author: Justice FITZGERALD.

text:
    David BELL, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-08-01471-CR, 05-08-01472-CR, 05-08-01473-CR.
    Court of Appeals of Texas, Dallas.
    Oct. 26, 2010.

      Katherine A. Drew, James Gerard McDermott II, Dallas County Public Defenders Office, Dallas, for Appellant.
    Craig Watkins, Dallas County Dist. Atty., Michael J. Sandlin, Asst. Dist. Atty., Dallas, for State.
    Before Justices FITZGERALD, MURPHY, and FILLMORE.
   OPINION

Opinion By

Justice FITZGERALD.

A jury found David Bell guilty of two charges of aggravated sexual assault and one charge of sexual performance by a child, and it assessed his punishment at fifteen years’ imprisonment on each of the three charges. The trial court stacked the sentences in the two aggravated sexual assault cases. On appeal, Bell contends: the evidence is insufficient to support his conviction for sexual performance; the trial court gave the jury an erroneous supplemental charge concerning mistake of fact; the trial court improperly enhanced Bell’s sentences in all three cases; and the trial court’s sentences in all three cases represented cruel and unusual punishment. We affirm.

Background

The majority of the evidence relevant to this appeal is found in the testimony of three witnesses: the complainant, Demoni-ca Abron, and Bell himself.

The Complainant

The complainant testified she ran away from home when she was twelve. She met some people at the West End, and she ended up staying with their friends in a hotel room in Dallas. She met Bell when he came to that hotel to visit the people with whom she was staying. The same night the complainant met Bell, she left with him. When they got into his car he told her he was going to show her what she would be doing; she thought he meant just that they would be friends. But Bell had her perform oral sex on him in the car: she “began” in the hotel parking lot and “finished” later at his house. The complainant testified she stayed with Bell for a week or two. She stayed with him initially because she liked staying with him and because she thought she could make money with him. But throughout the time she lived in Bell’s house, Bell had her perform oral sex on him once or twice a day, and she grew tired of that.

Bell’s girlfriend, Demonica Abron, was living in Bell’s house as well. Abron worked as a dancer at Diamonds Cabaret, a nude strip club. Bell drove Abron to work the first day the complainant lived with them, and she rode along with them. The second day, Bell drove the complainant and Abron to the club, and Abron took the complainant inside to fill out an employment application. On the third day, the complainant began working at the club. Like the other dancers, the complainant performed twice when it was her turn: the first time dressed in a bikini Abron lent her and the second time nude. Men threw money on the stage, and she picked it up. She gave her money to Abron, who paid some to the club personnel and gave the rest to Bell. Bell drove Abron and the complainant to Diamonds Cabaret each night and picked them up when they finished dancing each morning at four o’clock.

Going to work as a dancer with Abron was not the complainant’s idea; it was either Bell’s or Abron’s. The complainant never liked dancing at the club. She wanted to dance because she wanted to earn money, but she never got to keep any of the money she earned. Bell was in control of the situation; he was “the boss of the house.” Eventually, the complainant wanted to leave because of Bell’s attitude. When things did not go his way, he would get angry and upset. Bell told her he wanted her to have sex with other men for money. She was afraid of how he would react if she just told him she wanted to leave, so she lied and told him she was going to have sex with a man for money. Bell and Abron took the complainant to meet up with the man, and Bell gave her his phone so she could call him when she was finished. The complainant did not call Bell or return to his home.

Demonica Abron

Abron testified she “went with” Bell for two years, and she was living with him during the week or two the complainant was there. According to Abron, it was Bell’s idea that the complainant should dance at the club. Bell told her to take the complainant to Diamonds Cabaret and “see if they will let her work up there.” Abron introduced the complainant to the manager; she believed the complainant probably danced at that club three or four times. Abron confirmed that dancers at the club performed two dances: one with clothing and one nude. The dancing was sexual in nature, and both Abron and the complainant also performed table dances at the club. Abron also confirmed that Bell drove them to and from the club each day. Bell kept all the money they made at the club. She said Bell knew what kind of place the club was because he had been inside it before. No one forced the complainant to dance at the club, but Abron acknowledged Bell had been getting “mean” with the complainant as time went by. The complainant saw Bell and Abron argue, and she knew Bell was in charge. Neither Abron nor the complainant could have just left Bell. The only way the complainant could leave was to escape when Bell thought she was making money. According to Abron, Bell did not work; he paid the bills with her money. She had never worked at a strip club before she met Bell; he encouraged her to do it. At different times, other girls lived with them. Those girls slept with people for money, and all their money went to Bell too. Bell did not force her to prostitute herself at the club, but she had to make money to keep him from being angry with her.

David Bell

Bell testified in his own defense. He agreed Abron was his girlfriend. But he denied he was her pimp and that he arranged dates for money or forced her to dance at strip clubs. Abron did give him all the money she earned because he was paying all the bills. He took the complainant in because his friend — with whom she had been staying at the hotel — told Bell she had no place to go. Bell denied knowing what the complainant was doing at the club. He acknowledged having oral sex with her twice, but he believed she was nineteen years old as she had told him. He admitted that, shortly after the complainant arrived, he asked her what she was going to do to start earning some money. He admitted he asked Abron to take the complainant into the Diamonds Cabaret and that he took them both to work and picked them up every day. But he denied he encouraged or forced either the complainant or Abron to do anything. According to Bell, either of them could have left at any time.

Sufficiency of the Evidence

Bell raises two specific challenges to the sufficiency of the evidence supporting his conviction for sexual performance by a child.

Sexual Performance by a Child

The penal code states:

A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.

Tex. Penal Code Ann. § 43.25(b) (West 2003). “Sexual performance” is defined as “any performance or part thereof that includes sexual conduct by a child younger than 18 years of age.” Id. § 43.25(a)(1). The offense is a second-degree felony unless the child is younger than fourteen years of age at the time of the offense. In that case, the offense is a first-degree felony. Id. § 43.25(c). Bell was charged with a first-degree felony because the complainant was twelve years old at the time of the offense.

Standard of Review

Bell frames his issues as challenges to the legal and factual sufficiency of the evidence. The Court of Criminal Appeals has recently directed that:

the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 894 (Tex.Crim.App.2010) (plurality op.) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This single standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 898 (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781). We defer to the jury’s determinations of the witnesses’ credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. at 899.

Inducement of Sexual Performance

In his first and second issues, Bell challenges the sufficiency of the evidence establishing that he “employed, authorized or induced” the complainant to engage in a sexual performance. See Tex. Penal Code § 43.25(b). The State’s contention at trial was that Bell induced her to go to work at Diamonds Cabaret as a nude dancer.

The penal code does not define the word “induce.” We determine its meaning given its context and the rules of common usage. See Tex. Gov’t Code Ann. § 311.011(a) (West 2005). In this case the parties agree on the same basic definition of induce: to move and lead by persuasion or influence. See Webster’s New International Dictionary 1154 (3d ed.1981); see also Dornbusch v. State, 156 S.W.3d 859, 866 (Tex.App.-Corpus Christi 2005, pet. ref'd). Thus, we ask whether the evidence was sufficient to support the jury’s finding that Bell’s conduct brought about the complainant’s dancing nude at a strip club through his persuasion or influence. See Dornbusch, 156 S.W.3d at 867.

The evidence is undisputed that Bell asked the complainant what she was going to do to start earning some money. The complainant testified it was not her idea to start dancing at the club; it was either Bell’s or Abron’s idea. Abron testified it was Bell’s idea: he told her to take the complainant to the club and “see if they will let her work up there.” It is undisputed that Bell drove the complainant and Abron to the club everyday and picked them up at four o’clock in the morning when they finished dancing. It is also undisputed that Bell took whatever money the complainant and Abron earned at the club, whether from dancing or prostitution. Bell denied that he encouraged the complainant to do anything. He testified he did not force the complainant to dance at the club or take her into the club and introduce her to the managers there. But he admitted that he asked Abron to take the complainant into the club. And he admitted taking all the money they earned at the club because he was the one paying the bills. Although the complainant testified she wanted to dance at the club, she also testified she never liked dancing there and only did it for the money. It was Bell who was pressing the complainant to bring in money. It was also Bell who, according to the complainant and Abron, was growing angrier and meaner with the complainant when he did not get his way. Indeed, although Bell testified the complainant could leave anytime, she concluded that the only way she could get away from Bell was by trickery. “[N]owhere in the statute, nor in the common understanding of the word, is there any requirement that inducement be verbal and explicit.” Dornbusch, 156 S.W.3d at 867. We conclude that Bell’s actions constituted inducement in the commonly understood meaning of the word. See id. A rational jury could have concluded beyond a reasonable doubt that Bell induced the complainant to engage in a sexual performance. See Brooks, 323 S.W.3d at 898. We overrule Bell’s first two issues.

Awareness of the Complainant’s Age

In his third and fourth issues, Bell contends the evidence was insufficient to establish he was aware that the complainant was under eighteen years old. The offense of sexual performance applies when the complainant is a child younger than eighteen years of age. See Tex. Penal Code § 43.25(a)(1), (b). Bell contended at trial that he was not aware the complainant was only twelve years old; he believed she was nineteen. However, Bell’s sufficieney-of-the-evidence argument is based upon a questionable legal premise, i.e., that the State was required to prove Bell knew the complainant was underage. Before we address sufficiency of the evidence, we must determine whether the State had such a burden.

Bell argues a plain reading of the statute requires imposition of a scienter requirement as to age, because the statute requires the offender to act “while knowing the character and content” of the sexual performance. Bell suggests that the complainant’s appearance as a “barely legal” performer could have aroused the sexual interest of some patrons of the club, and thus her age became part of the character and content of her sexual perform-anee. We reject this line of argument. The existence and extent of a scienter requirement is determined by the statute; it cannot be determined by the facts of a particular case. We conclude the statute requires the State to prove the complainant’s age at the time of the offense. See id. § 43.25(a)(1), (b). And it requires the State to prove the defendant knew the character and content of the child’s performance, i.e., to prove the defendant knew the conduct he induced the child to engage in was sexual in nature. Dornbusch, 156 S.W.3d at 869 (“The phrase [knowing the content and character thereof] precludes criminal culpability from arising unless the actor knows that the conduct induced is sexual in nature.”). The plain language of the statute does not require the State to prove what the defendant believed about the complainant’s age.

Our conclusion is consistent with the Court of Criminal Appeals’ analysis of other offenses involving children and sexual conduct. In Johnson v. State, 967 S.W.2d 848, 849 (Tex.Crim.App.1998), the appellant argued he should not be guilty of indecency with a child unless he knew the victim was under the statutory age. The court rejected his argument, stating it had previously held in cases involving sexual assault of a child that the State is not required to establish the defendant knew his victim was under the statutory age. Id. The court declared this rule to be well established, grounded in case law and legislative tradition, and thus dispositive of the appellant’s complaint. Id. at 849-50. Addressing the legislative portion of that rule’s history, the court stated:

Had the Legislature intended to make a provision regarding the knowledge of the victim’s age it would have expressly included that requirement within [the statutory offense]. Absence of such express language proves otherwise.

Id. at 849. In the case of the sexual performance statute, the legislative history is telling. Before 1994, the statute included an affirmative defense for a defendant who, in good faith, reasonably believed that the child who engaged in the sexual conduct was eighteen years of age or older. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3684 (amended 2003) (current version at Tex. Penal Code Ann. § 43.25(f) (West 2003)). That defense was deleted when the Legislature amended the statute in 2003. See Act of June 20, 2003, 78th Leg., R.S., ch. 1005, § 5, 2003 Tex. Gen. Laws 2944, 2945. We conclude the Legislature’s affirmative rejection of the defense of mistake in the sexual performance context indicates that it did not intend the defendant’s belief concerning the age of the victim to be relevant to his guilt or innocence of the offense. See Johnson, 967 S.W.2d at 849 (“Absence of such express language proves otherwise.”).

The State had no burden to prove Bell was aware the complainant was younger than eighteen — or fourteen — years old. It is legally irrelevant whether Bell was aware of the complainant’s true age, and we need not evaluate the sufficiency of evidence supporting an irrelevant fact. Accordingly, we overrule Bell’s third and fourth issues.

Supplemental Jury Charge

In his fifth through seventh issues, Bell complains of the • response the trial court gave to this question the jury asked during its deliberations at the guilt-innocence phase of the trial:

Is the fact that he thought or was misled about her age a factor that he did not know he was committing a crime? Is this a defense?

In response, the trial court instructed the jury that “[mistake of fact as to the age of the complaining witness is not a defense.” We analyze this legal instruction as a supplement to the jury charge. See Tex.Code Crim. Proc. Ann. arts. 36.16, 36.27 (West 2006). Accordingly, we determine first whether error exists. Then, if we find error, we analyze that error for harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005).

Before the court gave the instruction, counsel for Bell objected:

Well, [1] first of all, you’re adding law that wasn’t in the original Court’s charge and that is my primary objection. Furthermore, [2] it’s very clear in your first charge that they could find him guilty even if he didn’t know her age and this is just redundant and [3] it is not— never [are the] words “mistake of fact” used in the Penal Code or Code of Criminal Procedure and it’s just additional law that’s not in the Court’s charge.

But on appeal, Bell does not rely on any of those three objections. Instead, in his fifth issue, Bell contends the instruction assumed the truth of a contested issue in the sexual performance case, i.e., whether Bell was aware of the complainant’s true age. (Bell argues again here that the complainant’s age was an integral element of the “content and character” of her nude dancing; again, we disagree.) A charge that assumes the truth of a controverted issue is a comment on the weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App.1986). But we have already determined that Bell’s knowledge of the complainant’s age is not relevant to his guilt on the sexual performance charge. Thus, the trial court did not err in instructing the jury in the sexual performance case that mistake of fact as to the age of the complainant was not a defense. We overrule Bell’s fifth issue.

In his sixth and seventh issues, Bell contends the trial court’s supplemental instruction created error in the two aggravated sexual assault cases because it somehow relieved the State of its burden of proving the age of the complainant. This argument lacks merit. Initially, we stress the instruction was a correct statement of the law of aggravated sexual assault. See Mateo v. State, 935 S.W.2d 512, 514 (Tex.App.-Austin 1996, no pet.) (in prosecution for sexual assault or aggravated sexual assault of child, State is not required to allege or prove defendant knew complainant’s age). The State was required to prove the complainant’s age, and it did so in the most direct fashion possible: it introduced her birth certificate as a trial exhibit. Thus, the State proved what it was required to prove, and the supplemental instruction correctly informed the jury of a matter the State did not have to prove.

Bell’s issue incorporates an argument that the trial court’s failure to define the legal term “mistake of fact” amounted to a comment on the weight of the evidence. Bell contends that — absent a definition — jurors could have believed that if Bell was mistaken about the complainant’s age, then they were to find him guilty without considering any element of the offense. The court’s charge explained that the jury could find Bell guilty only if jurors believed from the evidence beyond a reasonable doubt that all elements of the offense had been established. We generally presume the jury follows the trial court’s instructions in the manner presented. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998). Nothing in the record leads us to conclude jurors ignored the trial court’s instructions concerning how to determine Bell’s guilt or innocence.

We discern no error in the trial court’s supplemental instruction as it relates to the aggravated sexual assault cases. We overrule Bell’s sixth and seventh issues as well.

“Simultaneous” Enhancement of Sentences

In his eighth, ninth, and tenth issues, Bell contends the trial court’s sentences are illegal because a single prior conviction was “simultaneously used” to enhance Bell’s punishment in all three cases. The State did proffer the same 2005 conviction for burglary of a habitation to enhance the penalty range of each of the felonies with which Bell was charged. Thus, the minimum punishment available to the jury in these cases was fifteen years; the jury assessed that punishment in each of the three cases.

The penal code provides that “[t]he use of a conviction for enhancement purposes shall not preclude the subsequent use of such conviction for enhancement purposes.” Tex. Penal Code § 12.46. Bell argues that this provision limits the repeated use of an enhancement conviction to proceedings that arise later in time. Because punishment ranges in Bell’s cases were enhanced simultaneously by the single prior conviction, rather than over time in separate proceedings, he argues the sentences are unauthorized by law and, therefore, are void. But Bell offers no authority supporting this interpretation of section 12.46. Indeed, the authority we find is to the contrary. See, e.g., Kent v. State, 879 S.W.2d 80, 84 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (“Under Section 12.46, the same prior conviction or convictions may be used to enhance offenses alleged in indictments tried together.”); Villarreal v. State, 809 S.W.2d 295, 298 (Tex.App.-Corpus Christi 1991, pet. ref'd) (“Under the present law, the same prior conviction may be used to enhance each indictment tried simultaneously.”); Bonner v. State, 728 S.W.2d 921, 922 (Tex.App.-Houston [1st Dist.] 1987, no pet.) (“[W]e hold that the same prior conviction can be used to enhance each of the three indictments tried simultaneously.”).

We conclude Bell’s eighth, ninth, and tenth issues are without merit.

CRUEL and Unusual Punishment

In his eleventh, twelfth, and thirteenth issues, Bell contends the sentence assessed in each of his three cases constituted cruel and unusual punishment in violation of his Eighth Amendment rights. Bell’s only discernable legal argument under these issues is that he was assessed punishment that was grossly disproportionate to his alleged conduct.

To preserve error for appellate review, the record must show Bell made a timely request, objection, or motion. See Tex.R.App. P. 33.1(a)(1). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App.1996). Bell made no objection when he was sentenced, and his motion for new trial did not address this complaint. Accordingly, he has not preserved the issue for appellate review. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.).

We overrule Bell’s final three issues.

Conclusion

We have decided each of Bell’s issues against him. We affirm the judgments of the trial court.

      . The aggravated sexual assault charges were numbered F08-71118-T and F08-71119-T in the trial court; they are numbered 05-08-01471-CR and 05-08-01472-CR, respectively, in this Court. The sexual performance by a child charge was numbered F08-71121-T in the trial court; it is numbered 05-08-01473-CR in this Court.

      . The complainant was thirteen years old at the time of trial; she was in the seventh grade.

      . Bell was charged with a first-degree felony because the complainant was twelve years old at the time of the offense. See Tex. Penal Code § 43.25(c). But Bell consistently contended he believed the complainant was eighteen or nineteen; thus the distinction between fourteen and eighteen — in terms of proof — was not relevant at trial.


source: Caselaw Access Project

author: Chief Justice WRIGHT.

license: Public Domain

text:
    Lew ANDERTON and Anderton Development Partnership, L.P., Appellants, v. William R. CAWLEY, Individually and as Trustee of the Bill Cawley 1997 Revocable Trust, Cawley-Cascade, GP, L.L.C., Cawley-PB Funding, LP, Cawley Finance, L.L.C., Cawley Finance II, L.L.C., Bot Real Estate, L.L.C., Cot Real Estate, L.L.C., Lonnie A. Eichinger as Trustee of the Christopher Cawley 1998 Irrevocable Trust, Lonnie A. Eichinger as Trustee of the Kelly Cawley 1998 Irrevocable Trust, and Marcus D. Hiles, Appellees.
    No. 05-10-00693-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 29, 2010.
    D. Brent Lemon, Law Office of D. Brent Lemon, Dallas, TX, Edward Slayton Cox, The Cox Law Firm, Bedford, TX, for Appellants.
    Mike A. Hatchell, Locke Lord Bissell & Liddell LLP, Austin TX, Kirsten M. Castaneda, Locke Lord Bissell & Liddell LLP, James Robert Krause, Lawrence J. Friedman, Friedman & Feiger, L.L.P., Dallas, TX, for Appellees.

      Before Chief Justice WRIGHT and Justices O’NEILL and MYERS.
   OPINION

Opinion By

Chief Justice WRIGHT.

Before the Court is appellant Lew An-derton’s motion to decrease the amount of his supersedeas bond and accept notice of cash deposit. See Tex. Civ. Prac. & Rem. Code Ann. § 52.006(d) (West 2008); Tex. R.App. P. 24.4. The trial court rendered judgment awarding appellees $8,386,849.38. Anderton filed an affidavit of net worth reflecting a negative net worth of $6,557,571.43. In calculating his net worth, Anderton included the amount of the judgment as a liability. Anderton deposited $100 and served his notice of cash deposit in lieu of a supersedeas bond. Appellee BOT Real Estate, L.L.C. objected to Anderton’s affidavit of net worth. The trial court found Anderton’s net worth to be $1,890,168.77 and assessed the bond requirement at one-half of that amount. The issue before this Court is whether the trial court erred in excluding the judgment amount from Anderton’s net worth.

Anderton contends the trial court erred in excluding the judgment amount from his net worth because it is: (1) contrary to the plain text of the statute; (2) contrary to the legislative intent; (3) contrary to the generally accepted accounting principles; and (4) contrary to the only credible evidence presented at the hearing. We review a trial court’s determination of the amount of security for an abuse of discretion. G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex.App.-Dallas 2006, no pet.).

With regard to the amount of a bond that the trial court can set to supersede a judgment, section 52.006 of the civil practice and remedies code provides, in pertinent part, as follows:

(a) Subject to Subsection (b), when a judgment is for money, the amount of security must equal the sum of:
(1) the amount of compensatory damages awarded in the judgment;
(2) interest for the estimated duration of the appeal; and
(3) costs awarded in the judgment.
(b) Notwithstanding any other law or rule of court, when a judgment is for money, the amount of security must not exceed the lesser of:
(1) 50 percent of the judgment debt- or’s net worth; or
(2) $25 million.

Tex. Civ. Prac. & Rem.Code Ann. § 52.006(a) & (b) (West 2008). Appellate rule 24.2 states that the amount of the security must not exceed fifty percent of the judgment debtor’s current net worth. Tex. R.App. P. 24.2(a)(1)(A). Net worth is the difference between total assets and total liabilities as determined by generally accepted accounting principles. See Rodgers, 204 S.W.3d at 840. Contrary to Anderton’s contention, the plain language of the statute does not include a contingent money judgment in calculating net worth.

Anderton contends the legislative intent of section 52.006 is to shift the focus away from protecting judgment creditors and instead to focus on allowing parties to appeal adverse judgments. If the sole focus was on allowing the judgment debtor to appeal, the legislature would not impose any supersedeas requirement. The legislature struck a balance. The thrust of the inquiry under section 52.006 is whether the judgment debtor has the ability to meet the supersedeas bond requirement and whether doing so is likely to result in substantial economic harm. See Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge) L.L.C., 171 S.W.3d 905, 917 (Tex.App.-Houston [14th Dist.] 2005, no pet.).

The trial court conducted a hearing on BOT Real Estate’s contest to Ander-ton’s affidavit of net worth. At the hearing, David Harris, C.P.A., testified on An-derton’s behalf. Harris testified that a money judgment should be included on a balance sheet if: (1) the underlying litigation occurred on or before the date of the financial statement; (2) the likelihood of an unfavorable outcome is probable; and (8) the amount of the loss can be reasonably estimated. Harris then testified that An-derton’s attorney told him that it was unlikely Anderton would win on appeal. Thus, he argued that the conditions were met for including the judgment as a liability for purposes of calculating Anderton’s net worth.

BOT Real Estate presented the testimony of Dan Jackson, C.P.A. He testified that this judgment should not be included as a liability. Jackson stated that not including this judgment as a liability for net worth purposes is consistent with generally accepted accounting principles. Jackson also testified that Anderton’s net worth could not be ascertained from his balance sheet because it did not include any documentation, calculations, descriptions, or valuations.

At the conclusion of the hearing, the trial court said that it was allowing further discovery with regard to Anderton’s assets and noted that the bond may increase if the evidence shows that Anderton undervalued his assets. In its order determining Anderton’s net worth, the trial court made the following findings of fact and conclusions of law:

1. The balance sheet attached to Lew Anderton’s Affidavit of Net Worth filed August 25, 2010 is suspect.
2. Lew Anderton is uncertain as to whether or not all assets are listed on the balance sheet attached to Lew Anderton’s Affidavit of Net Worth filed August 25, 2010.
3. The Court declines to include the amount of the judgment and interest entered in this case as a liability of Lew Anderton in determining his net worth because it would lead to the illogical result that Lew Ander-ton has a negative net worth, when the other information provided by Lew Anderton would otherwise show that he has a net worth of at least $1,890,168.77.
4. The Court accepts the testimony of Dan Jackson and finds that inclusion of the judgment and interest entered in this case as a liability of Lew Anderton in determining his net worth would not comply with generally accepted accounting principles.
5. While the Court finds that the balance sheet attached to Lew Ander-ton’s Affidavit of Net Worth filed August 25, 2010 is suspect, the Court declines to ignore it altogether and finds that Lew Anderton’s net worth is $1,890,168.77.

The trial court found Jackson’s expert testimony credible. Jackson’s testimony supports the trial court’s determination. Accordingly, we conclude the trial court did not abuse its discretion in excluding the amount of the judgment from Ander-ton’s net worth calculation. We affirm the trial court’s determination as to the amount of the supersedeas bond and deny Anderton’s motion to decrease the amount of his supersedeas bond and accept notice of cash deposit.


author: Justice MOSELEY.

text:
    NATEX CORPORATION, d/b/a Natex Corporation Architects, Appellant, v. PARIS INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 06-10-00052-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 6, 2010.
    Decided Nov. 1, 2010.

      Bryan G. Rutherford, Gregory N. Ziegler, Dallas, for appellant.
    David P. Hansen, Mark R. Benavides, Eric L. Munoz, Schwartz & Eichelbaum Wardell Mehl & Hansen, PC, Austin, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

This is an interlocutory appeal by Natex Corporation, d/b/a Natex Corporation Architects (Natex), a defendant architectural firm, of a denial of a motion to dismiss the suit brought against it by Paris Independent School District (PISD). Natex maintains that dismissal is required because PISD failed to file a certificate of merit pursuant to Section 150.002 of the Texas Civil Practice and Remedies Code when suit was initially filed against it. For the reasons set forth within, we affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL HISTORY

In June 2007, PISD and Natex entered into eight separate American Institute of Architects form contracts for architectural design services related to renovations of certain school buildings in the district and for the construction of a new athletic stadium, there being separate contracts prepared for each of the seven buildings and the new stadium. The contracts specified the financial parameters of the work to be done, clarified the overall budgets in dollar amounts, and set forth the obligations of the parties, but left the time parameters of the contracts to be determined at a later date. Under the contracts, Natex was to provide “Schematic Design Documents based on the mutually agreed-upon program, schedule, and budget for the Cost of the Work.”

After the passage of about a year, PISD called Natex to inquire about an “exit strategy” from the relationship because it believed that the architectural work under the contract was not being completed in a timely manner and “time [wa]s of the essence.” Natex responded by sending the district invoices for work it alleged that it had completed. A few days later, the PISD Board of Trustees resolved to terminate the agreements for what it deemed as Natex’s breach of the contracts. PISD gave written notice to Natex that termination was due to failure to provide “schematic design development documents for approval,” failure to “provide a schedule for any of the projects except the high school project,” failure to “complete any of its work in accordance with the schedule,” and for requests for “payment to which it is not entitled.”

PISD filed a suit against Natex, alleging that Natex had breached the contracts, asking the trial court for a declaration of the parties’ rights, and seeking recovery of sums already paid. The original petition alleged that Natex failed to timely provide them with necessary documents to allow the district to timely bid the project, causing them to suffer increased costs of labor and material. When Natex “finally did produce some ‘construction documents,’ they were so out of touch with Plaintiffs budget for the project that the documents that were produced were unusable.” PISD claimed Natex “failed to perform any substantial work pursuant to any of these contracts” despite having “been paid in excess of seven hundred thousand dollars for its work on the high school and stadium projects.” The petition complained that Natex had “requested additional sums of money in excess of that which it is due under the Agreement[s].” PISD further prayed the trial court to enter a declaration of rights of the parties under the contracts, reasonable attorney’s fees, and consequential damages for increased costs of construction due to the breach.

Natex answered the suit, claiming that delays were attributable to PISD’s failure to acquire lands for the projects in a timely manner and that PISD had also made demands of the designs which, if incorporated, would exceed the budget. Natex also filed a counterclaim for breach of contract for nonpayment of fees “currently due and owing by the District to Natex [in the] amount [of] $1,018,800.48 plus prejudgment interest.”

After the parties had conducted discovery for several months, PISD filed an amended petition adding claims of negligence, negligent misrepresentation, breach of fiduciary duty, and money had and received. In this amended petition, PISD claimed that Natex was negligent because it

failed to perform its duties with reasonable care, technical skill, ability, and diligence when it failed to timely coordinate a design team and employ professional engineers for the Projects, when it submitted billings to PISD that was not supported by actual work performed on the Projects, and when it failed to communicate with PISD as is required to maintain an adequate progression of the work required on the Projects.

“Natex negligently represented that it could design the drawings and plans and specifications for the Projects with reasonable care, technical skill, ability, and diligence ordinarily required of Architects. It further negligently represented through billing invoices that it performed certain work on the Projects, when in fact, it had not.” PISD alleged further that Natex had breached a fiduciary duty and had received money “for work that it did not perform on the Projects and for alleged ‘construction documents’ that are useless to PISD and interest on those amounts.” To its amended petition, PISD attached the affidavit of Bruce Weir, “licensed Architect in the States [sic] of Texas.”

Weir’s supporting affidavit recited the usual predicatory statements of age and mental competency and then stated, “I am currently a practicing architect in good standing. I have over 28 years of experience in the design/construetion industry and have been a licensed practicing architect since 1990.” Weir’s affidavit opined that after having reviewed several documents itemized in his affidavit, he had concluded that the documents “indicate[d] that Natex failed to timely coordinate a design team and employ engineering professions [sic] for the Projects. Further, Natex failed to perform any of its duties for improvements to Travis Junior High School, Paris High School Renovations, Justiss Elementary School, Givens Elementary School, Crockett Elementary School, and the New Paris Athletic Stadium.” His affidavit recited that he had deduced that Natex’s failures to timely coordinate a design team and employ engineering professionals “[wa]s a departure from the reasonable care, technical skill, ability, and diligence required of Architects in the same or similar circumstances and constitutes negligence,” and that the “billing to PISD that was not supported by the actual work that was performed” and that its failure to communicate with PISD was also a departure from the standard of care.

Natex filed a motion to dismiss the suit based on Section 150.002 of the Texas Civil Practice and Remedies Code because when PISD filed its “Original Petition[,] the District failed to contemporaneously file a Certificate of Merit as required by the statute.” Alternatively, Natex argued that although “Plaintiffs First Amended Petition did attach an affidavit,” “that affidavit did not purport to serve as a certificate of merit, and it did not meet the specific requirements” of the statute. The trial court denied Natex’s motion to dismiss. Natex reasserts these arguments on appeal to support its complaint that the trial court erred in failing to dismiss PISD’s suit.

II. ANALYSIS

A. Standard of Review

An order granting or denying a motion to dismiss made pursuant to Chapter 150 of the Texas Civil Practice and Remedies Code is immediately appealable as an interlocutory order. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e); Benchmark Eng’g Corp. v. Sam Houston Race Park, 316 S.W.3d 41, 44 (Tex.App.-Houston [14th Dist.] 2010, no pet.). This Court reviews the denial of a defendant’s motion to dismiss pursuant to Section 150.002 under an abuse of discretion standard. Benchmark Eng’g, 316 S.W.3d at 44; Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 496 (Tex.App.-Corpus Christi 2009, no pet.); Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395, 397 (Tex.App.-Beaumont 2008, no pet.); see also Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex.App.-Fort Worth 2005, no pet.); Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419, at *1 (Tex.App.-San Antonio Oct. 3, 2007, no pet.) (mem. op.). An abuse of discretion occurs when the trial court acts in an unreasonable and arbitrary manner or without reference to any guiding rules or principles. Palladian, 165 S.W.3d at 433 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court does not demonstrate an abuse of discretion. Id. However, a clear failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Natex made no request for findings of fact or conclusions of law. We presume the trial court’s judgment implies all necessary findings of fact to support its ruling, and will sustain it on any reasonable theory that is consistent with the evidence and the applicable law, considering only the evidence favorable to the decision. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Jones v. Smith, 157 S.W.3d 517, 520 n. 3 (Tex.App.-Texarkana 2005, pet. denied).

B. The Statute

Section 150.002 of the Texas Civil Practice and Remedies Code provides:

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

Tex. Crv. Prac. & Rem.Code Ann. § 150.002. “Chapter 150 may have been enacted to limit actions against architects and engineers by ensuring that there is some basis for the lawsuit.” Landreth, 285 S.W.3d at 496; Owens, 248 S.W.3d at 399. But see Benchmark Eng’g, 316 S.W.3d at 45-46 (disagreeing with Owens and holding certificate of merit need not incorporate or refer to a standard of care).

C. Section 150.002 Does Not Apply to PISD’s Original Petition

Natex contends that Section 150.002 applied to PISD’s original petition because the district’s claims arose out of the provision of professional services. It focuses its argument on the claim in PISD’s original petition that Natex’s designs were “untimely” and “unusable.” Natex urges the Court to look at that underlying basis of the claims alleged in the original petition to determine if PISD’s “contract claim could be considered a miscast negligence claim.”

As noted in Ashkar Engineering Corp. v. Gulf Chemical & Metallurgical Corp.:

Section 150.002(a) states that it applies “in any action for damages arising out of the provision of professional services by a design professional.” This language suggests that the intent of Section 150.002 is that it apply broadly and that it is not restricted to any specific cause of action. Other language in subsection (a) provides, however, that, in the affidavit, the expert is required to have “set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for such claim....” This language suggests that Section 150.002 is intended only to apply to negligence claims.

No. 01-09-00855-CV, 2010 WL 376076, at *4 (Tex.App.-Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.).

Every word of a statute must be presumed to have been used for a purpose, and every word excluded from a statute must also be presumed to have been excluded for a purpose. Landreth, 285 S.W.3d at 497. Keeping this rule in mind, along with other rules of statutory construction, Texas courts have decided that Section 150.002 applies only to negligence or claims based on negligent acts. “When the plaintiff does not claim a negligent act, error or omission exists, and is not required to make such an allegation as an element of its cause of action, a certificate of merit is not required.... ” Kniestedt v. Sw. Sound & Elecs., Inc., 281 S.W.3d 452, 455 (Tex.App.-San Antonio 2007, no pet.). “To require such an affidavit outside the context of a negligence cause of action would require an affidavit that had no relevance to the suit and would render the statute meaningless.” Parker County Veterinary Clinic, Inc. v. GSBS Batenhorst, Inc., No. 2-08-380-CV, 2009 WL 3938051, at *3 (Tex.App.-Fort Worth Nov. 19, 2009, no pet.) (mem. op.); Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102, 108 (Tex.App.-Houston [1st Dist.] 2010, no pet.). Even Landreth, Natex’s most-cited case, reiterated the rule that “[i]f a plaintiff was not claiming a negligent act, error or omission, a certificate of merit is not required.” Parker County, 2009 WL 3938051, at *3 (citing Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419, at *2 (Tex.App.-San Antonio Oct. 3, 2007, no pet.) (mem. op.) (holding Chapter 150 does not apply to breach of contract and breach of fiduciary duty claims); Consol. Reinforcement, 271 S.W.3d at 893). We conclude, as did our sister courts, that the applicable version of Section 150.002 applies only to negligence claims and not to claims based on contract.

We now analyze Natex’s argument that PISD’s original breach of contract and declaratory judgment action was really an artfully pled negligence claim, despite its base in contract. “Because we are not bound by the labels used by the parties, we look to [PISD’s] pleadings and determine for ourselves what claim” it asserted. Ashkar Eng’g, 2010 WL 876076, at *7. To distinguish between tort and contract claims, we consider the source of the duty owed and the nature of the remedy sought. Parker County, 2009 WL 8938051, at *3 (citing Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 45 (Tex.1998)). If PISD’s causes of action in the original petition arose only from a violation of a duty imposed by law, the cause of action sounds in tort. Id. If the causes of action arose from a duty imposed by a contract, the cause of action is for breach of contract. Id. A contractual relationship between the parties may create duties under both contract and tort law, and “[t]he acts of a party may breach duties in tort or contract alone or simultaneously in both.” Id. The nature of the remedy is instructive on the issue. Id. at *4. “When the only loss or damage is to the subject matter of the contract, the plaintiffs action is ordinarily on the contract.” Id.

Natex relies heavily on Ashkar Engineering and Parker County. The court in Ashkar examined claims in the plaintiffs petition that the engineer failed to adequately plan, progress, or complete engineering services, and concluded that the breach of contract claims in the plaintiffs petition mirrored negligence claims. Ashkar Eng’g, 2010 WL 376076, at *10. In so deciding, it relied on a key distinguishing fact. The Ashkar court clarified “the parties before us do not have a written contract. GCMC does not direct us to any specific provision of a contract giving rise to any specific duties by Ashkar to adequately design, engineer, test, or oversee the construction of the expansion joint.” Id. Natex complains that the original petition did not refer “to any specific provision of a contract giving rise to any specific duties”; rather, PISD’s petition was based on “untimely” and “unusable” construction documents. PISD complained that the documents were untimely produced and “unusable” because the documents produced “were so out of touch” with the available budget for the construction that they could not be accommodated for use by PISD. Provisions in the contracts clearly required Natex to “provide Schematic Design Documents based on the mutually agreed-upon program, schedule, and budget for the Cost of the Work,” identified numerically in each contract. Failure to mention these specific provisions of the contracts in the original petition does not deny their existence since the written contracts were attached to the petition, and it is clear that the source of the duty giving rise to PISD’s suit was derived from the responsibilities springing from those contracts. Furthermore, Ashkar Engineering looked to the nature of the remedy sought, and further stated, “Further, GCMC generally seeks damages for repairs and remediation, and not economic loss related directly to the subject of the contract .... This suggests that GCMC’s claims do not sound in contract.” Id. Here, PISD sought consequential damages and attorney’s fees recoverable in a contract dispute in its original petition, not damages in tort.

In its reasoning, Ashkar Engineering consistently referred to Parker County. In that case, just as in this case, it was the written contract that “gave rise to a duty,” and “it is the breach of this duty that Appellants complain[ed] about.” Parker County, 2009 WL 3938051, at *4. Parker County noted that the petition sought consequential damages, concluded the basis for the petition was breach of contract, and concluded that Section 150.002 did not apply. In so doing, it rejected the precise notion Natex advances, i.e., that the statute should apply merely because this is a suit against an architecture professional. Id. at *4-5.

PISD and Natex had written contracts, and, as explained above, the source of the duties referenced in the original petition stem from the contracts. The original petition sought a declaration of rights under the contracts and consequential damages for the breach of those contracts. Breach of contract and declaratory judgment actions do not require that they be supported by the certificate of merit affidavit mandated by Section 150.002. Curtis & Windham Architects, 315 S.W.3d at 108 (action for declaratory judgment did not require certificate of merit since it did not implicate a negligent act, error, or omission); Parker County, 2009 WL 3938051, at *5. Thus, we conclude PISD’s claims in the original petition were based in contract. As such, they were not required to contemporaneously file a certificate of merit. We overrule Natex’s first point of error.

D. Was the Affidavit of Weir on the Amended Petition Sufficient?

Section 150.002 requires four initial criteria to be met with regard to the affi-ant’s qualifications: the affiant (1) must be a registered architect (2) who is licensed to practice in Texas and (3) must actively be practicing (4) “in the same area of practice as the defendant.” Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a); Landreth, 285 S.W.3d at 498. In this case, Weir stated he was a currently practicing, licensed architect in Texas in good standing, with “over 28 years of experience in the design/construction industry.” There is no argument that the affidavit fails to meet requirements one through three. Natex argues that Weir is not practicing in the same area as Natex.

Here, although the affidavit does not specifically state that Weir practices in the same area as Natex, such specific and precise language is not required where the court receives “ample information reflecting the fact that he practices in the same area.” Benchmark Eng’g, 316 S.W.3d at 49. Weir stated he has a “greater degree of technical and specialized knowledge concerning the architectural discipline than the average person” and claimed his expertise “related to the specific issues in this lawsuit.” Yet, Natex takes the position that the fact Weir is an architect who provides design services is not enough since Natex was hired “to provide architecture and design services in the specific areas of school renovations and new construction.” (Emphasis added.)

To support its proposition, Natex relies on Landreth, which is distinguishable from this case. Las Brisas filed suit against Landreth for breach of agency, breach of fiduciary duty, negligence, negligent misrepresentation, and breach of contract. 285 S.W.3d at 494. Las Brisas filed a certificate of merit “[a]fter suit was filed.” Id. The certificate of merit did not state whether Las Brisas’s architect practiced in the same area of practice as Landreth. Id. During discovery, the architect testified that while Landreth was engaged in design restoration architecture, he had never worked as a design restoration architect. Id. at 495. The court considered the architect’s deposition testimony and found that the trial court erred in failing to dismiss only the negligence claims. Id. at 500.

In this case, we see no requirement in the law suggesting that Weir would have to practice in the specific field of “architectural design of educational facilities” in order to qualify under the statute. The Texas Occupations Code merely requires that the “architectural plan[s] or specification[s] for ... a new building having construction costs exceeding $100,000,” or “alteration[s] or additions] [to an existing building] exceeding $50,000,” “is or will be used for education” must be made by an architect. Tex. Occ.Code Ann. § 1051.703 (Vernon 2004). The Occupations Code does not differentiate between the different fields of architecture. Tex. Occ.Code Ann. § 1051.001(1) (Vernon Supp.2010). In fact, it defines “practice of architecture” to include

a service or creative work applying the art and science of developing design concepts, planning for functional relationships and intended uses, and establishing the form, appearance, aesthetics, and construction details for the construction, enlargement, or alteration of a building or environs intended for human use or occupancy, the proper application of which requires education, training, and experience in those matters. The term includes:
(A) establishing and documenting the form, aesthetics, materials, and construction technology for a building, group of buildings, or environs intended to be constructed or altered;
(B) preparing, or supervising and controlling the preparation of, the architectural plans and specifications that include all integrated building systems and construction details, unless otherwise permitted under Section 1051.606(a)(4);
(C) observing the construction, modification, or alteration of work to evaluate conformance with architectural plans and specifications described in Paragraph (B) for any building, group of buildings, or environs requiring an architect;
(D) programming for construction projects, including identification of economic, legal, and natural constraints and determination of the scope and spatial relationship of functional elements;
(E) recommending and overseeing appropriate construction project delivery systems;
(F) consulting, investigating, and analyzing the design, form, aesthetics, materials, and construction technology used for the construction, enlargement, or alteration of a building or environs and providing expert opinion and testimony as necessary....

Tex. Occ.Code Ann. § 1051.001(7). This is what Natex was hired to do.

Looking at the affidavit in the light most favorable to the court’s ruling, we find statements that Weir was a currently practicing architect, experienced in design and construction, with expertise “related to the specific issues in this lawsuit,” were sufficient to impress upon the judge’s mind that Weir was practicing in the same area of practice as Natex, who was hired to provide design and construction architectural services. Therefore, we conclude that the trial court was provided with sufficient information to make the factual determination that Weir practiced in the same area of practice as Natex. The trial court did not abuse its discretion in making this factual finding.

III. CONCLUSION

We affirm the trial court’s judgment.

      . PISD claimed that Natex waived its motion to dismiss. Because of the nature of the disposition of this case, we need not discuss this point of error.

      . Chapter 150 of the Texas Civil Practice and Remedies Code as modified by the 79th Texas Legislature is the version applicable to this case. See Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 12, 2005 Tex. Gen. Laws 348 (amended 2009) (current version at Tex. Civ. Prac. & Rem.Code Ann. §§ 150.001-003 (Vernon Supp.2010)); Act of May 18, 2005, 79th Leg., R.S., ch. 208, §§ 2, 4-5, 2005 Tex. Gen. Laws 369, 369-70 (amended 2009) (current version at Tex. Civ. Prac. & Rem.Code Ann. §§ 150.001-.003). All reference in this opinion will be to the prior version of 150.002.

      . Statutory construction is a question of law we review de novo. Benchmark Eng’g, 316 S.W.3d at 44-45 (citing Consol. Reinforcement, L.P. v. Carothers Exec. Homes, Ltd., 271 S.W.3d 887, 891 (Tex.App.-Austin 2008, no pet.)). We construe statutory language to ascertain and effectuate legislative intent, and we consider the plain and common meaning of each word in the statute. Tex. Mut. Ins. Co. v. Sonic Sys. Int’l, Inc., 214 S.W.3d 469, 476 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). We also view statutory terms in context and give them full effect. Id. We presume every word of a statute was used for a purpose, and every word excluded from a statute was excluded for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981); Eastland v. Eastland, 273 S.W.3d 815, 821 (Tex.App.-Houston [14th Dist.] 2008, no pet.).

      . Natex argues that the trial court erred in implicitly allowing PISD to cure its failure to file a certificate of merit by allowing it to file Weir’s affidavit with the amended petition. Because we conclude Section 150.002 did not apply to the original petition, we reject Na-tex's argument.

      . The statute says that "the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, ... holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim." Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a) (emphasis added). That does not mean that the affidavit must slavishly track the wording of the statute or that the court hearing a challenge to the qualifications of the affiant must rely solely on the content of the affidavit. In other words, although the statute requires the affidavit to be made only by certain qualified persons, it is not required that the affidavit set out those qualifications.

      . Natex argues that Weir must practice in the same area of architecture. The statute merely says Weir must be "practicing in the same area of practice.” Tex. Civ. Prac. & Rem.Code Ann. § 150.002.


author: PER CURIAM.

text:
    In re: James Craig GUETERSLOH, Individually and James Craig Guetersloh, Trustee of the 1984 Guetersloh Trust.
    No. 07-10-0375-CV.
    Court of Appeals of Texas, Amarillo, Panel A.
    Nov. 1, 2010.
    Rehearing Overruled Nov. 23, 2010.

      James Craig Guetersloh, Houston, for Relator.
    Denise Foster, Lavaca, AR, Michael Guetersloh III, Corpus Christi, M.F. Guet-ersloh Jr. Sandia, W.C. Bratcher, Cren-shaw Dupree & Milam L.L.P., Lubbock, Real Party in Interest.
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
   OPINION

PER CURIAM.

The novel issue presented by this mandamus proceeding is whether a trustee of a trust has the same right to represent himself in his representative capacity as he does in his individual capacity. We hold that he does not, strike his petition for writ of mandamus as it pertains to claims being asserted in his capacity as trustee, but conditionally grant his petition as it pertains to claims being asserted in his individual capacity.

Background

This mandamus proceeding relates to an underlying proceeding pending in the 121st District Court, Terry County, wherein the Real Parties in Interest, Michael Guetersloh, Jr., Denise Foster (formerly Denise Guetersloh Spicer), and Michael Guetersloh, III, each acting pro se, filed suit seeking (1) termination of the 1984 Guetersloh Trust, (2) distribution of trust property, and (3) an accounting of all income and distributions from the trust. The 1984 Guetersloh Trust is an express family trust created for the benefit of four named individuals, the three Real Parties in Interest and one of the Relators, James Craig Guetersloh. In addition to naming the Relator in his individual capacity as a party, the petition named the other Relator, James Craig Guetersloh, Trustee of the 1984 Guetersloh Trust, as a party.

On August 26, 2010, Relators, each acting pro se, filed an original answer, comprised of a general denial and affirmative defenses, coupled with a Motion to Transfer Venue based on provisions of the Texas Property Code. See Tex. Prop.Code Ann. § 115.002(b)(1) (Vernon 2007). That same day, acting sua sponte, the trial court found that the trustee of a trust cannot appear in court pro se because to do so would amount to the unauthorized practice of law. Accordingly, the trial court notified Relators that no action would be taken on them motion to transfer venue until such time as the trustee obtained legal’ representation. Notwithstanding the ruling of the trial court, on September 1, 2010, both Relators (with James Craig Guetersloh, Trustee of the 1984 Guetersloh Trust, still acting pro se) filed a motion for oral hearing concerning the motion to transfer venue. Despite being requested by Relators to do so, to date, the trial court has failed to issue a ruling on either motion. Relators now seek from this Court the issuance of a writ of mandamus ordering the trial court to set an oral hearing on Relators’ pending motion to transfer venue and to allow the Relator, James Craig Guetersloh, Trustee of the 1984 Guetersloh Trust, to appear in the underlying proceeding on a pro se basis.

I. Trustee’s Right to Self-Representation

The general rule in Texas (and elsewhere) has long been that “the term ‘trust’ refers not to a separate legal entity but rather to the fiduciary relationship governing the trustee with respect to the trust property.” Huie v. DeShazo, 922 S.W.2d 920, 926 (Tex.1996) (emphasis in original). Accordingly, suits against a trust must be brought against the trustee. See Werner v. Colwell, 909 S.W.2d 866, 870 (Tex.1995); Smith v. Wayman, 148 Tex. 318, 224 S.W.2d 211, 218 (Tex.1949); Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 382 (Tex.1945).

Relators argue that because James Craig Guetersloh, Trustee of the 1984 Guetersloh Trust, is the actual party to the suit being prosecuted by the Real Parties in Interest, under Rule 7 of the Texas Rules of Civil Procedure he is authorized to “defend his rights therein, either in person or by an attorney of the court.” The right of a party to self-representation is not, however, absolute. See, e.g., Kunstoplast of Am. v. Formosa Plastics Corp., USA, 937 S.W.2d 455, 456 (Tex.1996) (holding that a non-attorney may not appear pro se on behalf of a corporation); Steele v. McDonald, 202 S.W.3d 926, 928-29 (Tex.App.-Waco 2006, no pet.) (holding that a non-attorney may not appear pro se in his capacity as independent executor of an estate). Although we have not been cited to, nor have we found, any Texas case directly dealing with the issue of whether a non-lawyer can appear pro se in court, in his capacity as a trustee of a trust, we believe the same logic expressed in those opinions should apply to this situation.

First, contrary to Relators’ argument, the plain reading of Rule 7 does not suggest that a non-lawyer can appear pro se, in the capacity of trustee of a trust, because in that role he is appearing in a representative capacity rather than in pro-pria persona. Because of the nature of trusts, the actions of the trustee affect the trust estate and therefore affect the interests of the beneficiaries. It follows that because a trustee acts in a representative capacity on behalf of the trust’s beneficiaries, he is not afforded the personal right of self-representation.

Secondly, the Texas Legislature has defined the practice of law to include, among other things, “the preparation of pleadings or other documents incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court....” Consistent with that legislative mandate, Relator’s appearance in the trial court in his capacity as trustee falls within this definition of the “practice of law.” Accordingly, if a non-attorney trustee appears in court on behalf of the trust, he or she necessarily represents the interests of others, which amounts to the unauthorized practice of law. See Ziegler v. Nickel, 64 Cal.App.4th 545, 549, 75 Cal.Rptr.2d 312 (1998) (holding that “[a] nonattorney trustee who represents the trust in court is representing and affecting the interest of the beneficiary and is thus engaged in the unauthorized practice of law”). Therefore, we conclude the trial court did not err in prohibiting the Relator, James Craig Guetersloh, in his capacity as trustee of the 1984 Gueter-sloh Trust, from appearing without legal representation.

II. Trustee’s Right to Mandamus Relief

The Real Parties in Interest contend that, because James Craig Guetersloh, Trustee of the 1984 Guetersloh Trust, does not have the authority to appear before the trial court pro se, that prohibition should likewise bar this Court from considering his pleadings in this proceeding. For the same reasons that he cannot appear pro se before the trial court in his representative capacity, Mr. Guetersloh is likewise prohibited from appearing before this Court in his capacity as trustee. Accordingly, we hereby strike Relator’s petition to the extent that it asserts claims in that capacity. That does not, however, preclude us from considering claims being asserted in his individual capacity.

III. Individual Right to Mandamus Relief

Mandamus is an extraordinary remedy available only in limited circumstances involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). To be entitled to relief, the relator must demonstrate a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. See Republican Party of Texas v. Dietz, 940 S.W.2d 86, 88 (Tex.1997). Additionally, relator must satisfy three requirements, to-wit: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.1979).

When a motion is properly pending before a trial court, the act of considering and ruling upon it is ministerial. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.1992). However, the trial court has a reasonable time within which to perform that ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding). Whether a reasonable period of time has lapsed is dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding).

Here, we are not faced with a situation where the trial court has merely failed to schedule a hearing on Relator’s motion to transfer venue. Instead, the trial court has affirmatively informed Relator that it would not schedule a hearing on his motion until the trustee (a separate and distinct party) was represented by legal counsel. The absence of legal counsel representing the trustee should not serve as an impediment to Relator’s right, in his individual capacity, to have his motion heard. Accordingly, we find that Relator, James Craig Guetersloh, Individually, is entitled to mandamus relief.

Conclusion

Having determined that James Craig Guetersloh, Trustee of the 1984 Guetersloh Trust, cannot appear in court pro se, we strike his petition for writ of mandamus as it pertains to claims being asserted in that capacity. As it pertains to claims being asserted by James Craig Guetersloh in his individual capacity, we conditionally grant the writ of mandamus. We are confident the trial court will schedule a hearing on James Craig Guetersloh’s individual motion to transfer venue and we direct the Clerk of this Court to issue the writ only in the event the trial court fails to schedule a hearing within sixty days.

      . A beneficiary designated by name in the instrument creating the trust is a necessary party in a suit under Section 115.001 of the Texas Property Code. Tex. Prop.Code Ann. § 115.011(b)(2) (Vernon 2007).

      . Although the Texas Trust Code does not expressly require the joinder of the trustee as a necessary party in every suit pertaining to a trust, the trustee’s presence is required in any suit requiring an accounting by the trustee. See Tex.R. Civ. P. 39; Tex. Prop.Code Ann. § 115.001(a)(9) (Vernon 2007).