Property Division in Divorce Decree & Res Judicata

RES JUDICATA EFFECT OF DIVORCE DECREE 

Res judicata is an affirmative defense. Tex. R. Civ. P. 94. The party claiming the defense must prove: (1) the claims asserted in this case arise out of the same subject matter of the previous suit, (2) the claims asserted in this suit were litigated or could have been litigated through the exercise of due diligence in the previous suit, (3) there is a final judgment in the prior lawsuit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). We take the transactional approach to res judicata. Id. Under that approach, the subject matter of a suit is based on the factual matter that make up the gist of the complaint. Id. at 630. Any claim that arises out of those facts should be litigated in the same lawsuit. Id. Res judicata applies to the property division in a final divorce decree, just as it does to any other final judgment, barring subsequent collateral attack even if the divorce decree improperly divided the property. Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990). 

SOURCE: De Acetis v. Whitley (Tex.App.- Houston [14th.] Mar. 25, 2010) (real estate dispute stemming from divorce, enforcement of property division by contempt, res judicata based on divorce proceeding) 

One-satisfaction rule

The one-satisfaction rule prohibits a plaintiff from recovering twice for a single injury. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000); Vanasek v. Underkofler, 50 S.W.3d 1, 10 (Tex. App.-Dallas 1999), rev'd on other grounds, 53 S.W.3d 343 (Tex. 2001). The rule applies when several defendants commit the same act, as well as when defendants commit technically differing acts that result in a single injury. Casteel, 22 S.W.3d at 390; Vanasek, 50 S.W.3d at 10. The fact that more than one defendant may have caused the injury or that there may be more than one theory of liability does not modify this rule. Sterling, 822 S.W.2d at 8; see Galle, Inc. v. Pool, 262 S.W.3d 564, 573-74 (Tex. App.-Austin 2008, pet. denied). Whether the rule applies is determined not by the cause of action, but by the injury. See Sterling, 822 S.W.2d at 7-8. SOURCE: 05-08-00916-CV (Dallas Court of Dallas) (3/10/10)

Express contract precludes quantum meruit, unjust enrichment claim

EXPRESS CONTRACT AND QUASI-CONTRACTUAL THEORIES OF RECOVERY INCOMPATIBLE AND MUTUALLY EXCLUSIVE

[R]ecovery under the theory of quantum meruit is prohibited if an express contract covers the services or materials for which the claimant seeks recovery. Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 402-03 (Tex. App.-Dallas 2006, no pet. ).

Here, the jury found the parties had an agreement that covered the services and materials in this case. In its responsive brief, Builders Carpet asserts that Truly v. Austin, 744 S.W.2d 934, 937 (Tex. 1988), provides for an exception that allows “a breaching plaintiff to recover in quantum meruit” in building or construction contracts. Here, however, the jury found Builders Carpet did not breach the contract; consequently, the exception does not apply. Because Builders Carpet cannot recover under a quantum meruit theory as a matter of law, the jury's answers to those questions were immaterial and should have been disregarded. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994) (“A question is immaterial when it should not have been submitted, or when it was properly submitted but has been rendered immaterial by other findings.”); Basic Cap. Mgmt. v. Dynex Comm'l, Inc., 254 S.W.3d 508, 513 (Tex. App.-Dallas 2008, pet. granted ) (same).

Generally speaking, when a valid, express contract covers the subject matter of the parties' dispute, there can be no recovery under a quasi-contract theory, such as unjust enrichment. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); DeClaire v. G & B Mcintosh Family Ltd. P'ship, 260 S.W.3d 34, 49 (Tex. App.-Houston [1st Dist.] 2008, no pet.). This is because parties should be bound by their express agreements, and when a valid agreement already addresses the matter, recovery under an equitable theory is generally inconsistent with the express terms of the agreement. Conoco, 52 S.W.3d at 684; see also Edwards v. Mid- Continent Office Distribs., L.P., 252 S.W.3d 833, 837 (Tex. App.-Dallas 2008, pet. denied) (“The doctrine of unjust enrichment applies the principles of restitution to disputes that are not governed by a contract between the parties.”).

The Texas Supreme Court, however, has recognized an exception to this rule when overpayment was made under a valid contract. Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 469-70 (Tex. 1998).

SOURCE: 05-08-01149-CV (Dallas Court of Appeals) (3/16/10)

When attorney's fees are not available under the UDJA (Texas Declaratory Judgments Act)

   
No Statutory Attorney's Fees under the Declaratory Judgments Act (DJA) in the absence of proper declaratory judgment claim independent of other cause of action 
   
A party cannot use the Uniform Declaratory Judgments Act to obtain an otherwise impermissible attorney's fee. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). It is an abuse of discretion to award attorney's fees under the Uniform Declaratory Judgments Act when the statute is relied upon solely as a vehicle to recover attorney's fees. Tex. State Bd. of Plumbing Exam'rs v. Assoc. Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d 750, 753 (Tex. App.-Austin 2000, pet. dism'd); see also City of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 392 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (party may not use declaratory judgment action to seek same relief afforded under another of its causes of action to obtain otherwise impermissible attorney's fees). In a declaratory judgment action, a “court may award costs and reasonable and necessary attorney's fees as are equitable and just.” Id. at § 37.009.

SOURCE: 05-08-01715-CV (Dallas Court of Appeals) (3/18/10)

What is res ipsa loquitur in the med-mal context?

RES IPSA LOQUITUR (the thing speaks for itself) The rule of res ipsa loquitur allows an inference of negligence, absent direct proof, only when injury would ordinarily not have occurred but for negligence, and the defendant's negligence is probable. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 604 (Tex. 2004). The application of the doctrine of res ipsa loquitur is specifically limited in health care liability claims to "those cases to which it has been applied by the appellate courts of this state as of August 29, 1977." Tex. Civ. Prac. & Rem. Code Ann. § 74.201 (Vernon 2005). The three categories where appellate courts have typically applied the doctrine in medical malpractice cases are (1) negligence in the use of mechanical instruments, (2) operating on the wrong portion of the body, and (3) leaving surgical instruments or sponges within the body. Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex.1990). SOURCE: 05-08-01392-CV (Dallas Court of Appeals 3/22/2010) In her third issue, [Plaintiff] claims that the doctrine of res ipsa loquitur applies alleviating the need for an expert report.

A plaintiff who files a health care liability claim must file an expert report within 120 days of filing suit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009). The only way to extend the 120-day deadline for filing the report is by written agreement of the parties. Id. Section 74.001(a)(13) defines a health care liability claim as a "cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract." Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon 2005). An expert report must provide the expert's opinion as to the applicable standard of care and how the care provided failed to meet the standard of care and explain the relationship between that failure and the claimed injury. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) . If a claimant fails to timely file an expert report, the trial court shall dismiss the claim with respect to the physician or health care provider with prejudice to the refiling of the claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).

A health care liability claim cannot be recast as another cause of action in an attempt to avoid the expert report requirement. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). We look to the underlying nature of a claim to determine whether it constitutes a health care liability claim. Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex. App.-Dallas 2005, no pet.). If an act or omission complained of is an inseparable part of the rendition of health care services, the claim is a health care liability claim. Id. Whether a claim is a health care liability claim under section 74.351 is a question of law and is reviewed de novo. Id.

In her amended petition, [Plaintiff] asserted claims for medical malpractice, fraudulent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, violations of the Texas Health and Safety Code, assault and battery, and civil rights violations. The focal point of each of her claims is her treatment while hospitalized at Green Oaks. She complains of Dr. Carson's decision to administer Haldol against her wishes, the manner in which her concerns over the medication were or were not conveyed to Dr. Carson, the threat of physical violence if she refused the medication, the lack of obtaining prior consent, the delay in her treatment for severe side effects suffered as a result of the Haldol, and her inability to obtain something to write with to work on her religious exercises. The essence of each of [Plainitiff's] claims is negligence in the rendition of health care services. The fact that some of the alleged acts were done knowingly or indifferently does not change the nature of the claim. See Lee v. Boothe, 235 S.W.3d 448, 452 (Tex. App.-Dallas 2007, pet. denied).

[Plaintiff] also contends and we agree that a patient receiving either voluntary or involuntary mental health services has the right to refuse medication. However, administration of a psychoactive medication may be given without consent in certain circumstances. See Tex. Health & Safety Code Ann. § 576.025(a)(1) (Vernon Supp. 2009). She relies upon Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) to support her contention that medication given without consent constitutes a battery. The supreme court held, however, that failure to obtain consent does not automatically result in liability. Id. at 838. Expert testimony is still necessary to determine whether there were reasons for providing medical care without consent that do not breach any applicable standard of care. Id. Thus, [Plainitiff's] battery claim still necessitates an expert report.

We conclude that each of [Plainitiff's] claims constitutes a health care liability claim. SOURCE: 05-08-01392-CV (Dallas Court of Appeals 3/22/2010)

Proving that a contract was formed - How is contract entered into in Texas?

   
MAKING A LEGALLY ENFORCEABLE DEAL: CONTRACT FORMATION EXPLAINED 
  
In its simplest terms, a contract is established when proven by a preponderance of the evidence that an offer is accepted, accompanied by consideration. See Domingo v. Mitchell, 257 S.W.3d 34, 39-40 (Tex.App.-Amarillo 2008, pet. denied). To determine whether there was an offer and acceptance, and therefore a "meeting of the minds," courts use an objective standard, concerning what the parties did and said, not their subjective states of mind. See Komet v. Graves, 40 S.W.3d 596, 601 (Tex.App.-San Antonio 2001, no pet.).

"Meeting of the minds" describes the mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract. Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex.App.-Dallas 1999, pet. denied). Where this element is contested, as here, the determination of the existence of a contract becomes a question of fact. Hallmark v. Hand, 885 S.W.2d 471, 476-77 (Tex.App.-El Paso 1996, writ denied).

Further, parties may agree to the material terms of a contract but leave other matters open for later negotiation; it is only when an essential term is left open for future negotiation that no binding contract exists. Kelly v. Rio Grande Computerland Group, 128 S.W.3d 759, 766 (Tex.App.-El Paso 2004, no pet.); Komet v. Graves, 40 S.W.3d at 602.

Written contracts may also consist of multiple documents; City of Houston v. Clear Channel Outdoor, Inc., 233 S.W.3d 441, 445 (Tex.App.-Houston [14^th Dist.] 2007, no pet.), and writings may be considered together if they pertain to the same transaction. City of Keller, 168 S.W.2d at 811. See Jones v. Kelley, 614 S.W.2d 95, 98 (Tex. 1981) (separate instruments executed at the same time, for the same purpose, and in the course of the same transaction are to be considered as one instrument and construed together).

In addition, if one party signs a contract, the other may accept by his or her acts, conduct, or acquiescence in the terms of the contract. DeClaire v. G. & B. McIntosh Family Ltd. P'ship, 260 S.W.3d 34, 44 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (collected cases cited therein).

SOURCE: 07-08-0344-CV - 3/12/2010 (Amarillo Court of Appeals)

Contract formation and elements to prove existence of a valid contract

EXISTENCE OF A VALID CONTRACT UNDER TEXAS LAW 

The essential elements of a breach of contract claim are (1) the existence of a valid contract, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the plaintiff was damaged as a result of the breach. Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Parties form a binding contract when there is (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) consent by each party to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

For an agreement to be enforceable, there must be a meeting of the minds with respect to its subject matter and essential terms. Id. at 556. A “meeting of the minds” is a mutual understanding and assent to the expression of the parties’ agreement. See Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex. App.—Dallas 1999, pet. denied). To determine whether there was an offer and acceptance, and therefore a “meeting of the minds,” courts use an objective standard; they consider what the parties did and said, not the parties’ subjective states of mind. See Komet v. Graves, 40 S.W.3d 596, 601 (Tex. App.—San Antonio 2001, no pet.).

SOURCE: 14-08-01098-CV (3/16/10) (Fourteenth Court of Appeals in Downtown Houston Texas)

Elements of Quantum Meruit Claim (alternative to breach-of-contract cause of action for services rendered)

QUANTUM MERUIT CLAIM: NOTICE OF EXPECTATION OF PAYMENT AS ONE ELEMENT Quantum meruit is an equitable remedy that does not arise out of a contract, but is independent of it. Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). WHAT TYPE OF LEGAL THEORY IS QUANTUM MERUIT? Quantum meruit is an equitable theory of recovery founded in the principle of unjust enrichment. Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). CONTRACT AND QUANTUM MERUIT INCOMPATIBLE - MUTUALLY EXCLUSIVE REMEDIES - EXPRESS CONTRACT DEFENSE Generally, a party may recover under quantum meruit only when there is no valid express contract covering the services or materials furnished. Id.; see also Woodard v. Sw. States, Inc., 384 S.W.2d 674, 675 (Tex. 1964) (“Where there exists a valid express contract covering the subject matter, there can be no implied contract.”). ELEMENTS OF QUANTUM MERUIT CLAIM UNDER TEXAS COMMON LAW “To recover under the doctrine of quantum meruit, a plaintiff must establish that: 1) valuable services and/or materials were furnished, 2) to the party sought to be charged, 3) which were accepted by the party sought to be charged, and 4) under such circumstances as reasonably notified the recipient that the plaintiff, in performing, expected to be paid by the recipient.” Heldenfels Bros. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992); Vortt Exploration Co., 787 S.W.2d at 944; Speck v. First Evangelical Lutheran Church of Houston, 235 S.W.3d 811, 815 (Tex. App.—Houston [1st Dist.] 2007, no pet.). SOURCE: Doyle v. Heilman, 01-09-00164-CV (Tex.App.- Houston [1st Dist.] Mar. 11, 2010) (judgment on quantum meruit claim for personal care services reversed, essential element of notice that Plaintiff expected to be paid for services rendered not shown, not satisfied)

Suit to remove cloud from title, suit to quiet title

  
CIVIL ACTION TO RESOLVE TITLE DISPUTE 

A suit to quiet title, sometimes referred to as a suit to remove a cloud from title, is an equitable action that may be used to establish that an adverse party's claim to property is invalid or unenforceable. See Angell v. Bailey, 225 S.W.3d 834, 838 n.6 (Tex. App.-El Paso 2007, no pet.) ("A cloud on title exists when an outstanding claim or encumbrance is shown, which on its face, if valid, would affect or impair the title of the owner of the property."); see also In re Stroud Oil Props., Inc., 110 S.W.3d 18, 25-26 (Tex. App.-Waco 2002, orig. proceeding); Wright v. Matthews, 26 S.W.3d 575, 578 (Tex. App.-Beaumont 2000, pet. denied); Bell v. Ott, 606 S.W.2d 942, 952-53 (Tex. Civ. App.-Waco 1980, writ ref'd n.r.e.). "

 A suit to quiet title or to remove a cloud can be maintained only by a person owning an interest in the property involved." Bell, 606 S.W.2d at 953. The plaintiff in a suit to quiet title then "must allege right, title, or ownership in himself or herself with sufficient certainty to enable the court to see he or she has a right of ownership that will warrant judicial interference." Wright, 26 S.W.3d at 578.

 SOURCE: 03-08-00372-CV (Austin Court of Appeals) (2/26/10)

What is a constructive trust? When may a court impose it as a remedy?

THE EQUITABLE REMEDY OF CONSTRUCTIVE TRUST

A constructive trust is a legal fiction, a creation of equity to prevent a wrongdoer from profiting from her wrongful acts. Procom Energy, L.L.A. v. Roach, 16 S.W.3d 377, 381 (Tex. App.-Tyler 2000, pet. denied). Such trusts are remedial in character and have the broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice. Id.; see also Hubbard v. Shankle, 138 S.W.3d 474, 485 (Tex. App.-Fort Worth 2004, pet. denied).

ELEMENTS OF CONSTRUCTIVE TRUST

To obtain a constructive trust, the proponent must prove (1) the breach of a special trust, fiduciary relationship, or actual fraud; (2) unjust enrichment of the wrongdoer; and (3) tracing to an identifiable res. Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex. App.-Dallas 2006, no pet.); Hubbard, 138 S.W.3d at 485.
  
A constructive trust is a relationship with respect to property, subjecting the person by whom the title to the property is held to an equitable duty to convey it to another on the ground that her acquisition or retention of the property is wrongful and that she would be unjustly enriched if she were permitted to retain the property. Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736 (Tex. App.-San Antonio 2007, pet. denied) (quoting Talley v. Howsley, 142 Tex. 81, 86, 176 S.W.2d 158, 160 (1943)).

DISCRETIONARY EQUITABLE REMEDY

Whether a constructive trust should be imposed at all is within the discretion of the trial court. Troxel, 201 S.W.3d at 297; Hubbard, 138 S.W.3d at 485. The proponent of a constructive trust must strictly prove the elements necessary for the imposition of the trust. Troxel, 201 S.W.3d at 297; Hubbard, 138 S.W.3d at 485.
   
SOURCE: 12-07-00022-CV (Tyler Court of Appeals) (2/26/10)

Duress Defined

WHAT IS DURESS, LEGALLY SPEAKING? Duress requires unlawful conduct or a threat of unlawful conduct of such a character as to destroy the other party's exercise of free will and judgment. See Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 878-79 (Tex. 2005); Cooper v. Cochran, 288 S.W.3d 522, 533 (Tex. App.-Dallas 2009, r. 53.7(f) motion granted) (op. on reh'g); Deer Creek Ltd. v. N. Am. Mortgage Co., 792 S.W.2d 198, 200 (Tex. App.-Dallas 1990, no writ). The threat must be imminent and the party must have no present means of protection. See Bolton, 185 S.W.3d at 879; Cooper, 288 S.W.3d at 533; Deer Creek, 792 S.W.2d at 200. Duress must be shown from the acts or conduct of the party accused of duress, not the emotions of the purported victim. See Brown v. Cain Chem., Inc., 837 S.W.2d 239, 244 (Tex. App.-Houston [1st Dist.] 1992, writ denied). The burden to prove duress is on the party claiming it. Tex. R. Civ. P. 94; Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 650 (Tex. 1988). Generally, what constitutes duress is a question of law, but whether duress exists under a particular set of circumstances is a fact question. See Wright v. Sydow, 173 S.W.3d 534, 544 (Tex. App.-Houston [14th Dist.] 2004, pet. denied). SOURCE: 05-08-00939-CV (Dallas Court of Appeals) (2/26/10)

Usury (excessive interest) claim elements

The essential elements of a usurious transaction are: "(1) a loan of money, (2) an absolute obligation to repay the principal, and (3) the exaction of a greater compensation than allowed by law for the use of the money by the borrower." First Bank v. Tony's Tortilla Factory, Inc., 877 S.W.2d 285, 287 (Tex. 1994). The Texas Finance Code defines the term "loan" as "an advance of money that is made to or on behalf of an obligor, the principal amount of which the obligor has an obligation to pay the creditor," and an "obligor" is "a person to whom money is loaned or credit is otherwise extended." TEX. FIN. CODE ANN. § 301.002(a)(10), (13) (Vernon 2006). A "creditor" is "a person who loans money or otherwise extends credit." See TEX. FIN. CODE ANN. § 301.002(a)(3) (Vernon 2006). Section 305.004 provides for additional monetary damage if a creditor charges and receives more than twice the legal rate of interest. TEX. FIN. CODE ANN. § 305.004 (Vernon 2006). Compare with § 305.003 (states creditor liable if he or she "charges or receives" usurious interest). SOURCE: 06-09-00009-CV (6th Court of Appeals) (2/26/10)

Texas Theft Liability Act (TTLA) Civil Claim Based on Definition of Offense in Criminal Code

CIVIL LIABILITY (STATUTORY) PREDICATED ON THEFT OF PERSONAL PROPERTY

Under the Texas Theft Liability Act, an individual, corporation, or other "person" who commits theft is liable for the damages resulting from the theft. Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001-.005. Theft is defined as "unlawfully appropriating property or unlawfully obtaining services" as described by certain sections of the penal code. Id. § 134.002. The section at issue here is section 31.03, which states (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. (b) Appropriation of property is unlawful if: (1) it is without the owner's effective consent; (2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or (3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another. Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2009).

SOURCE: 05-08-01521-CV (Dallas Court of Appeals) (2/26/10)

306 S.W.3d 947 (2010)

Hollis Osborne WILCOTS, Appellant,
v.
Arecie Wilcots WIGGINS, Good Street Baptist Church Federal Credit Union, and Linda Shanklin, Appellees.

No. 05-08-01521-CV.

Court of Appeals of Texas, Dallas.

February 26, 2010.

Hollis Osborne Wilcots, Gatesville, TX, pro se.

Stephen L. Baskind, Kleiman Lawrence Baskind Fitzgerald LLP, Dallas, TX, for Appellee.

Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

Hollis Wilcots, acting pro se while incarcerated, sued his sister, Arecie Wiggins, Good Street Baptist Church Federal Credit Union, and its manager, Linda Shanklin, 948*948 for damages under the Texas Theft Liability Act. See TEX. CIV. PRAC. & REM.CODE ANN. § 134.001-.005 (Vernon 2005). The trial court granted summary judgment in favor of the Credit Union and Shanklin and dismissed Wilcots's claims against his sister for want of prosecution. Wilcots appeals. 

We affirm.

BACKGROUND

Wilcots received an inheritance of over $6000, presumably from his mother's estate. Because he was incarcerated, he executed a limited power of attorney in which he gave Wiggins authority to handle certain financial matters on his behalf. Pursuant to Wilcots's instructions, Wiggins opened an account at the Credit Union in Wilcots's name and signed the signature card "Arecie Wiggins P.O.A. for Hollis Osborne Wilcots." She withdrew a portion of the deposit immediately, leaving a balance of approximately $2500.^[1] Over the next month or so, Wiggins withdrew the entire $2500 balance to handle personal matters. When Wilcots learned that his sister had depleted his account, he sued her for theft under the Texas Theft Liability Act. He alleged that the power of attorney only authorized her to open an account in his name and deposit funds into that account, not to withdraw those funds. He also sued the Credit Union and Shanklin under the Texas Theft Liability Act alleging that they knew the power of attorney was limited and that they allowed Wiggins to withdraw the funds anyway. He alleged that Shanklin conspired with Wiggins to commit theft and that the Credit Union, by not intervening, endorsed Shanklin's actions.

The Credit Union and Shanklin jointly moved for summary judgment, which the trial court granted. Wilcots twice moved for default judgment on his claim against his sister.^[2] The appellate record does not contain a ruling on those motions. While the case was pending, Wiggins died. Wilcots wrote the clerk of the district court and advised the clerk pursuant to civil procedure rule 152 that Wiggins had died and asked the clerk to issue a scire facias for the administrator or executor of Wiggins's estate to appear and defend the lawsuit. Although the clerk's response is not in the appellate record, Wilcots purports to quote the letter, which apparently requested "additional paperwork" from him before the scire facias could issue. Wilcots wrote the clerk again and asked about the type of paperwork that was needed. He also inquired again about the status of the motion for default judgment. About three months later, the trial court signed an "Order Requesting Inmate Availability for Telephone Conference." It was directed to the senior warden at the Hughes Unit in Gatesville, Texas and asked that Wilcots be made available to participate in a telephone status conference on a certain date. Three days before the status conference was to occur, the trial court signed another order asking that Wilcots be made available for a telephone status conference on a different date about a week later. There is no reporter's record of a telephone conference in the appellate record. Four days after 949*949 the second scheduled telephone conference, the trial court signed a final judgment dismissing without prejudice Wilcots's claims against Wiggins for want of prosecution.

Wilcots brings two issues on appeal: (1) the trial court erred by granting summary judgment in favor of the Credit Union and Shanklin, and (2) the trial court abused its discretion by refusing to set a hearing or to rule on his motion for default judgment against Wiggins.

SUMMARY JUDGMENT

In his first issue, Wilcots argues that the trial court erred by granting summary judgment in favor of the Credit Union and Shanklin because he raised genuine issues of material fact about whether they were liable for his sister's withdrawal of funds from his account for her personal use. He contends that Shanklin knew Wiggins did not have authority to withdraw the funds, but allowed her to do so anyway, and that the Credit Union endorsed Shanklin's conduct by remaining silent.

Standard of Review

We review a trial court's summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n, 253 S.W.3d 184, 192 (Tex.2007). We will affirm a summary judgment if the record establishes that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See TEX.R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). For a defendant to prevail on a traditional motion for summary judgment, it must either disprove at least one element of each of the plaintiff's claims as a matter of law or conclusively establish all elements of an affirmative defense. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex.1996) (per curiam); Shaun T. Mian Corp. v. Hewlett-Packard Co., 237 S.W.3d 851, 854-55 (Tex.App.-Dallas 2007, pet. denied). If the movant meets its burden, then and only then must the nonmovant respond and present evidence raising an issue as to the material facts in question. TEX.R. CIV. P. 166a(c); see Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999); Shaun T. Mian Corp., 237 S.W.3d at 855.

In our review, we examine "the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006) (per curiam) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005)). We will affirm a traditional summary judgment if the evidence submitted in support of the motion and any response shows that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Shaun T. Mian Corp., 237 S.W.3d at 855.

Applicable Law

Under the Texas Theft Liability Act, an individual, corporation, or other "person" who commits theft is liable for the damages resulting from the theft. TEX. CIV. PRAC. & REM.CODE ANN. §§ 134.001-.005. Theft is defined as "unlawfully appropriating property or unlawfully obtaining services" as described by certain sections of the penal code. Id. § 134.002. The section at issue here is section 31.03, which states

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation of property is unlawful if:

(1) it is without the owner's effective consent;

950*950 (2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or

(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.

TEX. PENAL CODE ANN. § 31.03 (Vernon Supp.2009).

Discussion

In their joint motion for summary judgment, the Credit Union and Shanklin argued that the power of attorney and signature card authorized Wiggins to withdraw funds from Wilcots's account. They contended that Wiggins was the only person authorized to act on Wilcots's account, and that they were required to honor her requests to withdraw funds. As proof, they offered the power of attorney, depositor agreement, and signature card. Shanklin additionally argued that she was not individually liable to Wilcots because she acted at all times as manager of the Credit Union and there is no credible summary judgment evidence that she conspired with Wiggins to harm Wilcots. In her affidavit to support the summary judgment, she stated that she did not know the purpose for which Wiggins used the funds.

On appeal, Wilcots argues that the limited power of attorney clearly gave his sister only the power to deposit funds and not to withdraw them, and that the power of attorney expired upon the settlement of his mother's estate. He further contends that he raised a fact question about whether Shanklin conspired with Wiggins to allow Wiggins to withdraw funds for her personal use.

The power of attorney provides:

LIMITED POWER OF ATTORNEY

I, Hollis Osborne Wilcots, residing at Hughes Unit ... Hereby appoint Arecie Wilcots Wiggins ... as my attorney-in-fact ("Agent") to exercise the power and discretions described below.

My Agent shall have power and authority to act on my behalf to receive and disperse [sic] the following:

In the matter of closing settlement of the estate of Mae Belle Davis, disbursement of proportioned share of deceased mother's (Charlene Davis Wilcots) estate inheritance in the amount of $6,829.81 shall be disbursed in the following manner:

1. $2,500.00 to be placed in a financial institute savings account for me....

2. $1,500.00 paid to Arecie Wilcots Wiggins as contribution to repair updates to my father's house....

3. $2,829.81 to be sent to my account at the Texas Department of [C]riminal Justice inmate trust fund.

Conduct any business with any banking or financial institution with respect to, disbursement matters of the estate of Mae Belle Davis, limited to making deposits, negotiating or endorsing any checks or other instruments with respect to any such checks, money matters or vouchers payable to me by any person, firm, and/or corporation.

Purform [sic] any act necessary to deposit, negotiate, or transfer any moneytary [sic] funds, notes or draft of the United [S]tates of America, including U.S. Treasury securities.

This Limited Power of Attorney shall become effective immediately and shall continue until the matter of closing settlement of the estate of Mae 951*951 Belle Davis and disbursement of funds received has been completed as aforementioned above. This Limited Power of Attorney may be revoked by me at any time by providing written notice to my agent.

The power of attorney is signed by Wilcots, dated, and notarized.

Although Wilcots argues that Wiggins's "sole duty [under the power of attorney] was to deposit money into the account she started on [his] behalf," the unambiguous language of the power of attorney states otherwise. In the power of attorney, Wilcots gave Wiggins authority to perform "any act necessary to deposit, negotiate, or transfer any moneytary [sic] funds, notes or draft of the United [S]tates of America...." To "negotiate" means "to transfer or assign (as a check, bill of exchange, promissory note) to another by delivery or endorsement or both in return for equivalent value" or "to convert (as a check) into cash or the equivalent value." WEBSTER'S THIRD NEW INT'L DICT. 1514 (1981). In the ordinary sense of the term, to "negotiate" means not only to deposit funds, but also to cash checks. See id.; Assoc. Carriages, Inc. v. Int'l Bank of Commerce, 37 S.W.3d 69, 73 (Tex.App.-San Antonio 2000, pet. denied) (stating bank did not cash checks to corporation because bank could not know if person authorized to negotiate on behalf of business).

In addition, the evidence showed that Wiggins was the only person authorized to sign on the account and that the funds were withdrawn only by her. A bank has a duty to honor its depositor's checks if there are sufficient funds in the account, regardless of the purpose for which the check is given. See TEX. BUS. & COM.CODE ANN. §§ 4.401-.402 (Vernon 2002); Mesquite State Bank v. Prof'l Inv. Corp., 488 S.W.2d 73, 75 (Tex.1972) (bank under duty to disburse funds on deposit in accordance with directions of depositor); White Rock Nat'l Bank of Dallas v. U.S. Fire Ins. Co., 562 S.W.2d 268, 274 (Tex.Civ.App.-Dallas 1978, writ ref'd n.r.e.) (relationship between bank and depositor is one of debtor and creditor and in absence of agreement to contrary, bank under duty to honor depositor's checks).

We conclude that the summary judgment evidence offered by the Credit Union and Shanklin conclusively established that Wiggins was authorized to negotiate funds in Wilcots's account and, as a result, they conclusively established that they were not liable for her withdrawal of those funds.

Wilcots contends that he raised a fact issue about whether Shanklin allowed Wiggins to unlawfully appropriate his funds. He cites a letter from his sister in which she stated that Shanklin "was aware I was withdrawing the funds for urgent needs regarding daddy's care and household needs. She was also aware that I was in a big financial bind, but had discussed with her my intentions and plans to replace the funds." As we have concluded, however, the power of attorney, deposit agreement, and signature card authorized Wiggins to withdraw funds from Wilcots's account, and nothing in the record shows that the Credit Union agreed that it would disburse funds from the account only for specific purposes. See White Rock Nat'l Bank, 562 S.W.2d at 273-74 (although president of bank knew purpose of deposit, no agreement between bank and depositor that bank would pay out money only for that specific purpose). We conclude that Wilcots's summary judgment evidence does not raise a genuine issue of material fact about whether Wiggins unlawfully appropriated funds in the account.

Wilcots also complains about a discrepancy in the records of his account. He contends that the initial deposit and membership fee noted in the Credit Union's 952*952 records are different from the initial deposit and membership fee on the receipt he received.^[3]However, this discrepancy in the records concerning the membership fee does not change our conclusion that the power of attorney authorized Wiggins to withdraw funds from the account.

We conclude that the trial court did not err by granting summary judgment in favor of the Credit Union and Shanklin. We resolve appellant's first issue against him.

MOTION FOR DEFAULT JUDGMENT

In his second issue, Wilcots argues that the trial court erred when it failed to set a hearing on his motion for default judgment and to rule on the motion. Wilcots does not challenge the dismissal for want of prosecution. We conclude that Wilcots did not preserve this issue for our review.

To preserve a complaint for appellate review, a party must make the complaint to the trial court by a timely request, objection, or motion. TEX.R.APP. P. 33.1(a)(1). Preservation also requires one of three things: (1) an express ruling by the trial court, (2) an implicit ruling by the trial court, or (3) a refusal to rule by the trial court, coupled with an objection to that refusal by the complaining party. TEX.R.APP. P. 33.1(a)(2). The appellate record does not contain an express ruling on Wilcots's motion for default judgment, nor does it contain a refusal to rule coupled with an objection by Wilcots to that refusal, if any. Further, Wilcots does not argue that the dismissal constituted an implicit ruling by the trial court. See Unifund CCR Partners v. Smith, No. 05-07-01449-CV, 2009 WL 2712385, at *1-2 (Tex. App.-Dallas Aug. 31, 2009, pet. filed) (mem.op.); AIS Servs., LLC v. Mendez, No. 05-07-01224-CV, 2009 WL 2622391, at *1-2 (Tex.App.-Dallas Aug. 27, 2009, no pet.) (mem.op.). Consequently, we conclude that this issue is not preserved for our review.

We resolve appellant's second issue against him.

CONCLUSION

We affirm the trial court's judgment.

[1] The record indicates that Wiggins disbursed the money she immediately withdrew pursuant to Wilcots's instructions; he does not complain about those funds.

[2] Simultaneously, Wilcots filed a notice of appeal. We questioned whether there was a final judgment in the case and Wilcots responded that there was not. See Wilcots v. Good St. Baptist Church Fed. Credit Union, No. 05-08-00119-CV, 2008 WL 1991702, at *1 (Tex.App.-Dallas May 9, 2008, no pet.) (mem. op.). By memorandum opinion, we dismissed the appeal for want of jurisdiction. Id.

[3] The Credit Union's records show an initial deposit of $6829.81, a membership fee of $5, a share withdrawal on the same day in the amount of $4329, leaving a balance of $2495.81. On the receipt that Wilcots received, it shows a share balance in the amount of $2500 and a $30 membership fee. He argues that this discrepancy "further advance[s] Shanklin's liability." We note, however, that the $6829.81 corresponds to the total of the funds listed in the power of attorney, and that the $4329 withdrawn from the account on the day it was opened corresponds to the disbursements listed in the power of attorney.