text:
    Jessica ZAVADIL, Appellant, v. SAFECO INSURANCE COMPANY OF ILLINOIS, Appellee.
    No. 14-09-00568-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 23, 2010.

      Wanda Fowler, Howard L. Close, Jessica A. Zavadill, Houston, for appellant.
    Christopher A. Fusselman, Houston, for appellee.
    Panel consists of Chief Justice HEDGES, Justice ANDERSON, and Senior Justice MIRABAL.

       Senior Justice Margaret Garner Mirabal sitting by assignment.

   OPINION

MARGARET GARNER MIRABAL, Senior Justice (Assigned).

In this negligence suit arising from a motor vehicle accident between two individuals, both of whom resided in Texas at all relevant times, it is undisputed that suit was filed more than two years after the cause of action arose. The dispositive question in this appeal is whether the limitations period was tolled during each of the approximately fourteen days during the two-year limitations period that the resident defendant spent outside Texas. Because we conclude that these travels do not constitute “absence from the state” as this language from the tolling statute has been interpreted by the Texas Supreme Court, we reverse the trial court’s denial of appellant’s summary-judgment motion and its grant of appellee’s cross-motion, and we render judgment dismissing the suit with prejudice.

I. Factual and Procedural Background

Appellant Jessica Zavadil, a Texas resident, was involved in an automobile accident with Zongliang Tang on November 18, 2006. On December 1, 2008, Tang’s insurer, appellee Safeco Insurance Company of Illinois (“Safeco”) filed suit against Zavadil for negligence. Zavadil was served on December 16, 2008.

Zavadil moved for final summary judgment on the affirmative defense of limitations, arguing that the suit is time-barred under the two-year statute of limitations applicable to negligence actions. See Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon Supp. 2009). Safeco filed a cross-motion for partial summary judgment, relying on Zavadil’s stipulation that she traveled outside Texas on various occasions during the period from November 18, 2006 through December 1, 2008, and the time that she spent outside the state totaled at least fourteen days. Thus, Safeco argued, section 16.063 of the Texas Civil Practice and Remedies Code tolled the limitations period for a total of fourteen days, and this suit, filed two years and thirteen days after the accident, is timely.

The trial court denied Zavadil’s summary-judgment motion and granted Safe-co’s motion for partial summary judgment. Zavadil now brings this agreed interlocutory appeal. See Tex.R.App. P. 28.2.

II.Issues PResented

In five issues, Zavadil challenges the trial court’s ruling that the statute of limitations was tolled pursuant to Texas Civil Practice and Remedies Code section 16.063. In her first and third issues, she contends that the statute is not meant to apply every time a Texas resident leaves the state’s boundaries for a vacation or a business trip such that plaintiffs are given additional time to file an otherwise time-barred suit even though the Texas resident defendant is consistently available for service of process purposes. In her second issue, she argues that she was not “absent” from the state as that term has been defined by the Texas Supreme Court in two recent decisions. She contends in her fourth issue that section 16.063 violates the federal Commerce Clause, and in her fifth issue, she argues that the statute violates the Due Process and Equal Protection Clauses of both the state and federal constitutions.

III.STANDARD OF REVIEW

Generally, when we review cross-motions for summary judgment, we consider both motions and render the judgment that the trial court should have rendered. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001). In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). To demonstrate its entitlement to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979).

IV.Analysis

The dispositive issue in this appeal is whether Texas Civil Practice and Remedies Code section 16.063 tolls the statute of limitations against a Texas resident for each day that the resident is beyond our state’s borders. Section 16.063 provides that “[t]he absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person’s absence.” Under recent Texas Supreme Court cases, one who is subject to personal jurisdiction in Texas courts, and amenable to service of process, is not “absent” from the state for the purposes of section 16.063.

A. Kerlin v. Sauceda

In Kerlin, the Texas Supreme Court was asked to construe the tolling statute, section 16.063. See Kerlin v. Sauceda, 263 S.W.3d 920 (Tex.2008). In Kerlin, (1) the defendant did not reside in Texas, either at the time the cause of action arose or at the tune suit was filed; (2) a jury found that Kerlin was not physically present in Texas when the cause of action arose; and (3) citation was pursued through the Secretary of State pursuant to the Texas long-arm statute. See id. at 922-24. The Texas Supreme Court stated:

[I]f a nonresident is amenable to service of process under the longarm statute and has contacts with the state sufficient to afford personal jurisdiction ... then we can discern no reason why a nonresident’s 'presence’ in this state would not be established for purposes of the tolling statute.

Id. at 927. The court held that “the statute of limitations was not tolled because, under the general longarm statute, Kerlin was present in the state.” Id. at 928.

B. Ashley v. Hawkins

The parties in Ashley were Texas residents when they were involved in an automobile collision, and the driver of one of the vehicles subsequently moved to another state. Ashley v. Hawkins, 293 S.W.3d 175, 177 (Tex.2009). The Ashley plaintiff served the defendant under the longarm statute; thus, the Texas Supreme Court was squarely presented with the question of “whether section 16.063 of the Texas Civil Practice and Remedies Code tolls the limitations period when a defendant leaves Texas following a motor vehicle collision, but is otherwise amenable to out-of-state service.” See id. It concluded that “a defendant is ‘present’ in Texas, for purposes of the tolling statute, if he or she is amenable to service under the general longarm statute, as long as the defendant has ‘contacts with the state sufficient to afford personal jurisdiction.’ ” Id. at 179. The court held that section 16.063 did not toll the limitations period. Id.

The holdings in Kerlin and Ashley apply with even greater force in this case, where the defendant has never ceased to be a Texas resident since the cause of action accrued. Zavadil’s brief intermittent excursions outside of the territorial boundaries of Texas did not affect the ability of state courts to exercise personal jurisdiction over her, for it is axiomatic that “residence in a state is a valid basis for the exercise of in personam jurisdiction.” J.M.R. v. A.M., 683 S.W.2d 552, 557 (Tex.App.-Fort Worth 1985, writ ref'd n.r.e.) (citing Bulova Watch Co. v. Steele, 194 F.2d 567, 571 (5th Cir.), aff'd, 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 319 (1952)). Moreover, it is undisputed that she was at all times amenable to service. See also Tex.R. Civ. P. 106, 108 (pursuant to these rules, it is not necessary that a Texas resident be personally served within the state). Thus, under the reasoning of Kerlin and Ashley, Zavadil has not been “absent” from Texas for the purposes of section 16.063, and therefore section 16.063 did not toll the limitations period.

V. Conclusion

In accordance with Kerlin and Ashley, we conclude that Zavadil has not been “absent” from the state for the purposes of Texas Civil Practice and Remedies Code section 16.063. We therefore sustain Za-vadil’s first, second, and third issues, hold that Safeco’s suit is time-barred, reverse the trial court’s denial of Zavadil’s motion for summary judgment and its grant of Safeco’s motion for partial summary judgment, and render judgment dismissing Safeco’s suit with prejudice. In light of our disposition of these issues, we do not reach Zavadil’s two remaining issues.

      . Tex. Civ. Prac. & Rem.Code Ann. § 16.063 (Vernon Supp. 2009).

      . Safeco contends that it mailed the petition on November 28, 2008, and thus, under Texas Rule of Civil Procedure 5, suit is deemed filed that day. We disagree. Under Rule 5, documents properly addressed, stamped, and mailed by first-class United States mail "on or before the last day for filing same” are "deemed filed in time” if received by the court clerk "not more than ten days tardily.” Tex.R. Civ. P. 5. Because Safeco's petition was not mailed "on or before the last day for filing same,” Rule 5 does not apply; thus, suit was instituted when the petition was received by the clerk on December 1, 2008.


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice. LESLIE B. YATES, Justice,

license: Public Domain

text:
    Ashleigh Elise TEEL, Appellant, v. Kenneth Richard SHIFFLETT, Appellee.
    No. 14-08-00836-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 23, 2010.
    Rehearing En Banc Overruled April 22,2010.

      W. Joel Bryant, Houston, for appellant.
    Sean Cody, Houston, for appellee.
    Panel consists of Justices YATES, FROST, and BROWN.
   MAJORITY OPINION

KEM THOMPSON FROST, Justice.

This is an appeal from a protective order entered against a man’s former girlfriend after the trial court determined that the former girlfriend committed family violence against him and was likely to commit family violence in the future. In four issues, the former girlfriend challenges (1) the constitutionality of the statute under which the protective order was issued, (2) a recitation in the judgment that the parties were “intimate partners” pursuant to 18 U.S.C. §§ 922(g)(8) & 921(a)(32), (3) the legal and factual sufficiency of the evidence to support a finding that the former girlfriend was a household member, and (4) the legal and factual sufficiency of the evidence to support a finding that family violence is likely to occur in the future. We modify the judgment to delete the intimate-partners finding and we affirm the trial court’s judgment as modified.

Factual and PROCEDURAL Background

Appellant Ashleigh Elise Teel and appel-lee Kenneth Richard Shifflett began dating in April 2007. Sometime after they met, they learned that Teel was pregnant, and they planned to marry each other on July 7, 2007. In anticipation of the marriage, Teel moved her belongings into Shifflett’s house on July 4, 2007. The next day Shif-flett left the house to go to work, but when he realized he had left his wallet at home, he returned home to retrieve it. Teel told Shifflett that she had taken the wallet. Teel testified that she was angry with Shifflett so she hid his wallet from him. Teel began throwing items in the house and kicked Shifflett’s dog. She also picked up a knife and moved toward Shifflett. As Shifflett struggled with Teel to take the knife away, his hand was cut. After Shif-flett took the knife, Teel left the house. When Teel returned later the same day, she burned Shifflett’s arm with the cigarette she had been smoking. Teel and Shifflett struggled, and Teel kicked Shif-flett in the groin. She retrieved the knife from the kitchen and began slashing Shif-flett’s clothes and other belongings. After Shifflett called the police, Teel locked herself in a bedroom. When the police arrived Teel refused to put down the knife until the police officers used a taser to subdue her.

On March 8, 2008, Shifflett went to a bar called Molly’s with some friends. When he arrived, someone told him Teel had been in Molly’s, so he and his friends left Molly’s and went to ZZ Gators bar. After Shif-flett entered ZZ Gators, Teel approached him and hit him in the head. Teel and Shifflett engaged in a heated discussion, and the bartender asked Teel to leave the bar.

On April 18, 2008, Shifflett filed an application for a protective order alleging that he and Teel lived in the same household and that Teel had engaged in conduct that constituted family violence as defined in section 71.004(1) of the Texas Family Code. Shifflett requested that this application be served on Teel; however, our record does not reflect when any service was accomplished. On April 23, 2008, the trial court signed a temporary protective order. In this order, the trial court directed the district clerk to give notice to Teel regarding the hearing on Shifflett’s application. The appellate record reflects that this order was mailed to Teel on April 23, 2008.

On May 19, 2008, Teel demanded a jury trial and paid the jury fee. On that same day, Teel filed a motion to dismiss and an original answer. On June 3, 2008, the trial court conducted a hearing on Shifflett’s application. Teel’s counsel noted that, under the Texas Family Code, the trial court, rather than a jury, must make the findings regarding an applicant’s entitlement to a protective order regarding family violence; however, Teel’s counsel asserted that this statute is unconstitutional to the extent it deprived Teel of a jury trial regarding Shifflett’s application for a protective order. The trial court denied Teel’s request for a jury trial.

At trial, Teel testified and admitted that she had burned Shifflett’s arm with a cigarette and brandished a knife on July 5, 2007. She further admitted that she hit Teel at ZZ Gators on March 8, 2008. Teel maintained that her actions on both occasions were necessary to defend herself.

At the conclusion of the hearing, the trial court found that Teel and Shifflett had formed a household and that Teel was a member of the household. The court further found that Teel committed family violence on two occasions (July 5, 2007 and March 8, 2008) and was likely to commit family violence in the future. The trial court’s written order reflected its oral findings, but also included the additional finding that Teel and Shifflett “were intimate partners pursuant to Title 18, United States Code, sections 922(g)(8) and 921(a)(32).”

Constitutional Challenge

In her first issue, Teel argues that she was entitled to a jury trial because the parts of the Family Code requiring the trial court, rather than a jury, to make the fact findings regarding Shifflett’s application violate Teel’s right to a jury trial under article I, section 15 and article V, section 10 of the Texas Constitution. See Tex. Const, art. I, § 15; Tex. Const, art. Y, § 10; Tex. Fam.Code Ann. §§ 81.001, 85.001 (Vernon 2008). We presume that the challenged parts of the Texas Family Code are constitutional. As the party challenging the constitutionality of a statute as applied, Teel had the burden of proving all facts necessary to show that these statutes are unconstitutional as applied to her. See Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 725, 917 S.W.2d 717 (Tex.1995); Tex-Air Helicopters, Inc. v. Galveston County Appraisal Review Bd., 76 S.W.3d 575, 584-85 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).

Under Texas Rule of Civil Procedure 216, entitled “Request and Fee for Jury Trial,” “[n]o jury trial shall be had in any civil suit, unless a written request for a jury trial is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance.” Tex.R. Civ. P. 216. It is within the discretion of the trial court to deny a jury trial if the party requesting the jury trial does so less than thirty days before trial. See Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex.1985) (per curiam). Teel has not challenged the constitutionality of Texas Rule of Civil Procedure 216. In this case, the trial occurred forty-six days after Shifflett filed his application and forty-one days after the date the record reflects that the district clerk sent a copy of the temporary protective order to Teel. Teel did not request a jury trial until fifteen days before trial. Teel has neither argued nor proven that she was unable to request a jury trial at least thirty days before trial. Even if the trial court had determined that the challenged statutes otherwise would have unconstitutionally deprived Teel of her right to a jury trial, the trial court still would have had the discretion to deny Teel’s request for a jury trial under Rule 216 based on Teel’s untimely request. See Huddle, 696 S.W.2d at 895. Therefore, Teel did not prove all facts necessary to show that, as applied to her, these statutes unconstitutionally deprived her of the right to a jury trial. See Tex-Air Helicopters, Inc., 76 S.W.3d at 584-88 (holding party challenging constitutionality of statute did not prove all facts necessary to show that the statute was unconstitutional as applied); Williams v. Williams, 19 S.W.3d 544, 546 (Tex.App.-Fort Worth 2000, pet. denied) (holding that trial court did not abuse its discretion by denying jury trial on application for protective order against family violence because request for jury trial was untimely under Rule 216). Accordingly, we overrule Teel’s first issue.

Finding of “Intimate Partners”

In her second issue, Teel argues that the trial court erred in including a finding that the parties were intimate partners pursuant to Title 18, United States Code, sections 922(g)(8) and 921(a)(32). Teel preserved error on this issue in the trial court. Section 922(g)(8) makes it unlawful for persons under family protective orders to possess, ship, or transport any firearm or ammunition. See U.S. v. Miles, 238 F.Supp.2d 297, 304-05 (D.Maine 2002). The term “intimate partner” means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabitated with the person. 18 U.S.C. 921(a)(32). Teel alleges that because Shifflett did not plead that the parties were intimate partners, the judgment does not conform to the pleadings.

Although she cites no authority in support of this issue, Teel’s argument is grounded on the basic idea addressed by the rules of civil procedure that a judgment shall conform to the pleadings. Tex.R. Civ. P. 301. Pleadings must give reasonable notice of the claims asserted. SmithKline Beecham, Corp. v. Doe, 903 S.W.2d 347, 354-55 (Tex.1995). A reviewing court should liberally construe the petition to contain any claims that reasonably may be inferred from the specific language used in the petition and uphold the petition as to those claims, even if an element of a claim is not specifically alleged. See id. In making this determination, however, a reviewing court cannot use a liberal construction of the petition as a license to read into the petition a claim that it does not contain. Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex.App.-Houston [14 Dist.] 2009, no pet.). The petition must give fair and adequate notice of the claims being asserted, and, if the reviewing court cannot reasonably infer that the petition contains a given claim, then the court must conclude the petition does not contain such a claim, even under a liberal construction. See SmithKline Beecham Corp., 903 S.W.2d at 354-55.

Shifflett’s application for a family protective order contains no request for a finding that the parties were intimate partners under the federal statute. Nonetheless, in the protective order, the trial court found that Shifflett and Teel were intimate partners. Therefore, the judgment did not conform to the pleadings, and the trial court erred in granting such relief in the absence of pleadings or trial by consent. See Tex.R. Civ. P. 301; Moneyhon, 278 S.W.3d at 878. If issues not raised by the pleadings are tried by express or implied consent of the parties, these issues shall be treated as if they had been raised by the pleadings. See Tex.R. Civ. P. 67, 301; Baltzer v. Medina, 240 S.W.3d 469, 476 (Tex.App.-Houston [14th Dist.] 2007, no pet.). To determine whether the issue was tried by consent, the court must examine the record not for evidence of the issue, but rather for evidence of trial of the issue. Greene v. Young, 174 S.W.3d 291, 301 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

The record does not reflect that the intimate-partners issue was tried by consent. Although the record indicates that the parties had cohabitated and had a child together, the record does not reflect that the parties were trying the issue of “intimate partners” as that term is defined by section 921 of Title 18 of the United States Code. Accordingly, we sustain Teel’s second issue.

Legal and Factual Sufficiency of the Evidence

In her third and fourth issues, Teel argues the evidence is legally and factually insufficient to support the trial court’s findings that the parties were members of the same household and that family violence was likely to occur in the future.

Standard of Review

Under section 85.001 of the Texas Family Code, the trial court may grant a protective order upon finding that family violence has occurred and is likely to occur again. Tex. Fam.Code Ann. § 85.001(a) (Vernon 2008). In reviewing a trial court’s findings of fact for legal and factual sufficiency, we apply the same standards that we apply in reviewing jury findings. Ulmer v. Ulmer, 130 S.W.3d 294, 299 (Tex.App.-Houston [14th Dist.] 2004, no pet.). When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder is the only judge of witness credibility and the weight to give to testimony. See id. at 819.

When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Pascouet, 61 S.W.3d at 616.

Members-of-Same-Household Evidence

A “household” is a “unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.” Tex. Fam.Code Ann. § 71.005 (Vernon 2008). A “member of a household” includes a person who previously lived in the household. Tex. Fam.Code Ann. § 71.006 (Vernon 2008).

Both parties testified that they intended to marry on July 7, 2007, and that on July 4, 2007, Teel moved her belongings to Shifflett’s house. Shifflett testified that prior to this move, Teel had lived with him for at least one month. Teel testified that she did not intend to live with Shifflett until after their wedding and, despite the fact that she spent several nights at his house and moved her belongings into his house, she did not consider herself as having moved into his house to establish a household because she maintained an apartment at which she received mail. The trial court found that on July 5, 2007, the parties established a household.

Although the parties’ cohabitation was intermittent due to their disagreements, the uncontroverted evidence is that they intended to marry and Teel moved her belongings into Shifflett’s house. Teel gave birth to a child in January 2008, and both parties believe the child was fathered by Shifflett. Under the applicable standards of review, we conclude that the evidence is legally and factually sufficient to support the trial court’s finding that Shif-flett and Teel had formed a household. Accordingly, we overrule Teel’s third issue.

Family-Violence-Likely-to-Occur-in-the-Future Evidence

Teel does not challenge the trial court’s finding that family violence occurred; rather, she argues the evidence is legally and factually insufficient to support the trial court’s finding that family violence is likely to occur in the future. Teel points out that Shifflett never testified that he “believed” or “feared” that Teel would commit family violence in the future and argues that Shifflett never presented any objective evidence that would show a likelihood that Teel would commit family violence in the future.

In parental-termination and child-custody cases, “evidence that a parent has engaged in abusive or neglectful conduct in the past permits an inference that the parent will continue this behavior in the future.” In re T.L.S. and R.L.P., 170 S.W.3d 164, 166 (Tex.App.-Waco 2005, no pet.). This principle also applies in cases involving protective orders against family violence. Banargent v. Brent, No. 14-05-00574-CV, 2006 WL 462268, at *1-2 (Tex.App.-Houston [14th Dist.] Feb. 28, 2006, no pet.) (mem. op.). “Oftentimes, past is prologue; therefore, past violent conduct can be competent evidence which is legally and factually sufficient to sustain the award of a protective order.” In re Epperson, 213 S.W.3d 541, 544 (Tex.App.-Texarkana 2007, no pet.). In this case, Shifflett testified to several instances of violence, one in which police officers had to subdue Teel with a taser because she would not relinquish a weapon. The trial court reasonably could have concluded that future violence is likely to occur based on the testimony showing a pattern of violent behavior. See Banargent, 2006 WL 462268, at *1-2; Clements v. Haskovec, 251 S.W.3d 79, 87-88 (Tex.App.-Corpus Christi 2008, no pet.). Under the applicable standards of review, we conclude that the evidence is legally and factually sufficient to support the trial court’s finding that Teel is likely to commit family violence in the future. Accordingly, we overrule Teel’s fourth issue.

We modify the judgment of the trial court to delete the finding that the parties were “intimate partners” pursuant to Title 18, United States Code, sections 922(g)(8) and 921(a)(32). We affirm the judgment as modified.

YATES, J., concurring.

LESLIE B. YATES, Justice,

concurring.

I write separately to address appellant’s challenge to the constitutionality of sections 81.001 and 85.001 of the Texas Family Code. Section 81.001 provides that “[a] court shall render a protective order as provided by Section 85.001(b) if the court finds that family violence has occurred and is likely to occur in the future.” Tex. Fam.Code Ann. § 81.001 (Vernon 2008). Section 85.001 lists the required findings and orders to be issued by the court if it finds that family violence has occurred and is likely to occur in the future. Tex. Fam. Code Ann. § 85.001 (Vernon 2008).

Appellant argues that she is entitled to a jury trial before the issuance of a protective order and that by prohibiting such a trial, sections 81.001 and 85.001 violate her right to jury trial under Article V, Section 10 of the Texas Constitution. Article V, the Judiciary Article, was added to the Texas Constitution to broaden the right to a jury afforded by Article I, section 15 because that section did not extend to causes in equity. State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 292 (Tex.1975).

Special circumstances justify holdings that not all adversary proceedings qualify as a “cause” under the Judiciary Article requiring a jury trial. These cases have been isolated upon a case-by-case determination and include such proceedings as election contests, Hammond v. Ashe, 103 Tex. 503, 131 S.W. 539 (1910) (election contest is not a “cause” as contemplated by the Texas Constitution); habeas corpus proceedings for the custody of minor children, Burckhalter v. Conyer, 9 S.W.2d 1029 (Tex.Com.App.1928, jdgmt. adopted); Pittman v. Byars, 51 Tex.Civ.App. 83, 112 S.W. 102, 106 (1908, no writ); appeals in administrative proceedings, Texas Liquor Control Board v. Jones, 112 S.W.2d 227, 229 (Tex.Civ.App.1937, no writ), and applications for family protective orders. Williams v. Williams, 19 S.W.3d 544 (Tex.App.-Fort Worth 2000, pet. denied).

In Williams v. Williams, 19 S.W.3d 544 (Tex.App.-Fort Worth 2000, pet. denied), the court addressed an identical challenge to sections 81.001 and 85.001 and found the statutes constitutional. Id. at 548. The court noted that in promulgating the statutes that control family protective orders, the legislature provided that an applicant for a protective order is entitled to a hearing not later than 14 days after the date of filing unless a later date is requested by the applicant. See Tex. Fam.Code Ann. § 84.001(a) (Vernon 2008). A request for jury trial in a civil suit is required to be filed not less than 30 days in advance of the date set for trial. Tex.R. Civ. P. 216(a). The Williams court noted that it is not possible to comply with the statutory requirement to hold a hearing within 14 days, yet also comply with the rule that requires filing of a written request for a jury trial 30 days in advance. Williams, 19 S.W.3d at 548.

While the right to a jury trial is by constitutional mandate to remain inviolate, the legislature is also directed to pass such laws as maintain its efficiency. Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex.1968). The inviolate right to a jury trial is regulated by those rules which specify its availability. Green, 422 S.W.2d at 725. The Family Code requires a hearing to be held on an application for family protective order within 14 days of the filing of the application with few exceptions permitted to continue the hearing. Tex. Fam.Code Ann. § 84.001(a) (Vernon 2008). A party requesting a jury trial must comply with the procedure set forth in rule 216 of the Texas Rules of Civil Procedure, which requires a request for a jury be made not less than 30 days before the date set for trial. Howell v. Texas Workers’ Compensation Com’n, 143 S.W.3d 416, 438 (Tex.App.-Austin 2004, pet. denied). By requiring a hearing within 14 days of the application and requiring a court to make the determination, the legislature recognized the immediate nature of most family protective orders. If the legislature permitted jury trials to determine facts in an application for a protective order, the individual from whom protection is sought could effectively delay the hearing by requesting a jury. Such a delay would work to the disadvantage of the individual seeking protection because he or she would have to wait at least 30 days before the hearing could be held. The legislature had the undoubted right to make this additional protection in the interest of ensuring that a protective order is issued as timely as possible and, in so doing, violated no constitutional guarantee to appellant.

I agree with the majority that Teel’s first issue should be overruled, but disagree with the majority’s conclusion that Teel did not properly preserve the issue. Thus, I respectfully concur.

      . This rule has been held to be constitutional by a sister court of appeals. See Rent America, Inc. v. Amarillo Nat. Bank, 785 S.W.2d 190, 193 (Tex.App.-Amarillo 1990, writ denied).

      . In the Williams case, the court held that "[bjecause the evidence in this case conclusively establishes that Appellant's request for a jury was not made until he was in court for the hearing, the request was not timely as a matter of law, and the trial court did not abuse its discretion by denying the request.” Williams, 19 S.W.3d at 546. The opinion in Williams contains obiter dicta regarding constitutional rights, statutory construction, and legislative intent, which might give the impression that the Williams court addressed the constitutionality of sections 81.001 and 85.001 of the Texas Family Code. See id. at 546-48. However, the Williams court did not hold or state that these statutes are constitutional. See id. Instead, the Williams court, like this court, based its decision on the untimely request for a jury trial under Texas Rule of Civil Procedure 216. See id.

      . At the time of the hearing, genetic testing had been ordered but not completed.

      . In the trial of all causes in the District Courts the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature. Tex. Const, art. V, § 10

      . The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Tex. Const, art. I, § 15


author: KEM THOMPSON FROST, Justice.

text:
    ALLDAY DENTAL and Amar Al-Kutob, Appellants, v. THE DENTAL SOLUTION, Appellee.
    No. 14-08-00746-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 25, 2010.

      William F. Harmeyer, Houston, for appellants.
    Maurice L. Bresenhan, Jr., Houston, for appellee.
    Panel consists of Justices YATES, FROST, and BROWN.
   OPINION

KEM THOMPSON FROST, Justice.

This appeal arises out of a contract dispute between a dental employer and a dental-placement service over placement fees. Following a trial on the merits in which the jury found in favor of the placement service, the trial court rendered a judgment against the employer. On appeal, the employer claims that the placement service operated illegally under the Texas Occupation Code because it did not meet state licensure requirements, thereby rendering the contract between the parties void and unenforceable. We affirm.

I. Factual and PROCEDURAL Background

Appellee The Dental Solution is a company that places dental employees in dental clinics on a temporary or permanent basis for a fee. The Dental Solution filed suit against appellants Allday Dental, a dental clinic, and Amar Al-Kutob, who, along with his wife, owned Allday Dental. According to the live petition, The Dental Solution and Allday Dental entered into a “Placement Agreement,” which provides in relevant part:

5. CLIENT shall pay TDS [The Dental Solution] a placement fee for each day that a DENTIST, DENTAL HYGENIST, or DENTAL ASSISTANT referred to CLIENT by TDS [The Dental Solution] performs service for CLIENT, with such placement fee to be in the following amounts:
a. CLIENT shall pay TDS [The Dental Solution] a placement fee of $54.00 for each eight hour day a DENTIST provides services to CLIENT, and $47.00 for each four hour day minimum scheduling.

At trial, the parties referred to this section of the Placement Agreement as pertaining to temporary placement fees. The parties referred to the following section of the Placement Agreement as pertaining to a permanent placement fee:

9. In the event CLIENT employs, joint ventures with, associates with or in any manner affiliates with a SERVICE PROVIDER, or enters into any contractual relationship with a SERVICE PROVIDER referred to the CLIENT by TDS directly, or indirectly, through any TDS [The Dental Solution] placement, on a full time basis anytime during a period of one (1) year after the date of termination of this Agreement or one (1) year after the last day of actual work by any Service Provider based upon any referral by TDS (whichever is later), CLIENT agrees to pay TDS [The Dental Solution] a placement fee equal to fourteen 14% of the yearly gross compensation to be paid to the SERVICE PROVIDER.

According to the terms of the parties’ agreement, in addition to signing the agreement on behalf of Allday Dental, Al-Kutob also individually agreed to perform under the terms of the Placement Agreement.

In addition to suing Allday Dental and Al-Kutob, The Dental Solution also brought suit against Dr. Sharhonda Washington, a dentist whom The Dental Solution referred to Allday Dental. Washington’s agreement with The Dental Solution provides in relevant part:

In the event Applicant [Washington] works for a dental office in any capacity within the period of one year from the date of initial referral, oral or written, without notifying TDS [The Dental Solution] prior to commencing such assignment, Applicant [Washington] shall be fully liable for any and all damages incurred by TDS [The Dental Solution] as a result of Applicant [Washington] failing to notify TDS [The Dental Solution] of such employment.

In its live petition, The Dental Solution claimed to have placed Washington at All-day Dental on a temporary basis for a single day on June 26, 2004. The parties do not dispute that Allday Dental paid The Dental Solution $54.00 in connection with the services Washington provided on this date. However, The Dental Solution alleged that without providing notice to The Dental Solution, Washington worked at the Allday Dental clinic on a regular basis after the original placement date and up until the time she purchased the clinic. On this basis, The Dental Solution sought to recover both temporary and permanent placement fees, jointly and severally, from Allday Dental and Al-Kutob (hereinafter the “Allday Dental Parties”) under the Placement Agreement. The Dental Solution also sought damages from Washington, claiming that she breached her agreement with The Dental Solution, by failing to notify The Dental Solution of her additional work at, and undisclosed affiliation with, Allday Dental. The Dental Solution alleged violation of section 2501.101 of the Texas Occupation Code, asserting that the Allday Dental Parties knowingly made false statements and concealed material facts from The Dental Solution in an effort to obtain Washington’s services as an employee without compensation to The Dental Solution. The Dental Solution sought to recover attorney’s fees, costs, and pre- and post-judgment interest.

At a hearing on February 20, 2008, just prior to jury selection and trial, the Allday Dental Parties moved for a continuance so that The Dental Solution could supplement discovery responses on the method of calculating damages. For this reason, the trial court reset the trial for April 15, 2008. The following exchange occurred at the time of this resetting:

[ALLDAY DENTAL PARTIES’ TRIAL COUNSEL]: Is the Court precluding dispositive motions like motions for summary judgment?
[TRIAL COURT]: Yes, we’re done. We’re trying it. I’m continuing this and opening discovery only for the purpose of ascertaining the economic damages that was the basis of the defendant’s [sic] motion today stating that they had no idea of the theory, the amounts being sought by the plaintiff. We’ll answer that question and on we go to trial. Otherwise, we’re locked in. We’re not changing anything else about it.

About a month later, on March 14, 2008, the Allday Dental Parties each filed a document entitled “Plea to the Jurisdiction, First Amended Verified Answer, and Counterclaim.” These pleadings turned on the Allday Dental Parties’ assertions that The Dental Solution was operating a personnel service in violation of the Texas Occupation Code because The Dental Solution did not have a certificate of authority, as required by the code, and was not exempt under the code from obtaining the certificate. The Allday Dental Parties alleged that the contract upon which The Dental Solution’s claims are based is void and unenforceable as it relates to personnel service placement fees. On this basis, the Allday Dental Parties each asserted that The Dental Solution lacked standing to bring suit for personnel service placement fees and the trial court lacked subject matter jurisdiction to award personnel service placement fees to The Dental Solution. The Allday Dental Parties also each asserted as a verified denial that The Dental Solution lacked the capacity to bring suit for personnel service placement fees. Additionally, the Allday Dental Parties each asserted affirmative defenses of illegality of the contract and failure to perform conditions precedent by obtaining a certifícate of authority under the Texas Occupation Code.

Ten days later, the Allday Dental Parties filed a motion for leave of court to proceed with the filed pleas to the jurisdiction, first amended verified answers, and counterclaims. On this same date, The Dental Solution moved to strike the Allday Dental Parties’ pleas to the jurisdiction, amended answers, counterclaims, and joint motion for summary judgment. The record contains no ruling on The Dental Solution’s motion to strike.

At trial, after The Dental Solution rested its case, the Allday Dental Parties reasserted their plea to the jurisdiction and motion for leave to amend their pleadings. The trial court denied the plea to the jurisdiction and ruled that an exemption in the Texas Occupation Code for obtaining a certificate of authority applied to The Dental Solution’s claims against the Allday Dental Parties. The trial court also denied as untimely the motion for leave to amend.

Following trial on the merits, the jury rendered a verdict affirmatively finding that Allday Dental and Al-Kutob each failed to comply with their agreement with The Dental Solution. The jury awarded The Dental Solution the sum of $33,373.00 in temporary placement fees and $6,917.62 in permanent placement fees as fair and reasonable compensation for the damages that resulted from the Allday Dental Parties’ breach of the Placement Agreement. The jury also made a finding regarding reasonable attorney’s fees. In addition, the jury determined that the Allday Dental Parties and Washington committed fraud against The Dental Solution and assessed 40% responsibility to Allday Dental, 30% responsibility to Al-Kutob, and 30% responsibility to Washington. The jury determined that the sum of $40,000.00 would fairly and reasonably compensate The Dental Solution for damages that resulted from the fraud.

Based on the jury’s verdict, the trial court rendered a final judgment in favor of The Dental Solution and against the Allday Dental Parties, jointly and severally, in the sum of $33,373.00. The trial court also rendered judgment against the Allday Dental Parties, jointly and severally, for attorney’s fees as well as pre- and post-judgment interest on the award.

II. Issues and Analysis

On appeal, the Allday Dental Parties assert that the trial court erred by refusing to accept their “Plea[s] to the Jurisdiction, First Amended Verified Answer[s], and Counterclaim[s].” They further assert that The Dental Solution does not qualify as a “management search consultant” entitled to an exemption from the license requirement under section 2501.052 of the Texas Occupation Code, as set forth in the Allday Dental Parties’ pleas to the jurisdiction.

The Allday Dental Parties’ first and second issues turn on the assertion, as stated in their respective “Plea[s] to the Jurisdiction, First Amended Verified Answer[s], and Counterclaim[s],” that The Dental Solution operated illegally as a personnel service under the Texas Occupation Code because it did not have the requisite certificate of authority and did not meet the exception for the licensure requirement as a “management search consultant.” We construe this argument to be a challenge to the trial court’s denial of the Allday Dental Parties’ pleas to the jurisdiction. According to these pleas, without the certificate of authority, The Dental Solution lacked standing to bring suit for personnel service placement fees and the trial court thus lacked subject matter jurisdiction to award damages for such fees. In their third issue, the Allday Dental Parties assert that The Dental Solution operated illegally under the Texas Occupation Code and, therefore, the parties’ Placement Agreement is void and unenforceable.

Standards of Review

We review a trial court’s ruling on a plea to the jurisdiction de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In our review, we construe the pleadings liberally in favor of the pleader and look to the pleader’s intent to determine whether the facts alleged affirmatively demonstrate the trial court’s jurisdiction to hear the cause. See id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction, but do not affirmatively demonstrate incurable defects in the jurisdiction, the issue is one of pleading sufficiency, and the claimant should be afforded the opportunity to amend. See id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing an opportunity to amend. See id. at 227.

If, in its plea to the jurisdiction, a party challenges the existence of jurisdictional facts, the reviewing court considers the relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See id. If the evidence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be denied. See id. at 227-28. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdiction issue, then the court rules on the plea to the jurisdiction as a matter of law. Id. at 228. In ruling on a plea to the jurisdiction, a court does not consider the merits of the parties’ claims. See id. at 226-28; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

We review the trial court’s interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989). In construing a statute, our objective is to determine and give effect to the legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we ascertain that intent from the language the legislature used in the statute and we do not look to extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words. See id.

Meaning of Statutory Terms

The Dental Solution alleged in its live petition that the Allday Dental Parties violated section 2501.101 of the Occupation Code. Under this provision, an employer or a person seeking employment may not “make a false statement or conceal any material fact to obtain an employee or employment by or through a personnel service.” Tex. Occ.Code Ann. § 2501.101(b)(1) (Vernon 2004). A “ ‘[personnel service’ means a person who, regardless of whether for a fee, directly or indirectly offers or attempts to obtain permanent employment for an applicant or obtains or attempts to obtain a permanent employee for an employer.” Id. § 2501.001(9) (Vernon 2004).

“A person may not own a personnel service that operates in this state unless the person holds a certifícate of authority issued under this chapter.” Id. § 2501.051 (Vernon 2004). Notably, however, the subchapter of the Occupation Code requiring a certificate of authority does not apply to a personnel service that operates as a “management search consultant.” Id. § 2501.052(b) (Vernon 2004). A “‘management search consultant’ means a personnel service that: (1) is retained by, acts solely on behalf of, and is compensated only by an employer; and (2) does not directly or indirectly collect a fee from an applicant as payment for a service performed by the personnel service.” Id. § 2501.052(a)(l-2).

The trial testimony reflects that The Dental Solution operated for the purpose of offering or attempting to obtain temporary and permanent employment for dental-employee applicants and to offer or attempt to obtain temporary or permanent employees for dental employers. Both in response to the Allday Dental Parties’ pleas to the jurisdiction and now on appeal, The Dental Solution asserts that it operated as a “management search consultant” under the Occupation Code. This statute defines a “management search consultant” as a type of “personnel service.” See id. § 2501.052(a) (defining “management search consultant”). It is undisputed that The Dental Solution operated as a personnel service as defined by the Occupation Code. See id. § 2501.001(9) (defining “personnel service”). It is also undisputed that The Dental Solution did not hold a certificate of authority issued under the Occupation Code. See id. § 2501.051 (prohibiting a personnel service from operating without a certificate of authority). Moreover, the parties do not dispute that pursuant to section 2501.052(b) of the Occupation Code, a “management search consultant” is exempt from obtaining a certificate of authority. See id. § 2501.052(b) (providing that the subchapter of the code pertaining to a certificate of authority does not apply to a management search consultant).

In denying the pleas to the jurisdiction, the trial court ruled that The Dental Solution qualified as a “management search consultant” under the Occupation Code. The Allday Dental Parties, however, assert that The Dental Solution did not qualify as a “management search consultant” for the following reasons:

• The Dental Solution was retained by both Washington and Allday Dental;
• The Dental Solution’s respective agreements with Washington and the Allday Dental Parties imposed restrictive covenants on both Washington and the Allday Dental Parties;
• The Dental Solution sought to collect a placement fee from both the employer and employee under the contract provisions of each contract; and
• The Dental Solution collected a placement fee in the sum of $6,900 from Washington in a post-verdict settlement.

By virtue of the parties’ Placement Agreement, the evidence reflects that Allday Dental retained The Dental Solution to refer dental employees for temporary and permanent employment. See Tex. Occ. Code Ann. § 2501.052(a)(1). The record evidence demonstrates that although The Dental Solution held an agreement with Washington (as a dental-employee applicant), The Dental Solution considered dental clinics, such as Allday Dental, to be clients. Trial testimony reflects that The Dental Solution referred dental employees to dental clinics only upon a client’s request for a referral. Under the terms of The Dental Solution’s agreement with Washington, The Dental Solution made no guarantee of employment and Washington undertook no obligation to accept any proposed placement. Specifically, their agreement provides that The Dental Solution will refer Washington, as an applicant, to a dental clinic if the dental clinic contacts The Dental Solution requesting a referral for applicants. Therefore, we conclude that The Dental Solution was retained by the Allday Dental Parties and acted solely on behalf of the Allday Dental Parties in making the referral or placement. See id.

Trial testimony reflects that, in practice, a dental clinic is responsible for paying any related placement fees to The Dental Solution for its services in placing an employee at a dental clinic, which is in accord with the terms for placement fees in the parties’ Placement Agreement. The Dental Solution’s agreement with Washington does not obligate her to pay any such placement fee. Therefore, under the Occupation Code, The Dental Solution does not directly or indirectly collect a fee from an applicant as payment for a service performed by the personnel service. See id. § 2501.052(a)(2). Based on the evidence, we conclude The Dental Solution operated as a “management search consultant,” as defined under the Occupation Code. Consequently, the Dental Solution was exempt from obtaining a certifícate of authority. See id. § 2501.052(a)(l-2). The Allday Dental Parties’ first and second issues are overruled.

The trial court properly determined that The Dental Solution operated as a “management search consultant” exempt from the statutory requirement for a certificate of authority. Therefore, The Dental Solution was not operating illegally under the Occupation Code, as asserted by the All-day Dental Parties in their third issue. On this basis, the assertions in their third issue lack merit. Accordingly, we overrule the third issue.

We affirm the trial court’s judgment.

      . According to The Dental Solution's pleadings, Washington is the current owner of All-day Dental and purchased the clinic from Al-Kutob in November 2006. The record re-fleets that The Dental Solution and Washington settled their dispute; Washington is not a party to this appeal.

      . The Allday Dental Parties also filed a joint motion for summary judgment, alleging that no genuine issues of material fact existed based on the same jurisdictional grounds. In support of this motion, they alleged that The Dental Solution operated illegally under the Texas Occupation Code without a certificate of authority; the trial court denied this motion before trial.

      . The trial court's judgment reflects that following the return of the jury's verdict, The Dental Solution and Washington resolved their issues and settled all matters submitted to the jury and addressed in the verdict.

      . In their fourth issue, the Allday Dental Parties assert that the trial court erred in refusing to permit them to amend their pleadings to include their respective "Plea[s] to the Jurisdiction, First Amended Verified Answer, and Counterclaim.” We presume for the sake of our analysis that the Allday Dental Parties amended their pleadings in this manner.

      . We presume for the sake of argument that, if The Dental Solution is not exempt from obtaining a certificate of authority under the Texas Occupation Code, then it would lack standing, and the trial court therefore would lack subject matter jurisdiction.

      . Under the Texas Occupation Code, an " ‘[e]mployer’ means a person who employs or seeks to employ an employee.” Tex. Occ Code Ann. § 2501.101(4).

      . Under section 2501.052, a “management search consultant” is not prohibited from providing services to an employee applicant; rather, a "management search consultant” is compensated only by an employer and does not directly or indirectly collect a fee from the applicant as payment for a service performed by the personnel service. Tex Occ.Code Ann. § 2501.052(a)(l-2).

      . See Tex. Att. Gen. Op. No. 98-065, 1998 WL 537337 (1998) (providing that as long as a personnel service acts as an employer’s agent, rather than an employee’s agent, and receives compensation only from the employer, the personnel service is a "management search consultant" even if the personnel service and the employee strike a bargain that is of mutual benefit to both parties).

      . Notably, the agreement with Washington holds her accountable for damages incurred by The Dental Solution as a result of Washington's failure to notify The Dental Solution of such employment; however, the plain and unambiguous language of the Placement Agreement does not operate to allow The Dental Solution to directly or indirectly collect a fee from an applicant as payment for a service performed by the personnel service. See Tex Occ.Code Ann. § 2501.052(a)(2).

      . The Allday Dental Parties' assertion that The Dental Solution collected a placement fee of $6,900 from Washington in a post-verdict settlement lacks merit; the record is devoid of any such settlement agreement or its terms. The Dental Solution brought suit against Washington for damages under her agreement for failure to notify The Dental Solution of her employment at the Allday Dental clinic. The Allday Dental Parties have provided no authority to support the assertion that a cause of action for damages for a breach of an agreement is equivalent to an award for compensation under an agreement.

      . Presuming that the Allday Dental Parties amended their pleadings to include their respective "Plea[s] to the Jurisdiction, First Amended Verified Answer, and Counterclaim,” the Allday Dental Parties have not shown any error. Therefore, we need not and do not address their fourth issue.


author:
ADELE HEDGES, Chief Justice.
      MARGARET GARNER MIRABAL, Senior Justice,

text:
    HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellant, v. GREAT AMERICAN INSURANCE COMPANY, Appellee.
    No. 14-09-00571-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 25, 2010.

      Michael R. Hull, Linda S. Geffin, Houston, for appellant.
    Patricia M. Rosendahl, Houston, for ap-pellee.
    Panel consists of Chief Justice HEDGES and Justices SEYMORE and Senior Justice MIRABAL.

       Senior Justice Margaret Gamer Mirabal sitting by assignment.

   MAJORITY OPINION

ADELE HEDGES, Chief Justice.

Appellant, Harris County Flood Control District, appeals from the denial of its plea to the jurisdiction on the claims of appel-lee, Great American Insurance Company, for quantum meruit and attorney’s fees. Because we conclude that appellant has not waived its immunity relative to those claims, we reverse and dismiss in part, affirm in part, and remand.

Factual and PkoceduRal BACKGROUND

In July 2002, appellant entered into a contract for the excavation of flood control improvements designed to relieve flooding in the Deer Park area of Harris County with Handex Construction Services, Inc. (“Handex”). The project required the excavation and removal of 1,253,500 cubic yards of material from the project site at a cost of $4,632,808.67.

In June 2002, appellee issued the performance bond as surety for the Handex contract. The bond provided that if Han-dex abandoned the project or otherwise failed to comply with the conditions of the contract, then appellee had the right to complete the project in conformity with the terms and conditions of the original contract.

At a point in time after it began performing the contract, Handex filed bankruptcy in the United States District Court for the Middle District of Florida and on March 16, 2006, it abandoned the contract. Appellee then assumed the obligations under the contract in late March 2006. On April 24, 2006, appellant issued a new purchase order for the project and designated appellee as the completing contractor for the project.

Appellant issued a certificate of substantial completion on May 8, 2007, which was approved by the Harris County Commissioner’s Court on May 15, 2007. Conflict arose over the amount due appellee, and when the dispute could not be resolved, appellee initiated this lawsuit. In addition to breach of contract, appellee asserted an alternative quantum meruit claim and also sought attorney’s fees. Appellant filed a plea to the jurisdiction and motion for partial summary judgment (“Plea to the Jurisdiction”), in which it asserted the trial court lacked subject matter jurisdiction only as to appellee’s quantum meruit and attorney’s fees claims. When the trial court denied appellant’s Plea to the Jurisdiction, this accelerated interlocutory appeal followed.

Discussion

In this appeal, appellant raises two issues challenging the trial court’s denial of its Plea to the Jurisdiction. The first issue addresses appellee’s quantum meruit cause of action, the second, appellee’s attorney’s fees claim. In both issues, appellant contends the trial court erred when it denied appellant’s Plea to the Jurisdiction, arguing that the Texas legislature has not waived appellant’s immunity from suit.

I. The Applicable Law and the Standard of Review

Government immunity has two components: immunity from liability and immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.2006). Immunity from suit bars suit against the entity altogether. Id. Immunity from liability bars enforcement of a judgment against a political subdivision of the State. Id. A governmental entity waives immunity from liability by entering into a contract and voluntarily binding itself to the terms of the agreement. Id. Even if a governmental entity acknowledges liability on a claim, immunity from suit bars a remedy until the Legislature consents to suit. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Political Subdivisions Prop./Casualty Joint Self-Insurance Fund, 212 S.W.3d 320, 324 (Tex.2006). To ensure legislative control that immunity is not lightly disturbed, that waiver must be clear and unambiguous. Id. at 327 (quoting Tex. Gov’t Code Ann. § 311.034 (Vernon 2005)).

A plea to the jurisdiction based on government immunity challenges the trial court’s subject matter jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex.2007). Whether a trial court has subject matter jurisdiction is a question of law. Id. Therefore, we review a challenge to the trial court’s subject matter jurisdiction de novo. Id. In performing this review, an appellate court does not look to the merits of the case, but considers only the pleadings and evidence relevant to the jurisdictional inquiry. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).

II. Quantum Meruit

In its first issue, appellant argues the trial court erred in denying its Plea to the Jurisdiction because it is immune from suit on appellee’s quantum meruit claim. In response, appellee asserts section 271.152 of the Local Government Code waived appellant’s immunity from suit on its quantum meruit cause of action.

We have previously addressed this issue. In City of Houston v. Petroleum Traders Corp., we held that while section 271.152 waived governmental immunity for breach of contract causes of action, it does not apply to quantum meruit claims. City of Houston v. Petroleum Traders Corp., 261 S.W.3d 350, 359-60 (Tex.App.-Houston [14th Dist.] 2008, rule 53.7(f) motion granted) (citing City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 12-13 (Tex.App.-Houston [1st Dist.] 2007, no pet.)). Accordingly we sustain appellant’s first issue on appeal.

III. Attorney’s Fees

In its second issue, appellant challenges the trial court’s denial of its Plea to the Jurisdiction on appellee’s attorney’s fees claim. In response, appellee argues appellant’s immunity from suit has been waived by two statutes: (1) sections 271.152 and 271.153(a)(3) of the Local Government Code; and (2) section 2251.043 of the Texas Government Code (“Prompt Pay Act”). We address each statute in turn.

A. Local Government Code

Appellee contends it is entitled to an award of its reasonable and necessary attorney’s fees because, in 2009, the Legislature added section 271.153(a)(3) to the Local Government Code and repealed section 271.159. We conclude appellee’s reliance on the 2009 addition of section 271.153(a)(3) and repeal of section 271.159 is misplaced.

Prior to the 2009 legislative session, section 271.153 of the Local Government Code did not mention attorney’s fees. However, section 271.159 permitted the prevailing party to recover its reasonable and necessary attorney’s fees if a written agreement authorized their recovery and specifically referenced section 271.159. During the 2009 legislative session, section 271.153(a) was amended to add that a plaintiff could recover reasonable and necessary attorney’s fees that are equitable and just. Act of May 31, 2009, 81st Leg., R.S., eh. 1266, § 8, 2009 Tex. Gen. Laws 4006, 4007. In addition, section 271.159 was repealed. Act of May 31, 2009, 81st Leg., R.S., ch. 1266, § 16, 2009 Tex. Gen. Laws 4006, 4008. However, the amendment to section 271.153(a) took effect on June 19, 2009 and only applies to contracts executed after that date. Tex. Loc. Gov’t Code Ann. § 271.153 (Vernon Supp.2009). Because the contracts at issue here were executed long before June 19, 2009, the amended section 271.153(a)(3) does not apply. Instead, the repealed section 271.159 still controls the issue of attorney’s fees in this case. See id. (“A claim that arises under a contract executed before the effective date of this Act is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for that purpose.”). Because it is undisputed that the contracts at issue do not provide for recovery of the prevailing party’s attorney’s fees, section 271.159 does not waive appellant’s immunity from suit as to attorney’s fees.

B. Prompt Pay Act

Appellee’s reliance on section 2251.043 of the Prompt Pay Act is similarly misplaced. The Dallas Court of Appeals recently addressed this issue and determined that the Prompt Pay Act does not waive immunity from suit for attorney’s fees. McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 465 (Tex.App.-Dallas 2009, pet. denied). As part of its analysis, the Dallas Court of Appeals distinguished State v. Mid-South Pavers, Inc., 246 S.W.3d 711 (Tex.App.-Austin 2007, no pet.), the case appellee cites in support of its contention appellant’s immunity from suit has been waived, because it involved a suit against the Texas Department of Transportation “pursuant to a written contract and under authority of specific provisions of the transportation code providing for resolution of a ‘claim arising under a contract.’ ” McMahon Contracting, 277 S.W.3d at 466. We agree with the Dallas Court of Appeals’ analysis and hold that section 2251.043 does not provide a clear and unambiguous waiver of appellant’s immunity from suit for appel-lee’s attorney’s fee claim. We sustain appellant’s second issue.

Conclusion

Having sustained appellant’s issues, we reverse the trial court’s denial of appellant’s Plea to the Jurisdiction on appellee’s quantum meruit and attorney’s fees claims and render judgment dismissing those causes of action. We remand this case to the trial court for further proceedings consistent with this opinion.

MIRABAL, J., dissenting.

MARGARET GARNER MIRABAL, Senior Justice,

dissenting.

I respectfully dissent, in part.

I agree with the Majority’s disposition of issue one dealing with quantum meruit. However, I disagree with the Majority’s disposition of issue two dealing with attorney’s fees.

We all agree that Section 271.152 of the Local Government Code waives governmental “immunity from suit” for breach of contract. See City of Houston v. Petroleum Traders Corp., 261 S.W.3d 350, 359 (Tex.App.-Houston [14th Dist.] 2008, rule 53.7(f) motion granted). “Breach of contract” is a “cause of action”. In contrast, a claim for attorney’s fees is not a “cause of action”; rather it is a remedy arising out of a cause of action. With regard to attorney’s fees, the only immunity issue would be whether the governmental entity is “immune from liability” for attorney’s fees. The present case only involves issues of “immunity from suit”, not “immunity from liability”. If a governmental entity can be sued for breach of contract, as here, then it can be sued for damages; the types of damages that can be recovered from the governmental entity, such as attorney’s fees, depends on whether the entity has waived “immunity from liability” for such damages.

I agree with the reasoning of the Court, regarding claims for attorney’s fees, in State v. Mid-South Pavers, Inc., 246 S.W.3d 711, 729-30 (Tex.App.-Austin 2007, no pet.). I disagree with McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 465-66 (Tex.App.-Dallas 2009, no pet.), to the extent McMahon conflicts with Mid-South.

I would sustain appellant’s issue one, and overrule appellant’s issue two. Accordingly, I would reverse the trial court’s denial of appellant’s Plea to the Jurisdiction on appellee’s quantum meruit cause of action, I would affirm the trial court’s denial of appellant’s Plea to the Jurisdiction regarding attorney’s fees, and I would remand the case for further proceedings.

      . In its response brief, appellee argues this court does not have jurisdiction to hear this interlocutory appeal because appellant did not assert governmental immunity as a bar to the entire case. Appellee cites two cases in support of this argument: Speer v. Stover, 685 S.W.2d 22, 23 (Tex.1985) and City of Cleburne v. Trussell, 10 S.W.3d 407, 410 (Tex.App.-Waco 2000, no pet.). These cases stand for the proposition that “the granting of a plea to the jurisdiction on the basis that some of the damages pled are not recoverable would be erroneous.” City of Cleburne, 10 S.W.3d at 410 (emphasis in original). However, this line of cases has been overruled by the Texas Supreme Court in Thomas v. Long, 207 S.W.3d 334, 339 (Tex.2006). In Thomas, the Texas Supreme Court held "[a] trial court is not required to deny an otherwise meritorious plea to the jurisdiction or motion for summary judgment based on a jurisdictional challenge concerning some claims because the trial court has jurisdiction over other claims.” Id. To be entitled to an interlocutory appeal, all section 51.014(a)(8) of the Civil Practice & Remedies Code requires is the denial of a jurisdictional challenge. Id. at 340. We conclude that we have jurisdiction to hear this appeal.

      . Local Government Code, section 271.152 provides:
      A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.
      Tex. Loc. Gov’t Code Ann. § 271.152 (Vernon 2005).

      . Local Government Code section 271.153(a)(3), as cited by appellee, provides:
      "The total amount of money awarded in an adjudication brought against a local governmental entity for breach of a contract subject to this subchapter is limited to the following: (3) reasonable and necessary attorney's fees that are equitable and just.” Tex. Loc. Gov’t Code Ann. § 271.153(a)(3) (Vernon Supp. 2009).

      . Section 2251.043 of the Government Code provides: "In a formal administrative or judicial action to collect an invoice payment or interest due under this chapter, the opposing party, which may be the governmental entity or the vendor, shall pay the reasonable attorney fees of the prevailing party.” Tex. Gov’t Code Ann. § 2251.043 (Vernon 2008).

      . Local Government Code section 271.159 provides:
      Attorney's fees incurred by a local governmental entity or any other party in the adjudication of a claim by or against a local governmental entity shall not be awarded to any party in the adjudication unless the local governmental entity has entered into a written agreement that expressly authorizes the prevailing party in the adjudication to recover its reasonable and necessary attorney’s fees by specific reference to this section.
      Tex. Loc. Gov't Code Ann. § 271.159 (Vernon 2005).