author: BILL MEIER, Justice.

text:
    Cindy PENA, Appellant, v. Michael A. SMITH, Appellee.
    No. 2-09-356-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 12, 2010.

      Peter Smythe, Peter Smythe, P.C., Dallas, TX, for Appellant.
    Michael A. Smith, Southlake, TX, pro se.
    PANEL: WALKER, McCOY, and MEIER, JJ.
   OPINION

BILL MEIER, Justice.

I. Introduction

In three issues, Appellant Cindy Pena appeals the trial court’s orders summarily enforcing a disputed mediated settlement agreement between her and Appellee Michael A. Smith. We will reverse and remand.

II. Background

On or about August 14, 2008, Smith and Pena entered into an “Unimproved Property Contract” in which Pena agreed to sell to Smith a three-acre tract of land near Boyd. According to Smith, he signed closing documents and delivered checks to the title company for earnest money and for the balance due under the property contract, but Pena refused to sign the deed and the closing documents because the deed did not contain a reservation of mineral rights in her favor.

Smith sued Pena for breach of the property contract. The trial court ordered Smith and Pena to attend mediation, where they executed an “Agreed Mediated Settlement Agreement.” Pursuant to the settlement agreement, Smith and Pena agreed, among other things, that Smith “will get the surface rights to land and all other rights, if any” and that Pena “will be allowed to retain her mineral interests in the property” and “will & must execute all closing documents w/ Western Title Company on or before June, 1, 2009.” Pena also agreed to “appoint[ ] Hunter Magee [Pena’s attorney] limited power of attorney to execute all documents necessary to close the sale of the property as of June 2, 2009, if for any reason [Pena] cannot or will not execute some or all documents needed to close the sale of the property.”

In June 2009, Smith filed a “Motion to Sign Final Order.” He contended therein that he and Pena had attended mediation, which resulted in the settlement agreement, but that Pena had not executed any documents necessary to facilitate the sale and closing of the three-acre tract of land and, indeed, had taken efforts to revoke Magee’s limited power of attorney to execute the necessary documents. Smith prayed that the trial court enter the proposed final order that he attached to the motion.

After Smith filed his motion asking the trial court to sign a final order enforcing the settlement agreement, Pena filed a “Defendant’s Motion to Abate and/or to Set Aside Settlement Agreement,” requesting, among other things, that the trial court set aside the settlement agreement. One day later, Smith filed a “Supplemental Motion to Sign Final Order and Motion for Enforcement.” Smith argued that “[p]ursuant to CPRC 154.071 a written settlement agreement is enforceable and the court may incorporate the terms of the agreement in the court’s final decree disposing of the case.” Smith also described Pena’s actions in attempting to set aside the settlement agreement as a “unilateral revocation” and prayed that the trial court sign the proposed order previously provided to it.

After a hearing, the trial court signed a final order that adopted the settlement agreement “as the Order of [the] Court” and ordered Magee “to immediately execute any and all documents in the name of Cindy Pena as her agent to facilitate the close of the sale of the property that remain un-exeeuted.” Thereafter, Pena timely filed a motion for new trial, which was overruled by operation of law, and the trial court modified its final order, incorporating the mediated settlement agreement into the order and ordering that Pena and Brandy Tanner Watson, Pena’s daughter, be divested of any and all ownership in the three-acre tract and that all right, title, and interest in the tract be held in fee simple by Smith. Pena filed her notice of this appeal.

III. Motion To Dismiss

Smith filed a motion to dismiss Pena’s appeal, arguing that Pena filed her notice of appeal untimely because she lacked capacity to file her motion for new trial. Smith failed to file a verified pleading in the trial court challenging Pena’s capacity. Accordingly, we deny Smith’s motion to dismiss Pena’s appeal. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.2005) (“Unlike standing, ... which may be raised at any time, a challenge to a party’s capacity must be raised by a verified pleading in the trial court.”); Rodarte v. Investeco Group, L.L.C., 299 S.W.3d 400, 407 n. 3 (Tex.App.Houston [14th Dist.] 2009, no pet.) (reasoning that objections concerning capacity-may be waived); see also Tex.R. Civ. P. 93.

IV. Pleadings And Proof

In her first and third issues, Pena argues that the trial court erred by rendering a judgment that summarily enforced the disputed settlement agreement. She contends that the judgment is supported by neither proper pleadings nor legally sufficient evidence that she breached the settlement agreement.

A trial court cannot render an agreed judgment after a party has withdrawn its consent to a settlement agreement. Padilla v. LaFrance, 907 S,W.2d 454, 461 (Tex.1995); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex.1983). After consent has been withdrawn, a court may enforce a settlement agreement “only as a written contract.” Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex.1996); see Tex. Civ. Prac. & Rem.Code § 154.071(a) (Vernon 2005) (providing that a settlement agreement is enforceable “in the same manner as any other contract”). Thus, the party seeking enforcement must pursue a separate breach of contract claim, which is subject to the normal rules of pleading and proof. Mantas, 925 S.W.2d at 659; Padilla, 907 S.W.2d at 462. “In short, if consent is withdrawn, ‘the only method available for enforcing a settlement agreement is through summary judgment or trial.’ ” Gunter v. Empire Pipeline Corp., 310 S.W.3d 19, 22 (Tex.App.-Dallas 2009, pet. denied) (citing Staley v. Herblin, 188 S.W.3d 334, 336-37 (Tex.App.-Dallas 2006, pet. denied)). The law does not recognize the existence of any special summary proceeding for the enforcement of a written settlement agreement, even one negotiated and executed in the context of a mediation. Id. (citing Cadle Co. v. Castle, 913 S.W.2d 627, 630 (Tex.App.-Dallas 1995, writ denied)); see Martin v. Black, 909 S.W.2d 192, 195 (TexApp.-Houston [14th Dist.] 1995, writ denied) (“When the legislature enacted the ADR statute [civil practice and remedies code section 154.071], it did not order the courts to follow a special procedure applicable only to mediated settlement agreements.”).

Assuming without deciding that the allegations and arguments contained in Smith’s “Motion to Sign Final Order” and “Supplemental Motion to Sign Final Order and Motion for Enforcement” were sufficient to give Pena fair notice of his contract claim and, thus, satisfied pleading requirements, Smith failed to support his action to enforce the settlement agreement with legally sufficient evidence.

We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, “No Evidence’’ and “Insufficient Evidence” Points of Etror, 38 Tex. L.Rev. 361, 362-63 (1960). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). When there is no indication that evidence was admitted or considered by the trial court prior to rendering judgment and the record on appeal contains no statement of facts, we indulge no presumptions in favor of the judgment. Otis Elevator v. Parmelee, 850 S.W.2d 179, 181 (Tex.1993).

To prevail on a breach of contract claim, the plaintiff must plead and prove (1) a contract existed between the parties; (2) the contract created duties; (3) the defendant breached a material duty under the contract; and (4) the plaintiff sustained damages. Cadle Co., 913 S.W.2d at 631.

At the hearing on his motions, Smith did not present any evidence in support of his claim for breach of the settlement agreement. He merely presented argument asking the trial court to sign the final order enforcing the settlement agreement.

Smith argues that the trial court did not err by executing the final order because Pena presented no evidence that the proposed order did not comply with the terms of the settlement agreement and no evidence that she had rescinded the settlement agreement. But Smith, not Pena, had the burden of proof in support of the contract claim, and Pena sought to set aside the settlement agreement.

Because Smith failed to offer any evidence, we hold that the evidence is legally insufficient to support the trial court’s judgment. See Bayway Servs., 106 S.W.3d at 160-61 (holding that the evidence was legally insufficient to support the trial court’s judgment because appellee presented no evidence that appellant breached settlement agreement); cf. Padilla, 907 S.W.2d at 462 (holding that summary judgment evidence established an enforceable settlement agreement as a matter of law); Quanaim, 2005 WL 856911, at *4 (holding that the evidence was legally sufficient to support the trial court’s judgment because appellee presented evidence of breach of contract). We sustain Pena’s first issue.

Having prevailed on a no-evidence issue, Pena would ordinarily be entitled to the rendition of judgment in her favor. See Nat’l Life & Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969). However, the supreme court has held that appellate courts have broad discretion to remand in the interest of justice. Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966). As long as there is a probability that a case has for any reason not been fully developed, an appellate court has the discretion to remand rather than render a decision. Zion Missionary Baptist Church v. Pearson, 695 S.W.2d 609, 613 (Tex.App.-Dallas 1985, writ ref'd n.r.e.). Because of our conclusion of Pena’s first issue, and in the interest of justice, we will remand this case for further proceedings rather than render a judgment. See Bayway Servs., 106 S.W.3d at 161 (remanding case after sustaining legal sufficiency issue involving disputed mediated settlement agreement).

Having sustained Pena’s dispositive first issue, we need not address her second issue complaining about the settlement agreement’s failure to include a legal description of the property. See Tex.R.App. P. 47.1.

V. Conclusion

We deny Smith’s motion to dismiss, reverse the trial court’s judgment, and remand the cause to the trial court for further proceedings consistent with this opinion.

      . In an affidavit attached to her response to Smith’s motion for summary judgment, Pena stated,
      A woman at the title company gave me the contract for the sale of the three acre tract and after I signed it, the same woman then gave me a separate document which indicated that I was also selling to Mr. Smith the mineral rights/interests in the three acre tract. This was the first time I had ever seen this document concerning the sale of my mineral rights/interests and I refused to sign it and told the title company woman that it was never my intention to sell the mineral rights/interest to Mr. Smith and that I would not do so.

      . No findings of fact and conclusions of law were filed.

      . See Cadle Co., 913 S.W.2d at 630-31 (reasoning that a petition in a contract claim must contain a short statement of the claim sufficient to give fair notice of the claim involved, including an allegation of a contractual relationship between the parties and the substance of the contract that supports the pleader's right to recover); see also Bayway Servs., Inc. v. Ameri-Build Constr., L.C., 106 S.W.3d 156, 160 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (holding that appellee met its pleading requirement because it filed a motion to sign judgment that alleged a contractual relationship with appellant and attached the settlement agreement to the motion); Quanaim v. Frasco Rest. and Catering, No. 01-03-01156-CV, 2005 WL 856911, at *3 (Tex.App.-Houston [1st Dist.] Apr. 14, 2005, no pet.) (mem.op.) (same).


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte Phillip A. CASTELLANO.
    No. 2-10-011-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 12, 2010.
    Tim Cole, Nocona, TX, for Appellant.

      Jack A. McGaughey, District Attorney for Clay County, Montague, TX, for Appel-lee.
    PANEL: LIVINGSTON, C.J.; McCOY and MEIER, JJ.
   OPINION

BILL MEIER, Justice.

Appellant Phillip A. Castellano appeals the trial court’s denial of relief on his pretrial application for writ of habeas corpus.. In a single issue, Castellano argues that the trial court abused its discretion by not reinstating the personal bond that had been granted him pursuant to code of criminal procedure article 17.151. Tex. Code Crim. Proc. Ann. art. 17.151 (Vernon Supp.2009). We will reverse and remand.

This appeal is presented on stipulated facts. Castellano and the State entered into the following stipulation of evidence, which the trial court admitted at the hearing on the application:

1. Phillip A. Castellano, the Defendant in this cause, was arrested without a warrant in Clay County, Texas by a Texas Department of Public Safety Trooper and charged with the felony offense of Possession of a Controlled Substance on July 25, 2008.
2. The Defendant’s bond was set at $10,000. The Defendant was found to be indigent and counsel was appointed to represent him. The Defendant was financially unable to make his bail at the amount set by the magistrate.
3. The Defendant remained continuously incarcerated on the charge in the Clay County Jail for more than ninety (90) days without being indicted. During the initial ninety days of his incarceration the State was not ready for trial. On October 24, 2008 the State agreed to release the Defendant on a personal recognizance bond pursuant to Art. 17.151, Code of Criminal Procedure.
4. The Defendant posted a personal recognizance bond and was released from the Clay County [J]ail on October 24, 2008.
5. On September 21, 2009 the Defendant was indicted by the Clay County Grand Jury on the same charge. The District Court set the Defendant’s bond at $100,000 and ordered his arrest by capias. The Defendant was re-arrested and jailed a second time for the same charge.
6. The Defendant was not arrested or charged with any other or additional offense other than the original charge for which he received a personal recognizance bond. No bond hearing was requested or held regarding the revocation or continuation of the Defendant’s original personal recognizance bond.
7. The Defendant remains indigent and financially unable to post the bond set by the Court, or a bond in any amount.

The following exchange occurred between the trial court and Castellano at the writ hearing:

THE COURT: So we’re faced with a situation where the initial bond is set; then because of the delay of getting test results back from the DPS lab with regard to what the seized substance is, a defendant is entitled to a personal recognizance bond. And then after indictment when I set a bond — Tim, your position is: He’s still entitled to remain out on personal recognizance bond? [Castellano’s counsel]: That’s correct, Judge.
THE COURT: Okay. I’m going to deny [the] application for writ of habeas corpus.

In his only issue, Castellano argues that the trial court abused its discretion by not reinstating the personal bond that had been granted him on October 24, 2008, pursuant to article 17.151 because, having been released on personal bond, nothing in article 17.151 permitted the State to rearrest him and to begin anew the ninety-day period in that article as a result of only the post-release return of the indictment against him. Castellano contends that “[a]rticle 17.151 contains no exceptions that allow the bond to be reset or reinstated once a defendant is indicted after his initial release.”

We review a trial court’s decision to deny relief on a claim that the State violated article 17.151 for an abuse of discretion. Ex parte Craft, 301 S.W.3d 447, 448 (Tex.App.-Fort Worth 2009, no pet.); see Jones v. State, 803 S.W.2d 712, 719 (Tex.Crim.App.1991). Therefore, we will not disturb the trial court’s ruling if it was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991).

A defendant who is detained in jail pending trial of a felony accusation against him must be released either on personal bond or by reducing the amount of bail required if the State is not ready for trial of the criminal action for which he is detained within ninety days from the commencement of his detention. Tex. Code Crim. Proc. Ann. art. 17.151, § 1(1). “The Legislature couched [article] 17.151 in unmistakably mandatory terms: ‘[I]f the State is not ready for trial within 90 days after commencement of detention for a felony ... the trial court has two options: release upon personal bond or reduce the bail amount.’ ” Ex parte Ancira, 942 S.W.2d 46, 47 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (citing Rowe v. State, 853 S.W.2d 581, 582 (Tex.Crim.App.1993)); see Kernahan v. State, 657 S.W.2d 433, 434 (Tex.Crim.App.1983).

When the defendant complains that the State was not ready within the statutory time period, the State has the burden to make a prima facie showing that it was ready within the applicable time period. Jones, 803 S.W.2d at 717. The State may accomplish this either by announcing ready within the time allotted or by announcing retrospectively that it had been ready within the time allotted. Id. The State cannot announce ready for trial when there is no indictment. Ex parte McNeil, 772 S.W.2d 488, 489 (Tex.App.Houston [1st Dist.] 1989, no pet.) (citing Pate v. State, 592 S.W.2d 620, 621 (Tex.Crim.App. [Panel Op.] 1980)). “It is not enough that the State appear in open court after the running of the applicable period and declare itself at that time ready for trial.” Jones, 808 S.W.2d at 717.

This appeal is different from the vast majority of habeas corpus appeals involving article 17.151 because Castellano is challenging the trial court’s order declining to reinstate the personal bond that had previously been granted him under article 17.151 but revoked following his indictment. Cf. Craft, 301 S.W.3d at 448-49 (reversing trial court’s order denying ha-beas relief under article 17.151); Ex parte Hicks, 262 S.W.3d 387, 389 (Tex.App.-Waco 2008, no pet.) (reversing trial court’s order setting bail and remanding cause to the trial court with instructions to release appellant on personal bond); Ex parte Avila, 201 S.W.3d 824, 826-27 (Tex.App.Waco 2006, no pet.) (reversing trial court’s order setting bail and remanding cause to the trial court with instruction to release appellant on personal bond); Ex parte Venegas, 116 S.W.3d 160, 163-65 (Tex.App.-San Antonio 2003, no pet.) (reversing trial court’s order denying appellant’s motion for bond under section 17.151); Haynes v. State, No. 11-09-00135-CR, 2009 WL 2680744, at *1 (Tex.App.-Eastland Aug. 28, 2009, no pet.) (mem. op., not designated for publication) (reversing trial court’s order denying appellant’s application under article 17.151). We have located only one case containing similar facts and addressing this similar issue: Ex parte Griffin, Nos. 05-02-00803-CR, 05-02-00804-CR, 2002 WL 1822726, at *1-2 (Tex.App.-Dallas Aug. 9, 2002, no pet.) (not designated for publication).

In Griffin, authorities arrested Griffin for two charges of aggravated robbery in November 2001. Id. at *1. In February 2002, the trial court released Griffin on two personal bonds pursuant to article 17.151 because the State was not ready to proceed to trial within ninety days. Id. In March 2002, Griffin was arrested on a misdemeanor theft charge and later released on a $150 bond, but the State made no attempt to revoke the two personal bonds based on his arrest for the new misdemeanor charge. Two weeks later, the grand jury returned indictments charging Griffin with aggravated robbery, and authorities arrested Griffin the following day. Id. The trial court revoked the personal bonds and set the bonds at $50,000 each. Again, Griffin filed applications for writs of habeas corpus, seeking either a bond reduction or release on personal bond because the State was not ready for trial within ninety days of Griffin’s initial arrest for the aggravated robbery charges. Id. The trial court denied the habeas relief and continued the bonds at $50,000. Id. Griffin appealed, and the court of appeals reversed the trial court’s order denying Griffin’s application and remanded the cause to the trial court with directions to enter an order releasing Griffin on personal bonds. Id. at *2. The court reasoned as follows:

[I]t is undisputed that [Griffin] was not indicted until 127 days after he was first detained on the aggravated robbery charges. Thus, the State was not ready for trial within ninety days of [Griffin’s] initial detention and, pursuant to article 17.151, [Griffin] was entitled to release at the time the first motion was filed, either on personal bond or by reducing the amount of bail required for a felony offense. In reaching this conclusion, we necessarily reject the State’s suggestion that the return of the indictments was a circumstance supporting the trial court’s denial of the relief [Griffin] requested. The statute requires the State to announce ready within ninety days after commencement of detention. The statute does not permit the State to obtain an indictment, rearrest [Griffin] and begin the ninety day period anew from the date of the indictment or rearrest. To accept the State’s argument would render article 17.151 meaningless, and we decline to do so.

Id. (emphasis added).

To the extent the court of appeals in Griffin held that article 17.151 does not permit the State to rearrest a defendant who had previously been released on personal bond under article 17.151 and to begin anew the ninety-day period in that article as a result of only the post-release return of the indictment against the defendant, we agree with this holding and find it applicable to the narrow issue raised by Castellano in this appeal. The stipulated evidence demonstrates that the trial court released Castellano on personal bond pursuant to article 17.151 after he had remained continuously incarcerated on the possession charge for more than ninety days without being indicted. The State thereafter rearrested Castellano after he was indicted for the same possession offense. As addressed below, the return of the indictment is the only evidence in the record that supports the trial court’s decisions to revoke Castellano’s personal bond, to set the bond at $100,000, and to deny his requested relief to reinstate the personal bond. Article 17.151, however, “does not permit the State to obtain an indictment, rearrest [Castellano][,] and begin the ninety day period anew from the date of the indictment or rearrest.” Id.

The State argues that the trial court did not abuse its discretion by denying Castel-lano’s requested relief because article 17.09 authorizes a trial judge to require the accused to give another bond in such amount as the judge may deem proper for any “good and sufficient cause.” Indeed, to the extent the court of appeals’s holding in Griffin can be construed to mean that a trial court may never revoke a defendant’s personal bond after having released the defendant on personal bond pursuant to article 17.151, we disagree with any such holding. Code of criminal procedure article 17.09, section 3 permits a judge or magistrate who “finds that the bond is defective, excessive or insufficient in amount, or that the sureties, if any, are not acceptable, or for any other good and sufficient cause” to “order the accused to be rearrested, and require the accused to give another bond in such amount as the judge or magistrate may deem proper.” Tex. Code Crim. Proc. Ann. art. 17.09, § 3 (Vernon Supp.2009). But whether the return of the felony indictment against Castellano on September 21, 2009, was an event constituting “good and sufficient cause” under article 17.09, section 3 (and thus possibly supporting the trial court’s 'denial of relief on that ground) is not a consideration in this appeal because the stipulated facts contain no evidence that the State ever initiated procedures against Castellano in which it sought relief consistent with article 17.09, section 3 or that the trial court ever held a bond hearing regarding the revocation of Castellano’s personal bond. In other words, there is no evidence that the trial court revoked Castellano’s personal bond and set his bond at $100,000 pursuant to 17.09, section 3. Instead, stipulation of evidence number six states in relevant part that “[n]o bond hearing was requested or held regarding the revocation or continuation of [Castellano’s] original personal recognizance bond.” The limited facts of this case therefore bring this appeal within only the express holding of Griffin.

Accordingly, we sustain Castellano’s only issue, reverse the trial court’s order denying habeas relief, and remand this case to the trial court with directions to enter an order releasing Castellano on personal bond.

      . The stipulated evidence refers to Castellano as being released on a "personal recognizance bond.” "Although this is a commonly-used term, the pertinent statutes use the term •‘personal bond.’ ” Watson v. State, 158 S.W.3d 647, 648 n. 1 (Tex.App.-Waco 2005, no pet.) (citing Tex.Code Crim. Proc. Ann. art. 17.03 (Vernon Supp.2009), 17.031 (Vernon 2005), 17.032 (Vernon Supp.2009), 17.04 (Vernon 2005)); see Lee v. State, 641 S.W.2d 533, 534 n. 1 (Tex.Crim.App.1982) ("There is no form of bail known as a ‘personal recognizance bond' in Texas criminal practice.”).

      . The grand jury indicted Castellano for the first-degree felony offense of possession of a controlled substance weighing more than 200 grams but less than 400 grams. See Tex. Health & Safety Code Ann. § 481.115(e) (Vernon 2010).

      . Section 2 of article 17.151 specifically provides,
      Sec. 2. The provisions of this article do not apply to a defendant who is:
      (1) serving a sentence of imprisonment for another offense while the defendant is serving that sentence;
      (2) being detained pending trial of another accusation against the defendant as to which the applicable period has not yet elapsed;
      (3) incompetent to stand trial, during the period of the defendant’s incompetence; or
      (4) being detained for a violation of the conditions of a previous release related to the safety of a victim of the alleged offense or to the safety of the community under this article.
      Tex.Code Crim. Proc. Ann. art. 17.151, § 2. None of the exceptions are applicable to this appeal.

      . The State had not obtained indictments against Griffin at that time. Griffin, 2002 WL 1822726, at *1.

      . But see Dixon v. State, 866 S.W.2d 115, 116 (Tex.App.-Waco 1993, no pet.) (stating that article 17.151 "does not require the State to ‘announce’ its readiness for trial within ninety days.”).

      . The case law that the State directs us to is equally inapposite. See Smith v. State, 161 S.W.3d 191, 192 (Tex.App.-Texarkana 2005, no pet.); Haynes, 2009 WL 2680744, at *1.


author: KENT C. SULLIVAN, Justice.

text:
    Joshua WOHLSTEIN, Appellant, v. Ron ALIEZER and ASW Allstate Painting & Construction, Inc., Appellees.
    No. 14-08-00751-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 17, 2010.
    Rehearing Overruled Sept. 16, 2010.

      John Hatchett McFarland, William G. “Bud” Arnot III, Houston, for appellant.
    Robert A. Axelrad, Houston, for appel-lees.
    Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN.
   OPINION

KENT C. SULLIVAN, Justice.

Appellant, Joshua Wohlstein, sued a professional rival, appellee Ron Aliezer, for interfering with — and causing the breakup of — his business partnership. The trial court granted summary judgment to Aliezer and his company, appellee ASW Allstate Painting & Construction, Inc. (“ASW”), prompting this appeal.

We conclude the evidence raises a fact issue as to some of Wohlstein’s claims for tortious interference and fraudulent transfer. Therefore, we reverse those portions of the trial court’s judgment. Otherwise, we affirm as to the remaining causes of action.

I.

BACKGROUND

The relevant facts, viewed in the light most favorable to Wohlstein, recount a series of business transactions between a construction contractor, Ofer Manashe, and two of his subcontractors, appellant Wohlstein and appellee Aliezer. Manashe plays a significant role in these underlying facts but is not a party to this appeal.

In early 2005, Manashe, the owner and operator of Sandstone Construction, Inc. (“Sandstone”), agreed to a series of construction contracts for the renovation of twelve apartment complexes. However, because he had planned to leave the country for several months that year, he worried about Sandstone’s ability to complete the work in his absence.

Therefore, he approached Wohlstein, one of his subcontractors, and proposed an arrangement whereby Wohlstein would complete the projects on Sandstone’s behalf, in exchange for a fifty-percent share in the profits from those jobs. According to Wohlstein, the parties also discussed a similar agreement covering a series of future construction projects to occur in 2006 and 2007.

Wohlstein agreed to this oral proposal, which was never reduced to writing. He has described his relationship with Ma-nashe, at least with respect to those twelve construction projects, as a “partnership.” Nevertheless, Wohlstein apparently held himself out to others, including Aliezer, as merely a “supervisor” for Sandstone. Whatever his actual role within Sandstone — which is disputed — he was designated sole signatory on the company’s bank account during Manashe’s absence.

By January 2006, Sandstone had completed all twelve construction projects and, by doing so, earned roughly $2.4 million in net profits. Wohlstein asserts, under the terms of his oral contract with Manashe, he is entitled to half that amount, or $1.2 million. However, his demand has not been paid because, once the work was complete, Manashe allegedly reneged on the agreement to share profits with Wohl-stein.

Wohlstein blames his rival Aliezer, at least in part, for Manashe’s refusal to hon- or their partnership agreement. Aliezer, who has been Manashe’s friend for more than thirty years, admitted he was offended by his exclusion from the lucrative apartment-renovation projects and made his displeasure known to Manashe:

Q. Is it accurate to say that you felt like Sandstone Construction should have awarded those 12 jobs to ASW Allstate?
A. Of course. Yes. That was my understanding to begin with.
Q. Did you ever advise Ofer Manashe that you felt it was unfair that he had awarded those contracts or that he decided to pursue those contracts with Joshua Wohlstein instead of with ASW Allstate?
A. I did tell him about this.

Appellant claims that, in response to that conversation, Manashe agreed to renege on his partnership agreement with Wohlstein. That plan, however, was not without obstacles. Because Wohlstein was sole signatory on Sandstone’s bank account, once expelled from the partnership, he could simply write himself a check covering his $1.2 million share of net profits. To guard against that possibility, Manashe and Aliezer allegedly conspired to empty the Sandstone account before notifying Wohlstein of his ouster from the partnership.

Thus, in late January 2006, Aliezer asked Wohlstein, reportedly on Manashe’s behalf, to withdraw a large sum of money from the Sandstone account. Aliezer represented the money would be wired overseas to Manashe, who had become cash-strapped and in need of funds. Wohlstein accommodated the request and wrote Al-iezer several checks totaling $1,090,000. These withdrawals effectively depleted the Sandstone account.

However, Aliezer did not wire the money to Manashe as promised. Instead, he deposited the funds directly into an account belonging to his own company, ASW. He then filed at least four assumed-name certificates with the Harris County clerk, listing himself as the sole owner of four new Sandstone companies: Sandstone Construction, Sandstone Painting, Sandstone Construction and Painting, and Sandstone Painting and Construction.

Through those new entities, Aliezer purported to take over Sandstone’s business, evidently with Manashe’s approval. Ma-nashe informed appellant that the business had been sold to Aliezer, and he further notified Sandstone’s clients that Wohlstein was no longer affiliated with the company.

Wohlstein immediately filed suit against Manashe, Sandstone, Aliezer, and ASW. Aliezer and ASW filed a traditional and no-evidence motion for summary judgment. The court granted the motion without specifying the basis for its ruling. Following severance, the summary judgment became final.

This appeal followed. Generally, appellant contends the trial court erred by granting summary judgment because the record raises a fact issue as to his claims for tortious interference, participation in breach of fiduciary duty, fraud, negligent misrepresentation, conspiracy, and fraudulent transfer.

II.

Standard of Review

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

On appeal, we review the summary-judgment motion and evidence de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). We must consider the evidence in the light most favorable to the non-movant — here, Wohlstein— while indulging reasonable inferences and resolving doubts in his favor. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005); Va. Power, 297 S.W.3d at 402. When the summary-judgment order fails to specify the basis for the trial court’s ruling, as here, we will affirm on any meritorious argument advanced in the motion. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Ortiz v. Collins, 203 S.W.3d 414, 420 (Tex.App.Houston [14th Dist.] 2006, no pet.). In that scenario, the appellant must therefore demonstrate the trial court could not properly grant summary judgment on any ground asserted in the motion. See Chappell Hill Bank v. Smith, 257 S.W.3d 320, 324 (Tex.App.-Houston [14th Dist.] 2008, no pet.).

III.

Analysis

In his petition, Wohlstein advanced six causes of action against appellees: (1) tor-tious interference, (2) participation in breach of fiduciary duty, (3) fraud, (4) negligent misrepresentation, (5) civil conspiracy, and (6) violation of the Texas Uniform Fraudulent Transfer Act (“TUFTA”). These multiple theories may be grouped, for the sake of disposition, into two general allegations of wrongdoing.

First, Wohlstein contends appellees improperly interfered in his relationship with Manashe, causing the latter to breach their partnership agreement, and thereby deprived appellant of an equal share of Sandstone’s past and future profits. Second, appellant claims appellees tricked him into voluntarily transferring $1,090,000 out of the partnership’s bank account and into ASWs coffers. We will address each group separately, beginning with Wohl-stein’s interference-related claims.

A. Interference-Related Claims

This set of claims encompasses two causes of action: tortious interference and knowing participation in breach of fiduciary duty. Both theories arise from the same operative facts. Specifically, appellant contends Aliezer encouraged Manashe to expel Wohlstein from the alleged partnership and, in so doing, breach various fiduciary duties owed him.

1. Tortious Interference

The parties further subdivide Wohl-stein’s tortious-interference allegations into two distinct subsets: (1) interference with the oral partnership agreement respecting the twelve apartment-renovation projects in 2005, and (2) interference with an agreement to collaborate on future construction jobs in 2006 and 2007. Because appellees presented different summary-judgment grounds for these two categories, we handle each group separately.

a. 2005 Projects

As to the already-completed work, ap-pellees presented two grounds for traditional summary judgment. We find no merit in either argument.

First, appellees argued that Wohl-stein, in his deposition, expressly disavowed any claim for tortious interference during the following exchange:

Q. [Wjhen you mentioned earlier what claims you had against my client [Aliezer], you mentioned ... that you have a claim against my client for interfering with your contract. Do you remember saying that?
A. Yes. But that’s not a claim that I made, 1 just responded to him. He said something about I interfered with him, so I said, you know, I — it’s not my claim.
Q. Okay. So that’s not what you’re claiming?
MR. McFARLAND: Form.
Q. So that’s — I’m sorry. That’s not what you’re claiming?
MR. McFARLAND: Form.
A. No.

However, even were we to read that portion of the deposition as some sort of binding admission, Wohlstein clarified that testimony through an errata sheet that accompanied the signature page to his deposition. Noting he had misunderstood counsel’s questions, Wohlstein corrected that testimony to read, “It is my claim.” See Tex.R. Civ. P. 208.1(b) (permitting a witness to make corrections or revisions to his deposition testimony). Therefore, that equivocal testimony, later revised, cannot form the basis for summary judgment.

Second, Aliezer testified, by affidavit, that he was unaware of any partnership involving Wohlstein — inasmuch as he had been told appellant was simply a “supervisor” — and therefore could not be liable for the intentional tort of interference. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex.2002) (confirming a tortious-interference claim requires proof that the defendant willfully and intentionally interfered with the claimant’s contract). Specifically, Aliezer testified:

In 2005, I was told by Joshua Wohl-stein that he was working for Ofer Ma-nashe as a supervisor for $3,000 per month. I had no knowledge of the existence of any other alleged agreements between Wohlstein and Sandstone, or of the alleged terms of any other alleged agreement between Wohlstein and Sandstone, until after the relationship between Wohlstein and Sandstone terminated in mid-February of 2006.

However, summary judgment should generally not be granted as to issues of knowledge or intent because the non-movant cannot readily controvert a defendant’s self-serving denials. See Tex.R. Civ. P. 166a(c) (“A summary judgment may be based on uncontroverted testimonial evidence of an interested witness ... if the evidence ... could have been readily controverted.”); Frias v. Atl. Richfield Co., 999 S.W.2d 97, 106 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); RRR Farms, Ltd. v. Am. Horse Prot. Ass’n Inc., 957 S.W.2d 121, 132 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). Here, the factfinder’s determination of appellees’ knowledge and intent turns, at least in part, upon Aliezer’s credibility. See Frias, 999 S.W.2d at 106. Therefore, the trial court could not properly grant summary judgment on that basis. See id.

Here, neither ground asserted by appel-lees supports summary judgment on tor-tious interference arising from the 2005 construction projects. Therefore, we reverse that portion of the judgment.

b. 2006/2007 Projects

However, we affirm summary judgment as to alleged interference with the 2006/2007 construction contracts because appellant did not challenge every ground asserted below. Specifically, appellees moved for traditional summary judgment on their affirmative defense of justification. See Butnaru, 84 S.W.3d at 207; Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77-78 (Tex.2000); Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 857 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Wohlstein did not respond to that argument in its summary-judgment response or appellate brief.

An appealing party must challenge and negate all possible grounds on which summary judgment could have been granted; otherwise, we must uphold the judgment on that basis. See Chappell Hill Bank, 257 S.W.3d at 324; De Laurentis v. United Servs. Auto. Ass’n, 162 S.W.3d 714, 726 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). Because Wohlstein failed to do so, we affirm that portion of the judgment. See Chappell Hill Bank, 257 S.W.3d at 324.

2. Participation in Breach of Fiduciary Duty

Similarly, Wohlstein did not respond to a no-evidence summary-judgment ground raised in response to his claim for knowing participation in breach of fiduciary duty. Specifically, appellees denied liability because there was no evidence Aliezer knew of the existence of any relationship giving rise to such duties. See Baty, 63 S.W.3d at 863 (“[W]here a third party knowingly participates in the breach of duty of a fiduciary, such third party becomes a joint tortfeasor with the fiduciary and is liable as such.”) (emphasis added) (citations omitted).

As previously noted, issues of intent and knowledge are generally inappropriate for summary judgment. See Frias, 999 S.W.2d at 106. Nevertheless, because appellant wholly failed to respond to a no-evidenee point, the trial court was obligated to grant the motion. See Tex.R. Civ. P. 166a(i) (stating a court must grant a no-evidence motion absent a response raising a genuine issue of material fact); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008); Arguelles v. Kellogg Brown & Root, Inc., 222 S.W.3d 714, 723 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

Accordingly, we affirm that portion of the trial court’s judgment.

B. Transfer-Related Claims

Wohlstein’s second category of claims— fraud, negligent misrepresentation, conspiracy, and fraudulent transfer — arise from Aliezer’s allegedly deceitful removal of money from the partnership bank account. Generally, appellant contends Al-iezer misrepresented his plans to wire the withdrawn funds to Manashe, at the latter’s request, when his actual intent was simply to wrest the money from Wohl-stein’s control.

1. Fraud and Negligent Misrepresentation

Appellees moved for summary judgment on fraud and negligent misrepresentation, arguing Wohlstein did not incur any damages as a result of the transfer. See Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex.2009) (confirming fraud claim requires proof of some legal injury); Lennar Corp. v. Great Am. Ins. Co., 200 S.W.3d 651, 696 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (requiring proof of pecuniary loss to support negligent-misrepresentation claim). In support, they offered Wohl-stein’s deposition testimony, in which he (1) denied any ownership interest in the transferred funds and (2) admitted Sandstone — and, by extension, Manashe — could freely distribute its own money in its sole discretion.

While conceding those evidentiary points, Wohlstein suggests he suffered a legal injury because, although he did not own the funds in Sandstone’s account, the transfer reduced his bargaining “leverage” with Manashe. He testified:

[T]hese funds had nothing to do with the money that [Aliezer] wants to, you know, move overseas.
It wasn’t his money in the first place and he basically — he—he defraud[ed] me. He lied to me, kept telling me that’s the reason he did it. He did it to get the funds out of the account so, at the end of the day, him and — he-—I mean Ofer Manashe and he would have all the money in their possession and they can basically tell me to — to take a hike.
I was worse off just from the fact that the money was, you know, got out of my account. I had nothing to do with the money going overseas. It has nothing— none of my business, if he didn’t move it or whatever. I was worse off because the funds got out of my control.
... I’m suing Ronnie Aliezer because ... he lied to me about the way to do it by telling me he can move the money overseas — overseas to put Ofer in a better bargaining position later on or him helping him, for me to — to—how much money I would get for the jobs I performed.

His briefing reframes that testimony as follows:

Aliezer’s inducing [Wohlstein] into transferring $1,090,000 out of his control so that Sandstone could effectively renege on the obligation to pay him his share of the profits on the twelve projects caused him damages....
... The point was that Wohlstein would not have the funds on hand when Manashe pulled the plug on the relationship and refused to pay him his share[.]

But, as this court has observed, Texas law does not currently recognize “lost bargaining leverage,” by itself, as a legally compensable injury. See Swanson v. Wells Fargo Home Mtge., No. 14-02-00732-CV, 2008 WL 22945646, at *3 (Tex. App.-Houston [14th Dist.] Dec. 16, 2003, no pet.) (mem. op.). Swanson featured this same legal issue in a slightly different factual context, and therefore merits some further discussion.

The dispute in Swanson involved a construction loan agreement that required written authorization by the homeowners — the Swansons — before funds could be disbursed to the home builder. See id. at *1. Notwithstanding that clause, the lender — Norwest—made several disbursements to the builder without seeking the Swansons’ approval. See id. The Swansons later discovered multiple construction defects in their home but were unable to locate the builder, so they sued the lender instead. See id. at *1 n. 1. They contended Norwest breached the loan agreement by making unauthorized disbursements to the builder, and they sought damages for the cost to remedy the construction defects. See id. at *1.

Norwest moved for summary judgment, arguing its conduct did not cause the Swansons’ alleged damages. See id. at *2. In response, the claimants insisted Nor-west, by paying the builder without their consent, deprived them of “leverage” they could have wielded to withhold payment and thereby force the builder to correct the defects. See id. at *2-*3. This court declined to recognize that claim:

To recover compensatory damages [for breach of contract], the plaintiff must prove that he suffered some pecuniary loss as a result of the breach. The evidence must demonstrate the damages are the natural, probable, and foreseeable consequence of the defendant’s conduct. The right to recover for the breach of - a contract will be defeated if (1) no damage was suffered by the complaining party despite the breach, or (2) if the damages which he sustained did not result from the breach....
... The Swansons ... claim that by not obtaining their consent to disbursement requests, they did not have an “opportunity to stop construction to alleviate defects.”
The alleged “damage” to the Swanson’s, i.e., lack of leverage, was not a foreseeable consequence of Norwest’s purported breach of the loan agreement.

Id. (citations omitted). Accordingly, this court affirmed summary judgment on all claims. See id. at *3.

Here, as in Swanson, the claimant has not shown he incurred any legal injury solely as a result of the transfer. To the contrary, Wohlstein conceded his lost-profits claim against Manashe does not hinge on the physical location of the funds withdrawn from Sandstone’s bank account. Therefore, we affirm summary judgment as to those claims — fraud and negligent misrepresentation — which require proof of damages as a prerequisite to recovery.

2. Conspiracy to Commit Fraud

Finding no viable fraud claim, we must also affirm summary judgment on Wohlstein’s derivative claim for conspiracy to commit fraud. A successful claim for civil conspiracy requires proof that two or more persons, with the mutual intent to achieve some goal, committed one or more overt and unlawful acts, thereby resulting in damages to the claimant. See Baty, 63 S.W.3d at 864. Civil conspiracy is often described as a “derivative tort” because a defendant’s liability requires proof of his participation in another underlying tort for which the plaintiff seeks to hold him hable. See id. (citing Tilton v. Marshall 925 S.W.2d 672, 681 (Tex.1996)).

Here, the underlying tort, according to Wohlstein’s pleadings, was fraud. However, we have already determined the trial court properly granted summary judgment as to fraud. Therefore, we must affirm summary judgment on Wohlstein’s derivative claim for conspiracy to commit fraud. See Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 583 (Tex.2001) (holding summary judgment as to fraud claim disposed of dependent conspiracy claim); Rodarte v. Investeco Group, L.L.C., 299 S.W.3d 400, 413 (Tex.App.Houston [14th Dist.] 2009, no pet.); Baty, 63 S.W.3d at 864.

3. Fraudulent Transfer

However, a successful claim under the Texas Uniform Fraudulent Transfer Act (“TUFTA”) does not require proof of actual damages resulting from a transfer. See Tex. Bus. & Comm.Code Ann. §§ 24.005-.006 (Vernon 2009) (setting forth elements of fraudulent-transfer claim). Thus, Wohl-stein’s inability to demonstrate actual damages — though fatal to his claims for fraud and negligent misrepresentation and, by extension, conspiracy — does not necessarily affect his claims under TUFTA.

TUFTA was designed to prevent a debtor from defrauding its creditors by moving assets out of reach. See Mladenka v. Mladenka, 130 S.W.3d 397, 404 (Tex.App.-Houston [14th Dist.] 2004, no pet.). To accomplish that end, TUFTA permits a creditor, under certain circumstances, to set aside a debtor’s fraudulent transfer of assets. See Tex. Bus. & Comm.Code Ann. § 24.008(a) (Vernon 2009); Goebel v. Brandley, 174 S.W.3d 359, 362 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). A transfer may be considered fraudulent, under the relevant portions of the statute, if done with “actual intent to hinder, delay, or defraud any creditor of the debtor.” Tex. Bus. & Comm.Code Ann. § 24.005(a)(1).

In this case, appellees presented three summary-judgment grounds, arguing (1) Wohlstein sought only money damages which, they insist, cannot be recovered under TUFTA; (2) appellees did not qualify as “transferees,” and therefore cannot be held liable under TUFTA, because they did not exercise legal dominion or control over the transferred funds; and (3) there was no evidence of Manashe’s intent to “hinder, delay, or defraud” Wohlstein. We find these arguments unconvincing, and therefore reverse summary judgment as to Wohlstein’s TUFTA claims.

a. Recoverability of Money Damages Under TUFTA

First, appellees suggest Wohl-stein’s request for money damages runs afoul of section 24.008, which entitles a successful claimant to avoid “the transfer or obligation to the extent necessary to satisfy the creditor’s claim.” Id. § 24.008(a)(1). We disagree. Chapter 24 authorizes both equitable relief — that is, nullification of a fraudulent transfer — and money damages up to the value of the property transferred. See id. §§ 24.008, 24.009(b), (c); Chu v. Hong, 249 S.W.3d 441, 446 (Tex.2008). Accordingly, the trial court could not properly grant summary judgment on that basis.

b. Appellees’ Status as Transferees

Second, appellees contend this transaction does not qualify as a “transfer,” and therefore is not governed by TUFTA, because they did not receive the money as “transferees.” In support, ap-pellees cite Newsome v. Charter Bank Colonial, in which this court defined a “transferee” as one with “legal dominion or control over the funds ... [and] the right to put the money to one’s own use.” 940 S.W.2d 157, 165 (Tex.App.-Houston [14th Dist.] 1996, writ denied). Stated differently, a party is a “transferee,” within the meaning of TUFTA, if it could freely “invest the whole [amount] in lottery tickets or uranium stocks,” if it so desired. Id. (quoting Matter of Coutee, 984 F.2d 138,141 (5th Cir.1993)).

Under that definition, a bank impounding funds under a writ of garnishment would not qualify as a transferee, nor would a law firm holding its client’s money in trust, because neither could freely spend the funds in its possession. See Newsome, 940 S.W.2d at 166; Coutee, 984 F.2d at 141. This case, however, does not resemble either of those scenarios.

Instead, the evidence indicates appellees accepted the transferred funds as an advance relative to various construction projects. The record suggests no limitations on their use of these funds. Therefore, we hold the evidence raises a fact issue under TUFTA. See Walker v. Anderson, 232 S.W.3d 899, 916-17 (Tex.App.-Dallas 2007, no pet.) (holding loan advances qualified as “transfers” under TUFTA). Accordingly, the trial court could not have properly granted summary judgment on that basis.

c. Evidence of Intent to Defraud

Third, appellees claim the record contains no evidence of Manashe’s intent to “hinder, delay, or defraud” Wohl-stein, a necessary element of his TUFTA cause of action. See Tex. Bus. & Comm. Code Ann. § 24.005(a)(1). However, that issue is not appropriate for summary judgment, except in limited circumstances not present here, because intent, like knowledge, is a question of fact generally reserved for the jury. See Hahn v. Love, 321 S.W.3d 517, 525-29 (Tex.App.-Houston [1st Dist.] 2009, pet. denied); Coleman Cattle Co. v. Carpentier, 10 S.W.3d 430, 433-34 (Tex.App.-Beaumont 2000, no pet.).

Moreover, Wohlstein presented evidence raising a fact question as to Manashe’s intent to defraud which, in the absence of direct proof, may be shown through circumstantial evidence. See Mladenka, 130 S.W.3d at 405. Under section 24.005(b), fraudulent intent may be inferred from a consideration of several non-exclusive factors, sometimes called “badges of fraud.” See id. (citing Tex. Bus. & Comm.Code Ann. § 24.005(b)). Although there is no magic number of factors that must exist, the presence of several “badges” may support an inference of fraud. See id.; Walker, 232 S.W.3d at 914; G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 843 (Tex.App.-Dallas 2006, no pet.).

Here, the record contains at least some evidence of several “badges” which, if believed, could support an inference of fraudulent intent, including:

• the transfer was made to an “insider”;
• the debtor — Sandstone—ultimately retained possession or control of the funds after the transfer;
• the transfer was of substantially all Sandstone’s assets; and
• the transfer occurred at a time — January through February 2006-shortly before or after Sandstone incurred a substantial debt to Wohlstein, who claimed a fifty-percent interest in profits from construction projects that had just been completed in January 2006.

See Tex. Bus. & Comm.Code Ann. § 24.005(b)(1), (2), (5), (10). We hold that evidence, considered in the light most favorable to Wohlstein, raises a fact issue precluding summary judgment as to Ma-nashe’s fraudulent intent. See Mladenka, 130 S.W.3d at 405. Accordingly, we reverse judgment on Wohlstein’s fraudulent-transfer claims under chapter 24.

C. Mental Anguish Damages

Finally, the trial court granted summary judgment on Wohlstein’s request for an award of mental anguish damages. He does not challenge that ruling on appeal. Therefore, we affirm the trial court’s judgment as to that claim. See Sonic Sys. Int’l, Inc. v. Croix, 278 S.W.3d 377, 389 n. 19 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); see also Garcia v. State Farm Lloyds, 287 S.W.3d 809, 820-21 (Tex.App.-Corpus Christi 2009, pet. denied) (affirming summary judgment on claimant’s alleged mental-anguish damages); Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 842 (Tex.App.-Dallas 2008, no pet.) (same).

IV.

Conclusion

We hold the evidence raises a fact issue that precludes summary judgment on Wohlstein’s claims that appellees (1) tor-tiously interfered with his 2005 construction contract and (2) participated in a fraudulent transfer of assets under chapter 24 of the Texas Business and Commerce Code. Therefore, we reverse summary judgment as to those claims and remand them to the trial court. Otherwise, we affirm the judgment in all respects as to Wohlstein’s remaining claims.

      . See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Although appel-lees tell a different version of this story, to the extent of any conflicts in the summary-judgment evidence, we are bound to accept Wohl-stein’s account. See id.

      . The trial court severed Wohlstein's claims against appellees from the main lawsuit against Manashe, and this appeal arises from those severed claims.

      . Manashe has denied the existence of any agreement, oral or otherwise, to share profits with Wohlstein.

      . Appellant suggests Manashe chose him for these projects, instead of Aliezer, because he offered Manashe a greater share of profits (fifty percent) than Aliezer customarily did (fifteen percent).

      .The record does not indicate the whereabouts of the remaining profits from the $2.4 million construction project.

      . Appellant does not challenge the trial court’s rulings denying his motion for reconsideration and motion for new trial.

      . Appellees presented a no-evidence point relating to the 2006/2007 projects but not those undertaken in 2005. Specifically, he argued in his motion:
      There is no evidence that Aliezer had knowledge of the alleged 2006/2007 agreement or of Wohlstein’s alleged interest in it or that Aliezer had knowledge of such facts and circumstances that would lead a reasonable person to believe that mere was a
      contract in which Wohlstein had an interest. ...
      ... There is no evidence that Aliezer took an active part in persuading Manashe and Sandstone to terminate the alleged 2006/2007 agreement between Wohlstein and Sandstone.
      (Emphases added).

      . During oral argument, counsel confirmed English is not appellant’s native language.

      . Appellees also contend the oral contract was unenforceable under the Statute of Frauds. Because we affirm on other grounds, we need not address that argument. See Tex.R.App. P. 47.1.

      . Specifically, Aliezer argued, "as set forth above, there is no evidence that Aliezer had any knowledge of the alleged joint venture relationship between Sandstone and Wohl-stein or of the terms of any such alleged relationship."

      . Notably, Wohlstein did not assert a conversion claim against Aliezer. See Hunt v. Baldwin, 68 S.W.3d 117, 131 (Tex.App.-Houslon [14th Dist.] 2001, no pet.).

      . In addition, appellees asserted (1) Aliezer's alleged misrepresentation was immaterial and insufficient to support a fraud claim, and (2) Wohlstein did not rely on Aliezer’s promise to send money overseas, and therefore had no viable claim for fraud or negligent misrepresentation. See Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001) (listing elements of common-law fraud); McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.1999) (stating elements of negligent misrepresentation). Because we affirm summary judgment on other grounds — the absence of recoverable damages — we need not address these alternative contentions. See Tex.R.App. P. 47.1.

      . Emphases added.

      . Our research also uncovered other jurisdictions that apparently decline to recognize "lost bargaining leverage” as a recoverable element of damages. See Steffen v. Akerman Senterfitt, No. 804CV1693T24MSS, 2005 WL 3277894, at *7 (M.D.Fla. Dec. 2, 2005) ("This Court finds that the injury alleged by Plaintiff, i.e., loss of negotiating leverage, is too speculative to support the causation element of Plaintiffs legal malpractice claim.”); In re Belmar, 319 B.R. 748, 757 (Bankr.D.D.C.2004) ("It is highly questionable whether, under District- of Columbia law, the Belmars’s alleged Toss of leverage' constitutes a legally cognizable harm ... ”); Jarrell v. Petoseed Co., 331 S.C. 207, 500 S.E.2d 793, 796 (1998) ("Possible loss of leverage at the bargaining table ... does not translate to actual damages.").

      . The statute also disallows other kinds of fraudulent transfers not germane to this dispute. See Tex. Bus. & Comm.Code Ann. §§ 24.005(a)(2), 24.006.

      . Aliezer testified, by affidavit: "In late January and early February of 2006, Joshua Wohlstein delivered funds from and/or on behalf of Sandstone to ASW totaling $1,090,000. These payments were advances to ASW on various projects on which ASW was working for Sandstone in or about the first quarter of 2006.”

      . Specifically, intent to defraud may be decided as a matter of law if the defendant confesses to fraud or the evidence conclusively establishes the absence of such intent. See Mladenka, 130 S.W.3d at 405 n. 13; Coleman Cattle Co. v. Carpentier, 10 S.W.3d 430, 434 (Tex.App.-Beaumont 2000, no pet.). Appellees make no such contention here.

      . See City of Keller, 168 S.W.3d at 824; Va. Power, 297 S.W.3d at 402.

      . Section 24.002(7) provides a few examples of "insiders," but its list is considered illustrative rather than exhaustive. See Tex. Bus. & Comm.Code Ann. § 24.002(7) (Vernon 2009); Hahn, 321 S.W.3d at 525-26, n. 8; Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex.App.-Tyler 2000, pet. denied). Instead, insider status is to be determined by considering (1) the closeness of the relationship between the debtor and transferee, and (2) whether the transaction was conducted at arm's length. See Hahn, 321 S.W.3d at 525-26, n. 8; Jackson Law Office, 37 S.W.3d at 26.
      After considering the evidence relating to those two factors, we conclude a fact issue exists as to Aliezer’s status as an "insider” to Manashe. The record contains few details about their actual dealings leading up to the transfer of funds. However, the evidence reflects they had been friends for over thirty years and frequently worked together, facts indicative of a fairly close relationship.

      . Specifically, Aliezer testified the transferred funds were ultimately returned to Sandstone.

      . Manashe admitted the Sandstone bank account was almost empty after the transfer to ASW and Aliezer.


author: JAMES T. WORTHEN, Chief Justice.

text:
    In re: DEVON ENERGY PRODUCTION COMPANY, L.P., Relator.
    No. 12-10-00147-CV.
    Court of Appeals of Texas, Tyler.
    Aug. 17, 2010.

      David W. Holman, Richard L. Lagarde, J.D. Page, for Relator.
    Curtis W. Fenley III, Bill Youngkin, Jeffrey M. Burns, Ty Cleventer, Christy A. Hext, Matthew David Doss, for Real Party in Interest.
    Curtis W. Fenley III, DJ Energycom, LLC.

      Christy A. Hext, for T.S. Dudley Land Company.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Devon Energy Production Company, L.P. filed a petition for writ of mandamus challenging the trial court’s order denying its motion to strike the petition in intervention filed by Nathan Wade Jones, T.D. Livingston, Charles Windham, Janice Windham, Paul Ross, and Bobbie Ross (the “intervenors”). We conditionally grant the petition.

Background

On May 27, 2008, W. Brady Clark, A. Blain Clark, and Angela McCaa (the “plaintiffs”) brought suit against Devon, DJ Energycom, LLC, and Chant Clark for rescission of three oil and gas leases:

Chant Clark, a landman acting as Devon’s agent, obtained these leases.

The plaintiffs sought rescission of the leases based upon claims of fraud, statutory fraud, and breach of fiduciary duty. As an alternative to rescission of the leases, the plaintiffs sought monetary damages. Along with filing their original petition, the plaintiffs tendered into the registry of the court $136,820.00, the full amount of the consideration Devon had paid for the leases.

On October 8, 2009, the plaintiffs’ attorney filed a “Plaintiffs’] First Amended Petition and Intervenors’ Petition In Intervention.” The amended petition named three additional defendants, and included the following intervenors who sought to join the plaintiffs’ suit:

The intervenors sought the same relief as the plaintiffs: rescission of their respective leases along with an alternative remedy of monetary damages. Unlike the plaintiffs, however, none of the intervenors tendered the consideration they had received from Devon into the registry of the court. Devon moved to strike the petition in intervention. Following a telephonic hearing, the trial court entered an order on March 5, 2010, denying Devon’s motion to strike the petition in intervention. On May 17, 2010, Devon filed a petition for writ of mandamus with this court.

Dub Diligence in Seeking Mandamus

Initially, the intervenors contend that Devon unreasonably delayed two and one-half months before seeking mandamus relief and that its petition should be denied because of laches. We disagree. When reviewing a mandamus petition, the term “diligence” is relative and incapable of exact definition. Strickland v. Lake, 163 Tex. 445, 448, 357 S.W.2d 383, 384 (1962) (orig. proceeding). Its meaning must be determined by the circumstances of each case. Id.

In Strickland, the Texas Supreme Court held that waiting two months to file a mandamus petition was not failure to exercise due diligence. See id., 163 Tex. at 448, 357 S.W.2d at 384. Recently, our supreme court has held that a delay of slightly less than six months before seeking mandamus relief was not unreasonable. See In re SCI Tex. Funeral Services, Inc., 236 S.W.3d 759, 761 (Tex.2007) (orig. proceeding). The intervenors have cited us to no authority supporting a conclusion that waiting two and one-half months from the time an order is signed to file for mandamus relief constitutes a lack of due diligence and therefore laches. In the ease before us, Devon’s appellate counsel explained that it took time for Devon to retain him as appellate counsel, and then for him to obtain a certified copy of the order, to familiarize himself with the case, and prepare the mandamus petition. There has been no showing of a lack of due diligence on Devon’s part in bringing this mandamus proceeding.

Availability of Mandamus

Mandamus will issue to correct a clear abuse of discretion when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). To determine whether the trial court clearly abused its discretion, the reviewing court must consider whether the challenged ruling or order was one compelled by the facts and circumstances or was arbitrarily unreasonable, or made without reference to any guiding rules or principles. In re Allstate Ins. Co., 232 S.W.3d 340, 342 (Tex.App.-Tyler 2007, orig. proceeding). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840. The trial court has no discretion in determining what the law is or applying the law to the facts. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.2004). An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments. Id. at 136. This determination depends heavily on the circumstances presented and is better guided by general principles than by simple rules. Id. at 137. The party seeking the writ of mandamus has the burden of showing that the trial court abused its discretion and that appeal is an inadequate remedy. In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 935 (Tex.App.-Tyler 2005, orig. proceeding).

Intervention

Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party. Tex.R. Civ. P. 60. When an intervention is challenged by a party’s motion to strike, the intervenor bears the burden to demonstrate a “justiciable interest” in the pending suit. In re Union Carbide Corp., 273 S.W.3d 152, 155 (Tex.2008) (orig. proceeding). To constitute a justiciable interest, the intervenor’s interest must be such that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent of at least a part of the relief sought in the original suit. Id. An intervenor must show some present legal or equitable interest in the subject matter that makes it proper for him to participate in the proceeding. Jabri v. Alsayyed, 145 S.W.3d 660, 672 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

Abuse of Discretion

An oil and gas lease creates an interest in real property. See Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 572 (Tex.1981). In a typical oil and gas lease, the lessor is a grantor and grants a fee simple determinable interest to the lessee, who is actually a grantee. Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 192 (Tex.2003). When an oil and gas lease reserves only a royalty interest, the lessee acquires title to all of the oil and gas in place; the lessor owns only a possibility of reverter and has a right to receive royalties. Id. Under an oil and gas lease, the lessee is in effect a cotenant of the lessor. Shell Oil Co. v. Howth, 138 Tex. 357, 367, 159 S.W.2d 483, 490 (1942).

A party who has an interest in real property that is the subject of the litigation may intervene in a pending suit. See American Spiritualist Ass’n v. City of Dallas, 366 S.W.2d 97, 100 (Tex.Civ.App.-Dallas 1963, no writ). When a party owns no interest in the real property that is the subject of a suit, it has no justiciable interest in the suit. See Old Alamo Heights Neighborhood Ass’n v. City of Alamo Heights, 650 S.W.2d 216, 217 (Tex.App.-San Antonio 1983, no writ); see also Wilson v. County of Calhoun, 489 S.W.2d 393, 396-97 (Tex.CivApp.-Corpus Christi 1972, no writ) (party not alleging legal or equitable interest in land may not intervene in suit involving that land).

Here, the intervenors concede that they do not have an interest in the real property described in the oil and gas leases between the plaintiffs and Devon. However, they contend that because Devon used the same lease form for all of the leases, they should be allowed to intervene. But they are not parties to the plaintiffs’ leases nor are they entitled to any benefits from them. The fact that the form used for all the leases is the same does not give the intervenors a justiciable interest in the plaintiffs’ suit. See Henderson Edwards Wilson, L.L.P. v. Toledo, 244 S.W.3d 851, 854 (Tex.App.-Dallas 2008, no pet.) (inter-venor had no justiciable interest in suit to rescind contract where intervenor was not party to contract and could not have sued to enforce it). The oil and gas leases in this case are only the vehicles used to create the interest in land that is the subject matter of the plaintiffs’ suit. The intervenors have shown no direct interest in the subject matter of the suit between the plaintiffs and Devon. Because there was no showing that the intervenors had an interest in the subject matter of the suit between the plaintiffs and Devon, the trial court had no basis upon which to deny Devon’s motion to strike the petition in intervention. Therefore, it abused its discretion when it entered that order.

Adequate Remedy by Appeal

Having determined that the denial of Devon’s motion to strike the petition in intervention was an abuse of discretion, we next consider whether Devon has an adequate remedy by appeal. Mandamus is not to be used as a substitute for an ordinary appeal. In re Barrett, 149 S.W.3d 275, 280 (Tex.App.-Tyler 2004, orig. proceeding). But the word “adequate” has no comprehensive definition; it is simply a reference to the careful balancing of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts. In re Prudential, 148 S.W.3d at 136. These considerations implicate both public and private interests. Id. An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments. Id. Conversely, when the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. Id. Among other factors, we consider the procedural dynamics of the case in determining whether the appellate remedy is adequate. Id.

The intervenors contend that it would be in the interest of judicial economy for their cases to be tried with the plaintiffs’ case, thus having one trial instead of five. However, it is a fundamental rule of law that only the person whose primary legal right has been breached may seek redress for that injury. Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex.1976). For example, a suit to set aside a deed obtained by fraud can only be maintained by the defrauded party. Id. A party who was not defrauded by the conveyance has not suffered an invasion of a legal right and therefore does not have standing to bring suit based on that fraud. Id. In this case, the plaintiffs are seeking rescission of the leases based upon fraudulent representations allegedly made to them by Devon and its agents.

Rescission is an “undoing” of an instrument, in this case the oil and gas lease between Devon and the plaintiffs. See American Apparel Prods. v. Brabs, Inc., 880 S.W.2d 267, 270 (Tex.App.-Houston [14th Dist.] 1994, no writ). To be entitled to rescission, a party must show that (1) it and the defrauding party are in the status quo (i.e. there are no retained benefits received under the instrument and not restored to the other party) or (2) there are equitable considerations that obviate the need for the status quo relationship. Isaacs v. Bishop, 249 S.W.3d 100, 110 (Tex.App.-Texarkana 2008, pet. denied). An inability or unwillingness to return the parties to their former position should be considered in determining whether rescission would be equitable. See id. In the case before us, the primary relief sought by the plaintiffs and interve-nors is rescission. The plaintiffs have properly followed the procedure required to seek rescission, while the intervenors have not.

Moreover, Devon used five different agents in its dealings with the intervenors while using only two to deal with the plaintiffs. Each agent’s negotiation on each tract of land involved different dynamics and therefore almost certainly different representations. Five different sets of facts have been created. The evidence of fraud would be unique to each lease. Further, the plaintiffs may be entitled to rescission while the intervenors may be entitled only to monetary damages because of a failure to satisfy a prerequisite to rescission. And finally, in an appeal of an adverse judgment, it would be difficult, if not impossible, for Devon to untangle how confusion over these important differences contaminated the jury’s deliberations. See In re Hochheim Prairie Farm Mut. Ins. Ass’n, 296 S.W.3d 907, 911 (Tex.App.-Corpus Christi 2009, orig. proceeding).

While we are not unmindful of the importance of judicial economy, it is more important that each party have its interest in each lease of real property decided specifically upon the evidence unique to that tract, separate from consideration of evidence applicable only to an adjoining lease. Under the facts of this case, we conclude that the benefits of mandamus outweigh the detriments. Accordingly, we hold that Devon does not have an adequate remedy by appeal.

Disposition

Having concluded that the trial court abused its discretion by denying Devon’s motion to strike the petition in intervention and that it does not have an adequate remedy at law, we conditionally grant mandamus relief. We trust that the trial court will promptly vacate its order of March 5, 2010 denying defendant Devon Energy Production Company, L.P.’s motion to strike the petition in intervention and enter an order granting the motion. The writ will issue only if the trial court fails to comply with this court’s opinion and order within ten days after the date of the opinion and order. The trial court shall furnish this court, within the time for compliance with this court’s opinion and order, a certified copy of its order evidencing such compliance. All pending motions are overruled as moot.

      . The respondent is the Honorable Charles R. Mitchell, Judge of the 273rd Judicial District Court, Shelby County, Texas. The real parties in interest are W. Brady Clark, A. Blain Clark, Angela McCaa, Nathan Wade Jones, Tenison Deloyd Livingston, Charles P. Windham, Janice W. Windham, Paul M. Ross, and Bobbie L. Ross.


author: KEM THOMPSON FROST, Justice.

text:
    In the Interest of S.A.M., P.R.M., and S.A.M.
    No. 14-08-01068-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 17, 2010.

      Robert Gaines Gibson, Rosenberg, Thomas C. Sanders, Sugarland, for appellant.
    John Maisel, Houston, for appellee.
    Panel consists of Justices ANDERSON, FROST, and BOYCE.
   OPINION

KEM THOMPSON FROST, Justice.

The main issue in this appeal is whether appellant is a “party affected by an order” in a suit affecting the parent-child relationship of three minor children. If she is, then under section 156.002 of the Texas Family Code, she has standing to seek a modification of the order, and the trial court erred in dismissing appellant’s suit for lack of standing. Appellant is a party to the order she seeks to modify, and in that order, she received various benefits and burdens. We conclude that, under the plain meaning of section 156.002(a) of the Texas Family Code, appellant is a “party affected by an order” who has standing to seek modification of that order. Accordingly, we reverse the trial court’s dismissal order and remand for further proceedings.

I. Factual and PROCEDURAL Background

After S.A.M., P.R.M., and SAM’s mother died, the Texas Department of Family Protective Services filed a suit affecting the parent-child relationship as to these three minor children (“Original Suit”). Appellant Susan Doyle is not related to the children and was not named by the Department as a party in the Original Suit. However, after a hearing, the trial court found that Doyle had enjoyed substantial past contact with S.A.M., P.R.M., and S.A.M. (hereinafter collectively the “Children”) and granted Doyle leave to intervene in the Original Suit under section 102.004(b) of the Texas Family Code. See Tex. Fam.Code Ann. § 102.004(b) (Vernon Supp. 2010) (stating that “the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development”).

The trial court, on March 20, 2006, signed a final, agreed order in the Original Action (“Order”). Doyle signed the Order as an intervenor. In the Order, the trial court appointed appellee L.M., the Children’s paternal uncle, as the Children’s sole managing conservator (hereinafter the “Conservator”), and the trial court appointed two maternal aunts as possessory conservators. Doyle was not named as either a managing conservator or posses-sory conservator. In the Order, however, the trial court gave Doyle the right to talk to the Children daily by telephone, and the court prohibited other parties from interfering with that telephone access.

The following year, in August 2007, Doyle filed suit asking the trial court to remove the paternal uncle as sole managing conservator and appoint her in his place. The Conservator asserted that Doyle had no standing and, as a result, the trial court lacked subject-matter jurisdiction. The trial court dismissed for lack of standing, concluding, among other things, that Doyle does not have standing under section 156.002 of the Texas Family Code. Doyle brings this appeal to challenge that ruling.

II. Standing

Standing is a prerequisite to subject-matter jurisdiction, which is essential to a court’s power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000). A trial court’s determination as to whether a party has standing is reviewed de novo. See Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex.2004). Standing is a constitutional prerequisite to suit in both federal courts and the courts of Texas. Williams v. Lara, 52 S.W.3d 171,178 (Tex.2001). Nonetheless, the judge-made criteria regarding standing do not apply when the Texas Legislature has conferred standing through a statute. Id. In statutory standing cases, such as the one now under review, the analysis is a straight statutory construction of the relevant statute to determine upon whom the Texas Legislature conferred standing and whether the claimant in question falls within that category. See Tex. Dep’t of Protective and Regulatory Servs. v. Sherry, 46 S.W.3d 857, 859-61 (Tex.2001); In re Sullivan, 157 S.W.3d 911, 915 (Tex.App.-Houston [14th Dist.] 2005, orig. proceeding [mand. denied]).

We review the trial court’s interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). In construing a statute, the court’s objective is to determine and give effect to legislative intent. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we must ascertain that intent from the language the legislature used in the statute and not look to extraneous matters for an intent not stated in the statute. 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, but instead, we must yield to the plain sense of the words the legislature chose. Id.

Can the petition be construed be as a request for modification of the Order?

As a threshold matter, we address the Conservator’s argument that the substance of Doyle’s petition is an original suit and that this petition cannot be construed as a suit under Chapter 156 of the Texas Family Code seeking modification of the Order. The petition is entitled “Original Petition in Suit Affecting the Parent-Child Relationship.” But, as the Conservator concedes, this court must give effect to the substance of the petition rather than its title or form. See Phillips v. Dafonte, 187 5.W.3d 669, 675 (Tex.App.-Houston [14th Dist.] 2006, no pet.). In addition, because no special exceptions have been asserted against Doyle’s petition, this court must construe that pleading liberally in Doyle’s favor to include all claims that reasonably may be inferred from the language used in the petition. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000); London v. London, 192 S.W.3d 6, 13 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).

The caption of the petition contains the cause number from the Original Suit; however, this cause number has been lined-out in pen by an unknown person. The face of the petition reflects the stamp of the clerk’s office adding a new cause number above the other number. Doyle filed the petition in the trial court, which is the court that rendered the Order in the Original Suit. In the petition, Doyle makes the following allegations:

• The trial court has continuing jurisdiction over Doyle’s suit and over the Children, who are the subject of Doyle’s suit.
• Under a court order, the Conservator is the sole managing conservator of the Children.
• Under a court order, the two maternal aunts are possessory conservators of the Children.
• The Children’s placement with the Conservator is injurious to their health and welfare.
• It is in the best interest of the Children that the Conservator be removed as sole managing conservator and that Doyle be appointed as the Children’s sole managing conservator.

Doyle asserts that the trial court has continuing jurisdiction over the Children, which it would have if the trial court rendered a final conservatorship order. See Tex. Fam.Code. Ann. § 155.001 (Vernon 2008). Doyle states that the Conservator was appointed sole managing conservator but that it is in the Children’s best interest for the Conservator to be removed and Doyle appointed as sole managing conservator. Under Chapter 156, a party seeking to modify an order must file a modification suit in the court with continuing jurisdiction, which, as alleged in Doyle’s petition, is the trial court. See Tex. Fam. Code Ann. §§ 156.001, 156.002 (Vernon 2008). Focusing on the substance of Doyle’s petition and liberally construing the petition in her favor to include all claims that reasonably may be inferred from the language used therein, we conclude that the pleading constitutes a petition to modify the Order under Chapter 156 of the Texas Family Code. See In re P.D.M., 117 S.W.3d 453, 455-56 (Tex.App.Fort Worth 2003, pet. denied) (en banc) (construing petition to be modification suit).

What does “party” mean in section 156.002(a)?

Under section 156.002(a) of the Texas Family Code, modification suits may be brought by “a party affected by an order.” Tex. Fam.Code Ann. § 156.002(a) (Vernon Supp. 2010). To determine Doyle’s standing we first must determine the meaning of the term “party” as used in this statute. Though research reveals no Texas case that addresses this precise issue, sister courts of appeals have addressed this issue under a predecessor statute containing the same language. The Seventh Court of Appeals and the Eleventh Court of Appeals have held that to be a “party,” a person must be a party to the order the person seeks to modify. See Pratt v. Tex. Dep’t of Human Resources, 614 S.W.2d 490, 495 (Tex.Civ. App.-Amarillo 1981, writ ref'd n.r.e.); Doe v. Roe, 600 S.W.2d 378, 379 (Tex.Civ.App.-Eastland 1980, writ ref'd n.r.e.). The Second Court of Appeals has taken a more expansive view, holding that the term “party” includes both parties to the order sought to be modified and persons who have a “sufficient interest” in a child who is the subject of the order, even if that person is not a party to the order. See Watts v. Watts, 573 S.W.2d 864, 868 (Tex.Civ.App.-Fort Worth 1978, no writ).

According to Black’s Law Dictionary, the term “party” has two possible meanings in the legal context: (1) “one who takes part in a transaction,” and (2) “one by or against whom a lawsuit is brought.” Black’s Law DictionaRY 1154 (8th ed. 2004). The legislature could have given standing to “a person affected by an order,” yet the legislature chose to give standing to “a party affected by an order.” The question is to whom did the legislature intend to give standing to seek modification of “an order that provides for the conservatorship, support, or possession of and access to a child.” Tex. Fam.Code Ann. §§ 156.001. In this context, we conclude that the plain meaning of the word “party’’ requires that the person have been a party to the order that the person seeks to modify. See Pratt, 614 S.W.2d at 495; Doe, 600 S.W.2d at 379; see also In re L.N.E., No. 05-07-01712-CV, 2009 WL 280472, at *2-3 (Tex.App.-Dallas Feb. 6, 2009, no pet.) (mem. op.) (holding that “party” under Family Code section 157.421 requires the person to have been a party to the order as to which the person seeks clarification). But see Watts, 573 S.W.2d at 868.

Is Doyle a party to the Order?

To have standing under section 156.002(a), Doyle must be a party to the Order. Before signing the Order, the trial court found that Doyle had enjoyed substantial past contact with the Children and granted Doyle leave to intervene in the Original Suit under section 102.004(b) of the Texas Family Code. See Tex. Fam. Code Ann. § 102.004(b). Once a person intervenes in a suit, the person becomes a party for all purposes and continues to be a party unless the trial court strikes the intervention. See Brook v. Brook, 865 S.W.2d 166, 172 (Tex.App.-Corpus Christi 1993), aff'd, 881 S.W.2d 297 (Tex.1994). The Order states that Doyle made an appearance, that she is a party to the Order, and that she agreed to the terms of the Order as evidenced by her signature on the Order. Doyle signed the agreed Order as an intervenor. Under the unambiguous language of the Order, Doyle is a party to the Order.

What does “affected” mean?

To have standing to seek modification, Doyle must not only be a party to the Order, but also must be “affected” by the Order. See Tex. Fam.Code Ann. § 156.002(a). The Conservator asserts that Doyle cannot be affected by the Order because she did not receive any conserva-torship rights under it. This court previously has rejected this argument by concluding that a party to an order regarding conservatorship could seek modification of the prior order under section 156.002(a) even though the party was given no con-servatorship rights under that order. See In re J.R., 222 S.W.3d 817, 818-19 & n. 5 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). Therefore, the Conservator’s argument lacks merit.

Though this court has determined that a party need not have been granted conser-vatorship rights to be a “party affected by an order,” this court has not affirmatively addressed the meaning of the statutory phrase “affected by an order,” and research has not revealed any cases from the Supreme Court of Texas or other courts of appeals addressing this issue. In several cases, courts state in passing that “a ‘party affected’ by an order includes a person mentioned in a previous decree in the context of conservatorship.” In re A.J.L., 108 S.W.3d 414, 419 (Tex.App.-Fort Worth 2003, pet. struck) (emphasis added). These statements are obiter dicta because they are in cases in which the person seeking to modify the prior order was not a party to it. In addition, the courts in these cases do not explain what they mean by “mentioned ... in the context of con-servatorship” or how this meaning is consistent with the statutory language. More fundamentally, the courts in these cases simply identify one group of persons who are “parties affected by an order” but do not analyze the meaning of that statutory phrase. See id.

Although “affected” is not defined in the statute, the term is not ambiguous. See City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n. 19 (Tex.2006). The plain and ordinary meaning of “affect” is “to produce an effect ... upon.” See WebsteR’s Third New International Dictionary 35 (1993 ed.). This court’s principal task in applying this meaning in the context of the case under review is to determine if the Order produced an effect upon Doyle.

The Order contains the following provisions relating to Doyle:

• Subject to certain restrictions, Doyle has the right to talk by telephone to each of the Children every day for a reasonable time not to exceed thirty minutes. The Order states that regular telephone contact with the Children is “important to the children’s well-being.”
• The trial court ordered the other parties to the Order not to interfere with the Children’s telephone conversations with Doyle.
• If Doyle calls one of the Children and the child is not at home, the party who has possession of the child at that time is to return Doyle’s call within 24 hours of receiving notice of Doyle’s attempted call.
• Doyle is to give advance notice to the court and the other parties of any changes in her address, telephone numbers, employer, or employment address. Failure to give this notice subjects Doyle to being held in contempt of court, punishable by up to six months in jail and a $500 fine for each violation. Doyle could also be liable for a money judgment for payment of attorney's fees and court costs.
• Before setting any hearing or initiating discovery in any suit for modification of the Order’s conservatorship provisions, except in an emergency, Doyle and the other parties shall mediate the controversy in good faith.

Under the Order, Doyle receives important rights regarding telephone access to the Children, and she is burdened with the duty of giving notice if her personal contact information changes. Without question, the Order produced an effect upon Doyle. Under the plain meaning of section 156.002(a), Doyle is a “party affected” by the Order, and therefore she has standing to seek modification of the Order. See Tex. Fam.Code Ann. § 156.002(a).

Rather than focus on the meaning of the words chosen by the legislature, the Conservator asserts that this court should strictly construe section 156.002(a) based on public policy considerations relating to the need for stability in children’s lives and “the prevention of constant litigation.” It is not this court’s office to choose between competing policies addressed by the legislature’s chosen language. See Tex. Dep’t of Family and Protective Servs., 210 S.W.3d 609, 614 (Tex.2006); RepublicBank Dallas v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985). This court must apply the statute as written. The legislature first limited standing to the relatively narrow category of parties to the order. The legislature could have gone further and limited the class of persons who have standing to seek modification to parties whose rights had been substantially impacted or materially changed by the order. It did not do so. Under the legislature’s statutory regime, once “party” status is demonstrated, all that is required is that the party meet the low threshold of being “affected” by the order. This choice is a clear manifestation of the legislature’s intent to grant any party to an order upon whom the order has produced an effect the right to seek modification.

III. Conclusion

Under the plain meaning of section 156.002(a) of the Texas Family Code, Doyle is a “party affected by an order” and therefore she has standing to pursue her modification suit. The trial court erred in dismissing Doyle’s suit for lack of standing. Accordingly, we sustain Doyle’s sole issue on appeal, reverse the trial court’s dismissal order, and remand for further proceedings consistent with this opinion.

      . On appeal, the Conservator does not assert that Doyle is not a party to the Order. Instead, the Conservator argues that Doyle's counsel made a judicial admission at a hearing that Doyle is not a party to the Order. At the hearing in question, Doyle did not have the same lawyer as she had in the Original Suit. The Conservator’s lawyer, who had been involved from the beginning, incorrectly stated that Doyle had not intervened and is not a party to the Order. The Conservator's lawyer then argued that Doyle was nonetheless bound by the mediation provisions of the Order. In response, Doyle’s lawyer stated that Doyle is not a party to the Order and that therefore the mediation requirement would not apply to her. Doyle's lawyer also asserted that Doyle "was not appointed as a possesso-ry conservator and therefore is not a party to that mediation requirement.” At a subsequent hearing, before the trial court dismissed the suit for lack standing, a third lawyer representing Doyle asserted that Doyle- is a party to the Order and that she had standing under section 156.002(a). Doyle's status as a party or non-party is not the proper subject of a judicial admission. Doyle’s status as a party or non-party is determined by law and not as a fact through a judicial admission. In any event, we could find no judicial admission in Doyle's trial counsel's statements because those statements were not a clear, deliberate, and unequivocal statement that Doyle is not a party to the Order so as to constitute a judicial admission. See Regency Advantage Ltd. P'ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex.1996) (holding that statement was not clear, deliberate, and unequivocal so as to constitute a judicial admission); Sharma v. Routh, 302 S.W.3d 355, 366 n. 22 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (same as Regency Advantage Ltd. P’ship ).

      . This conclusion is also supported by section 156.101 of the Texas Family Code, which indicates that a "party affected” by an order is different from a person given conservator-ship rights. See Tex. Fam.Code Ann. § 156.101 (Vernon Supp. 2010) (stating that "[t]he court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conser-vatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and ... the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed (emphasis added).

      . Most of the cases regarding standing under section 156.002(a) involve the meaning of the word "party” and whether the person seeking modification must have been a party to the litigation resulting in the order sought to be modified. See In re A.J.L., 108 S.W.3d 414, 419-20 (Tex.App.-Fort Worth 2003, pet. struck); Pratt, 614 S.W.2d at 495; Doe, 600 S.W.2d at 379; Watts, 573 S.W.2d at 868. There is no doubt that Doyle is a "party” to the Order; therefore, these cases are not on point.

      . In determining that Doyle has standing, we do not address the merits of Doyle’s modification suit. To the extent, if any, that Doyle has violated the mediation provisions of the Order, that issue does not affect our standing analysis, and is a matter the trial court may address on remand.