing that failure to satisfy the above requirements “shall result in dismissal of the complaint against the defendant”).

Following a hearing, the trial court denied the motion. Benchmark filed this interlocutory appeal.

II. Issues and Standard of Review

Section 150.002(a) of the Texas Civil Practice and Remedies Code provides,

In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, registered professional land surveyor, or licensed professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. The third-party professional engineer, registered professional land surveyor, or licensed architect shall be licensed in this state and actively engaged in the practice of architecture, surveying, or engineering.

Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws 348, 348 (amended 2009); Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009).

Benchmark contends the Park did not fulfill the requirements in section 150.002(a) for the following reasons: (1) Ulrich failed to provide the “factual basis” for each of the Park’s allegations of negligence in the Park’s certificate of merit; and (2) Ulrich failed to provide evidence that he practiced engineering related to drainage design.

A trial court’s order granting or denying a motion to dismiss under chapter 150 of the Texas Civil Practice and Remedies Code is interlocutory and appealable. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(f) (Vernon Supp.2009) (expressing same law regarding interlocutory appeals as section 150.002(e) in the version modified by the 79th Texas Legislature). We review denial of a defendant’s motion to dismiss pursuant to section 150.002 under an abuse-of-discretion standard. Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 496 (Tex.App.-Corpus Christi 2009, no pet.); Consol. Reinforcement, L.P. v. Carothers Executive Homes, Ltd,., 271 S.W.3d 887, 891 (Tex.App.-Austin 2008, no pet.); Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395, 397 (Tex.App.-Beaumont 2008, no pet.); Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex.App-Fort Worth 2005, no pet.). An abuse of discretion occurs when the trial court acts in an unreasonable and arbitrary manner or without reference to any guiding rules or principles. Palladian, 165 S.W.3d at 433 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court does not demonstrate an abuse of discretion. Id. However, a clear failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Statutory construction is a question of law we review de novo. See Consol. Reinforcement, 271 S.W.3d at 891 (citing City of San Antonio v. City of Boeme, 111 S.W.3d 22, 25 (Tex.2003)). We construe statutory language to ascertain and effectuate legislative intent, and we consider the plain and common meaning of each word in the statute. Tex. Mut. Ins. Co. v. Sonic Sys. Int’l, Inc., 214 S.W.3d 469, 476 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). We also view statutory terms in context and give them full effect. Id. We presume every word of a statute was used for a purpose, and every word excluded from a statute was excluded for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981); Eastland v. Eastland, 273 S.W.3d 815, 821 (Tex.App.Houston [14th Dist.] 2008, no pet.). Finally, in determining the plain meaning of a statute, we read the words in context and construe the language according to the rules of grammar and common usage. See Tex. Gov’t Code Ann. § 811.011(a) (Vernon 2005).

III. Analysis

A. “Factual Basis” for the Park’s Claims

In support of its first issue, Benchmark directs this court to Criteriums-Famll Engineers, 248 S.W.3d 395. The Beaumont Court of Appeals reviewed a trial court’s order denying a motion to dismiss pursuant to chapter 150 and addressed whether the plaintiffs certificate of merit satisfied section 150.002(a). Id. at 396. Despite the fact that the certificate of merit contained several specific examples of negligent acts or omissions based upon highly technical observations, measurements, and analysis, the appellant argued the certificate was insufficient because the affiant-engineer failed to state that the defendant was “negligent.” Id. at 397-99. In his affidavit, the engineer stated the following: “(1) the inspector erred in measuring the first floor elevation; (2) had the engineer accurately measured the slope, the report would have concluded that repairs were warranted by CFE’s own reported standards; (3) CFE omitted an inspection of the residence’s second floor which should have been performed; and (4) had the second-floor inspection been performed, a prudent engineer would have discovered the excessive slope.” Id. at 400. The court properly affirmed the trial court’s order denying the motion to dismiss and explained that “the purpose of the certificate of merit is to provide a basis for the trial court to conclude that the plaintiffs claims have merit.” Id. at 399. The court also held that “the certificate of merit must necessarily address the applicable standard of care and the defendant’s failure to meet the standard.” Id. at 400. Benchmark argues this holding should be applied in the present case. Benchmark contends Ulrich was required to include or explain the standard of care for design and construction of a water drainage system and describe how Benchmark deviated from that standard.

Although we agree with the Beaumont court’s ultimate disposition, we disagree with the holding on which Benchmark relies. The legislature has amended chapter 150 three times since it was enacted in 2003 and sought to broaden its application in each amendment. The legislature did not incorporate a “standard of care” requirement for certificates of merit in any of the amendments. The plain language of chapter 150 does not impose such a specific requirement. As indicated above, we follow the rule of construction that every word excluded from a statute must also be presumed to have been excluded for a purpose. Cameron, 618 S.W.2d at 540; Eastland, 273 S.W.3d at 821. Accordingly, we hold Ulrich’s affidavit is not insufficient for failure to incorporate or refer to the “standard of care” when describing the “factual basis” for each claim of negligence.

In support of its argument that the Park’s expert failed to provide a “factual basis,” Benchmark asserts, “No mention is made to what should have been included in ‘a detailed and [thorough] analysis’ of the subsurface conditions nor what analysis Benchmark did and how Benchmark’s analysis is deficient.” Benchmark also complains, “Mr. Ulrich fails to provide an explanation as to what sampling, testing, measurements, data accumulation and computations were allegedly required in this situation as compared to what Benchmark did to make its subsurface analysis.” Benchmark further asserts, “[T]here is no mention of the proper standard for the design and construction of the facilities such as the correct computational methods for drainage design at this facility, what the design drainage flow rates should [have] been, what the drainage rate is, what kind of testing or physical investigation should have been done for a proper engineering approach to the drainage design and what data should have been used as a basis for a proper drainage design.” Finally, in furtherance of its argument that a standard of care must be included in a certificate of merit, Benchmark complains, “The affidavit does not state what an appropriate drainage system for the concert area should have been, the design criteria for such a system, the data which should have been collected to effectuate a design and the correct engineering analysis which should have been employed.”

Generally, the theme of Benchmark’s complaint on appeal is Ulrich’s failure to refer to a standard of care. For example, Benchmark complains as follows: (1) “Thus[J there is no specified standard of care for an effective analysis of subsurface conditions and certainly no explanation as to how the acts of Benchmark deviated from the standard of care”; (2) “Thus, there is no specificity to why the current design is inadequate by explaining what the drainage rate should have been versus what it is currently and what about the Benchmark design fails to meet a standard of care”; and (3) “By not specifying design parameters, the design criteria, the correct engineering analytical methods or the correct data collection and/or physical testing and the analysis of same so as to demonstrate what would constitute a viable engineering approach to the design and analysis, ... Mr. Ulrich’s opinion in the alleged certificate of merit fails to establish any standard of care from which to determine whether the action[s] of Benchmark were negligent.”

As stated above, we respectfully disagree with our sister court in Beaumont and hold that there is no requirement under section 150.002 for an expert to refer to a standard of care in the certificate of merit. See Criterium-Farrell Engineers, 248 S.W.3d at 400. Accordingly, we reject Benchmark’s standard-of-care arguments.

Next, we address Benchmark’s complaints that certain portions of Ulrich’s report are ambiguous or conclusory. Benchmark cites Paradigm Oil, Inc. v. Retamco Operating, Inc., 242 S.W.3d 67 (Tex.App.-San Antonio 2007, pet. denied). However, the San Antonio Court of Appeals addressed the quality of evidence presented during a hearing on damages following entry of a post-answer default judgment. Id. at 73-74. The court correctly concluded that conclusory testimony will not support a damages award and cited several cases for the proposition that an expert opinion must be more than “ipsi dixit.” Id. at 74. The generis of these cases and other cases cited by Benchmark pertain to whether expert testimony is competent in summary-judgment proceedings or admissible at trial. This case does not present the question of whether Ul-rich’s averments and opinions are competent as evidence. There is no such requirement within the plain language of the statute sub judice. Moreover, we are not persuaded that Benchmark’s reliance on requirements for the content of expert reports under the very explicit Texas Medical Liability and Insurance Improvement Act (“MLIIA”) are analogous. See Tex. Civ. Prac. & Rem.Code §§ 74.351 (Vernon Supp.2009), 74.401 & 74.402 (Vernon 2005). In Kettle v. Baylor Medical Center at Garland, 232 S.W.3d 832, 839-41 (Tex.App.Dallas 2007, pet. denied), the court concluded that certain portions of an expert report were conclusory because the expert did not specify the standard of care for a particular procedure and addressed the conduct of multiple defendant physicians relative to one standard of care. Unlike section 74.351 of the MLIIA, the statute under consideration here does not require the expert to address standard of care, breach, and causal relationship. Compare Tex. Civ. Prac. & Rem.Code § 74.351, with Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws 348, 348 (amended 2009), and Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009).

Finally, we acknowledge the requirement in section 150.002(a) that the Park’s engineer must be “competent to testify.” See Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws 348, 348 (amended 2009); Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009). However, the legislature did not include a requirement that statements in a certificate of merit must be competent as evidence when the affiant provides the “factual basis” for claims. See id.

After addressing Benchmark’s concerns about standards of care and the evidentiary quality of language in a certificate of merit, we now address Benchmark’s contention that Ulrich failed to satisfy the requirements of section 150.002(a) because he did not “set forth specifically at least one negligent act” by Benchmark, along with “the factual basis for ... such claim.” See id. The Park asserts that Ulrich identified three negligent acts by Benchmark and supplied the required “factual basis” for each claim.

The legislature did not provide a definition of “factual basis” in chapter 150. See Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws 348, 348 (amended 2009); Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009). Consequently, we employ the rules of construction set forth above and determine legislative intent first by application of the “plain meaning” rule. See In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 486-87 (Tex.2001). “If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision’s words and terms.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999). “Further, if a statute is unambiguous, rules of construetion or other extrinsic aids cannot be used to create ambiguity.” Id. at 865-66.

The plain meaning of the word “factual” is “of, relating to, or concerned with facts.” Webster’s Third Int’l Dictionary 813 (1993). The word “fact” is defined as “[a]n actual or alleged event or circumstance, as distinguished from its legal effect, consequence, or interpretation. ...” Black’s Law Dictionary 628 (8th ed.2004). Thus the plain meaning of the statute requires an affiant to describe the facts giving rise to the claim. We determine the sufficiency of Ulrich’s affidavit with this plain and understandable guide.

Ulrich stated that he (a) reviewed plans for construction of paving, grading and drainage systems for the project prepared by Benchmark, (b) reviewed the Park’s unit price schedules, GrassPave information, electrical drawings, architectural site plans and other “typical details” for such a project, and (c) discussed the scope of the project with a Park staff member. He described three areas of engineering negligence: (1) failure to design an adequate subsurface drainage system; (2) failure to make a detailed and thorough analysis of subsurface conditions; and (3) failure to install a subsurface drainage system. He observed that (1) the design and construction resulted in the site’s “holding water and slow draining,” (2) “there was no installation of a subsurface drainage system which would permit the concert venue area to drain and allow for concerts to proceed,” and (3) “Benchmark Engineering’s design does not contain a subsurface drainage system that complies with the customers [sic] requirements.”

We agree with Benchmark that the language employed by Ulrich is, at least, ambiguous. However, under these unique facts, the ambiguity is not fatal to the certificate of merit. In this case, the trial court was free to decide whether language in the affidavit referred to negligence in designing and constructing a drainage system or wholesale failure to design or construct a drainage system. In other words, the language allows for two interpretations: (1) either Benchmark undertook to install a subsurface drainage system but did so negligently or (2) Benchmark simply did not install a system. Considering our standard of review, we hold the trial court did not abuse its discretion if it concluded Ulrich adequately described the factual basis for the Park’s claims by stating that Benchmark did not install a subsurface drainage system. We agree with the Park that it is difficult to identify or describe a more “factual basis” if one of its claims is the wholesale failure to design or construct a subsurface drainage system.

For all the reasons outlined above, we hold the trial court could have reasonably concluded the Ulrich affidavit contained a description of at least one negligent act, error or omission, and the factual basis for that claim. See Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws 348, 348 (amended 2009); Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009). Therefore, the trial court did not abuse its discretion in concluding that the Park’s certificate of merit satisfied the requirements of section 150.002(a). See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). We overrule Benchmark’s first issue.

B. Ulrich’s Qualifications

In issue two, Benchmark complains that Ulrich is not qualified to provide an engineer’s certifícate or expert opinion regarding drainage design. Specifically, Benchmark contends Ulrich has not demonstrated that he practices in the same area as Benchmark.

Benchmark argues that the Texas Board of Professional Engineers has recognized water resources as an engineering sub-specialty which includes drainage as a distinct practice area within civil engineering. In support of its argument, Benchmark directs us to Landreth, the only case addressing this issue to date. In Landreth, the Corpus Christi Court of Appeals considered the qualifications of an affiant-ar-chitect under section 150.002(a). 285 S.W.3d at 497-500. The court held that an initial affidavit did not fulfill the requirements of section 150.002(a) because the affiant did not state or otherwise demonstrate that he was practicing in the same area as the defendant. Id. at 499-500. Importantly, the court noted that section 150.002(a) focuses on the defendant’s area of practice, not on the area of practice relevant to the claim. Id. at 499. We conclude the situation in this case is distinguishable. Ulrich did not plainly state that he practices engineering in the same area of practice as Benchmark; however, Ulrich’s affidavit and resume provided the trial court with ample information reflecting the fact that he practices in the same area of construction or “project” engineering as Benchmark.

Benchmark suggests the legislature requires the affiant to demonstrate that he practices in the same the area of engineering that pertains to the alleged negligent act. That interpretation conflicts with the plain meaning of the language in the statute. See Act of May 12, 2005, 79th Leg., R.S., eh. 189, § 2, 2005 Tex. Gen. Laws 348, 348 (amended 2009); Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009). Accordingly, we reject Benchmark’s argument that Ulrich was required to aver he practices in an engineering sub-specialty identified as “drainage and drainage design.” Pursuant to the plain language in section 150.002(a), we examine Ulrich’s certificate of merit, which includes his affidavit and resume, and compare his areas of practice with identifiable areas of civil engineering practiced by Benchmark.

The Park contends Ulrich’s affidavit and resume establish the fact that he practices engineering in one or more of Benchmark’s areas of practice. According to Ulrich’s resume, he practices in the broad area of project engineering which includes ground preparation, foundation, and building design. During his career, he performed engineering work on numerous construction projects, including the design specifications and detailing associated with those projects. Apparently, he has won various engineering awards in connection with soil preparation and foundation design, including the 1990 ASCE Thomas A. Middlebrook Award for “Tieback Supported Cuts in Overconsolidated Soils.” He is a member of the Earth Retaining Structures Committee of the American Society of Engineers. Moreover, he has written and published various engineering articles pertaining to site preparation and excavation for construction of buildings. Ulrich stated that he reviewed “[pjlans for construction of paving, grading and drainage system for Sam Houston Race Park in Harris County, prepared by Benchmark Engineering Corp.” It suffices to note that the project which is the subject of this suit is or was a construction site, and the contemplated improvements were to be occupied by persons attending concerts at the Park. In fact, the “paving” and “grading” plans described in Ulrich’s affidavit resemble some of the work identified by Ulrich in his extensive resume.

Benchmark’s areas of engineering practice are more difficult to ascertain. There is no specific statement regarding Benchmark’s engineering practice areas either in pleadings or briefing. However, the trial court is not required to ignore the obvious: Benchmark provided design and construction engineering for a construction project which included excavation of soil, and Ul-rich’s resume is rife with proof that he practices in the area of building site excavation and related construction projects. Ulrich’s description of plans and specifications he reviewed, coupled with information in his resume, demonstrate that he practices in the same area of construction engineering practiced by Benchmark.

In any event, we cannot conclude the trial court’s denial of Benchmark’s motion to dismiss was unreasonable, arbitrary, or without reference to any guiding rules or principles. Therefore, the trial court did not abuse its discretion in finding Ulrich to be a qualified affiant under section 150.002(a). See Walker, 111 S.W.3d at 62. We overrule Benchmark’s second issue.

The trial court’s order denying Benchmark’s motion to dismiss is affirmed.

      . Chapter 150 of the Texas Civil Practice and Remedies Code as modified by the 79th Texas Legislature is the version applicable to the subject certificate of merit. See Act of May 12, 2005, 79th Leg., R.S., ch. 189, §§ 15, 2005 Tex. Gen. Laws 348, 348 (amended 2009) (current version at Tex. Civ. Prac. & Rem.Code § 150.001 et seq. (Vernon Supp. 2009)); Act of May 18, 2005, 79th Leg., R.S., ch. 208, §§ 2, 4-5, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009) (current version at Tex. Civ. Prac. & Rem.Code § 150.001 et seq. (Vernon Supp.2009)). We note that the Act of May 12, 2005 and the Act of May 18, 2005 must be read in conjunction to appreciate the version of chapter 150 as modified by the 79th Texas Legislature. For purposes of this opinion, we refer to sections of chapter 150 as they appeared following the 79th Texas Legislature, unless otherwise indicated.

      . H.B. 854 expanded application of chapter 150 to include registered professional land surveyors. See Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws 348, 348 (amended 2009). H.B. 1573 further expanded the scope of chapter 150 to include, among other matters, (a) allegations of damages brought in arbitration proceedings, and (b) damages arising out of the rendition of professional services (as opposed to allegations only of professional negligence). Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009). S.B. 1201 broadened the scope of chapter 150 by (a) including registered landscape architects, (b) reducing the affiant’s qualification requirement from "practicing in the same area” as the defendant to "knowledgeable” in the same area as the defendant, and (c) expanding the affidavit requirement to set forth "for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service....” See Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1991-92 (codified at Tex. Civ. Prac. & Rem.Code § 150.001 et seq. (Vernon Supp.2009)).

      . See progression of chapter 150 as explained in footnote 2, supra.

      . The record indicates that GrassPave is an artificial surface used in the construction of the venue.

      . The Texas Legislature recently modified the statute, requiring only that the affiant "is knowledgeable in the area of practice of the defendant....” Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992 (codified at Tex. Civ. Prac. & Rem.Code § 150.002(a) (Vernon Supp.2009)) (emphasis added). This modified requirement was not effective before September 1, 2009.

      . We disagree with the Corpus Christi Court of Appeals if it has implicitly concluded that a certificate of merit is defective if the affiant fails to identify and discuss all areas of the defendant's engineering practice. See Lan-dreth, 285 S.W.3d at 500.