|Send this document to a colleague||Close This Window|
Fourteenth Court of Appeals
MICHAEL URBAN, Appellant
PAULETTE BARKER, ET. AL., Appellee
On Appeal from the Probate Court No. 1
Harris County, Texas
Trial Court Cause No. 355,868-402
M E M O R A N D U M O P I N I O N
Appellant, Michael Urban, appeals the denial of his special appearance based on lack of personal jurisdiction. Because we find a want of both general and specific personal jurisdiction, we reverse and render judgment dismissing the cause of action.
Robert Barker owned shares of Thermal Solutions, Inc. (ATSI@), a corporation incorporated in Colorado and having its headquarters in Colorado. TSI had an office in Pasadena, Texas. Barker contracted with Emmett Lescroart to sell his shares of TSI. To comply with a right of first refusal stock restriction agreement, Barker informed TSI of his decision to sell. Urban responded on behalf of TSI that neither the company nor any shareholders wanted to match the offer and, therefore, Barker was free to sell to Lescroart. On the advice of his attorney, Barker sent another letter to TSI asking to conclude his transaction with Lescroart by sending documents and checks through TSI=s attorney located in Colorado. Urban responded in writing, stating he had no objection, and the sale proceeded. Barker retained a Colorado attorney to review the final documents. Approximately thirteen months after the sale, Lescroart sold the shares for a profit to Team, Inc., a Texas corporation.
Barker subsequently died. His widow, Paulette Barker (AMrs. Barker@), brought suit in the probate court as executor and sole beneficiary under the will and individually as claimant and creditor of the defendants. The defendants include TSI and seven other corporations, and Lescroart and Urban as individuals. Mrs. Barker alleged breach of fiduciary duty, breach of contract, conspiracy, and violations of the Texas Securities Act, the Texas Property Code, and the Texas Deceptive Trade Practices Act. Urban made a special appearance to object to the trial court exercising jurisdiction over him as an individual. The trial court denied his special appearance, and he appeals.
Standard of Review
The plaintiff bears the initial burden of pleading sufficient allegations to bring the nonresident defendant within the provisions of the long-arm statute. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). In a special appearance, the burden of proof is then on the nonresident to negate all possible grounds for personal jurisdiction. Id. The existence of personal jurisdiction is a question of law, which we determine de novo. Id. at 794. The trial court, however, must frequently resolve questions of fact before reaching the question of jurisdiction. Id.
If a trial court enters an order denying a special appearance, and the trial court issues findings of fact and conclusions of law, the appellant may challenge the fact findings on legal and factual sufficiency grounds. BMC Software Belgium, N.V., 83 S.W.3d at 794. Where a statement of facts is contained in the record, as is the case here, findings of fact are not conclusive on appeal if the contrary is established as a matter of law, or if there is no evidence to support the findings. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex. App.CHouston [14th Dist.] 1995, writ ref=d n.r.e.) (citing Swanson v. Swanson, 228 S.W.2d 156, 158 (Tex. 1950)). With the exception of numbers one and six, we find no evidence in the record to support the findings of fact.
Adequacy of the Affidavit
As a preliminary matter, we must address Urban=s objection to Mrs. Barker=s affidavit. A special appearance determination shall be made by the court on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of the discovery process, and any oral testimony. Tex. R. Civ. P. 120a(3). Here, the trial court based its denial on the written submissions. In his reply to Mrs. Barker=s response to his special appearance, Urban objected to facts in the affidavit filed as evidence by Mrs. Barker, and objected to her lack of personal knowledge. Because Urban objected to the affidavit in the trial court below, the objection is preserved for appeal.
Affidavits Ashall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify.@ Tex. R. Civ. P. 120a(3). To avoid being conclusory, an affidavit must contain specific factual bases, admissible in evidence and upon which conclusions are drawn. Nichols v. Lightle, 153 S.W.3d 563, 570 (Tex. App.CAmarillo 2004, pet. denied). Merely reciting that an affidavit is made on personal knowledge is insufficient. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). Instead, the affidavit must go further and disclose the basis on which the affiant has personal knowledge of the facts asserted. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 762 (Tex. 1988). Statements made in the affidavit need factual specificity such as time, place, and the exact nature of the alleged facts. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). A special appearance affidavit must be Adirect, unmistakable, and unequivocal@ as to the facts sworn to, so that perjury can be assigned upon it. Int'l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 808 (Tex. App.CFort Worth 1994, writ denied).
Mrs. Barker states no basis to show how she acquired any personal knowledge as to the statements made in her affidavit. A person=s position or job responsibilities can peculiarly qualify him to have personal knowledge of facts and establish how he learned of the facts. First Nat=l Bank in Munday v. Lubbock Feeders, L.P., 183 S.W.3d 875, 881 (Tex. App.CEastland 2006, pet. denied). Numbered paragraph one merely contains boilerplate language as to personal knowledge of the matters contained in her affidavit. Mrs. Barker=s only statement concerning her personal involvement with this matter is in paragraph two: she was married to Barker. Even this statement lacks facts as to when they married, or even if she was married to Barker when the original transaction occurred. Being married to Barker, alone, does not Apeculiarly qualify@ Mrs. Barker to have any personal knowledge about the stock transaction, TSI=s business practices, or Urban=s individual activities. In paragraph nine of her affidavit, Mrs. Barker states ATSI vacated its Pasadena, Texas facility in October or November 2004.@ (Emphasis added). This statement is neither Adirect,@ Aunmistakable,@ nor Aunequivocal.@ Someone with personal knowledge of a company=s business would certainly know when it vacated one of its facilities. Paragraph eleven states Urban continued to travel to Texas until sometime in mid 2005. Again, this statement is neither Adirect,@ Aunmistakable,@ nor Aunequivocal,@ and it shows the lack of personal knowledge Mrs. Barker has as to Urban=s actions as an individual.
In paragraph two, Mrs. Barker states Barker founded the company with Urban, a fact denied by Urban in his reply to Mrs. Barker=s response to his special appearance. The record contains no evidence, such as paperwork, to show when and under what circumstances her husband acquired the stock in order to challenge Urban=s denial. While Mrs. Barker=s first amended original petition alleges Urban purchased her husband=s stock with Lescroart, her affidavit makes no mention of this. In paragraph twelve of the petition, Mrs. Barker states TSI is a Colorado corporation, but Mrs. Barker=s brief calls TSI a ATexas-based company,@ that was Aheadquartered in Pasadena, Texas.@ In her affidavit, Mrs. Barker refers to the Pasadena office as the Ainitial business location@ or the APasadena, Texas facility.@ Although these latter statements resemble more a description of a satellite office than a base for a corporation, even these statements lack factual proof or personal knowledge. The remainder of her affidavit consists of additional conclusory statements concerning Urban=s travels, his job, and the business of TSI, without any factual specificity as to dates, times, with whom Urban met or where he met them. We conclude Mrs. Barker=s affidavit is insufficient to satisfy Tex. R. Civ. P. 120a(3) for use as evidence and, thus, we will not consider it in determining the issues.
Urban presents three issues on appeal: 1) the trial court lacks minimum contacts to assert personal jurisdiction over him; 2) the fiduciary shield doctrine encompasses his contacts; and 3) jurisdiction over him offends traditional notions of fair play and substantial justice.
This court looks at both the reporter=s record and the clerk=s record when deciding the appeal. If all the evidence is filed with the clerk, then the appeal should be decided on the clerk=s record alone. Michiana Easy Livin= Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005) (citing Otis Elevator Co. v. Parmelee, 850 S.W.2d 179, 181 (Tex. 1993)). Here, the reporter=s record indicates all the evidence was contained in the clerk=s record. Thus, only the clerk=s record, without Mrs. Barker=s affidavit, are before us.
Texas courts may acquire personal jurisdiction over a nonresident defendant if two requirements are satisfied. First, the Texas long-arm statute must authorize the exercise of jurisdiction. Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990). Second, the exercise of jurisdiction must be consistent with federal and state constitutional guarantees of due process. Id.
The Texas long-arm statute authorizes the exercise of jurisdiction over nonresidents Adoing business@ in Texas. Tex. Civ. Prac. & Rem. Code Ann. ' 17.042 (Vernon 1997). The list of activities which constitute Adoing business@ is not exhaustive and may include other acts. Vosko v. Chase Manhattan Bank N.A., 909 S.W.2d 95, 98 (Tex. App.CHouston [14th Dist.] 1995, writ denied). Texas= long-arm statute is broad, but only extends as far as the U.S. Constitution will allow. Michiana, 168 S.W.3d at 788. Since the long-arm statute=s concept of Adoing business@ extends as far as due process will allow, any activity or contact which satisfies due process also constitutes doing business, and any contact which does not satisfy due process does not constitute doing business. Vosko, 909 S.W.2d at 98. Therefore, we need not analyze the Adoing business@ requirement separate from the due process requirement.
Personal jurisdiction over a nonresident defendant meets the due process requirements of the Constitution when two conditions are met: 1) the defendant has established minimum contacts with the forum state; and 2) the exercise of jurisdiction does not offend the traditional notions of fair play and substantial justice. Int=l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Minimum contacts can establish either specific or general jurisdiction. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 413B14 (1984). For specific jurisdiction to be found, the plaintiff=s cause of action must arise out of or relate to the nonresident=s contacts with Texas. Vosko, 909 S.W.2d at 98. The minimum contacts analysis for specific jurisdiction focuses on the relationship among the defendant, the forum, and the litigation. Helicopteros, 466 U.S. at 414.
The Atouchstone@ of jurisdictional due process is purposeful availment. Michiana, 168 S.W.3d at 784. In each case, there must be Asome act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.@ Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). First, only the defendant=s contacts count. Id. at 785. This ensures a defendant will not be brought into court as a result of the unilateral activity of another party or third person. Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985). Second, the acts relied on must be Apurposeful@ rather than random, isolated, or fortuitous. Id. (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). Third, the defendant must seek some benefit or profit by Aavailing@ itself of the jurisdiction. Michiana, 168 S.W.3d at 785.
Here, the litigation arises out of, and relates to, a contract between Barker and Lescroart to sell shares of TSI stock, and allegations of fraud and conspiracy. A minimum contacts analysis must focus on Urban, the state of Texas, and the litigation. Urban is a resident of Colorado, owning no personal or real property in Texas. To exercise specific jurisdiction over Urban individually, there must be some act in regards to the contract or allegations by which Urban purposefully availed himself of the benefits and protections of the laws of Texas. Barker, a Texas resident, contacted Urban at his office in Colorado concerning the sale of the shares. Urban was not a party to the contract. Urban, in his role as president of TSI, responded to Barker on behalf of the corporation. Barker again wrote and asked for assistance from the corporation=s Colorado attorneys in finalizing the sale. Urban agreed. Barker, who was represented by a Colorado lawyer, finalized the sale in Colorado, and designated Colorado law applied to the contract and any controversies.
According to Urban=s evidence, his trips to Texas did not involve Barker=s transaction. Mrs. Barker=s first amended original petition alleges Urban bought Barker=s shares with Lescroart. Urban=s briefs specifically deny this allegation, and during oral arguments, Urban again denied purchasing any of Barker=s stock. Mrs. Barker=s first amended original petition and supporting documents do not contain a copy of the sales contract or stock transfer documents to prove otherwise. With Urban not involved in the purchase of Barker=s stock, it is difficult to deduce any benefit or profit Urban would have gained from the sale of the stock to Lescroart that would qualify as Urban availing himself of the protections and benefits of Texas law.
Mrs. Barker=s first amended original petition also contains conclusory statements alleging misrepresentations and fraudulent conduct by Urban which induced Barker to make the sale. These statements contain no dates or times when the misrepresentations could have occurred, and no manner, such as telephone calls, letters, or emails, in which the misrepresentations could have been made. Merely alleging a defendant committed a tort in Texas, is not dispositive of the jurisdictional issue. Wright v. Sage Eng=g, Inc., 137 S.W.3d 238, 251 (Tex. App.CHouston [1st Dist.] 2004, pet. denied). In tort liability, especially misrepresentation cases, it is better for judges to limit their jurisdictional decisions to the actual business contacts, rather than on what the parties thought, said, or intended. Michiana, 168 S.W.3d at 791. As one example, paragraph eighteen of Mrs. Barker=s first amended original petition states Athe secretive actions of Urban and Lescroart, and various shareholder agreements orchestrated by Urban and Lescroart, made it impossible for plaintiffs to receive a fair price for their stock.@ The record fails to show where these alleged secret actions took place, where the various shareholder agreements were created, or what personal benefit Urban received from these alleged misrepresentations. The torts of fraud and misrepresentation, and the derivative tort of conspiracy have not been alleged here with the specific contacts necessary to warrant the exercise of jurisdiction over Urban. The allegations fail to show Urban purposefully availed himself of the protection of the laws of Texas and, therefore, could expect to be called into court here.
Based on the evidence found in the record, Urban=s contacts between the litigation and forum consist of a Texas resident contacting Urban in Colorado, regarding a contract to which Urban was not a party and from which he derived no benefit, with performance of the contract in Colorado. Thus, we find the necessary minimum contacts lacking to exercise specific jurisdiction over Urban as an individual. We now turn to the issue of general jurisdiction.
A trial court may exercise general jurisdiction over a nonresident defendant if the nonresident has contacts with the forum state which are continuous and systematic, so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. BMC Software Belgium, N.V., 83 S.W.3d at 796. When general jurisdiction is asserted, the minimum contacts analysis is more demanding and requires a showing of substantial activities in the forum state. Schlobohm, 784 S.W.2d at 357. A corporate officer, in his individual capacity, cannot be said to have established minimum contacts with the forum based on the activities of his corporation, absent other evidence, such as proof sufficient to pierce the corporate veil. Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982). This court applied the fiduciary shield doctrine, in a general jurisdiction situation, stating personal jurisdiction over an individual may not be based on jurisdiction over a corporation with which an individual is associated unless the corporation is the alter ego of the individual. Vosko, 909 S.W.2d at 99. Here, no showing has been made that Urban is the alter ego of TSI and, therefore, this situation does not apply.
The fiduciary shield doctrine also protects employees of a corporation from personal jurisdiction when the employee=s actions are on behalf of his employer. Garner, 966 S.W.2d at 803. However, even if all of the officer=s actions were performed in his corporate capacity, the officer may be subjected to personal jurisdiction and held liable in his individual capacity for those actions if they were tortious or fraudulent. Shapolsky v. Brewton, 56 S.W.3d 120, 133 (Tex. App.CHouston [14th Dist.] 2001, pet. denied), disapproved of on other grounds, Michiana, 168 S.W.3d at 788. Analogous to the situation here, Cadle v. Graubart applied the fiduciary shield doctrine and held that allegations of tortious activity against an individual shareholder and director were insufficient to support jurisdiction over the individual where the allegations and evidence were non-specific. 990 S.W.2d 469, 473 (Tex. App.CBeaumont 1999, no pet.). A court looks to the contacts and not to the merits of the case to determine jurisdiction. Michiana, 168 S.W.3d at 790. Personal jurisdiction turns on the contacts themselves, not on whether the contacts were tortious. Id. at 792. As in Cadle, this case=s record contains allegations of tortious behavior, fraud, and conspiracy against Urban. However, what is lacking in the record are specific facts to show continuous and systematic individual contacts Urban had with Texas.
Mrs. Barker=s statements in her first amended original petition and her response to Urban=s special appearance lack the necessary description of specific contacts that can be attributed to Urban individually. These statements include numerous conclusory allegations and nonspecific accusations, similar to the following examples.
! Urban was an unusually secretive and disingenuous executive, who refused to provide basic financial and operating information to Barker.
No evidence was attached to show when Barker contacted Urban and was refused information. Urban=s brief denies the allegations, but also states any information provided to Barker about TSI would have come from the corporate headquarters in Colorado.
! Urban traveled to Pasadena, Texas to conduct business on behalf of TSI every few months during the seven year period that TSI maintained an office in Pasadena, Texas.
Here, Mrs. Barker=s statement supports Urban=s position that his travels were on behalf of the company and not as an individual.
! Urban was a salaried employee of TSI, responsible for hiring and firing of personnel, equipment purchases, and supervision of sales staff.
It is unclear whether Mrs. Barker contends Urban performed these duties, in Texas or Colorado. Regardless, this statement attributes any possible Texas connections to Urban=s responsibilities as an employee of TSI, and not in his individual capacity. The record lacks the necessary evidence of continuous and systematic contacts attributable to Urban outside the fiduciary shield, to establish general jurisdiction over Urban as an individual.
Having determined there are insufficient contacts between Urban and Texas to support an exercise of either specific or general personal jurisdiction over Urban, we need not consider the fairness requirement of due process because A>the fairness prong cannot compensate for or overcome the requirement of some minimum contacts with the forum state.=@ Stuart v. Spademan, 772 F.2d 1185, 1194 n.7 (5th Cir. 1985) (quoting Growden v. Ed Bowlin & Assocs., Inc., 733 F.2d 1149, 1150-51 (5th Cir. 1984)). Thus, we reverse and render judgment dismissing the action for lack of personal jurisdiction.
/s/ J. Harvey Hudson
Judgment Reversed and Rendered and Memorandum Opinion filed March 6, 2007.
Panel consists of Justices Anderson, Hudson, and Guzman.
 The findings of fact from the trial court are as follows:
1.) Paulette Barker is the named executor for the Estate of Robert Barker, deceased(collectively ABarker@).
2.) Michael Urban (AUrban@) and Robert Barker founded Thermal Solutions, Inc. (ATSI@).
3.) Barker owned 83,000 shares of TSI stock.
4.) TSI conducted business in Pasadena, Texas for seven years; from the time it was founded in the fall of 1997 until several months following its acquisition by defendant Team, Inc. in July 2004.
5.) Urban actively participated in the operation and management of TSI for the entire seven years TSI was headquartered in Texas.
6.) Urban was an officer, director, and salaried executive of TSI.
7.) Urban was responsible for hiring and firing personnel, supervision of TSI=s sales staff, and purchase of company equipment.
8.) Urban managed and directed TSI=s day to day operations.
9.) In his role as officer, director, and executive of TSI, Urban made no less than thirty (30) business trips to Pasadena, Texas during the seven years that TSI operated out of its Texas facility, including trips after Team Inc.=s July 2004 acquisition of TSI.
10.) Urban was an unusually secretive and disingenuous executive who refused to provide information to Barker regarding TSI=s financial condition or its ongoing operations.
11.) Concern about how TSI was being run and the inability to obtain basic information about TSI=s finances and operations, led to concerns by Barker regarding potential personal liability for debts or actions of the company.
12.) Urban repeatedly told Barker that he would frustrate any attempt to realize a fair value for Barker=s TSI stock through a sale or merger of the company.
13.) Urban insisted that the company would remain independent, even if that depressed the stock price.
14.) Urban=s actions and representations made it impossible for Barker to receive a fair price for his stock and forced Barker to sell his TSI shares at an artificially depressed price to defendant Emmett J. Lescroart (ALescroart@).
15.) While Barker was trying to sell his TSI stock, and in spite of Urban=s repeated claims that he would block any sale or merger, Urban was actively negotiating to sell TSI.
16.) After Lescroart purchased Barker=s TSI shares, Urban sold TSI B without any material intervening business event B for three times what Barker had received for his shares.
 Mrs. Barker=s affidavit state, in the pertinent part:
1) I am the plaintiff in the above-referenced action. I reside in Pasadena, Harris County, Texas. I have personal knowledge of the matters stated in this affidavit and am competent to testify hereto, and swear under penalty of perjury that the facts set out in this affidavit are true and correct.
2) Defendant Michael Urban and my husband Robert Barker, now deceased, founded Thermal Solutions, Inc. (TSI) in the fall of 1997.
3) The initial business location of TSI was Pasadena, Texas.
4) TSI conducted business in Pasadena, Texas for seven years from the time of its inception until several months following its acquisition by Team, Inc. in July 2004.
5) Michael Urban actively participated in the operations and management of TSI for seven years from the time of its inception until several months following its acquisition by Team, Inc. in July 2004.
6) Notwithstanding his status as an officer and director of TSI, Urban was a salaried employee of TSI, responsible for hiring and firing of personnel, equipment purchases and supervision of sales staff.
7) Michael Urban continued to participate in the operations and management of TSI following the acquisition of TSI by Team, Inc. in July 200.
8) Michael Urban made no fewer than 30 business trips to Pasadena, Texas during the seven year period of time that TSI operated out of its Pasadena, Texas facility, including trips subsequent to acquisition of TSI by Team, Inc.
9) TSI vacated its Pasadena, Texas facility in October or November 2004.
10) Michael Urban has continued to travel to Texas for to provide services to TSI and Team, Inc. since the relocation of TSI by Team, Inc.
11) Michael Urban continued to travel to Texas until sometime in mid 2005.
12) Michael Urban has traveled to Texas to provide services to TSI and Team, Inc. every few months for no less than nine consecutive years, ending within the past year.
 The Texas Civil Practices and Remedies Code provides:
In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:
(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;
(2) commits a tort in whole or in part in this state; or
(3) recruits Texas residents, directly or through an intermediary in this state, for employment inside or outside this state.
Tex. Civ. Prac. & Rem. Code Ann. ' 17.042
 Although Urban was not a party to the contract, we note his brief contends the contract contains a choice of law clause indicating Colorado law applies to the contract and any controversies arising from the contract. Mrs. Barker=s petition and briefs are silent on this point. The Supreme Court has held that choice-of-law provisions should not be ignored in considering whether a defendant has Apurposefully invoked the benefits and protections of a State=s laws.@ Burger King, 471 U.S. at 482. The choice-of-law clause is some evidence the parties did not expect to be in a Texas court dealing with any controversies concerning the contract.
 Civil conspiracy is considered a derivative tort because a defendant=s liability depends upon participation in some underlying tort for which the plaintiff attempts to hold the defendant liable. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). A plaintiff must prove the defendant was liable for some underlying tort in order to prevail on a civil conspiracy claim. Hunt v. Baldwin, 68 S.W.3d 117,133 (Tex. App.CHouston [14th Dist.] 2001, no pet.). The conspiracy must consist of acts which would have been actionable against the conspirators individually. Int=l. Banker=s Life Ins. Co. v. Holloway, 368 S.W.2d 567, 581 (Tex. 1963).
 The Texas Supreme Court has expressly rejected jurisdiction based solely upon the effects or consequences of an alleged conspiracy in the forum state, considering instead the defendant=s conduct and connection with the forum to be critical. Michiana, 168 S.W.3d at 789.
 The Texas Supreme Court has not explicitly adopted the fiduciary shield doctrine, but intermediate appellate courts have applied it to defeat general jurisdiction. Brown v. General Brick Sales Co., Inc., 39 S.W.3d 291, 298B99 (Tex. App.CFort Worth 2001, no pet.) (citing Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798, 803 (Tex. App.CHouston [1st Dist.] 1998, pet. denied); J & J Marine, Inc. v. Le, 982 S.W.2d 918, 927 (Tex. App.CCorpus Christi 1998, no pet.); MacMorran v. Wood, 960 S.W.2d 891, 898 (Tex. App.CEl Paso 1997, pet. denied); Vosko, 909 S.W.2d at 99; Clark v. Noyes, 871 S.W.2d 508, 518 (Tex. App.CDallas 1994, no writ)).
 Emphasis added.