author: STEVE McKEITHEN, Chief Justice. DAVID GAULTNEY, Justice,

text:
    In re UNITED SCAFFOLDING, INC.
    No. 09-10-00172-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 26, 2010.
    Decided June 24, 2010.

      Kathleen M. Kennedy, Mehafiy Weber, P.C., Beaumont, for relator.
    Timothy W. Ferguson, Dominic M.V. Braus, Ferguson Firm, Beaumont, for real parties in interest.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

This mandamus proceeding requires this Court to determine whether the trial court complied with the Supreme Court’s directive that the trial court specify its reasons for disregarding the jury’s verdict and ordering a new trial. See In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex.2010).

Although the Rules of Civil Procedure afford the trial court considerable discretion to set aside a jury verdict, the trial court cannot merely state that its order is in the interest of justice. See In re Columbia Med. Ctr., 290 S.W.3d 204, 210-15 (Tex.2009). The order must state specific reasons for refusing to render judgment on the jury’s verdict and for granting a new trial. Id. at 212-15. The trial court’s failure to state specific reasons for its ruling is correctable by mandamus. Id. at 215.

In this petition for writ of mandamus, United Scaffolding, Inc. contends the trial court abused its discretion by granting a motion for new trial filed by James Levine and Lisa Levine after a jury rendered a verdict in the underlying proceeding. In its amended order granting a new trial, the trial court states as follows:

After re-considering Plaintiff James and Lisa Levine’s Motion for New Trial, the Court GRANTS the motion and orders New Trial based upon:
A. The jury’s answer to question number three (3) is against the great weight and preponderance of the evidence; and/or
B. The great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant was a proximate cause of injury in the past to Plaintiff, James Levine; and/or
C. The great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant supports an award of past damages; and/or
D. In the interest of justice and fairness.

United Scaffolding complains that the amended order suffers from the same lack of specificity that plagued the original order, which the trial court granted “in the interest of justice and fairness” without identifying the particular injustice or wrongdoing that occurred in the case. See In re United Scaffolding, 801 S.W.3d at 662-63. This time, however, the trial court identified the specific question that the trial court ruled was against the great weight and preponderance of the evidence and explained why the jury’s verdict should be set aside. The jury charge contained three questions: (1) Question one required the jury to find whether any negligence of United Scaffolding and James Levine was a proximate cause of the occurrence in question; (2) Question two apportioned negligence between United Scaffolding and James Levine; and (3) Question three contained twelve separate categories of damages. The jury found United Scaffolding to be negligent, and the trial court found that finding was supported by the great weight and preponderance of the evidence. Although the jury found James Levine would in reason-ablé probability incur expenses of $178,000 for future medical care, the jury failed to find any past damages, and the trial court determined that the great weight and preponderance of the evidence supports an award of past damages.

United Scaffolding argues the trial court’s use of the term “and/or” renders the order too uncertain and indefinite to satisfy the specificity required by In re Columbia Medical Center. Id., 290 S.W.3d at 215. This Court has criticized the use of “and/or” in legal writing precisely because it fails to state matters in plain and concise language. See Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934, 938 & n. 1 (Tex.App.-Beaumont 2010, no pet.); Willis Sears Tracking Co. v. Pate, 452 S.W.2d 782, 784 (Tex.Civ.App.-Beaumont 1970, no writ). The question here is whether the use of “and/or” in the trial court’s order renders that order so vague that the relator cannot determine why it has been deprived of its jury verdict. See In re Columbia Med. Ctr., 290 S.W.3d at 213, 215. Read in the context of this particular order, “and/or” can be understood to mean that the trial court made each finding separately and that the trial court granted the motion for new trial based upon the collective force of all of the findings together. A reasonable reading of the order granting a new trial informs parties that the trial court found that because the great weight and preponderance of the evidence supported a finding that United Scaffolding’s negligence was a proximate cause of James Levine’s injuries (as found by the jury in answer to Question One), but the great weight and preponderance of the evidence also supported a finding of past damages, (which the jury failed to find in its answer to Question Three), the jury’s damages findings in Question Three were against the great weight and preponderance of the evidence, and the interest of justice requires a new trial. The trial court certainly could have articulated its reasons for granting a new trial more clearly, but this order is not so vague that the trial court’s reasons for its ruling are known only to the trial court.

United Scaffolding suggests that an order granting a new trial must state the trial court’s specific reasons for granting the new trial “with reference to the evidence.” For this guiding principle, United Scaffolding cites three cases: Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998); Quick v. Crane, 111 Idaho 759, 727 P.2d 1187, 1200-01 (1986); and Scott v. Monsanto Co., 868 F.2d 786, 791 (5th Cir.1989). These cases do not expressly require a trial court to discuss the evidence in an order granting a motion for new trial.

Quick concerned the denial of a motion for new trial. Quick, 727 P.2d at 1190-91, 1200. The court’s holding extended to the denial of a motion for new trial a preexisting rule that required the trial court to “indicate the grounds upon which he relies when he grants a new trial.” Id., 727 P.2d at 1201. The court’s opinion criticized the trial court’s order overruling the motion for new trial because that order failed to reference the applicable rule or the language contained in that rule. Id., 727 P.2d at 1199. Ultimately, the reviewing court required the trial court to “distinguish between the various motions and the grounds upon which they are based, and not ... simply lump them all together and issue a general grant or denial.” Id., 727 P.2d at 1201. In Quick, the trial court erred because it failed to state the legal basis for its order and not because the trial court failed to articulate the facts that supported granting a new trial.

In Scott, a PCB exposure case, the trial court granted the plaintiffs’ motion for new trial and dismissed all claims of all plaintiffs for lack of jurisdiction. Scott, 868 F.2d at 788. The trial court expressed its inclination to grant a new trial to avert what it called a miscarriage of justice. Id., at 789. In the trial court’s view, “the evidence left no question that the plaintiffs were exposed to PCBs and that PCBs had a detrimental effect on their health.” Id. Although the trial court considered none of the grounds asserted by the plaintiffs to be a sufficient basis upon which to grant a new trial, the trial court expressed its view that the “combined effect of the ‘grounds taken together, plus the miscarriage of justice’ influenced the district court’s decision to grant the plaintiffs’ motion for a new trial.” Id. On appeal, the reviewing court examined the record and explained why the trial court erred in granting the motion for new trial without discussing the adequacy of the order granting it. Id., 868 F.2d at 789-92. In Scott, the trial court erred because it granted a new trial, not because it failed to discuss the evidence in its order granting a new trial.

Ellis concerns the intermediate appellate court’s duty to detail all of the evidence relevant to the issue when the appellate court reverses a trial court judgment for factual insufficiency. Ellis, 971 S.W.2d at 407. When reviewing a case for factual sufficiency, an intermediate appellate court must reveal the mental processes that led to a reversal so that the Supreme Court will be able to determine that the standard of review has been properly applied and the appellate court has not merely substituted its view of the evidence for that of the jury. Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex.1986). When it considers a motion for new trial, the trial court’s function is broader and its discretion is wider than that of an intermediate appellate court conducting a factual sufficiency review. See In re Columbia Med. Ctr., 290 S.W.3d at 212-13. The purpose of the order granting a motion for new trial is to announce the trial court’s ruling and to show that the ruling has a valid basis. Id. Logically, the appellate court’s concern when a trial court grants a new trial should focus on the process by which the trial court reached its discretionary decision, not upon the result of that determination. See Quick, 727 P.2d at 1200.

In some instances, that process may be sufficiently complex that a detailed explanation of the relevant evidence may be required for the parties to understand why the motion has been granted. In this case, however; the issue concerned the jury’s failure to find past medical damages and past pain and suffering when it had also found liability and future medical damages. The motion for new trial and the response discussed the relevant evidence in detail, provided citations to the record, and included references to and excerpts from depositions that had evidently been published to the jury. The Levines argued that the damages awarded were manifestly too small because the medical records reveal an objective injury. United Scaffolding argued that the jury could rationally award future medicals because the injury might aggravate James Levine’s pre-exist-ing degenerative condition, but the jury could disallow any other damages because a surveillance video of James Levine washing his car showed he is not presently impaired. The Levines relied upon the testimony of the treating physician who, when asked if the degenerative disc disease became symptomatic after the incident or if the symptoms were from the neck sprain sustained in the incident, replied as follows:

His — well, he’s got neck pain. I mean, figuring out what is what is the hard part. He had no indications of a problem with his neck prior to his injury. Following his injury, he has a problem with his neck which is not getting better.
Sprains typically get better. Why this sprain didn’t get better, well, in my opinion, it’s because of the preexisting degenerative disc disease.

The Levines’ counsel argued to the trial court, as follows:

Even if you determine, respectfully I would think would be wrongly, that no fatal conflict exists or that the award of zero damages still is not against the great weight and preponderance of the evidence, even if you determine that, you still have the equitable power to do that and it should be done in this case because here’s a guy who had an injury. They were at fault. They gave future medical and then nothing for other elements of damages. It doesn’t make sense.
I think I have a feel why they did it, because they got sent back [a] video of the guy washing a red Corvette. And you see it in their response, the red Corvette, the red Corvette. That’s probably why they did that.

In response, counsel for United Scaffolding argued that the Levines “have to show that the jury’s finding is against the great weight and preponderance of the evidence.” Counsel argued that the treating physician did not confirm where the muscle spasms were coming from and noted that the video “does show the Plaintiff detailing his vehicle for over two hours, doing everything that the Plaintiff and his treating doctors said that he was not able to do.”

The Levines identified the evidence that supported their motion and suggested the jury had been influenced by an intangible prejudice that led the jury to ignore the objective evidence of injury and award damages that were manifestly too small. United Scaffolding identified the evidence that supported its response, suggested the jury’s verdict resulted from a rational rejection of some of plaintiffs’ evidence, and argued that the trial court could grant a new trial only if the evidence was factually insufficient. The trial court considered the evidence presented by the parties, made its ruling, and explained why it would not enter a judgment on the jury’s verdict. Because the complaint arises from the post-trial proceedings and not the trial itself, on mandamus review, the parties provided this Court with the record on the motion for new trial but not the record of the trial. From this record, we can determine that the trial court employed the appropriate process in exercising its discretion to grant a new trial. See Tex.R. Civ. P. 320. In this case, the trial court’s order was reasonably specific without having referred to the particular evidence that influenced the trial court’s ruling.

United Scaffolding argues that the trial court abused its discretion because the verdict is supported by the evidence. The Supreme Court has not authorized a general interlocutory review of the sufficiency of the evidence. Some guidance can be found in the cases United Scaffolding relies upon to support its argument that the trial court abused its discretion by failing to refer to the evidence in its order. See Scott, 868 F.2d at 789-92; Quick, 727 P.2d at 1200-01. In its appellate review of the order granting a new trial, the court in Scott reasoned that “[i]f the issues are complex, the evidence in contention, or the proceedings marred, the new trial order may be affirmed ‘even if on our own review of the “cold record” we are not convinced that the jury verdict was against the great weight of the evidence.’ ” Scott, 868 F.2d at 789-90 (quoting Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir.1985)). Furthermore, “[i]t should be emphasized again that the rule that a verdict will not be set aside when it is supported by substantial but conflicting evidence has no application to a trial court ruling upon a motion for a new trial.” Quick, 727 P.2d at 1198 (emphasis in original). In this mandamus review, we are concerned with the process employed by the trial court, not the result. See In re Columbia Med. Ctr., 290 S.W.3d at 211, 213; Quick, 727 P.2d at 1200. The record presented to the trial court by the parties does not establish, as was the case in Scott, that the trial court merely reached a different result than the jury on highly contested causation evidence. Scott, 868 F.2d at 791-92. Rather, the trial court considered the disparity between the evidence presented at trial regarding damages incurred in the past and the jury’s verdict, and determined that the interest of justice required a new trial.

Because the order is reasonably specific, the trial court followed the guidance of In re Cohimbia Medical Center. See In re Columbia Med. Ctr., 290 S.W.3d at 213. The relator has not shown a clear abuse of the trial court’s discretion to grant a new trial. Accordingly, we deny the petition for writ of mandamus.

PETITION DENIED.

DAVID GAULTNEY, Justice,

dissenting.

If the jury watched a two hour video of the witness doing what he swore he could not do, should the witness be believed? The Supreme Court has said “the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Benoit v. Wilson, 150 Tex.273, 239 S.W.2d 792, 796 (1951) (“The jury is the exclusive judge of the facts proved, the credibility of the witnesses and the weight to be given to their testimony.”).

“Jury trials are essential to our constitutionally provided method for resolving disputes when parties themselves are unable to do so.” In re Columbia Med. Ctr., 290 S.W.3d 204, 211 (Tex.2009). When the trial judge decides credibility issues differently from the jury and sets aside the jury’s verdict on that basis alone, the judge acts in an area normally reserved for the jury. A jury, like any decision-maker, may be wrong, and a trial court’s grant of a new trial to prevent injustice does not usurp the function of the jury as the trier of facts. See Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3rd.Cir.1960). Judicial control ensures a fair jury trial.

But where no undesirable or pernicious element has occurred or been introduced into the trial and the trial judge nonetheless grants a new trial on the ground that the verdict was against the weight of the evidence, the trial judge in negating the jury’s verdict has, to some extent at least, substituted his judgment of the facts and the credibility of the witnesses for that of the jury.... It then becomes the duty of the appellate tribunal to exercise a closer degree of scrutiny and supervision than is the case where a new trial is granted because of some undesirable or pernicious influence obtruding into the trial.

Id. Simply stated, no judge is free to substitute the judge’s view for that of the jury on the issue of witness credibility merely because the judge disagrees with the jury. See Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex.1987).

The majority says we should “focus on the process by which the trial court reached its discretionary decision, not upon the result of that determinationf,]” but that cannot be entirely right. A new trial is properly granted to prevent an injustice; however, if the verdict is just, setting aside the verdict may be the injustice. The trial judge must have a “valid basis” “to substitute his or her own views for that of the jury[.]” In re Columbia Med. Ctr., 290 S.W.3d. at 212. “The reasons should be clearly identified and reasonably specific,” but must also establish a “valid basis” for setting aside the jury verdict. Id. at 212, 215.

The majority concludes that the trial court followed the right “process” in ruling that the jury’s answer to the past-damages question is against the great weight and preponderance of the evidence. Again, I respectfully disagree. The ruling does no more than state boilerplate conclusions without reasoning. A finding of negligence and proximate cause does not automatically require an award of past damages. See Waltrip v. Bilbon Corp., 38 S.W.3d 873, 879-80 & n. 2 (Tex.App.-Beaumont 2001, pet. denied). If the testimony of past damages cannot be rejected by the jury in this case, why not? If the jury’s credibility determinations are unreasonable, why? See City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex.2005) (stating that the jury’s decisions regarding credibility must be reasonable).

When this Court sets aside a jury verdict because the verdict is against the great weight and preponderance of the evidence, we must “detail the evidence relevant to the issue” and “clearly state why” the verdict is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). We must also “state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.” Id.; see also Citizens Nat’l Bank in Waxahachie v. Scott, 195 S.W.3d 94, 96 (Tex.2006). The Supreme Court has explained that “[a] trial court’s actions in refusing to disclose the reasons it set aside or disregarded a jury verdict is no less arbitrary to the parties and public than if an appellate court did so.” In re Columbia Med. Ctr., 290 S.W.3d at 212. The reasons must be specified and understandable. See id. at 213. “[N]o court is free to substitute its judgment for that of the jury.” Larson, 730 S.W.2d at 641.

A trial judge should have no need or requirement to write the equivalent of an appellate opinion explaining why the judge reasons the jury verdict is clearly wrong and unjust, but it is not too much to require the trial judge to provide an answer beyond standardized phrases. “When a court of appeals disturbs the judgment of a lower tribunal, merely saying that the court has reviewed all the evidence and reaching a conclusion contrary to that of the trier of fact is not enough. Instead, the court should explain, with specificity, why it has substituted its judgment for that of the trial court.” Scott, 195 S.W.3d at 96. Similarly, the trial court should explain, with specificity, why it has substituted its judgment of the facts and the credibility of the witnesses for that of the jury. If a trial court concludes that the jury verdict is clearly wrong, and the work of the jury must be undone to prevent an injustice, a reasoned explanation for that conclusion is required.

In this case, the trial judge has not explained with specificity why the jury’s past damage findings are against the great weight and preponderance of the evidence and the verdict unjust, nor why he has substituted his judgment of the facts and the credibility of the witnesses for that of the jury. The trial court has not complied with the requirements of In re Columbia Medical Center or the Supreme Court’s specific instructions in this case. See In re Columbia Med. Ctr., 290 S.W.3d at 212-15; In re United Scaffolding, Inc., 301 S.W.3d 661, 663 (Tex.2010) (“We direct the trial court to specify its reasons for disregarding the jury verdict and ordering a new trial.”). Because the trial court has not complied with the Supreme Court’s instructions, the writ should issue to compel rendition of judgment on the jury verdict. See generally Tex. State Bd. ofExam’rs In Optometry v. Carp, 388 S.W.2d 409, 417 (Tex.1965).

      . The majority observes this Court has long criticized the use of the phrase "and/or.” See Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934, 938 & n. 1 (Tex.App.-Beaumont 2010, no pet.); Willis Sears Trucking Co. v. Pate, 452 S.W.2d 782, 784 (Tex.Civ.App.-Beaumont 1970, no writ) (pleading "and/or" violated rule 45(b)'s requirement that a pleading consist of a statement in plain and concise language); Am. Gen. Ins. Co. v. Webster, 118 S.W.2d 1082, 1084 (Tex.Civ.App.-Beaumont 1938, writ dism’d) ("[T]o our way of thinking the abominable invention 'and/or/ is as devoid of meaning as it is incapable of classification by the rules of grammar and syntax.”). This Court has not been alone. See Bryan A. Garner, A Dictionary of Modern Legal Usage 56 (2d ed. 1995) (The expression “and/or has been vilified for most of its life — and rightly so.”). The term is indecisive and ambiguous, and suggests a linguistic shell game, but the clumsy phrase is not the problem here. The survival of the question "why” is.

      . The trial court did not find an irreconcilable conflict between the jury’s award of $0 for past damages and the award of future damages. The court did not address whether the award of future damages is supported by the evidence.


source: Caselaw Access Project

author: Justice BENAVIDES.

license: Public Domain

text:
    Janice PETREE, Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Allstate Insurance Company and Allstate Indemnity Company, Appellees.
    No. 13-09-00028-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    June 24, 2010.

      Leslie Werner De Soliz, Soliz Law Group, Victoria, for Appellant.
    Todd Taylor, Joelle Nelson, Johanson & Fairless, Sugar Land, Lamar G. Clemons, English, Clemons & Rodriguez, Corpus Christi, for Appellees.
    Before Justices YÁÑEZ, BENAVIDES, and VELA.
   OPINION

Opinion by

Justice BENAVIDES.

Appellant, Janice Petree, appeals from the trial court’s granting of summary judgment in favor of appellees, Allstate Indemnity Company (“Allstate”) and Southern Farm Bureau Casualty Insurance Company (“Southern Farm Bureau”) (collectively, the “Appellees”). Petree asserts that (1) her due process rights were denied when the trial court granted summary judgment based on deemed admissions when she was never served with the request for admissions; and (2) the trial court erred by not granting Petree’s motion for new trial because there was no competent summary judgment proof supporting the appellees’ motions for summary judgment. We reverse and remand.

I. Background

On August 21, 2002, Petree was traveling on U.S. highway 59 in Victoria County, Texas, when she was rear-ended by another driver. Petree was driving a vehicle owned by Jay Williams and insured by Allstate. On August 18, 2006, Petree sued Allstate Insurance Company and Southern Farm Bureau for breach of contract for refusing to pay underinsured motorist (“UIM”) benefits. On April 4, 2007, Pe-tree added Allstate Indemnity Company as an additional defendant. On May 6, 2008, Petree’s counsel filed a motion to withdraw and a motion for continuance. On May 19, 2008, the trial court granted Petree’s counsel’s motion to withdraw and for continuance and noted that Petree’s last known address was: “c/o Mr. Jay Williams, 3308 Coletoville Road, Victoria, Texas 77905.” On May 27, 2008, in a letter dated May 22, 2008, Allstate sent to Petree, via certified mail, its request for admissions. The request for admissions asked the following three questions:

Do you admit or deny that the motor vehicle accident that occurred on August 21, 2002 between you and James Smith of [sic] which forms the basis of this lawsuit was 100% proximately caused by your negligence[?]
Do you admit or deny that you suffered no injuries as a result of the motor vehicle accident that occurred on August 21, 2008 between you and James Smith[?]
Do you admit or deny that you have no valid claim against Allstate Insurance Company and/or Allstate Indemnity Company under its insured, Jay Williams’!,] Underinsured Motorist coverage of his policy?

On August 14, 2008, Allstate filed its motion for summary judgment based on Petree’s failure to respond to its request for admissions, asserting that the admissions were deemed admitted and arguing that Petree was therefore unable to prove the requisites of her underlying UIM claim. On August 20, 2008, Southern Farm Bureau filed its motion for summary judgment making the same assertions as Allstate and relying on the deemed admissions to Allstate’s request for admissions. On September 19, 2008, the trial court held a hearing on both motions for summary judgment. Petree, unrepresented since her counsel’s withdrawal on May 19, 2008, attended the hearing pro se. The trial court granted both motions for summary judgment. Petree hired counsel, who filed a motion for new trial, which, after a hearing, was overruled by operation of law. See Tex.R. Civ. P. 329b. This appeal ensued.

II. WAIVER

Before we discuss Petree’s appellate issues, we must address the appellees’ contention that Petree waived her right to complain about the deemed admissions because she learned of her failure to respond prior to judgment and had other avenues of relief available, such as filing a motion to withdraw the deemed admissions. See Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 798 (Tex.2008) (per curiam). We disagree.

In Unifund, Unifund CCR Partners (“Unifund”) sued Weaver to recover an unpaid debt. Id. at 797. Unifund attached requests for disclosure and admissions to its citation. Id. Weaver, proceeding pro se, filed an answer with his responses to the requests attached. Id. Although the face of Weaver’s response indicated that he sent a copy to Unifund’s attorney, and Weaver’s signature follows the text, “CERTIFICATE OF SERVICE,” Unifund’s attorney filed an affidavit with his motion for summary judgment declaring that he never received the response. Id.; see Tex.R. Civ. P. 21a, 198.2; Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex.1987) (noting that “[r]ule 21a sets up a presumption that when notice of trial setting properly addressed and postage prepaid is mailed, that the notice was duly received by the addressee. This presumption may be rebutted by an offer of proof of nonreceipt.”) (citations omitted)). Uni-fund claimed that it was entitled to summary judgment because “the facts set out in its requests for admissions were automatically admitted when Weaver failed to timely serve his responses.” Unifund, 262 S.W.3d at 797 (citing Tex.R. Civ. P. 198.2(c)). The trial court granted Uni-fund’s motion for summary judgment. Id.

Weaver did not file a motion for new trial, and the first time he asserted that his responses were timely served was in his brief to the Waco Court of Appeals. Id. The Waco Court of Appeals reversed “because Weaver’s responses to Unifund’s request for admissions were on file when the summary judgment motion was granted.” Id.; see Tex.R. Crv. P. 166a(c) (stating that discovery responses set forth in the motion for summary judgment, along with the parties’ admissions that are on file with the court at the time of the summary judgment hearing, is competent summary judgment evidence); R.I.O. Systems, Inc. v. Union Carbide Corp., 780 S.W.2d 489, 492 (Tex.App.-Corpus Christi 1989, writ denied) (“While the better practice is to attach all summary judgment evidence to the motion presented to the court, the rule itself states that the trial court shall consider all summary judgment evidence ‘on file.’ ”). The supreme court affirmed, stating, “[Ejven if we broadly construe Weaver’s post-judgment filing, Weaver waived his right to challenge the deemed admissions.” Unifund, 262 S.W.3d at 798.

The supreme court distinguished Uni-fund from Wheeler v. Green, 157 S.W.3d 439 (Tex.2005) (per curiam), wherein a pro se appellant was permitted to raise, in a motion for new trial, the timeliness of her responses to requests for admissions, which were untimely filed and deemed admitted. See Unifund, 262 S.W.3d at 798. The supreme court noted that, in contrast to Wheeler, “even if we construe Weaver’s post-judgment filing as a motion for new trial, Unifund’s motion for summary judgment put him on notice of the deficiency of his response: that Unifund never received the response because Weaver had not served, or attempted to serve, the response on Unifund.” Id.

We believe, however, that the present case is similar to Wheeler, 157 S.W.3d at 442. In Wheeler, sixty-four requests for admissions were deemed admitted because Wheeler, proceeding pro se, filed her response two days late due to a mistake regarding the “mailbox rule”: Wheeler did not realize that the mailbox rule starts the clock running for her to respond to the requests on the day the requests are properly placed in the mail. Id. at 441; see Tex.R. Civ. P. 21a. Summary judgment was entered for Green based on the deemed admissions. Wheeler, 157 S.W.3d at 441. Green attached the requests for admission to his motion for summary judgment. Id. In his motion for summary judgment, “Green argued [that] Wheeler admitted every element of [Green’s] claims against her by failing to timely respond to the requests for admission and, therefore, he was entitled to judgment as a matter of law.” Wheeler v. Green, 119 S.W.3d 887, 889 (Tex.App.-Dallas 2003), rev’d, 157 S.W.3d at 444. Wheeler did not file a response or a motion to withdraw the deemed admissions, though she did attend both summary judgment hearings. Wheeler, 157 S.W.3d at 441; see Tex.R. Civ. P. 198.3 (providing for the amendment or withdrawal of deemed admissions upon a showing of good cause, no undue prejudice, and that the “merits of the action will be subserved by permitting the party to amend or withdraw the admission”).

Subsequent to summary judgment, Wheeler hired an attorney and filed a motion for new trial, arguing that the responses were timely filed and attaching copies of the responses. Wheeler, 157 S.W.3d at 442. Addressing the waiver issue, the supreme court held that Wheeler’s motion for new trial was sufficient to raise her complaints because “nothing in this record suggests that before summary-judgment was granted, [Wheeler] realized that her responses were late, that she needed to move to withdraw deemed admissions, or that she needed to file a response to the summary judgment raising either argument.” Id.

Here, Petree, proceeding pro se, did not file or serve a response to Allstate’s request for admissions. The appellees filed motions for summary judgment based on the deemed admissions, which the trial court granted. Allstate attached an affidavit from its trial counsel to its motion for summary judgment stating, in pertinent part, that more than thirty-three days had passed since its requests for admissions were sent to Petree and that no response had been received. Following the granting of summary judgment, Petree hired an attorney who filed a motion for new trial asserting that Petree had never received the requests for admissions. Petree asked the trial court to grant a new trial and to “either order [appellees] to re-serve their requests for admissions upon [her counsel] or allow [Petree] to file a motion to un-deem the admissions.” As in Wheeler, “the arguments and requests in [Petree’s] motion for new trial were sufficient to put the trial court on notice of exactly” her complaint. Id. (citing Tex.R.App. P. 33.1). We conclude that Petree was entitled to raise her complaints in her motion for new trial because nothing in the record suggests that before summary judgment was granted, Petree realized that she needed to move to withdraw deemed admissions or that she needed to file a response to the appellees’ motions for summary judgment and raise the lack of service argument therein. See id.

III. Standard of Review

We review de novo the trial court’s granting of the appellees’ traditional motions for summary judgment. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); see also Garcia v. Corpus Christi Civil Serv. Bd., No. 13-07-00585-CV, 2009 WL 2058892, at *3 (Tex.App.Corpus Christi July 16, 2009, no pet.) (mem. op.). “The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense.” Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999). When the mov-ant’s summary judgment proof is legally insufficient, “[t]he trial court may not grant summary judgment by default because the nonmovant did not respond to the summary judgment motion.” Id. at 223. “The movant must establish its right to summary judgment on the issues expressly presented to the trial court by conclusively proving all elements of the movant’s cause of action or defense as a matter of law.” Id.

IV. Discussion

From our reading of the record, it appears that, while Petree’s claim sounded in breach of contract, the appellees’ motions for summary judgment asserted that they were not negligent. However, because the appellees argued in their motions for summary judgment that Petree admitted, through the deemed admissions, that she was 100% liable for the underlying accident and that she suffered no injuries from the accident, we construe appel-lees’ motions as an attack on the elements of Petree’s breach of contract claim based on the appellees’ denial to pay UIM benefits to Petree. See Brainard v. Trinity Univ. Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006) (“UIM insurance utilizes tort law to determine coverage ... [and] the insurer’s contractual obligation to pay benefits does not arise until liability and damages are determined.”) (citing Henson v. S. Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 654 (Tex.2000)). To have a claim for UIM benefits, Petree must have obtained a judgment or settlement “establishing the negligence and underinsured status of the other motorist.” Id. Therefore, to prevail on summary judgment, the appellees must have conclusively proven that the other driver was not negligent and not underin-sured, which they attempt to do utilizing the deemed admissions. Id.; see Rhone-Poulenc, Inc., 997 S.W.2d at 223.

Allstate’s requests for admissions asked three questions:

Do you admit or deny that the motor vehicle accident that occurred on August 21, 2002 between you and James Smith of [sic] which forms the basis of this lawsuit was 100% proximately caused by your negligence[?]
Do you admit or deny that you suffered no injuries as a result of the motor vehicle accident that occurred on August 21, 2008 between you and James Smith[?]
Do you admit or deny that you have no valid claim against Allstate Insurance Company and/or Allstate Indemnity Company under its insured, Jay Williams’[,] Underinsured Motorist coverage of his policy?

Because Petree did not timely serve responses to the requests, they were deemed admitted. See Tex.R. Civ. P. 198.2(c).

In their motions for summary judgment, the appellees rely on deemed admissions to the first two questions: (1) that Petree’s negligence was 100% the proximate cause of the accident; and (2) that Petree incurred no injuries as a result of the accident. These two admissions defeat the prerequisite to a UIM claim: that she was damaged by the other driver’s negligence. See Bramará, 216 S.W.3d at 818. Thus, the appellees argued to the trial court that they were entitled to summary judgment on Petree’s breach of contract claim against them.

In Petree’s first issue, she argues that the trial court denied her due process by granting the appellees’ motions for summary judgment based on the deemed admissions, particularly when she did not receive the requests in the first place. The appellees respond that because Petree received all of the process that was due her, summary judgment was proper. We agree with Petree.

When the non-movant has not engaged in “flagrant bad faith or callous disregard for the rules,” summary judgment is improper when the only evidence presented by the movant is in the form of merits-preclusive deemed admissions. Ce-dyco Carp. v. Whitehead, 253 S.W.3d 877, 881 (Tex.App.-Beaumont 2008, pet. denied); Wheeler, 157 S.W.3d at 443. This is so because “absent flagrant bad faith or callous disregard for the rules, due process bars merits-preclusive sanctions.... ” Wheeler, 157 S.W.3d at 443 (noting that, for due process purposes, merits-preclu-sive deemed admissions are the equivalent of merits-preclusive discovery sanctions); see Whitehead, 253 S.W.3d at 881 (holding that deemed admissions on pure questions of law are improper summary judgment evidence); Boulet v. State, 189 S.W.3d 833, 838 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (declaring that summary judgment in a forfeiture action may not be sustained on deemed admissions embracing the “fundamental legal issues to be tried”).

When requests for admissions are used as intended[ — ]addressing uncontrovert-ed matters or evidentiary ones like the authenticity or admissibility of doeu-ments[ — ]deeming admissions by default is unlikely to compromise presentation of the merits. But when a party uses deemed admissions to try to preclude presentation of the merits of a case, the same due-process concerns arise [as in merits-preclusive discovery sanction cases].

Wheeler, 157 S.W.3d at 443 (citations omitted).

Here, the deemed admissions were on the prerequisite fundamental issue to be tried: liability for and damages arising from the underlying accident. See Brainard, 216 S.W.3d at 818; Boulet, 189 5.W.3d at 838. A deemed admission that Petree was 100% the proximate cause of the accident defeats her negligence claim against the other driver as a matter of law. See Tex. Civ. Prac. & Rem.Code Ann. §§ 33.001-.002 (Vernon 2008). Additionally, a deemed admission that Petree incurred no injuries as a result of the accident defeats her claims for damages against the other driver. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998) (setting forth the elements of a negligence cause of action). Under the record before us, we find no evidence of flagrant bad faith or callous disregard for the rules on Petree’s part. See Wheeler, 157 S.W.3d at 443-44. There is no evidence that the appellees would be unable to prepare for a trial on the merits if Petree’s admissions were withdrawn or would suffer undue prejudice. See id. & n. 2; Tex.R. Civ. P. 198.3 (noting the standard for withdrawing deemed admissions requires a showing of good cause for the withdrawal, lack of undue prejudice, and that the merits of the action will be subserved by permitting the withdrawal). We conclude that, on this record, the trial court erred in granting summary judgment, and we sustain Pe-tree’s first issue.

V. Conclusion

Having sustained Petree’s first issue, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

      . The style of the case lists two Allstate companies as defendants: Allstate Insurance Company and Allstate Indemnity Company. In its motion for summary judgment, Allstate referred to itself by both names without distinguishing between the two. The trial court granted "Defendant Allstate Indemnity Company’s Motion for Summaty Judgment” and then dismissed Petree’s “claims against Defendant Allstate Insurance Company.” No party on appeal differentiates between the two companies, so we will treat them as one for purposes of this appeal.

      . The facts underlying this case are not disputed.

      .The summary judgment record does not contain a "green card” indicating receipt of the request for admissions. Allstate’s request for admissions contains a certificate of service stating that the request was sent to Petree. The record also contains a print-out from the United States Postal Service website which demonstrates that a package with the same tracking label as the one attached to the request for admissions was delivered in Victoria, Texas but to a different zip code than the one associated with Petree’s last known address on file with the trial court.

      . During oral argument, this Court strenuously admonished counsel for the appellees regarding the use of such requests for admissions. See Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (noting that the primary, intended purpose of requests for admissions is to " 'simplify trials by eliminating matters about which diere is no real controversy, but which may be difficult or expensive to prove. [They were] never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense.’ ”) (quoting Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950)).

      . No party contends that the other driver was not underinsured.

      . Because we sustain Petree's first issue, we need not address her second issue. See Tex. R.App. P. 47.1.


author: STEVE McKEITHEN, Chief Justice.

text:
    In the Interest of C.P.V.Y., B.Y. and C.C.P.L.
    No. 09-09-00248-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 5, 2010.
    Decided June 24, 2010.

      Marva Provo, Beaumont, for appellant.
    Gerry Williams, TDFPS General Counsel, Trevor A. Woodruff, Appellate Atty., Austin, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

M.P. appeals the termination of his parental rights to the minor children C.P.V.Y., B.Y. and C.C.P.L. M.P. raises seven issues for our consideration. In issues one through five, M.P. attacks the legal and factual sufficiency of the evidence supporting the trial court’s findings. In issue six, M.P. asserts that the trial court violated his constitutional rights by terminating his parental rights when he was unable to be physically present during the trial. In issue seven, M.P. argues that the trial court violated his constitutional rights by denying his motion to continue the trial until he could participate. We affirm the trial court’s judgment.

Procedural Background and Evidence

The Department of Family and Protective Services (hereinafter “CPS”) filed a petition to terminate M.P.’s parental rights to C.P.V.Y., B.Y. and C.C.P.L. The trial court granted the writ of habeas corpus ad testificandum filed by M.P. so that he could be physically present for trial. When the jury trial began, M.P., who was incarcerated in a federal prison in Kentucky, participated in the proceedings by telephone. M.P. did not object on the first day of trial to being unable to be physically present.

The State’s first witness was CPS investigative worker Runday Hodge. On February 22, 2005, Hodge encountered C.P.V.Y., B.Y. and C.C.P.L., as well as their two half siblings, after someone reported that C.C.P.L. and his half sister had been seen soliciting for sex in the parking lot of a business. CPS eventually located the children and their grandmother in a motel room in Beaumont. The children’s grandmother told Hodge that the family was in Beaumont due to a death in the family, and that the family had come to Beaumont on the way to Las Vegas for a funeral. In addition, grandmother provided a false name to Hodge. Grandmother informed CPS that she was the primary caretaker of the children. Hodge testified that she worked on the children’s case for about two and a half months after the children were removed, and although she requested the children’s birth certificates, school records, and immunization records, she never received them. According to Hodge, when CPS became involved in the case, some of the children had dyed hair, and they had head lice.

CPS foster care worker Kimberly Landry testified that she was assigned to the case involving C.P.V.Y., B.Y. and C.C.P.L. According to Landry, after C.C.P.L. was born, CPS took C.C.P.L. directly from the hospital into foster care. C.C.P.L. has been placed with the same foster family since birth, and CPS intends for that family to adopt C.C.P.L. Landry explained that she had difficulty obtaining identifying information from family members for the children, such as birth certificates, correct names, birth dates, and immunization records, so all three children had to be immunized. According to Landry, when the children came into foster care, they had lice and dyed hair. Landry explained that she questioned grandmother’s truthfulness because grandmother claimed to be an FBI informant, working for the Houston Police Department, talked about her wonderful home, and talked about her fear that someone was attempting to kill her. When Landry contacted the Houston Police Department, she learned that grandmother’s story was untrue. Landry testified she received one letter and approximately two phone calls from M.P. during the fourteen months that she handled the case.

According to Landry, she explained to M.P. in late 2005 that his children were in the care of CPS, and M.P. indicated that he wanted his children to be with his sister or to reunite with their mother. Landry testified that she had explained to M.P. why CPS had removed the children from their mother, but M.P. never expressed concern about returning the children to their mother. In a letter to CPS, M.P. provided a telephone number for his sister, and Landry testified that when CPS attempted to contact M.P.’s sister, the telephone had been disconnected.

Kimberly Shelton, a family based safety services supervisor for Jefferson County with CPS, testified that in 2007, she was the foster care worker in charge of the case involving C.P.V.Y., B.Y. and C.C.P.L., and she made the decision to place the children with grandmother in an effort to keep the children together. CPS temporarily placed the children with grandmother on March 22, 2007. Shelton testified that a few weeks later, she visited the home to check on the children, and “[e]v-erything looked really good. The house looked really good. The children were enrolled in school. She was providing for them.” Shelton testified that when she visited the home again on April 17, 2007, to move the children’s belongings to grandmother’s house, the house “wasn’t like I had seen it before.... [0]ne of the things that I noted was there was, like, a strong smell of bleach like that somebody had been working very hard to clean it.... [W]e noticed that the children were sick.”

According to Shelton, at the beginning of May, she received numerous phone calls from grandmother indicating that grandmother was “having some trouble with the landlord over at the apartment complex and ... she had reported to me that the mother had been over there a couple of times to see the children.” Shelton testified that she also began hearing that grandmother might be evicted. On May 1, 2007, CPS and another caseworker decided to remove the children from grandmother, so Shelton and another caseworker, accompanied by law enforcement officers, went to remove the children and put them back into foster care. Shelton contacted grandmother by telephone, and grandmother stated that she was out searching for another apartment, told Shelton that the children were with her, and informed Shelton that she and the children should be back in approximately one hour. Shelton testified that she could hear the children in the background during her telephone conversation with grandmother. Shelton testified that she did not tell her she was there to remove the children, but simply told grandmother she wanted to see the children.

Shelton testified that grandmother had either seen the police or someone had warned grandmother that the CPS caseworkers were accompanied by the police, because grandmother “called me back and asked me why law enforcement was with me.” According to Shelton, grandmother called again, said that they were running behind, and that they were getting ready for a birthday party. Grandmother called again and told Shelton that she should come to the birthday party, so the CPS caseworkers and law enforcement officers returned to the apartment between fifteen and thirty minutes later. Shelton explained that when she reached the door of the apartment, grandmother opened the door and stated that the children were not there because they were fishing with their mother in Galveston and would be back at 9:00 p.m.

According to Shelton, both CPS and law enforcement began investigating and attempting to locate the children, and the trial court held a special hearing to attempt to find the children. Shelton testified that on November 10, 2007, CPS received a call from grandmother, flew to Las Vegas, and retrieved C.P.V.Y., C.C.P.L., and one of their half siblings from the custody of Las Vegas CPS; however, B.Y. was not with them, and at the time of trial, B.Y. was still missing. Shelton explained that when she picked the children up in Las Vegas, them names had been changed. Shelton also testified that on the day the children disappeared, grandmother’s apartment “was a mess. There was ... food with open pots left in the sink. There was something that had been left in the oven that when the apartment manager opened it ... it threw her back because the smell was so rancid.” According to Shelton, M.P. never contacted her or sent any letters to the children while she was working on the case, and she explained that she worked on the case from March of 2007 until approximately February of 2008. Due to prison regulations, M.P. was forced to get off the telephone at 4:00 p.m., during the cross-examination of Shelton by grandmother’s counsel.

Grandmother testified that M.P. “should have rights to his children” and should raise them. Grandmother opined that M.P. will support the children and care for them when he is released from prison. According to grandmother, she last saw M.P. seven or eight years ago. Grandmother explained that because she was living in another city, she did not see M.P. when he and her daughter conceived B.Y. in 2003 or C.C.P.L. in 2004. Grandmother testified that she told M.P. “that my daughter wasn’t right because she’s schizophrenic, delusional, ... to leave her alone.... ”

Grandmother explained that she told CPS that M.P. had “slapped her [daughter] a couple of times, but that was it.” According to grandmother, there was “arguing and fighting[,]” but no one was hurt. Grandmother testified that M.P. worked and provided a home and food for the children “when he was there,” but M.P. has been gone for seven or eight years. However, during cross-examination, grandmother admitted that she might be mistaken about the time frame, and M.P. might have only been incarcerated for five years. Grandmother explained that M.P. never really supported C.P.V.Y., B.Y. or C.C.P.L. In addition, grandmother explained that she accused M.P. of sexually abusing her daughter, C.C., who was eleven years old at the time, but grandmother now does not believe M.P. sexually abused C.C. Grandmother testified that the children’s mother dyed their hair “because she felt that there was [sic] people watching them or looking for them.”

M.P. testified that he has been incarcerated since November 3, 2004, for felony possession of a firearm after pleading guilty and receiving a seventy-one-month sentence. M.P. explained that he had been convicted of burglary “four or five times” in 1998. M.P. testified that he has never met C.C.P.L. M.P. last saw B.Y. and C.P.V.Y. on the day he was incarcerated, when B.Y. was approximately one year old and C.P.V.Y. was approximately two and a half years old. M.P. testified that CPS notified him that his children were in CPS custody. M.P. explained that Landry wrote to him several times, and he contacted Landry by telephone, but “[rjight now I can’t pick up the phone whenever I want.” In addition, M.P. testified that his disciplinary infractions while incarcerated had restricted his ability to contact the children. M.P. testified that he was unaware that the telephone number he had given Landry for his sister was not a working number.

M.P. stated he understood that despite his incarceration, he is still responsible for his children. When asked what he has done to show that he is maintaining responsibility for his children, M.P. testified, “to be honest with you, in the situation that I’m in right now, you know, there’s really nothing I can do.... The social workers and family social services are taking care of my children for right now until I get out and to show you people that I’m willing to change and take care of my children.” According to M.P., no one from his family has come forward to care for the children, although M.P. informed them by letter that the children were in foster care. When asked whether he had any family members other than his sister who could care for the children, M.P. testified, “not really.” M.P. testified that his other relatives have numerous children of their own. M.P. testified that since 2005, he had only sent the children two cards. M.P. explained that he only acted as a parent to the children from February of 2002 until November of 2004.

According to M.P., when he entered federal custody, the children and their mother had an apartment, transportation, and food, and CPS was not involved with their lives. M.P. testified that he told the children’s mother, “we are going to survive. We are going to make it. You have to do with what we got.” M.P. testified that the children’s mother “was supposed to get a job[,] and her mom was going to help her out, too.” M.P. testified, “once I get out ... I’m going to do my best ... to get my kids back and show you people that I’m going to get their housing, register for school, food, clothing, shelter, and everything.” In addition, M.P. testified, “I can’t do nothing right here.” M.P. explained that during his incarceration, he has taken anger management classes, business courses, parenting classes, and is working toward his G.E.D. M.P. denied ever placing his children in a surrounding that would endanger them physically or emotionally or leaving them with people who might endanger them physically or emotionally.

On the second day of trial, M.P.’s counsel noted that M.P. was unable to be present by telephone, and the following colloquy occurred between M.P.’s counsel and the trial court:

[Counsel]: Your Honor, very briefly, if we could.
[M.P.] is not available today. I just want to make, for the record, my objection of continuing the trial without his presence. He has a constitutional right to participate in these proceedings; therefore, we’d ask for a continuance until such time as he can be available again here by telephone.
THE COURT: I appreciate your dilemma. As I understand it, ... he’s got some problems at the prison, and ... there was a lockdown, and there was a ... was it in the box or what was his term?
[Counsel]: I’m not sure of everything he said yesterday. But the last comment he made to me on the phone is his counselor is the person that’s responsible for escorting him to a telephone and getting him that contact, and his counselor does not work today.
THE COURT: All right.
I’ll deny your request for continuance.
[Counsel]: Thank you, Your Honor.
THE COURT: We are just several witnesses away from finishing up this matter. We have a jury, and we are going to go forward.

The State then called Rhonda Crim, a case supervisor with Court Appointed Special Advocates (CASA). Crim testified that she had dealt with the case involving C.P.V.Y., B.Y. and C.C.P.L. since they were initially removed on February 23, 2005. Crim testified that she agreed with the testimony of the CPS caseworkers. Crim opined that M.P.’s rights should be terminated. In addition, Crim explained that she has never recommended reunification of the children with the family because “I feel like that from the beginning there’s been a lot of deceit, the information just wasn’t there for us to be able to prove one way or another situations that were going on with the family as well as the lack of stability in the family environment.” Crim testified that she was concerned about the stability of the home, and she stated that grandmother moved the children to different motels in unsafe parts of town. Crim testified that CASA plans for the children to be adopted by the foster families with whom they are currently placed. According to Crim, the families with whom C.P.V.Y. and C.C.P.L. are placed are stable, and the children are doing well there.

According to Crim, she has worked with many cases involving parents who were incarcerated. Crim testified that in some cases, incarcerated parents maintain significant ties with their children, either by written correspondence, telephone calls, or sending Christmas gifts. Crim explained that she was aware of three letters that M.P. had written to CPS concerning the children, and that she knew of two cards he had sent during a four-year period. Crim testified that, in her opinion, M.P. had not maintained significant contact with the children. In addition, Crim opined that if C.C.P.L. were reunited with M.P., it would be detrimental because C.C.P.L. is living with “the only family he knows.”

Debbie Lee of CPS testified that beginning in May of 2006, she worked on the case involving C.P.V.Y., B.Y. and C.C.P.L. as both a foster care caseworker and supervisor. According to Lee, reunification is always CPS’s initial goal. If reunification with the parents is impossible, CPS turns to the children’s extended family. Lee testified that it is impossible to reunify children with a parent who is incarcerated. According to Lee, CPS routinely mails information to parents, such as plans of service, permanency reports, and court orders. Lee explained that CPS sent a letter to M.P. instructing him to send information about relatives, and CPS attempted to call the telephone number that M.P. provided for a relative. Lee testified that CPS received three letters from M.P. over a four-year period. Lee opined that M.P.’s conduct showed a “lack of interest” in the children, and she testified that M.P.’s incarceration and criminal history indicate that he is unable to provide the children with a safe environment. In addition, Lee opined that M.P. has not “tried to keep his family together.” Lee testified, “[f]or four and a half years I have been doing case planning for this ease or our agency has been doing case planning for this case. If you are asking me if I think that’s long enough to put children’s lives on hold, I do.”

The jury found that the relationship between M.P. and the children should be terminated, and the trial court signed a final termination order, in which it found by clear and convincing evidence that terminating the parent-child relationship between M.P. and the children is in the children’s best interest. In its order, the trial court also found by clear and convincing evidence that M.P. had constructively abandoned the children; CPS had made reasonable efforts to return the children to M.P., M.P. had not regularly visited or maintained significant contact with the children; M.P. had demonstrated an inability to provide the children with a safe environment; and M.P. had knowingly engaged in criminal conduct that had led to his conviction, imprisonment, and resultant inability to care for the children for not less than two years from the date the petition was filed. The trial court’s order terminated the parent-child relationship between M.P. and the children. M.P. then filed this appeal.

Issue One

In his first issue, M.P. argues that the evidence is legally and factually insufficient to support the trial court’s finding that termination of the parent-child relationship is in the best interest of the children. Because involuntary termination of parental rights implicates fundamental constitutional rights and is both severe and permanent, the burden of proof at trial is clear and convincing evidence. Tex. Fam. Code Ann. § 161.001 (Vernon Supp.2009); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). “ ‘Clear and convincing evidence’ means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.Code Ann. § 101.007 (Vernon 2008). Before parental rights may be involuntarily terminated, the trier of fact must find by clear and convincing evidence (1) that the parent committed one of the statutory grounds found in section 161.001(1) of the Family Code, and (2) that termination is in the children’s best interest. Tex. Fam.Code Ann. § 161.001 (Vernon Supp.2009); see also Tex. Dep’t of Human Seros, v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

In a legal sufficiency review, we consider all of the evidence in the light most favorable to the termination finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction about the truth of the matter on which CPS bears the burden of proof. In re J.L., 163 S.W.3d 79, 84-85 (Tex.2005). We assume the factfinder resolved any disputed facts in favor of its finding, if a reasonable factfinder could do so, and disregarded all evidence that a reasonable factfinder could have disbelieved. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). In a factual sufficiency review, we give “due consideration” to any evidence the factfin-der could reasonably have found to be clear and convincing. Id. (citing In re C.H., 89 S.W.3d 17, 25 (Tex.2002)). We consider the disputed evidence and determine whether a reasonable factfinder could have resolved that evidence in favor of the finding. Id. The evidence is factually insufficient if the disputed evidence is so significant that a factfinder could not have reasonably formed a firm belief or conviction as to its existence. Id.

In determining whether termination is in a child’s best interest, the Supreme Court has set forth a non-exhaustive list of factors: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). The party seeking termination need not prove that each Holley factor favors termination. In re C.H., 89 S.W.3d at 27. The same evidence of acts or omissions used under section 161.001(1) may be probative in determining the best interests of the child. In re AAA., 265 S.W.3d 507, 516 (Tex.App.-Houston [1st Dist.] 2008, pet. denied).

The factfinder heard evidence that when CPS became involved in the case involving the children, the children were soliciting for sex, they had head lice, and some of the children had dyed hair. The record also indicates that while the children were in grandmother’s care, they disappeared after CPS informed grandmother they were waiting for grandmother at her home. All of the childi’en were missing for several months, and B.Y. is still missing.

In addition, the record contains evidence that M.P. has been incarcerated since November 3, 2004, for felony possession of a firearm after pleading guilty and receiving a seventy-one-month sentence. The fact-finder also heard evidence that M.P. had been convicted of burglary “four or five times” in 1998. Moreover, M.P. testified that he has never met C.C.P.L., and when he was incarcerated, C.P.V.Y. was approximately two and a half years old, and B.Y. was approximately one year old. The fact-finder also heard evidence that although M.P. provided CPS with the name and telephone number of his sister, who M.P. hoped would care for the children during his incarceration, the number M.P. provided for his sister had been disconnected. M.P. testified that other than the sister whom CPS had been unable to contact, he had no other family members who could care for the children during his incarceration, and M.P. testified that he is unable to care for the children while he is incarcerated.

The factfinder also heard evidence that M.P. had sent the children two cards during a four-year period, and a CASA case supervisor opined that M.P. had not maintained significant contact with the children. M.P. testified that his disciplinary infractions during his incarceration had restricted his ability to contact the children. A CPS caseworker testified that M.P.’s conduct demonstrated a lack of interest in the children. Furthermore, the factfinder heard evidence that C.P.V.Y. and C.C.P.L. are currently placed with stable foster families who want to adopt them, and the children are doing well with them foster families. Also before the factfinder was evidence that C.C.P.L. had been placed with the same foster family since birth. A CASA case supervisor also testified that reunification with M.P. would be detrimental to C.C.P.L. because C.C.P.L. is living with the only family he has ever known.

M.P. testified that when he is released from prison, he wants to seek employment and care for his children. In addition, M.P. explained that he has taken anger management classes, business courses, parenting classes, and is working toward his G.E.D. Grandmother testified that M.P. should retain his rights to the ehil-dren and raise them, and that M.P. would support the children and care for them when he is released from prison.

On this record, applying the appropriate standards of review, we hold that the evidence was legally and factually sufficient for a reasonable factfinder to form a firm belief or conviction that it was in the best interest of the children for M.P.’s parental rights to be terminated. Accordingly, we overrule issue one.

Issues Two, Three, Four and Five

In issues two through five, M.P. attacks the legal and factual sufficiency of the evidence supporting the trial court’s findings that he failed to comply with the terms of a court order, that he constructively abandoned the children, that he cannot provide a safe environment for the children, and that CPS has made every reasonable effort to return the children to him. However, M.P. does not raise an appellate issue concerning the trial court’s other stated basis for terminating M.P.’s parental rights: that M.P. knowingly engaged in criminal conduct that has resulted in the parent’s conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date of filing the petition. See Tex. Fam.Code Ann. § 161.001(1)(Q). Once the best interest finding under section 161.001(2) is satisfied, the party seeking termination need prove only one of the termination grounds listed under section 161.001(1). Tex. Fam. Code Ann. § 161.001; In re A.V., 113 S.W.3d 355, 361 (Tex.2003). M.P. does not challenge the legal or factual sufficiency of the evidence supporting the trial court’s finding under section 161.001(1)(Q); therefore, he has waived any complaint concerning the sufficiency of the evidence to support that finding. See Toliver v. Tex. Dep’t of Family and Protective Sens., 217 S.W.3d 85, 102-03 (TexApp.-Houston [1st Dist.] 2006, no pet.). Therefore, the trial court’s termination order is supported by sufficient evidence, and we need not address issues two, three, four and five. See id.

Issue Six

In his sixth issue, M.P. argues that the trial court violated his rights under the U.S. Constitution and the Texas Constitution by terminating his rights when he was unable to be physically present at the trial. Specifically, M.P. argues that he was prejudiced because the factfinder “was not able [to] see him or his demeanor and judge his credibility.” Trial counsel did not object to M.P. being able to appear only by telephone on the first day of trial. When M.P. was not permitted to appear telephonically on the second day of trial due to a lockdown at the prison, his attorney objected not to M.P.’s inability to be physically present, but to M.P.’s inability to be present by telephone. Therefore, M.P.’s trial objection does not comport with the issue he now raises on appeal. See Moser v. Davis, 79 S.W.3d 162, 169 (Tex.App.-Amarillo 2002, no pet.); Tex. RApp. P. 33.1(a).

Even if M.P. had properly preserved the issue, he would not prevail. First, the trial court granted M.P.’s request for a writ of habeas corpus ad testifi-candum; however, because M.P. was incarcerated in a federal facility in another state, the trial court lacked the authority to compel M.P.’s attendance, and the federal government refused to honor the trial court’s order. Second, in considering the need for an inmate’s physical presence at trial, a court may evaluate

the cost and inconvenience of transporting the prisoner to the courtroom; the security risk the prisoner presents to the court and public; whether the prisoner’s claims are substantial; whether the matter’s resolution can reasonably be delayed until the prisoner’s release; whether the prisoner can and will offer admissible, noncumulative testimony that, cannot be effectively presented by deposition, telephone, or some other means; whether the prisoner’s presence is important in judging his demeanor and credibility; whether the trial is to the court or a jury; and the prisoner’s probability of success on the merits.

In re Z.L.T., 124 S.W.3d 163, 165-66 (Tex.2003). When M.P.’s counsel objected to M.P.’s unavailability by telephone on the second day of trial, counsel did not offer any evidence or argument concerning the above factors, nor did he explain why M.P.’s presence was necessary. CPS called only two witnesses (Crim and Lee) on the second day of trial, and M.P. had testified on the first day. M.P.’s counsel did not argue at trial that M.P.’s inability to participate by telephone left counsel unable to adequately represent M.P., nor does M.P. so argue on appeal. For all of these reasons, we overrule issue six.

Issue Seven

In his seventh issue, M.P. asserts that the trial court violated his right to due process and due course of law by denying his oral motion for continuance. We review the granting or denial of a motion for continuance for an abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). We will not reverse the trial court’s decision unless the trial court acted unreasonably or arbitrarily “without reference to any guiding rules and principles.” Beaumont Bank, N.A. v. Bullet, 806 S.W.2d 223, 226 (Tex.1991) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). Rule 251 provides as follows, in pertinent part: “No application for a continuance shall ... be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex.R. Civ. P. 251. A trial court is presumed to have correctly exercised its discretion when it denies a motion that does not comply with the requirements of Rule 251 of the Texas Rules of Civil Procedure. Villegas, 711 S.W.2d at 626. In the instant case, counsel made only an oral motion for continuance, presumably due to evolving circumstances at trial concerning M.P.’s unavailability by telephone; therefore, the record does not contain an affidavit supporting the motion. On these facts, we presume that the trial court did not abuse its discretion by denying the motion. See id. However, we will nevertheless review M.P.’s constitutional contention.

As support for his argument, M.P. cites Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). To assess what process is due, courts weigh three factors: (1) the private interest affected by the proceeding or official action; (2) the countervailing governmental interest supporting use of the challenged proceeding; and (3) the risk of an erroneous deprivation of that interest due to the procedures used. In re B.L.D., 113 S.W.3d 340, 352 (Tex.2003) (citing El-dridge, 424 U.S. at 335, 96 S.Ct. 893). The State has a compelling interest in preserving and promoting the welfare of the children. Rodarte v. Cox, 828 S.W.2d 65, 79 (Tex.App.-Tyler 1991, writ denied) (citing Santosky v. Kramer, 455 U.S. 745, 766,102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). However, because termination of parental rights is traumatic, permanent, and irrevocable, any significant risk of erroneous deprivation is unacceptable. In re M.S., 115 S.W.3d 534, 549 (Tex.2003).

Counsel’s motion for continuance did not explain why M.P.’s telephonic presence on the second day of trial was necessary, nor did counsel explain when M.P. might again be available to participate in the proceedings by telephone. In this case, applying the Eldridge factors, we hold that the trial court did not abuse its discretion by denying MJP.’s motion for continuance, nor did it violate M.P.’s rights to due process and due course of law. M.P. participated tele-phonically on the first day of trial without objection, and he testified as a witness. M.P.’s counsel did not object to proceeding with the remainder of the trial on the first day after M.P. had to get off the telephone at 4:00 p.m. In addition, although M.P. was unable to participate telephonically on the second day of trial due to a lockdown at the prison, M.P.’s counsel was present to mount a defense on M.P.’s behalf, and M.P.’s counsel cross-examined the witnesses and presented argument. For all of these reasons, we overrule issue seven and affirm the trial court’s judgment.

AFFIRMED.

      . This occurred on the first day of trial.