LMC Complete Automotive, Inc. v. Ronald Burke

Opinion issued June 21, 2007

Opinion issued June 21, 2007

In The

Court of Appeals

For The

First District of Texas

NOS. 01-06-00694-CV

01-07-00126-CV

LMC COMPLETE AUTOMOTIVE, INC., Appellant

V.

RONALD BURKE, Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2004-21750

O P I N I O N

In this nonsubscriber negligence

case, LMC Complete Automotive, Inc. (LMC) appeals a jury verdict and judgment

of $155,000 in favor of its employee, appellee Ronald Burke. LMC contends (1)

the evidence is legally insufficient to support the jury’s negligence finding, (2)

Burke’s causation evidence is not sufficiently reliable to support the jury’s

negligence finding, and (3) the trial court abused its discretion in excluding

evidence that Burke received compensation for his injury from collateral

sources. We conclude that the evidence is legally

sufficient and sufficiently reliable to support the jury’s negligence finding,

and the trial court did not abuse its discretion in excluding the evidence that

Burke received compensation for his injury from collateral sources. We

therefore affirm the trial court’s judgment.

We also address LMC’s motion, filed

in this court, to waive or decrease the security required to suspend

enforcement of the trial court’s judgment on appeal, as well as LMC’s contest

of the trial court’s findings of fact on the security issue. With respect to

the amount of a supersedeas bond, w e conclude that

the record does not support the trial court’s findings that LMC has sufficient

net worth to secure the full amount of the judgment while the case is on

appeal. Pursuant to Rule 24 of the Texas Rules of Appellate Procedure, we set

LMC’s net worth at $149,736.04, vacate the

trial court’s July 25, 2006 order denying LMC’s motion to decrease the security required to suspend enforcement of the judgment ,

and order that the security for supersedeas for LMC

be set at $74,868.02, fifty percent of LMC’s net worth. Our order entered on

February 15, 2007, staying the enforcement of the judgment in this case, will

remain in effect for fifteen days after the date this opinion is issued to

allow the parties to seek further review of our security determination. We

dismiss LMC’s second appeal, related to the trial court’s findings of fact on

the security issue, for want of jurisdiction.

Background

LMC is an auto repair

shop. Burke worked for LMC as a body repair man. Mario Ramirez also worked

for LMC, as a porter, and his job duties included cleaning and moving vehicles

around the shop.

We recite the facts,

which were hotly contested at trial, in a light favorable to the jury’s

verdict. In April 2003, Burke was working on a vehicle at LMC when he heard a

noise. Burke looked up and saw another vehicle rolling out of the shop with

the driver’s side door open. Ramirez was hanging onto the door and the steering

wheel and the vehicle was dragging him outside. Apparently, Ramirez was

attempting to push the vehicle into the shop by himself when he lost control of

it. Burke ran in front of the vehicle and stopped it by hand. Burke

immediately experienced pain in his back, but he initially thought that he had

just strained some muscles. Ramirez, Burke, and a third employee then pushed

the vehicle into the shop. Burke told a manager about the incident and went

home immediately because of his back pain. Burke eventually sought medical

treatment, including two back surgeries, due to the injury.

Before the incident with

the vehicle, Burke witnessed Ramirez engage in other negligent acts while

working at LMC. On one occasion, Ramirez drove an SUV into the shop too quickly,

but Burke managed to stop him just before he ran over another employee. On

another occasion, Ramirez placed an open can of gasoline near an employee who

was welding. Burke quickly moved the can to prevent an accident. On a third

occasion, Burke saw Ramirez using an electric buffer with the extension cord

running through a pool of water. Burke warned Ramirez to move the extension

cord but he continued buffing. Burke reported each of these incidents to

management at LMC, but he never saw anyone say anything to Ramirez. LMC did

not hold organized safety meetings.

Negligence

In its first issue, LMC

contends the evidence is legally insufficient because no evidence exists to

support the jury’s negligence or proximate cause findings. In its second,

related issue, LMC contends that it was entitled to a JNOV because the treating

physician’s expert testimony as to the cause of Burke’s injuries is

unreliable.

A. Standard of Review

The test for legal sufficiency is

“whether the evidence at trial would enable reasonable and fair-minded people

to reach the verdict under review.” City of Keller v. Wilson , 168

S.W.3d 802, 827 (Tex. 2005). In making this determination, we credit favorable

evidence if a reasonable fact-finder could, and disregard contrary evidence

unless a reasonable fact-finder could not. Id. So long as the

evidence falls within the zone of reasonable disagreement, we may not

substitute our judgment for that of the fact-finder. Id. at 822 . The

trier of fact is the sole judge of the credibility of the witnesses and the

weight to give their testimony. Id. at 819 . Although we consider the

evidence in a light most favorable to the challenged findings, indulging every

reasonable inference that supports them, we may not disregard evidence that

allows only one inference. Id. at 822 .

B. Nonsubscribers and

Negligence

LMC is a nonsubscriber to

the Texas Workers’ Compensation Act. Tex.

Lab. Code Ann. § 406.002 (Vernon 2006) (“Except for public employers and

as otherwise provided by law, an employer may elect to obtain workers’

compensation insurance coverage.”). “In an action . . . against an employer

who does not have workers’ compensation insurance coverage, the plaintiff must

prove negligence of the employer or of an agent or servant of the employer

acting within the general scope of the agent’s or servant’s employment.” Id. § 406.033(d) (Vernon 2006). Contributory negligence is not a defense in nonsubcriber

cases. Id. § 406.033(a)(1); Kroger

Co. v. Keng , 23 S.W.3d 347 ,

352 ( Tex. 2000).

A negligence cause of

action has three elements: (1) a legal duty owed by one person to another, (2)

a breach of that duty, and (3) damages proximately caused by the breach. D.

Houston, Inc. v. Love , 92 S.W.3d 450, 454 (Tex. 2002). “Proximate cause

requires both cause in fact and foreseeability.” Id. Foreseeability

exists if the actor, as a person of ordinary intelligence, should have

anticipated the dangers his negligent act creates for others. Id. “ Foreseeability

does not require that a person anticipate the precise manner in which injury

will occur once he has created a dangerous situation through his negligence.” Travis v. City of Mesquite , 830

S.W.2d 94, 98 ( Tex.

1992). “Cause in fact means that the defendant’s act or omission

was a substantial factor in bringing about the injury which would not otherwise

have occurred.” Union Pump Co. v. Allbritton , 898 S.W.2d 773, 775 (Tex. 1995); accord Henry v. Houston Lighting & Power Co. , 934 S.W.2d 748, 750 (Tex.

App.—Houston [1st Dist.] 1996, writ denied).

An employer has a duty to use ordinary care in

providing a safe workplace. See Kroger Co. v. Elwood , 197

S.W.3d 793, 794 ( Tex.

2006); Farley v. M M Cattle Co. ,

529 S.W.2d 751, 754 (Tex. 1975). “It must, for example, warn an employee of

the hazards of employment and provide needed safety equipment or assistance.” Elwood , 197 S.W.3d at 794 ; Farley ,

529 S.W.2d at 754 . A n employer must furnish safe machinery and

instrumentalities with which its employees are to work and provide adequate

assistance under the circumstances for the performance of required work. See

Humble Sand & Gravel, Inc. v. Gomez , 146 S.W.3d 170 , 186 n.45 (Tex. 2004);

Werner v. Colwell , 909 S.W.2d 866, 869 (Tex. 1995); Farley ,

529 S.W.2d at 754 . An employer must also instruct

employees in the safe use and handling of products and

equipment used in and around an employer’s premises or facilities, and

adequately hire, train, and

supervise employees. Patino v. Complete Tire, Inc. , 158 S.W.3d 655, 660

(Tex. App.—Dallas 2005, pet. denied); Castillo v. Gared, Inc. , 1 S.W.3d

781, 786 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

A n employer, however, is not an insurer of its

employees’ safety. Elwood , 197 S.W.3d at 794 ; Leitch

v. Hornsby , 935 S.W.2d 114, 117 (Tex. 1996); Exxon Corp. v. Tidwell , 867 S.W.2d 19, 21 (Tex. 1993). An employer owes no

duty to warn of hazards that are commonly known or already appreciated by the

employee and no duty to provide

equipment or assistance that is unnecessary to the job’s safe performance. Elwood , 197 S.W.3d at 794 –95.

An employer also has no duty to provide assistance if an employee’s injury

results from performing the same character of work that employees in that

position have always done, and there is no evidence that the work is unusually

precarious. Id. at 795; Werner ,

909 S.W.2d at 869 .

C. Evidence of Negligence

The evidence Burke

presented is legally sufficient to support the jury’s negligence finding. The

evidence is undisputed that both Ramirez and Burke were employees of LMC in

April of 2003.

Burke’s status as an employee of LMC gave rise

to LMC’s duty to exercise ordinary care in providing a safe workplace. See Elwood , 197

S.W.3d at 794 ; Farley ,

529 S.W.2d at 754 . Ramirez was acting in the course and scope of his

employment when he was pushing the vehicle because his duties included moving

vehicles around LMC’s premises. The evidence is also undisputed that LMC did

not hold safety meetings or train its employees on how to move vehicles. The

jury was entitled to conclude that Ramirez was negligent in losing control of a

vehicle while standing outside the vehicle to move it, and in failing to use

ordinary care to ensure that the vehicle was moved safely within LMC’s premises.

See, e.g. , Brookshire Grocery Co. v.

Goss , 208 S.W.3d 706 , 723 ( Tex.

App.—Texarkana 2006, no pet.) (evidence was legally sufficient to support

finding that employer breached its duty to provide safe workplace) .

Because Ramirez was an employee acting in the course and scope of his

employment, his negligence constituted a breach of LMC’s duty to use ordinary

care in providing a safe workplace. See Tex. Lab. Code Ann . § 406.033(a)(3)

(Vernon 2006) (“In an action against an employer who does not have workers’

compensation insurance coverage to recover damages for personal injuries or

death sustained by an employee in the course and scope of the employment, it is

not a defense that . . . the injury or death was caused by the negligence of a

fellow employee.”); Elwood , 197

S.W.3d at 794 (holding that employer has nondelegable duty to provide safe

workplace) . Additionally, based on

LMC’s knowledge of Ramirez’s previous action in nearly losing control of a

vehicle within the shop, the jury was rationally justified in finding that

moving vehicles within LMC’s premises posed a foreseeable risk of harm to

nearby employees. See Travis , 830 S.W.2d at 98 ( “ Foreseeability

does not require that a person anticipate the precise manner in which injury

will occur once he has created a dangerous situation through his negligence.”) .

We hold that the evidence presented would enable

reasonable and fair-minded people to reach the verdict under review. See

City of Keller , 168 S.W.3d at 827 . The

evidence is therefore legally sufficient to support the jury’s negligence

finding.

D. Causation and the

Reliability of the Expert Testimony

LMC contends that Burke’s expert evidence that Ramirez’s

negligence in losing control of a moving vehicle caused Burke’s back injury is

not sufficiently reliable to support the jury’s negligence finding, and that no

evidence supports the jury’s causation finding. Burke

underwent two back surgeries after the accident at LMC. Dr. Thomas Mims was

one of Burke’s treating physicians and he participated in both of Burke’s

surgeries. Burke told Mims that he thought the accident at LMC might have

caused his back injury. Burke also testified that he never experienced back

pain before the accident. A myelogram X-ray of Burke’s lower back revealed

that he had a herniated disc. Mims testified that the accident at LMC could

have caused Burke’s injury, and the injury was consistent with the accident.

Mims also testified that, within a reasonable degree of medical certainty, the

accident at LMC caused Burke to have to undergo the two surgeries. Mims

testified that it is common for doctors to rely on the reports of patients in

determining the cause of an injury.

LMC asserts that Mims’s testimony is unreliable

because he based his causation opinion on Burke’s statements instead of

entirely scientific proof. The following exchange occurred at trial:

[Defense Counsel:] Can you point to any scientific evidence that

any of the treatment that was provided to Mr. Burke was necessitated by

something that happened on April the 11th, 2003?

[Dr. Mims:] Counselor, I’m not really sure—can you phrase your

question in another way?

[Defense Counsel:] I don’t know. What—help me a little bit.

[Dr. Mims:] Well, scientific evidence, we have got a gentleman

with a ruptured lumbar disc. We have got a gentleman that was in severe pain.

And he says it occurred when it [sic] had the accident. I mean, I wasn’t

there. We don’t have an MRI scan directly before that particular injury. We

are having to rely upon his statements. Scientific evidence—other than an MRI

scan that shows, an MRI scan, a myelogram that shows a ruptured disc, under

that kind of a context, no. I don’t know that I can say that he would have any

scientific evidence. But that would be the way it would be, you know,

implicating at least that particular injury, other than the fact that

throughout the years, we know that you can hurt your back with any type of an

injury, including the type was [sic] described.

[Defense Counsel:] Do I understand you to say that you are basing

your opinion that this man’s medical treatment was necessitated by something

that happened on April of 2003, that that opinion is based on what he told you?

[Dr. Mims:] Based upon what he said as time went on, that this is

how he hurt his back, yeah.

[Defense Counsel:] Okay. Now that’s not scientific, though, is

it?

[Dr. Mims:] No.

To establish causation in a personal injury

case, a plaintiff must prove the defendant’s conduct caused an event, and that

event caused the plaintiff to suffer compensable damages. Burroughs

Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995). The causal link

between the event sued upon and the plaintiff’s injury must be shown by

competent evidence. Morgan v. Compugraphic Corp. , 675 S.W.2d 729, 732 (Tex. 1984). A jury may decide the required causal nexus between the event sued upon and the

plaintiff’s injuries when (1) general experience and common sense will enable a

layperson fairly to determine the causal nexus; (2) expert testimony

establishes a traceable chain of causation from injuries back to the event; or

(3) expert testimony shows a probable causal nexus. Keo v. Vu , 76 S.W.3d 725, 731

(Tex. App.—Houston [1st Dist.] 2002, pet. denied); Weidner v. Sanchez ,

14 S.W.3d 353, 370 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ;

see also Morgan ,

675 S.W.2d at 732 .

To constitute evidence of causation, a medical

expert’s opinion must rest in reasonable medical probability. Crye , 907

S.W.2d at 500 ; Ins. Co. of N. Am. v. Myers , 411

S.W.2d 710, 713 (Tex. 1966). This rule applies whether the opinion is

expressed in testimony or in a medical record, as the need to avoid opinions

based on speculation and conjecture is identical in both situations. Crye ,

907 S.W.2d at 500 . Reasonable probability is determined by the substance and

context of the opinion and does not turn on semantics or on the use of a

particular term or phrase. Id. ; Myers , 411 S.W.2d at 713 .

An expert must base his opinion on facts or data

perceived or reviewed during or before trial. Tex. R. Evid . 703; Onwuteaka v. Gill , 908 S.W.2d 276,

283 (Tex. App.—Houston [1st Dist.] 1995, no writ). The weakness of facts in

support of an expert’s opinion generally goes to the weight of the testimony

rather than the admissibility. Onwuteaka , 908 S.W.2d at 283 .

Nevertheless, an expert’s opinion regarding causation that is based completely

upon speculation and surmise amounts to no evidence. Id. ; see also

Schaefer v. Tex. Employers’ Ins. Ass’n , 612 S.W.2d 199 , 204–05 (Tex. 1980) (holding that expert’s medical opinion constituted no evidence because it was based

upon speculation and surmise rather than reasonable medical probability). “If

the foundational data underlying opinion testimony are unreliable, an expert

will not be permitted to base an opinion on that data because any opinion drawn

from that data is likewise unreliable.” Merrell Dow Pharm., Inc. v. Havner ,

953 S.W.2d 706, 714 (Tex. 1997). Expert testimony is unreliable if “there is

simply too great an analytical gap between the data and the opinion

proffered.” Gammill v. Jack Williams Chevrolet, Inc. , 972 S.W.2d 713, 727 (Tex. 1998) (quoting Gen. Elec. Co. v.

Joiner , 522 U.S. 136, 146 , 118 S. Ct. 512, 519 (1997)). “We are not required . . . to ignore fatal gaps in an expert’s

analysis or assertions that are simply incorrect.” Volkswagen of Am., Inc.

v. Ramirez , 159 S.W.3d 897, 912 (Tex. 2004).

Here, Dr. Mims testified that he is a board certified neurosurgeon

and has been practicing for over twenty years. As a neurosurgeon, Mims treats

back injuries. Mims participated in both of Burke’s back surgeries, and

testified that he has performed the same types of surgeries many times on other

patients. Specifically, Mims testified that he has performed Burke’s first

surgery about 1500 times, and the second surgery about 150 times. Mims took a

medical history from Burke and examined him on multiple occasions. The record therefore

includes evidence that Burke’s injury was within Mims’s realm of expertise. Cf.

Gammill , 972 S.W.2d at 719 (holding that

district court did not abuse its discretion in excluding testimony of

mechanical engineer in products liability case involving automobile because

expert did not have specific experience regarding subject matter of lawsuit); Broders v. Heise , 924 S.W.2d

148, 149 (Tex. 1996) (holding that district court did not abuse its

discretion in excluding plaintiffs’ expert’s opinion on causation because while

expert plainly had greater knowledge of medicine generally than lay person, he

did not have specialized knowledge on precise subject of causation).

Mims testified that it is

common for doctors to rely on a patient’s history in determining the cause of

an injury. See Tex. R. Evid .

703. Burke told Mims that he thought the accident at LMC might have caused his

back injury, and he started experiencing pain in his back after the accident.

A myelogram X-ray of Burke’s lower back revealed that he had a herniated disc.

Mims testified that within a reasonable degree of medical certainty, the

accident at LMC caused Burke to have to undergo the two surgeries. See Crye ,

907 S.W.2d at 500 .

The evidence presented

demonstrates that Burke’s causation opinion is sufficiently reliable to support

the jury’s negligence finding. See Gammill ,

972 S.W.2d at 727 ; E.I.

du Pont de Nemours & Co. v. Robinson ,

923 S.W.2d 549, 557 (Tex. 1995). The fact that Mims did not base

his causation opinion on MRIs taken immediately before and after the accident

does not make the opinion unreliable or unscientific. While the source of

Mims’s causation opinion was based in part on the history the patient

presented, the opinion constitutes competent evidence when coupled with

confirming medical evidence such as the results of medical tests and

examination.

LMC asserts that Burke’s statements are

incredible because he first went to a doctor for his back pain three months

after the accident at LMC, but consistently reported to his doctors that he had

been experiencing back pain for about nine months. Burke testified at trial

that he is not very good at remembering exact dates, and had no reason to think

that his doctors needed the precise date his injury occurred. In any event,

Burke’s inability to recall the exact date on which he was injured does not

make his eventual statement to Mims regarding the source of his injury

inherently unreliable. See Keo , 76 S.W.3d at 734–35

(holding that expert’s causation opinion, based on statements made by plaintiff,

was not inherently unreliable) . It was up to the jury to

determine whether Burke’s explanation was credible. We hold that the

credibility of the patient history Burke gave to Mims was a fact issue that goes to the weight, rather than the admissibility, of

Mims’s causation opinion. See id. ; Onwuteaka ,

908 S.W.2d at 283 . Burke’s statements to Mims were not so

inherently unreliable that they cannot support a medical opinion.

See Havner , 953 S.W.2d at 714 (“If

the foundational data underlying opinion testimony are unreliable, an expert

will not be permitted to base an opinion on that data because any opinion drawn

from that data is likewise unreliable.”). We therefore hold that

Mims’s causation testimony was legally sufficient, and sufficiently reliable to

support the jury’s negligence finding. See City

of Keller , 168 S.W.3d at 827 ; Gammill , 972

S.W.2d at 727 ; Robinson , 923 S.W.2d at 557 .

Collateral Source Rule

In its third issue, LMC

contends the trial court abused its discretion in excluding evidence that Burke

received partial compensation for his injuries from collateral sources; namely,

his wife’s health insurance policy. LMC contends that Burke opened the door to

this evidence when he testified about financial hardships caused by his injury.

We review a

trial court’s decision to admit or exclude

evidence for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone ,

972 S.W.2d 35, 43 (Tex. 1998) . A trial

court abuses its discretion when it acts without reference to any guiding rules

or principles. Id.

“The collateral source

rule is both a rule of evidence and

damages.” Johnson v. Dallas County , 195 S.W.3d 853, 855 (Tex. App.—Dallas 2006, no

pet.); Taylor v. Am. Fabritech, Inc. ,

132 S.W.3d 613, 626 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Generally,

the collateral source rule precludes a tortfeasor from obtaining the benefit

of, or even mentioning, payments to the injured party from sources other than

the tortfeasor. Johnson , 195 S.W.3d at 855 ; Taylor ,

132 S.W.3d at 626 . “In other words, the defendant is not entitled to present

evidence of, or obtain an offset for, funds received by the plaintiff from a

collateral source.” Johnson , 195 S.W.3d at 855 ; Taylor ,

132 S.W.3d at 626 . A claim of financial hardship, however, may open the door

to collateral source evidence to impeach the credibility of the witness. See

Nat’l Freight, Inc. v. Snyder , 191 S.W.3d 416, 423 (Tex. App.—Eastland 2006, no pet.); Taylor ,

132 S.W.3d at 628 ; Macias v. Ramos , 917 S.W.2d 371, 374 (Tex. App.—San

Antonio 1996, no writ) . Before the trial court allows impeachment evidence, the witness must offer direct testimony inconsistent with the

receipt of benefits. See Snyder , 191 S.W.3d at 423 ; Mundy v. Shippers, Inc. ,

783 S.W.2d 743, 745 (Tex. App.—Houston [14th Dist.] 1990, writ denied) ;

J.R.

Beadel & Co. v. De La Garza ,

690 S.W.2d 71, 74 (Tex. App.—Dallas 1985, writ ref’d n.r.e.).

In this case, Burke testified to the

financial hardship caused by his injury, but his testimony was limited to the

hardship caused by his reduced earning capacity. The following exchange

occurred at trial:

[Plaintiff’s Counsel:] Now, Ronnie, after all of this,

how much do you make now working with Bennett?

[Burke:] About twenty, about 20,000 and glad to have

it.

[Plaintiff’s Counsel:] Ronnie, you haven’t filed your

taxes, have you?

[Burke:] No, we haven’t.

[Plaintiff’s Counsel:] We don’t have your taxes for

last year yet. But my point is, Ronnie, I wanted to ask you, since you were

the breadwinner for your family, how has this affected it?

[Burke:] It’s affected everything. We had to—we had

to pull my daughter out of college. She was in the sorority and drill team and

all of this stuff. We had to pull her out of college. We almost lost our

home. We have been paying it for 20 years, we almost lost it. I had to borrow

money from my sister, from my mother. Nancy borrowed some money from her

mother. We got behind on all of our bills. All of it. It just—it changed

everything.

Burke’s testimony is not

inconsistent with the receipt of insurance benefits because the testimony was

limited to the financial hardship suffered as a result of his reduced earning

capacity, not his medical expenses. See Snyder , 191 S.W.3d at 423

(holding that plaintiff’s wife’s testimony that she did not have money to pay

for her husband’s surgeries did not open door to collateral source testimony

because large portion of plaintiff’s future medical expenses would not be

covered by insurance); Macias ,

917 S.W.2d at 374 (holding that testimony that plaintiff did not receive

paychecks was not inconsistent with receipt of insurance benefits and did not

open the door to collateral source evidence); Mundy , 783 S.W.2d at 745

(holding that trial court did not abuse its discretion in allowing collateral

source testimony when plaintiff testified generally about financial hardship

caused by injury). The trial court therefore did not abuse its discretion in

excluding the evidence that Burke received compensation for his injury from

collateral sources.

Supersedeas Bond

After the jury verdict in

favor of Burke, the trial court entered a judgment against LMC in the amount of

$155,000 plus interest. The trial court denied LMC’s motion to waive or

decrease the security required to suspend

enforcement of the judgment on appeal . LMC then moved in this

court to waive or decrease the security.

Initially, we denied the motion because LMC failed to provide a sufficient record

upon which to review the trial court’s decision. See LMC Complete Auto., Inc. v. Burke , No. 01-06-00694-CV , 2006 WL 2506732, at *1

( Tex. App.—Houston [1st Dist.] Aug. 31, 2006, order). Burke served LMC with a writ of

execution on October 11, 2006. The next day, LMC filed a motion in this court

to stay the execution of the writ, and another motion to waive or decrease the security . We granted the stay and remanded the

motion to the trial court for the taking of evidence and the entry of findings

of fact. See Tex. R. App. P .

24.4(d). After a hearing, the trial court entered its findings of fact. LMC

has now moved again in this court to waive or decrease the security r equired to suspend enforcement of the judgment, and

contends the evidence is insufficient to support the trial court’s findings of

fact.

On remand, the trial court

heard evidence from several witnesses. John Compton, an underwriter for surety

bonds, testified that his bonding agency examined LMC’s financial statements

and refused to issue a supersedeas bond because LMC has a negative net worth.

LMC’s balance sheet for September 2006—submitted to Compton’s bonding agency

and admitted at the security hearing—shows that LMC has a negative net worth of

$5,321.96. Compton testified that he would issue a bond for a company like LMC

only if it could supply cash collateral for 100 percent of the bond. Compton did not believe that any other bonding agency would issue a supersedeas bond for LMC.

Higdon Compton, the President of the bonding agency, executed an affidavit in

which he also stated that he denied LMC’s application for a supersedeas bond

because LMC’s financial condition could not justify the issuance of a bond,

based on LMC’s profit and loss statement and balance sheet.

Burke submitted LMC’s tax

returns for 2003 and 2004. In 2003, LMC had total sales of $2,683,637 and a

taxable income of negative $69,857. In 2004, LMC had total sales of $2,815,865

and a taxable income of negative $8,680.

Candice Lutz, LMC’s office

manager, testified that at the time of the hearing, LMC had about $4,800 in the

bank. Lutz testified that LMC often has to wait to pay bills because of a lack

of cash on hand, and requiring LMC to produce $190,000 for a supersedeas bond

would create a substantial economic hardship for the company. Lutz testified

that writing even a $5,000 check would create a substantial economic hardship

for LMC. LMC barely has enough money to write its payroll checks each week and

Lutz and the other managers will often refrain from cashing their checks

immediately to make sure the employees are paid. LMC, however, has never been

unable to meet its payroll obligations and has never had to borrow money to pay

bills or the payroll.

David Christian, the

President of LMC and owner of seventy percent of its stock, testified that

requiring LMC to produce $190,000 for a supersedeas bond would put the company

out of business, and that even having to write a check for $5,000 would cause a

substantial economic hardship. Christian testified that LMC submitted a profit

and loss statement and a balance sheet to Compton’s bonding agency in an

attempt to secure a supersedeas bond, but the agency denied the application.

Christian also tried to obtain a letter of credit from a bank but this

application was denied as well. LMC is marginally profitable like most body

shops, and Christian has never received a bonus from LMC. LMC has considered

bankruptcy because Christian does not believe the company will be able to pay

the judgment. Christian owns the land on which LMC is located and LMC pays

Christian $5,500 a month in rent. Christian also owns a business called LMC

Marine that recently constructed a new building. LMC Marine obtained a loan

from GE Credit to construct the building.

A. Standard of Review

[A] judgment debtor may supersede the judgment by: (1) filing with

the trial court clerk a written agreement with the judgment creditor for

suspending enforcement of the judgment; (2) filing with the trial court clerk a

good and sufficient bond; (3) making a deposit with the trial court clerk in

lieu of a bond; or (4) providing alternate security ordered by the court.

Tex. R. App. P. 24.1(a). When

a judgment is for money, the amount of the bond, deposit, or security must

equal the sum of: (1) the amount of compensatory damages awarded in the

judgment; (2) interest for the estimated duration of the appeal; and (3) costs

awarded in the judgment. See Tex.

Civ. Prac. & Rem. Code Ann. § 52.006(a) (Vernon Supp. 2006); Tex. R. App. P . 24.2(a)(1). The amount

of the security may not, however, exceed the lesser of (1) fifty percent of the

judgment debtor’s net worth, or (2) twenty-five million dollars. See Tex. Civ. Prac. & Rem. Code Ann . §

52.006(b); Tex. R. App. P .

24.2(a)(1) .

A judgment debtor who provides security based on the debtor’s net

worth must simultaneously file an affidavit that states the debtor’s net worth

and states complete, detailed information concerning the debtor’s assets and

liabilities from which net worth can be ascertained. Tex. R. App. P . 24.2(c)(1). “The affidavit is prima facie

evidence of the debtor’s net worth.” Id. A judgment creditor may file

a contest to the debtor’s affidavit of net worth, and may conduct reasonable

discovery concerning the judgment debtor’s net worth. Tex. R. App. P . 24.2(c)(2). “When a judgment creditor files

a contest to the judgment debtor’s affidavit of net worth, the trial court must

hold a hearing and ‘issue an order that states the debtor’s net worth and

states with particularity the factual basis for that determination.’” In re

Smith , 192 S.W.3d 564, 568 (Tex. 2006) (orig. proceeding) (quoting Tex. R. App. P . 24.2(c)(3)). “Net

worth is calculated as the difference between total assets and total

liabilities as determined by generally accepted accounting principles.” G.M. Houser, Inc.

v. Rodgers , 204 S.W.3d 836 , 840 ( Tex.

App.—Dallas 2006, no pet.); accord Ramco Oil &

Gas, Ltd. v. Anglo Dutch (Tenge) L.L.C. ,

171 S.W.3d 905, 915 (Tex. App.—Houston [14th Dist.] 2005, no pet.) .

On the motion of a party, an appellate court may

review the sufficiency or excessiveness of the amount of security. See Tex. Civ. Prac. & Rem. Code Ann . §

52.006(d); Tex. R. App. P .

24.4(a) . “ Review may be based both on conditions as they existed at the time

the trial court signed an order, and on changes in those conditions

afterward.” Tex. R. App. P.

24.4(b). We review the trial court’s determination of the amount of security

under an abuse of discretion standard. See Isern v. Ninth Court of Appeals ,

925 S.W.2d 604, 606 (Tex. 1996) (orig. proceeding); Rodgers , 204 S.W.3d at 840;

Ramco Oil & Gas, Ltd. , 171 S.W.3d at 909 . The trial court abuses

its discretion if the evidence is legally or factually insufficient to support

its findings. See Smith , 192 S.W.3d at 570 ; Bocquet v. Herring ,

972 S.W.2d 19, 21 (Tex. 1998); Rodgers ,

204

S.W.3d at 840; Ramco Oil & Gas,

Ltd. , 171 S.W.3d at 910 . If

we conclude the trial court abused its discretion, we may order the amount of

the security decreased or increased in an amount not to exceed the lesser of

fifty percent of the judgment debtor’s net worth, or twenty-five million

dollars. See Tex. Civ. Prac.

& Rem. Code Ann. § 52.006(d); Tex.

R. App. P . 24.4(a);

Rodgers , 204 S.W.3d at 840.

The judgment debtor has the burden

of proving net worth. See Tex.

Civ. Prac. & Rem. Code Ann . § 52.006(c); Tex. R. App. P . 24.2(c)(3). Therefore, to show the trial

court abused its discretion based on the legally insufficient evidence, the

judgment debtor must show the evidence conclusively establishes, as a matter of

law, all vital facts in support of its position. See Dow Chem. Co. v.

Francis , 46 S.W.3d 237, 241 (Tex. 2001); Rodgers , 204 S.W.3d

at 840–41; Ramco Oil & Gas, Ltd. , 171 S.W.3d at 910 .

Testimony from interested witnesses

may establish a fact as a matter of law only if the testimony could be readily

contradicted if untrue, and is clear, direct, and positive, and there are no

circumstances tending to discredit or impeach it. Lofton v. Tex. Brine

Corp. , 777 S.W.2d 384, 386 (Tex. 1989); see also City of Keller , 168

S.W.3d at 820 (stating that fact-finder cannot ignore undisputed testimony that

is clear, positive, direct, otherwise credible, free from contradictions and

inconsistencies, and could have been readily controverted).

B. Trial Court’s Findings of Fact

The trial court stated its findings

of fact as follows:

1. [LMC] is a financially viable, on-going business

with numerous employees, generating annual revenue of over $2.5 million dollars.

2. [LMC] has not proved by a preponderance of the

evidence that it is insolvent.

3. [LMC] has not proved insufficient net worth to post

a bond, or obtain a bond in due course of business, or able to provide

sufficient assets as security to obtain a supersedeas bond.

4. Net worth is found to be in excess of $290,000,

with further value undetermined for the reasons set out in these findings.

a. [LMC] has not provided sufficient evidence for the

Court to accurately state net worth.

b. The financial affairs of [LMC] are solely

controlled by the stockowner and decision maker for [LMC].

c. Testimony and the unaudited financial information

presented demonstrate non-arms-length transactions between [LMC], the

stockowner, and other related entities.

d. The cash flow of [LMC] is under the control of the

stockowner and decision maker.

e. Consolidated financials for the interrelated

companies are not available to the Court to evaluate the financial impact of

the inter-company and stockowner dealings to prepare financials and calculate

net worth.

f. Due to the lack of credible value of the

inter-company and stockowner transactions, the Court is unable to determine the

reasonable value of the liabilities of [LMC], which, if adjusted, would increase

the net worth of [LMC].

g. The affidavit filed fails to state complete,

detailed information concerning [LMC’s] assets and liability from which net

worth can be ascertained.

5. [LMC] has not proved that it is financially unable

to post a bond or obtain a bond in due course of business or to provide

sufficient assets as security to obtain a supersedeas bond.

6. [LMC] is financially able to post a bond, or obtain

a bond in due course of business, or able to provide sufficient assets as

security to obtain a supersedeas bond.

7. In addition, the Court adopts the findings of fact

attached as Exhibit A.

Exhibit A provides:

1. [LMC] is a business that in tax year 2003 had

$2,691,272.00 in gross receipts or sales. [LMC] is a business that in tax year

2004 had $2,815,865.00 in gross receipts or sales. Having been presented with

no contrary evidence, this Court finds that [LMC] is a fiscally solvent

company;

2. In addition, [LMC’s] balance sheet from September

of 2006 shows total assets worth $144,482.88;

3. [LMC’s] balance sheets from 2006 show a

depreciation of $155,068.00 three weeks after the jury’s verdict. The jury’s

verdict in the trial of this matter was $155,000.00. This depreciation is not

present on any financial documents prior to the verdict in this matter. The

sudden appearance of the depreciation has never been explained by testimony or

by any of the documents presented to this Court. The Court finds that this is

a write off from the assets and is not a physical loss or expenditure. The

Court further finds that this is available money for the payment of a bond.

4. According to its own balance sheets, [LMC] has

business accounts and lines of credit with Capital One, Amegy Bank, HCB, MBNA

Commercial, Klein Bank, Houston Community Bank, Paradigm Bank and Prosperity

Bank. There was no testimony or evidence presented that any of these lending

institutions were contacted or consulted for the purpose of obtaining financing

for payment of a supersedeas bond. The Court finds that these institutions add

to the available assets and net worth of [LMC].

5. Mr. Christian testified that he owns the property

and the building on which [LMC] is located and that he receives monthly rentals

for the land and building from [LMC]—a company that he owns 70% of. Mr.

Christian is also the sole owner of another business, LMC Marine, which since

the verdict in this matter has begun construction of a brand new facility on

Interstate 45 north. Mr. Christian testified that the business [of LMC] was

part of the basis of the construction/property loan for the new LMC Marine

facility. Based on this, the Court finds that [LMC] has value as a company.

6. Mr. Christian failed to present any evidence or

testimony that he, as both the owner and landlord of [LMC] has ever been unable

to acquire funding for [LMC].

7. Ms. Lutz, the office manager for [LMC] testified

that there are currently nineteen (19) employees at [LMC] and that they are

paid each week. Ms. Lutz testified that [LMC] was able to meet their weekly

payroll obligations which she estimated to be approximately $15,000.00 per week

and that no employees had been laid off. Based on this testimony, the Court

finds that there is no factual basis supporting any claim of financial

hardship;

8. Mr. Compton, the son of Mr. Higdon Compton, a

bondsman, testified that his company would not extend a bond to [LMC] but

testified that the decision was based on the financial documents that [LMC]

itself provided. Mr. Compton also testified that his company has done a large

amount of business in the past with [the] law firm representing [LMC]. Mr.

Compton did not receive or review any documentation that would support the

financial data that [LMC] provided. Mr. Compton signed an affidavit on October

11, 2006 setting forth his conclusion that neither his company, nor any other

company, would issue the requisite bond. However, the facsimile transfer

indication on the bottom of Mr. Compton’s affidavit indicates that he had

signed and transferred the affidavit back to counsel for [LMC] at approximately

4:11 p.m. on October 11, 2006. According to the writ of execution served on

October 11, 2006, the Harris County Constable’s Office served the writ at 11:48

p.m. (actually “a.m.”). This means that the finanacial documentation was

printed off, sent to Mr. Compton’s firm, reviewed, compared the reaction of

every other company in the Harris County & Montgomery County areas, and

rejected the bond. Then, an affidavit was written, sent to Mr. Compton, signed

by Mr. Compton, and faxed back to counsel for [LMC’s] office within a maximum

time period of four hours and twenty-three minutes. The Court finds that this

is not a sufficient time to conduct a proper valuation of the business for the

purposes of establishing net worth; although it was sufficient for Mr. Compton

to determine the documentation did not support a bond.

9. Further, Mr. Compton testified that his company did

not examine the available assets of [LMC] in reaching their conclusion not to

extend a bond.

C. Net Worth

LMC contends the evidence

is legally and factually insufficient to support the trial court’s finding that

LMC has a net worth in excess of $290,000. The only evidence of LMC’s net

worth admitted at the security hearing was Christian’s testimony, and LMC’s

balance sheet from September 2006 that shows that LMC has a net worth of

negative $5,321.96. LMC had previously admitted balance sheets from 2002,

2003, 2004, and April of 2006 that show a net worth of negative $6,291.11,

negative $2,399.68, positive $45,482.73, and negative $7,206.84, respectively.

LMC’s balance sheet from September

2006 constitutes evidence that is clear, positive,

direct, otherwise credible, free from contradictions and inconsistencies, and

could have been readily controverted. See Lofton , 777 S.W.2d at 386 ; see

also City of Keller , 168 S.W.3d at 820 ; Rodgers , 204 S.W.3d at 845–46; Ramco

Oil & Gas, Ltd. ,

171 S.W.3d at 911–12. Although Burke contends that the

balance sheet is not credible, he produced no evidence to discredit the balance

sheet or controvert the amounts it contains (with the exception of a depreciation

allowance discussed below). While LMC’s tax returns demonstrate that it had

sales revenues in excess of $2,000,000 in 2003 and 2004, LMC sustained a net

loss in each of these years. The tax returns do not state LMC’s net worth. We hold that the September 2006 balance sheet was sufficient to

prove LMC’s net worth as required by Texas Rule of Appellate Procedure 24. See

Tex. R. App. P. 24.2(c)(1).

The trial court, however, expressly

found that the “depreciation” entry of $155,068.00 on LMC’s balance sheet was

not a physical loss or expenditure, and constituted an amount that LMC could

use to obtain a supersedeas bond. The depreciation entry first appeared on the

April 2006 balance sheet, which LMC presented to the trial court three weeks after

the verdict in this case. The depreciation entry lowers the value of LMC’s

assets from $299,540.88 to $144,482.88. LMC’s total liabilities, uncontested

at the hearing, are $149,804.84. With the depreciation entry, LMC’s net worth

is negative $5,321.96; without the depreciation entry, LMC’s net worth is

$149,736.04.

We hold that the evidence supports the trial

court’s finding that the depreciation allowance on LMC’s balance sheet was not

an entry made in the ordinary course of business so as to reduce LMC’s net

worth, but rather was inserted in an effort to reduce LMC’s asset valuation

after the verdict, and thus does not reduce the available assets that LMC could

use to obtain a supersedeas bond. LMC never explained the appearance of the

depreciation entry, and LMC included the entry for the first time on its April

2006 balance sheet, which LMC presented to the trial court three weeks after

the verdict in this case.

Although the trial court also found that LMC

engaged in transactions with its majority shareholder, there is no evidence

that these transactions were outside the ordinary course of business or that

any took place after the verdict in order to deplete LMC’s net worth. We

therefore conclude that the evidence is insufficient to support the trial court’s

determination that LMC has a net worth in excess of $290,000. Additionally,

the trial court failed to state a specific net worth

figure or state with particularity how it reached a figure in excess of

$290,000 . See Smith , 192 S.W.3d at 570 (“ The trial court abused its discretion here because it

failed to state with particularity the factual basis for its determination that

Smith’s net worth was $1,142,951.” ); Rodgers , 204

S.W.3d at 846.

After reviewing the

record as a whole, we conclude that the evidence presented establishes LMC’s

net worth sufficiently for us to reset the bond, as we are required to do in

Texas Rule of Appellate Procedure 24. Tex.

R. App. P . 24.4(d); see also Rodgers ,

204

S.W.3d at 846. Because the evidence is sufficient to support the

trial court’s determination that the depreciation

allowance actually constitutes available assets that LMC could use to obtain a

supersedeas bond, we eliminate this entry from consideration. According to the

balance sheet, LMC has assets worth $299,540.88, and liabilities totaling

$149,804.84. Subtracting liabilities from assets, LMC’s net worth is

$149,736.04. See Tex. Civ. Prac. & Rem.

Code Ann . § 52.006(c); Tex. R.

App. P. 24.2(c)(3); Rodgers , 204

S.W.3d at 846; Ramco Oil & Gas,

Ltd. , 171 S.W.3d at 911–12 .

Applying Texas Rule of Appellate Procedure 24.2(a)(1)(A), security for

supersedeas for LMC should be set at $74,868.02, fifty percent of LMC’s net

worth. See Tex. R. App. P.

24.2(a)(1)(A), 24.4(d).

D. Substantial Economic

Harm

LMC contends the evidence

is legally and factually insufficient to support the trial court’s finding that

the security required to suspend enforcement of the judgment was not

likely to cause LMC substantial economic harm.

A trial court must lower the amount of security

required to suspend enforcement of a judgment to an amount that will not cause

the judgment debtor substantial economic harm if, after notice to all parties

and a hearing, the court finds that the security required is likely to cause

the judgment debtor substantial harm. See Tex. Civ. Prac. & Rem. Code Ann . § 52.006(c); Tex. R. App. P. 24.2(b). The rule and

the statute do not define the term “substantial economic harm,” but it is clear

that it is something less than “irreparable harm,” the legal standard utilized

under the previous version of the statute. Ramco Oil & Gas,

Ltd. , 171 S.W.3d at 916 .

“The thrust of the inquiry under section 52.006(c) [and Rule 24.2(b)] is

whether the judgment debtor has the ability to meet the supersedeas

requirement[,] . . . and whether doing so is likely to result in substantial

economic harm.” Id. at 917 . In Ramco Oil & Gas, Ltd. v. Anglo

Dutch (Tenge) L.L.C. , the Fourteenth Court of Appeals stated:

In conducting [an economic harm] analysis,

the trial court has the flexibility to take into account a number of factors

that could affect the judgment debtor’s ability to post bond or other security

based on the facts and circumstances specific to the case. This inquiry,

however, should not focus on the market capitalization of the company or its

value as a whole but on the judgment debtor’s actual ability to post the

security required. In other words, the court should be less concerned with

what price the company might fetch in the marketplace if sold today and more

concerned with the company’s available resources and its ability to use them to

post security.

Id.

The trial court found

that posting a supersedeas bond for the full amount of the judgment would not be

likely to cause substantial economic harm to LMC. We therefore presume that

the trial court also found that posting a bond in the amount of $74,868.02,

fifty percent of LMC’s actual net worth, would not be likely to cause substantial

economic harm to LMC. See Tex.

R. App. P. 24.2(a)(1)(A); Ramco Oil & Gas,

Ltd. , 171 S.W.3d at 917 (“ The

trial court found that posting a supersedeas bond in the amount of $7.505

million will not cause substantial economic harm to Ramco Energy. We presume

that the trial court also found that posting a bond, deposit, or security in

the amount of $5.27 million will not likely cause substantial economic harm to

Ramco Energy.”).

Both Christian

and Lutz testified at the security hearing that requiring LMC to post even a

$5,000 supersedeas bond would cause the company substantial economic harm. The

only testimony LMC produced concerning its ability to obtain a supersedeas bond

came from Higdon and Compton, who admittedly had only reviewed LMC’s balance

sheet and profit and loss statement in making their decision not to extend a

supersedeas bond to LMC. A s the trial court found, LMC only applied for a supersedeas bond at one

bonding agency, and the agency made its decision to deny LMC’s application for

a bond in about four hours. LMC’s balance sheet demonstrates that its assets

include $50,673.82 in cash and accounts receivable, which according to Compton is an important factor in determining whether his bonding agency will issue a

supersedeas bond. While both Christian and Lutz testified that LMC has

difficulty paying its bills, the record contains no evidence that LMC would be

unable to meet its future financial obligations. While

this testimony was uncontroverted, we hold that the trial court was free to

reject these opinions in light of other evidence, including LMC’s past revenues

and its ability to otherwise secure funding for its operations. LMC has not

shown substantial economic harm so as to conclude that the trial court abused

its discretion. See Lofton ,

777 S.W.2d at 386 (stating that testimony from interested witnesses may

establish fact as matter of law only if testimony could be readily contradicted

if untrue, and is clear, direct, and positive, and there are no circumstances

tending to discredit or impeach it); see also City of Keller , 168 S.W.3d

at 820 .

In light of these considerations, we conclude

that the testimony of interested witnesses Christian and Lutz does not satisfy

the Lofton standard and fails to prove as a matter of law that LMC will

likely suffer substantial economic harm if required to post a supersedeas bond

in the amount of $74,868.02 . See 777 S.W.2d at 386 ; see also

Tex. Civ. Prac. & Rem. Code Ann .

§ 52.006(c); Tex. R. App. P.

24.2(b). Under the applicable standard of review, the record contains legally

and factually sufficient evidence to support the trial court’s finding that LMC

is not likely to suffer substantial economic harm if required to post

$74,868.02 in security. See Ramco

Oil & Gas, Ltd. ,

171 S.W.3d at 920 . The trial court therefore did not abuse its

discretion in impliedly making this determination.

E. Conclusion

The record does not

support the trial court’s finding that LMC has a net worth in excess of

$290,000. The evidence, however, establishes that LMC has a net worth of $149,736.04. In addition, the trial

court did not abuse its discretion in impliedly concluding that LMC is not

likely to suffer substantial economic harm if

required to post $74,868.02 in security. We vacate the trial court’s July 25, 2006 order denying

LMC’s motion to decrease the security

required to suspend enforcement of the judgment . Pursuant to Texas Rule of Appellate Procedure 24, we order

that the security for supersedeas for LMC be set at $74,868.02, fifty percent

of LMC’s net worth. See Tex. R.

App. P. 24.2(a)(1)(A), 24.4(d). Our order entered on February 15, 2007,

staying the enforcement of the judgment in this case, will remain in effect for

fifteen days after the date this opinion issues to allow the parties to seek

further review of our security determination.

LMC’s Separate Appeal of

the Trial Court’s Findings of Fact

LMC filed a separate appeal challenging

the trial court’s findings of fact on the security issue (cause number 01-07-00126-CV).

The general rule is that an appeal may be

taken only from a final judgment. Lehmann v. Har-Con Corp. , 39

S.W.3d 191, 195 (Tex. 2000) . This rule has exceptions, but none

is applicable here. See Tex.

Civ. Prac. & Rem. Code Ann. § 15.003 (Vernon Supp. 2006), § 51.012

(Vernon 2003), § 51.014 (Vernon Supp. 2006). LMC cannot appeal the trial

court’s findings of fact because the findings do not constitute a final

judgment. See Lehmann , 39 S.W.3d at 195 (“ A judgment is final for purposes of appeal if it disposes

of all pending parties and claims in the record, except as necessary to carry

out the decree.”) . Rather, LMC’s remedy is to challenge the bond

by seeking relief from the court of appeals in the cause in which the appeal is

pending pursuant to Texas Rule of Appellate Procedure 24. Tex. R. App. P . 24.4(a). We

therefore dismiss appellate cause number 01-07-00126-CV for want of

jurisdiction. See New York

Underwriters Ins. Co. v. Sanchez , 799

S.W.2d 677, 679 (Tex. 1990) (holding that appellate court’s assumption of

jurisdiction over interlocutory order when not expressly authorized to do so by

statute is fundamental jurisdictional error).

Conclusion

We hold that the evidence is legally sufficient

and sufficiently reliable to support the jury’s negligence finding, and the

trial court did not abuse its discretion in excluding the evidence that Burke

received compensation for his injury from collateral sources. We therefore

affirm the trial court’s judgment. We further hold that the record demonstrates

that LMC has a net worth of $149,736.04. We therefore vacate the trial

court’s July 25, 2006 order denying LMC’s motion to decrease the security required to suspend enforcement of the judgment ,

and order that the security for supersedeas for LMC

be set at $74,868.02, fifty percent of LMC’s net worth. Our order entered on

February 15, 2007, staying the enforcement of the judgment in this case, will

remain in effect for fifteen days after the date this opinion is issued to

allow the parties to seek further review of our security determination. We

dismiss appellate cause number 01-07-00126-CV for want of jurisdiction.

Jane Bland

Justice

Panel consists of Justices Nuchia,

Hanks, and Bland.