Dean's Campin' Co. v. Peter Hardsteen

In The Court of Appeals For The First District of Texas ____________ NO. 01-00-01190-CV ____________ DEAN'S CAMPIN' COMPANY, Appellant V. PETER HARDSTEEN, TEXAS FARM BUREAU, and REXHALL INDUSTRIES, INC., Appellees On Appeal from the 278th District Court Grimes County, Texas Trial Court Cause No. 27885 O P I N I O N Dean's Campin' (Dean's), appellant, appeals a summary judgment denying Dean's claim to statutory indemnity, under Chapter 82 of the Civil Practice and Remedies Code, (1) from Dean's codefendant in the court below, appellee Rexhall Industries, Inc. (Rexhall). Dean's also challenges orders striking its cross-claims for indemnity against Rexhall and appellees, Peter Hardsteen, who was the plaintiff in the court below, and Texas Farm Bureau, which intervened in the court below to assert a subrogation interest. Dean's five issues ask us to address the following: whether the trial court properly resolved Dean's and Rexhall's cross-motions for summary judgment on Dean's chapter 82 indemnity claim by rendering judgment in favor of Rexhall instead of Dean's; whether the trial court erred by striking Dean's additional claims for indemnity against Rexhall, Hardsteen, and Texas Farm Bureau; and whether the trial court properly assessed costs against the party incurring same. We reverse and remand. Background Hardsteen filed this lawsuit in 1997, after a fire that originated in and destroyed his 1994 Aerbus Widebody Excel 3600 motor home spread to and also destroyed his home and pickup truck. Hardsteen alleged several products-liability and breach-of-warranty theories against Rexhall, which manufactured the motor home, and Dean's, which sold it, and also sued several manufacturers of component parts. In addition, Hardsteen claimed that Rexhall and Dean's violated the Deceptive Trade Practices-Consumer Protection Act (DTPA) and that Dean's was negligent and grossly negligent for the allegedly faulty repair of the motor home's electrical system. Texas Farm Bureau intervened in the lawsuit to assert a subrogation interest for $228,652.93 paid to Hardsteen under three liability policies. In 1998, Dean's filed a cross-claim against Rexhall, seeking statutory indemnity under both common-law principles and Civil Practice and Remedies Code section 82.002, on the grounds that Dean's was an innocent seller of a defective product and therefore entitled to recover its attorney's fees and costs incurred in defending Hardsteen's lawsuit. In October 1999, Dean's filed a motion for summary judgment, as defendant, on the merits of Hardsteen's liability claims. The trial court granted this motion, but later set it aside on Hardsteen's motion. On August 17, 2000, Rexhall filed a motion for summary judgment, on both traditional and no-evidence grounds, claiming it was entitled to prevail as a matter of law against Dean's claims for statutory indemnity under Civil Practice and Remedies Code section 82.002. The motion was accompanied by a request to set the motion for hearing, to which was attached a copy of a November 1999 settlement agreement among Hardsteen, Texas Farm Bureau, and Rexhall. On August 18, 2000, Dean's supplemented its existing cross-claim for indemnity against Rexhall to assert claims for indemnity under Business and Commerce Code section 2.607, (2) and, on August 21, 2000, Dean's asserted supplemental claims for indemnity against Hardsteen and Texas Farm Bureau, based on the recently disclosed settlement agreement among Hardsteen, Texas Farm Bureau, and Rexhall. Also on August 21, 2000, Dean's filed a traditional motion for summary judgment on its claims for indemnity under Civil Practice and Remedies Code section 82.002 and its recently asserted claim under Business and Commerce Code section 2.607. On September 1, 2000, Hardsteen, Texas Farm Bureau, and Rexhall filed identical motions to strike the supplemental cross-claims. The trial court conducted an oral hearing on Rexhall's and Dean's motions for summary judgment on September 11, 2000 and signed an order granting Rexhall's motion that day. In addition, the trial court signed orders granting Hardsteen's, Texas Farm Bureau's, and Rexhall's motions to strike Dean's additional indemnity cross-claims. A seven-day jury trial followed on the merits of Hardsteen's DTPA and negligence claims against Dean's and resulted in a verdict in Dean's favor. The final judgment, signed on December 19, 2000, reflects this verdict and recites the trial court's finding good cause "for imposing taxable costs against the party incurring same due to [Hardsteen's] relative inability to pay such costs." The September 11, 2000 orders, which Dean's challenges in this appeal, became merged with the December 19, 2000 final judgment. See City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex. 1988). Statutory Indemnity under Civil Practice and Remedies Code Section 82.002 Dean's first and second issues challenge the trial court's resolving Rexhall's and Dean's cross-motions for summary judgment by ruling that Rexhall, and not Dean's, was entitled to judgment as a matter of law. Rexhall sought a traditional summary judgment under rule 166a(a)-(b) and a no-evidence summary judgment under rule 166a(i). Dean's motion for summary judgment relied only on rule 166a(a)-(b). Tex. R. Civ. P. 166a(a)-(b), (i). A. Standard of Review We follow the usual standard of review for traditional summary judgments granted under rule 166a(a) and (b) of the Rules of Civil Procedure. Tex. R. Civ. P. 166a(a)-(b); see Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Rule 166a also authorizes Texas trial courts to grant a motion for summary judgment if, after adequate time for discovery has passed, there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); see also Fisher v. Lee & Chang P'ship, 16 S.W.3d 199, 203 (Tex. App.--Houston [1st Dist.] 2000, pet. denied) ("Under the no-evidence summary judgment standard, the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding.") (internal quotations omitted); Flameout Design & Fabrication, Inc. v. Pennzoil Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.) ("[A] no-evidence summary judgment is similar to a directed verdict."). In reviewing a no-evidence summary judgment, we continue to apply the well-settled standards that require us to assume all evidence favorable to the non-movant is true and to indulge every reasonable inference and resolve all doubts in favor of the non-movant. Tex. R. Civ. P. 166a(i) and cmt. to 1997 change; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000); Flameout Design & Fabrication, Inc., 994 S.W.2d at 834. When both parties move for summary judgment, the appealing party may challenge the denial of its own motion as well as the judgment in favor of the prevailing party. CU Lloyd's v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998). B. Manufacturer's Duty to Indemnify under Section 82.002 Texas codified its 1993 Products Liability Act in chapter 82 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. §§ 82.001-.006 (Vernon 1997). Section 82.002(a) of the act requires the manufacturer of an allegedly defective product to indemnify the seller of the product for any loss arising out of a products-liability action except when the seller independently causes the loss. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 87 (Tex. 2001) (interpreting section 82.002(a) of the act). (3) Section 82.002(b) defines "loss" to include "court costs and other reasonable expenses, reasonable attorney's fees, and any reasonable damages." (4) Tex. Civ. Prac. & Rem. Code Ann. § 82.002(b) (Vernon 1997); see Meritor, 44 S.W.3d at 87. The seller's right to indemnity arises irrespective of the manner in which the action is concluded. Tex. Civ. Prac. & Rem. Code Ann. § 82.002(e)(1) (Vernon 1997); see Meritor, 44 S.W.3d at 91 (citing same). Rexhall's settlement with Hardsteen had no effect, therefore, on Dean's rights under section 82.002. The act describes the manufacturer's duty to indemnify the seller as follows: A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller's negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable. Tex. Civ. Prac. & Rem. Code Ann. § 82.002(a) (Vernon 1997). Section 82.002(a) thus requires a manufacturer to indemnify and hold harmless an innocent seller, joined in a products-liability action, for damages and litigation expenses that qualify as losses under the act. See Meritor, 44 S.W.3d at 88 (citing Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 867 (Tex. 1999)). An exception to this duty arises when the seller causes the plaintiff's loss, in which case the seller has no right of indemnity from the manufacturer. See id. Meritor was a case of first impression. Id., 44 S.W.3d at 89. In reconciling the definition of "products liability action" under section 82.001(2) of the act (5) with the manufacturer's duty to indemnify under section 82.002(a), the supreme court ruled as follows: (1) A "products liability action" includes not only products liability claims, but other theories properly joined to those claims, including negligence; (2) Although the plaintiff's pleadings and joinder of the seller as a defendant trigger the manufacturer's duty to indemnify, a finding that the seller's independent conduct caused the plaintiff's injury triggers the exception to the manufacturer's duty. Id. at 91. Based on the legislative history of the act, the court ruled that manufacturers must indemnify sellers except when the seller is at fault. See id. To defeat a seller's claim for indemnity under section 82.002(a), therefore, a manufacturer can no longer rely, as Rexhall did here, on mere allegations of independent negligence or other liability. See id. at 90-91. In reaching this holding and affirming the decision of the court of appeals, the supreme court disapproved of the interpretation given section 82.002(a) of the Civil Practice and Remedies Code in Hurst v. American Racing Equipment, Inc., 981 S.W.2d 458, 463 (Tex. App.--Texarkana 1998, no pet.). See Meritor, 44 S.W.3d at 90. As Hurst construed section 82.002(a), the statute authorized the seller to recover, from the manufacturer, attorney's fees and costs the seller incurred in defending the plaintiff's products-liability claims, but precluded that recovery for expenses related to defending the plaintiff's negligence claims. Hurst, 981 S.W.2d at 463. Meritor clarifies that this distinction is material only when the seller is found independently negligent. See id., 44 S.W.3d at 90. C. Rexhall and the Trial Court Erroneously Relied on Hurst In moving for summary judgment on Dean's section 82.002(a) claims, Rexhall relied on the disapproved Hurst reasoning. Rexhall argued that only products-liability claims, and not negligence claims, trigger the manufacturer's duty to indemnify under the statute. Because Hardsteen's recently amended pleadings alleged faulty repairs to the motor home by Dean's, Rexhall argued these pleadings alleged only negligence, gross negligence, and violations of the DTPA, all of which fell into the section 82.002(a) exception to the manufacturer's duty to indemnify. The reporter's record of the pretrial hearing reflects this reasoning convinced the trial court to render summary judgment in Rexhall's favor. We hold the trial court erred by rendering summary judgment in reliance on the Hurst reasoning, which Meritor has since discredited. We further hold the trial court erred to the extent it premised its decision on the no-evidence grounds of rule 166a(i). As the supreme court stated in Meritor, "[W]hile the manufacturer's duty to indemnify the seller is invoked by the plaintiff's pleadings and joinder of the seller as a defendant, the exception to that duty is established by a finding that the seller's independent conduct was a cause of the plaintiff's injury." Id. at 91. This holding imposes on the manufacturer the burden to prove that the exception to the manufacturer's duty to indemnify the seller applies. See id. at 90 (referring to manufacturers' objections to requiring them to prove seller's negligence to avoid indemnity under section 82.001(a)); see also Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 254 (Tex. App.--Corpus Christi 2001, rule 53.7(f) motion filed Dec. 17, 2001) (interpreting Meritor as imposing on manufacturer burden of proof on exception to indemnity). In moving for summary judgment here, Rexhall claimed the exception to the manufacturer's duty to indemnify arose because Hardsteen's injuries resulted from independent conduct by Dean's. Rexhall had the burden to prove that claim. See Meritor, 44 S.W.3d at 90-91; Oasis Oil Corp., 60 S.W.3d at 254. But Rexhall could seek summary judgment under the no-evidence grounds of rule 166a(i) only for a claim or defense on which Dean's would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Oasis Oil Corp., 60 S.W.3d at 254. Rexhall could not seek a no-evidence summary judgment on a claim on which Rexhall had the burden of proof. See Tex. R. Civ. P. 166a(i); Oasis Oil Corp., 60 S.W.3d at 254. The trial court erred, therefore, to the extent it rendered summary judgment in Rexhall's favor on the no-evidence grounds of rule 166a(i). We sustain Dean's first issue. D. No Rendition for Dean's In its second issue, Dean's contends the trial court erred by not granting Dean's motion for summary judgment. Despite the trial court's error in rendering summary judgment in favor of Rexhall, we conclude we may not render judgment in Dean's favor for several reasons. Reversal of an order granting summary judgment normally results in a remand for trial. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). Denial of a motion for summary judgment is ordinarily not appealable, but an exception arises when both parties move for summary judgment and the trial court grants one motion and denies the other. Id. In considering the parties' cross-motions, the appellate court may not only reverse the order denying summary judgment, but may also render the judgment the trial court should have rendered. Id.; see also CU Lloyd's, 977 S.W.2d at 569. This rule presumes, however, that both parties sought final-judgment relief in their cross- motions. CU Lloyd's, 977 S.W.2d at 569. Here, as in CU Lloyd's, the complaining party, in this case Dean's, offered no evidence of the damages it sought to recover, attorney's fees and costs. See id. at 569. Moreover, Dean's could not have obtained final judgment relief through its motion because its alleged negligence and DTPA liability had not yet been resolved. In moving for summary judgment, Rexhall offered evidence of allegedly faulty repairs by Dean's. Dean's countered that evidence with opinion testimony by Rexhall experts, who suggested Dean's did "nothing wrong." Rexhall's and Dean's summary judgment evidence thus presented fact issues concerning Dean's fault, i.e., its independent negligence and DTPA liability, that had to be resolved before Rexhall's duty to indemnify could be determined. See Meritor, 44 S.W.3d at 91. This liability issue has since been resolved in Dean's favor, through the jury verdict and judgment exonerating Dean's. But the trial court could not have determined the issue of Dean's liability based on the summary judgment record and, therefore, could not have ruled, as a matter of law, that Dean's was an innocent seller and thus entitled to recover its attorney's fees and costs from Rexhall under section 82.002(a) of the Civil Practice and Remedies Code. Because the issue of Dean's liability had not been resolved when the trial court ruled on Dean's and Rexhall's motions for summary judgment, and because Dean's did not offer summary judgment evidence of its attorney's fees and costs, we may not now retroactively render judgment in Dean's favor. We overrule Dean's second issue. Striking Supplemental Cross-Claims Dean's third and fourth issues challenge the trial court's striking Dean's supplemental cross-claims against Rexhall, Hardsteen, and Texas Farm Bureau. (6) Dean's supplemented its cross-claim against Rexhall on the day after Rexhall filed its motion for summary judgment and accompanying request for setting, to which was attached the November 1999 settlement agreement among Hardsteen, Texas Farm Bureau, and Rexhall. The purpose of this cross-claim was to assert rights Dean's claimed, as buyer/retailer of the motor home, under section 2.207 of the Business and Commerce Code, against Rexhall, as manufacturer/seller. (7) Three days later, when Dean's also filed its motion for summary judgment, Dean's filed an additional supplemental cross-claim asserting rights of indemnity against Hardsteen, Pauline Mayberg Hardsteen, (8) and Texas Farm Bureau based on the November 1999 settlement. Hardsteen, Texas Farm Bureau, and Rexhall moved to strike the supplemental cross-claims on the grounds of surprise. (9) The trial court heard only minimal argument on these motions during the pretrial hearing on September 11, 2000 and signed orders striking the cross-claims that day. A "supplemental" or reply pleading is filed in response to the last pleading of an adverse party. Tex. R. Civ. P. 69; J.M. Huber Corp. v. Santa Fe Energy Res., Inc., 871 S.W.2d 842, 844 (Tex. App.--Houston [14th Dist.] 1994, no writ). Rule 63, which governs amended and responsive pleadings, requires leave of court for pleadings filed seven days before the date set for trial. Tex. R. Civ. P. 63. A summary judgment proceeding is a trial for purposes of rule 63. Goswami v. Metro. Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988). Dean's filed its cross-claims well over two weeks before the summary judgment hearing and thus did not require leave of the trial court. Tex. R. Civ. P. 63. Amended and supplemental pleadings are nevertheless subject to challenge on grounds of surprise or prejudice. Id.; see Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex. 1992); Stevenson v. Koutzarov, 795 S.W.2d 313, 321 (Tex. App.--Houston [1st Dist.]1990, writ denied). The party asserting surprise must substantiate that claim. Chapin, 844 S.W.2d at 665. We review the trial court's ruling for abuse of discretion. Id.; Stevenson, 795 S.W.2d at 321. Although appellees' motions to strike raised the argument that Dean's supplemental cross-claims amounted to a wholesale revision of the lawsuit under our Stevenson decision, neither the motions to strike nor the reporter's record of the hearing reflects that appellees offered any evidence to the trial court to support the claim of surprise. Likewise, there is no argument based on surprise. Instead, appellees argued that Dean's supplemental cross-claims had no merit as a matter of law. This was an improper inquiry under rule 63, which provides no basis for rejecting amended or supplemental pleadings on their merits. See Tex. R. Civ. P. 63. In opposing the motions to strike, counsel for Dean's explained to the trial court why Dean's filed the supplemental pleadings. Despite outstanding discovery requests for any settlement agreements and the duty to supplement discovery, Dean's was not aware that Hardsteen, Texas Farm Bureau, and Rexhall had settled until the copy of their November 1999 settlement agreement was filed as an attachment to the request for hearing on Rexhall's motion for summary judgment. Dean's argued that, because it was not aware of the contents of that agreement until it was filed with the trial court, Dean's had no grounds for asserting its additional cross-claims for indemnity until that point in time. Appellees did not establish the surprise or prejudice required by rule 63 and instead argued against the merits of the additional cross-claims for indemnity asserted in Dean's supplemental pleading. (10) By crediting appellees' arguments and striking those claims, the trial court exceeded the permissible scope of rule 63. Accordingly, and without expressing any opinion on the merits of those claims, we hold that the trial court abused its discretion by striking them. See In re Am. Homestar, 50 S.W.3d 480, 483 (Tex. 2001) ("A trial court has no discretion to determine what the law is or in applying the law to the facts, and, consequently, the trial court's failure to analyze or apply the law correctly is an abuse of discretion."). We sustain Dean's third and fourth issues. Allocation of Costs In its fifth issue, Dean's contends the trial court abused its discretion by not awarding costs to Dean's, which prevailed in the trial court, and instead assessing costs against the party incurring same. Except when provided otherwise, the successful party in a lawsuit is generally entitled to recover all costs incurred in the suit from the losing party. Tex. R. Civ. P. 131; Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 376 (Tex. 2001). The purpose underlying rule 131 is to free the prevailing party from any obligation to pay court costs and ensure that the losing party pays them. Furr's Supermarkets, Inc., 53 S.W.3d at 378. When the record demonstrates good cause, however, rule 141 vests the trial court with discretion, "'for good cause, to be stated on the record, [to] adjudge the costs otherwise than as provided by law or [the rules of civil procedure].'" Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex. 1985) (quoting from Tex. R. Civ. P. 141); see Wiley v. Sclafani, 943 S.W.2d 107, 111 (Tex. App.--Houston [1st Dist.] 1997, no pet.). Rule 141 thus has two requirements: (1) that good cause exists and (2) that it be stated on the record. Furr's Supermarkets, Inc., 53 S.W.3d at 376. We review the trial court's decision for abuse of discretion. Id.; Wiley, 943 S.W.2d at 111. The trial court's final judgment recites the trial court's finding "good cause" for taxing costs as the party incurring them because of Hardsteen's relative inability to pay, as compared to Dean's. In moving the trial court for relief under rule 141, Hardsteen emphasized that Dean's insurer had paid all of Dean's costs, and the reporter's record indicates that Hardsteen's financial hardship was persuasive to the trial court in granting relief. Ability to pay, however, does not constitute good cause, as contemplated by rule 141, to depart from the general rule stated in rule 131. Furr's Supermarkets, Inc., 53 S.W.3d at 378. If financial inability to pay qualified as "good cause," then, contrary to rule 131, the winner, and not the loser, of the lawsuit would often be in a better position to pay the costs. Id. (citing Adams v. Stotts, 667 S.W.2d 798, 801 (Tex. App.--Dallas 1983, no writ)). Moreover, as addressed in Dean's first issue, Dean's was entitled to recover both its attorney's fees and its costs in from Rexhall under section 82.002(a) of the Civil Practice and Remedies Code. Requiring Dean's to pay its own costs conflicts with that statute as well. We hold the trial court abused its discretion by considering Hardsteen's and Dean's relative ability to pay costs as good cause, under rule 141, for deviating from rule 131. We sustain Dean's fifth issue. Conclusion We reverse the judgment of the trial court in part and remand the cause for determination of Dean's supplemental cross-claims and for determination of its attorney's fees and costs under section 82.002(a) of the Civil Practice and Remedies Code. We affirm the judgment of the trial court in all other respects. Tim Taft Justice Panel consists of Chief Justice Schneider and Justices Taft and Radack. Do not publish. Tex. R. App. P. 47.4. 1. Tex. Civ. prac. & Rem. Code Ann. § 82.002 (Vernon 1997) ("Manufacturer's Duty to Indemnify"). 2. Tex. Bus. & Comm. Code Ann. § 2.607 (Vernon 1994). 3. Rexhall's status as Dean's codefendant qualified as notice under the act, but it is undisputed that Dean's also notified Rexhall independently that Dean's would seek indemnity under the act, in additional compliance with the notice provisions of the act. See Tex. Civ. Prac. & Rem. Code Ann. § 82.002(f) (Vernon 1997). This notice was in the form of a letter, dated July 17, 1996, sent from Dean's counsel to Rexhall. It is also undisputed that Dean's qualifies as a "seller" under the act. See Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 89 (Tex. 2001) (noting that statutory term "seller" includes defendant that did not actually sell the product that caused the injury) (citing Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 869 (Tex. 1999)). 4. The act also allows the seller to recover from the manufacturer "court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages" the seller incurs in enforcing its right to indemnification under section 82.002(a). Tex. Civ. Prac. & Rem. Code Ann. § 82.002(g) (Vernon 1997). 5. See Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2) (Vernon 1997) ("'Products liability action' means any action against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories."). 6. The trial court's orders refer to the cross-claims as counter-claims. 7. Tex. Bus. & Com. Code Ann. § 2.607 (Vernon 1994). Dean's had complied with the notice provisions of this statute early in the litigation. Tex. Bus. & Com. Code Ann. § 2.607(e)(1) (Vernon 1994). 8. The record reflects that, although Pauline Mayberg Hardsteen is not a party to this litigation, she was a party to the November 1999 settlement agreement and that Dean's claimed indemnity against her on that basis. 9. Although Dean's also moved for summary judgment under section 2.607, the record reflects the trial court rendered summary judgment in favor of Rexhall by granting Rexhall's motion, which was premised solely on section 82.002(a) of the Civil Practice and Remedies Code. Accordingly, the trial court did not resolve Dean's section 2.607 claims when it rendered summary judgment in favor of Rexhall. 10. We reject appellees' contention that Dean's improperly filed its cross-claims as "supplemental" pleadings. Given the procedural posture of this case, Dean's pleading "responded" to the reality of appellees' settlement and was thus properly designated "supplemental." See Tex. R. Civ. P. 69; J.M. Huber Corp. v. Santa Fe Energy Res., Inc., 871 S.W.2d 842, 844 (Tex. App.--Houston [14th Dist.] 1994, no writ).