Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00022-CV

Concho Residential Services, Inc., Appellant

v.

MHMR Services for the Concho Valley a/k/a Concho Valley Center for Human

Advancement, in its Capacity as an Unincorporated Association, its Capacity as a Mental

Retardation Authority, and as a Purported Community MHMR Center; James Young;

Joe Finn; Karen Sheppard; John Brubaker; The Texas Council of Community Mental

Health Mental Retardation Centers, Inc.; Spencer McClure; Texas Council Risk

Management Fund; Board of Trustees of the Texas Council Risk Management Fund, as

Trustee of the Liability Trust Account, the Property Trust Account, and the Workers'

Compensation Trust Account; Brain Crews; JI Specialty Services, Inc.; Central Plains

Center for MHMR and Substance Abuse; Richard Hall; Hector Cantu; James Coffey;

Ruby Guttierez; Sheirran Hughes; Brenda Morris; Jacqueline Shannon; Roger Sidener;

Hale County; Tom Green County; and City of San Angelo, Appellees

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. CV92-0444-B, HONORABLE ROYAL HART, JUDGE PRESIDING

Appellant Concho Residential Services, Inc. ("CRS") sued appellees MHMR

Services for the Concho Valley (Concho Valley) and 22 others (1) for damages and injunctive relief,

alleging multiple statutory and common-law causes of action. The trial court rendered summary

judgment that CRS take nothing, disposing of all causes of action against all appellees. CRS

perfected this appeal. We will affirm in part and dismiss the cause in part.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves the expansive legislative scheme for providing mental health and

mental retardation services to the citizens of Texas. The Texas Department of Mental Health and

Mental Retardation ("TDMHMR") and other governmental entities operating under its direction

shoulder the responsibility of providing the administration and delivery of mental health and

mental retardation services to the public. See Tex. Health & Safety Code Ann. §§ 531.001-615.002 (West 1992 & Supp. 1999). A key element in the statutory scheme is the establishment

of mental health and mental retardation community centers, which provide the needed services to

mentally disabled persons at a local level under the supervision of TDMHMR. These community

centers are created by local governmental entities such as counties, municipalities, or hospital

districts, or a combination of entities joining together. See id. § 534.001. Community centers

are, by statutory definition, "an agency of the state, a governmental unit, and a unit of local

government." Id.

Also key in the statutory scheme is the creation of Mental Health or Mental

Retardation Authorities ("MRAs"). MRAs are selected by TDMHMR and contract directly with

the agency. It is the duty of the MRA to ensure that the statutorily mandated services are provided

in its designated service area and to oversee state-funded community-based services. See id.

§§ 534.052-.070. MRAs, in turn, work with community centers, as well as private entity

providers of mental retardation and mental health services. Each MRA acts as the referral center

for MHMR services in its service area.

At all times relevant to this suit, CRS was a for-profit provider of residential

facilities and services to mentally retarded persons. Concho Valley was both a community center

and a designated MRA.

Although CRS asserted numerous claims against the various appellees, the crux of

CRS's complaint is that Concho Valley and several of its employees allegedly blocked potential

clients' access to CRS's residential facilities. CRS alleges that Concho Valley conspired with the

City of San Angelo and Tom Green County--the local governmental creators of Concho

Valley--to limit CRS's business; alternatively, CRS argues that the City of San Angelo and Tom

Green County are vicariously liable for Concho's conduct. CRS also sought an injunction

prohibiting Concho Valley from being a member of the Texas Council, a nonprofit corporation

made up of community centers from all around Texas. The remaining appellees are asserted to

be either directly liable for their participation in the conspiracy and other fraudulent acts, or

derivatively liable due to their association with Concho Valley or the Texas Council.

DISCUSSION

CRS presents sixteen issues for this Court's review. The first complains generally

that the trial court erred in granting summary judgment disposing of all of its causes of action

against all appellees. (2) Issue two concerns the trial court's denial of CRS's request for injunctive

relief. Issues three through six assert error related to the trial court's refusal to grant a default

judgment against Tom Green County. Issue seven concerns CRS's antitrust cause of action. The

eighth issue asserts generally that the trial court erred in dismissing the claims against Hale

County. Issue nine addresses CRS's claims brought under the Deceptive Trade Practices-Consumer Protection Act ("DTPA"). (3) The tenth and eleventh issues concern federal claims for

violation of the Racketeer Influenced Corrupt Organizations Act ("RICO") (4) and "section 1983." (5)

Issue twelve complains of the trial court's disposal of various common-law claims. Issue thirteen

asserts error related to the dismissal of CRS's statutory claims grounded in the Persons with

Mental Retardation Act of 1977. (6) Issue fourteen generally contends that the trial court erred in

disposing of the vicarious liability claims against Central Plains. The final two issues complain

of procedural rulings by the trial court.

Antitrust Liability

CRS asserted claims under the Texas Free Enterprise and Antitrust Act of 1983

("Antitrust Act" or "Texas Act") (7) against Concho Valley; Concho Valley employees Finn,

Sheppard, and Young; Tom Green County; the Texas Council; McClure (Council director); and

Central Plains, a community center and member of the Council. CRS argues that the named

appellees violated the Antitrust Act by conspiring to restrict the access of potential clients from

CRS's services. The appellees respond that their conduct is "immunized from antitrust liability

by exemptions derived directly from the Texas Antitrust Act and from federal laws incorporated

by the Act." We agree.

The purpose of the Antitrust Act is to promote economic competition in commerce

in Texas. See Tex. Bus. & Com. Code Ann. § 15.04 (West 1987). As such, the restraint of trade

or commerce is made unlawful. See id. § 15.05(a). The 1983 Act was meant to be a major

reform and modernization of Texas antitrust law and is modeled after the federal Sherman

Antitrust Act and Clayton Act. See Caller-Times Publishing Co. v. Triad Communications, Inc. ,

826 S.W.2d 576, 579-80 (Tex. 1992). The Texas Act explicitly states that its provisions "shall

be construed . . . in harmony with federal judicial interpretations of comparable federal antitrust

statutes . . . ." Bus. & Com. Code § 15.04. It is to one of these federal judicial interpretations

that we now turn.

Since 1943, the United States Supreme Court, in interpreting federal antitrust

statutes, has recognized that antitrust laws do not apply to anti-competitive restraints imposed "as

an act of government." Parker v. Brown , 317 U.S. 341, 352 (1943). Parker involved a

marketing program adopted pursuant to the California Agricultural Prorate Act governing the 1940

California raisin crop. Brown, a producer of raisins, complained that the program violated the

Sherman Act. The Court rejected this contention, relying on principles of federalism and state

sovereignty, holding that the Sherman Act should be interpreted as a prohibition on individual,

not "state action." Id. at 352 . Because the program was not the product of a private agreement

or combination by others in restraint of trade, it did not violate the Sherman Act. Id. at 351 . The

Court stated: "The state in adopting and enforcing the prorate program made no contract or

agreement and entered into no conspiracy in restraint of trade or to establish monopoly but, as

sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake

to prohibit." Id. at 352 . Because the Texas Act specifically adopts federal judicial interpretation

of federal antitrust law, we are bound to apply the Parker state action exemption to the Texas Act.

See Bus. & Com. Code § 15.04.

Texas has chosen to regulate the health and welfare of its mentally challenged

citizens through a comprehensive statutory scheme, rather than leaving the availability of services

to the marketplace. We believe this regulation fits squarely within the Parker exemption for an

"act of government by the State as sovereign." See City of Lafayette v. Louisiana Power & Light

Co. , 435 U.S. 389, 413 (1978) (discussing the Parker exemption); see also City of Columbia v.

Omni Outdoor Advertising, Inc., 499 U.S. 365, 370 (1991) (confirming Sherman Act does not

apply to anti-competitive restraints imposed by states as an act of government). As in Parker ,

Texas has not entered into a contract or agreement with an individual to establish a monopoly and

is not engaged in a conspiracy to restrain for-profit entities from providing services to mentally

challenged persons. Rather, the state has decided to pursue a policy of replacing competition with

regulation.

The statutory scheme charges TDMHMR with governing the state policies

concerning mentally disabled persons. In turn, local community centers are created to carry out

the state's policies, with extensive oversight by TDMHMR. By definition, community centers are

agencies of the state. See Health & Safety Code § 534.001. As state agencies engaging in acts

of government by the state, these centers enjoy antitrust immunity under the state-action

exemption. See Bates v. State Bar of Arizona , 433 U.S. 350 , 360-62 (1977); Benton, Benton &

Benton v. Louisiana Pub. Facilities Auth. , 897 F.2d 198, 199, 203 (5th Cir. 1990). (8) We conclude

that the Parker state-action exception is applicable to statutorily created state agency community

centers such as Concho Valley and Central Plains.

In addition, the Texas Act includes its own state-action exemption. Section 15.05

of the Antitrust Act specifically exempts "actions required or affirmatively approved by any statute

of this state . . . or by a regulatory agency of this state . . . acting under . . . statutory authority

vesting the agency with such power." See Bus. & Com. Code § 15.05(g). Accordingly, we hold

that the trial court properly granted a take-nothing summary judgment against CRS on its antitrust

claims against Concho Valley and Central Plains.

Furthermore, the individuals Finn, Sheppard, and Young, as employees of Concho

Valley, also enjoy the benefits of the Parker state-action exemption. The state-action doctrine

applies equally to the officers and agents of the governmental body who participate in the

challenged conduct. See Foley v. Alabama State Bar , 648 F.2d 355, 359 (5th Cir. 1981) (citing

City of Lafayette , 435 U.S. 389 ). We hold the trial court did not err in disposing of CRS's

antitrust claims against these individuals.

Similarly, the Texas Council and its director McClure enjoy the benefits of the

Parker state-action doctrine. State-action immunity extends to private persons and entities taking

a role in implementing state policy. See Benton, 897 F.2d at 204 . The controversy in Benton

involved a state agency's policy of always using the same law firm as bond counsel. Attorneys

from a law firm not selected sued both the agency and the chosen private attorneys, alleging

antitrust violations. The court found that not only was the agency protected by the state-action

exemption, the private attorneys selected to perform services for the public agency were also

shielded by the doctrine. See id.

In the instant case, the summary judgment evidence shows that the Texas Council

is created and governed by its community center membership for the sole purpose of performing

services for the centers in their endeavors to provide services to mentally challenged Texans.

Accordingly, the Texas Council and its agent McClure are entitled to the state-action exemption.

We hold that the trial court did not err in disposing of CRS's antitrust claims against Texas

Council and McClure.

Finally, CRS asserted antitrust claims against Tom Green County. Because the

County is also exempt from antitrust liability, this claim fails. The federal Local Government

Antitrust Act of 1984 expressly immunizes all local governmental entities from antitrust liability

under the Clayton Act. See 15 U.S.C.A. §§ 34-36 (West 1997). Counties are included in the

definition of "local government." Id. § 34. As noted previously, the purpose of the Texas Act

was to drastically reform Texas antitrust law to mirror federal antitrust law. See Caller-Times ,

826 S.W.2d at 579-80 . The legislature explicitly adopted federal judicial interpretations of

comparable federal antitrust statutes, and further provided that nothing in the Antitrust Act should

be "construed to prohibit activities that are exempt from the operation of the federal antitrust

laws." See Bus. & Com. Code §§ 15.04, 15.05(g). We believe these expressions of the

legislature incorporate the local government exemption for counties contained in the Local

Government Antitrust Act. Further, as previously noted, the Texas Act also includes its own

state-action exemption, which we conclude is expansive enough to cover the County's participation

in the anti-competitive scheme. See id . § 15.05(g). Accordingly, we hold that the trial court did

not err in dismissing CRS's antitrust claims against Tom Green County.

Lawfully Formed Community Centers

As will be made clear later in this opinion, CRS's causes of action for DTPA

violations, RICO violations, and common-law torts are premised on its assertion that Concho

Valley and Central Plains are not legally constituted community centers and thus are not

governmental entities entitled to sovereign immunity. Accordingly, we turn to the threshold issue

of the community centers' legitimacy.

1. Failure for Lack of Contract

Concho Valley and Central Plains were established in June 1966 and July 1967,

respectively, pursuant to article 3 of the Mental Health and Mental Retardation Act ("MHMRA")

as enacted in 1965. See Act of April 5, 1965, 59th Leg., R.S., ch. 67, § 1, 1965 Tex. Gen. Laws

165 , 171 (since repealed and codified as amended at Health & Safety Code Title VII). Section

3.01 of the MHMRA, as it existed at the community centers' creation, provided:

One or more cities, counties, hospital districts, school districts, rehabilitation

districts, state-supported institutions of higher education, and state-supported

medical schools, or any combination of these, may cooperate, negotiate, and

contract with each other through their governing bodies to establish and operate a

community center.

Id.

It is undisputed that the creating entities of Concho Valley and Central Plains did

not enter into written contracts to establish the two community centers. CRS urges this Court to

read the above-quoted language to require a written contract as a prerequisite to the valid

establishment of the community centers. We decline to do so.

We read section 3.01, as written in 1965, to allow the joint creation and operation

of a community center by cooperation, negotiation, or contract between local governmental

entities. Clearly, the legislature meant to authorize the creation of community centers by means

of contract. It appears that the legislature may have anticipated these local entities were likely to

enter into contracts when forming joint community centers. However, there is nothing to indicate

that the entities were required to form a written contract, or that the failure to do so would

invalidate the legal existence of a jointly formed community center. (9)

Even assuming, however, that the version of section 3.01 applicable in 1967 could

somehow be construed to require a contract in the formation of a community center, the record

shows that in 1967 the creating entities of Central Plains did enter into a written agreement

governing the selection of trustees for the center. In November 1989, the sponsoring local

government creators of Concho Valley adopted written procedures setting forth, among other

things, the selection of trustees, as required by the version of section 3.01 applicable in 1989. See

Act of June 20, 1987, 70th Leg., R.S., ch. 956, § 3.01, 1987 Tex. Gen. Laws 3194 , 3211 (since

repealed and codified as amended at Health & Safety Code Title VII). Therefore, at the time the

present lawsuit was filed, and only months following the date CRS alleges Concho Valley's

offending conduct began, both centers had written contracts in place.

We decline to invalidate Concho Valley and Central Plains' 30-year history as

legally created community centers for lack of written contracts at their inception.

2. Failure as Incorporated Entity

CRS next argues that because Central Plains was incorporated from 1969 to 1996

as a nonprofit corporation, it cannot be a valid community center. Basically, CRS contends that

because governmental entities may not legally fund a corporation, and because the sponsoring

governmental entities provide Central Plains with funding, Central Plains must not be a

community center.

We are unpersuaded by this argument. Central Plains was incorporated pursuant

to the Texas Non-Profit Corporation Act. (10) The summary-judgment evidence shows that Central

Plains exercises only public functions for public purposes under the control of the State. Contrary

to CRS's assertions, Central Plains is governed by a board of trustees appointed by the

participating local governmental entities creating the community center. Nothing in the statute

authorizing the creation of community centers indicates that a center may not be a nonprofit

corporation properly formed under the Texas Non-Profit Corporation Act. We fail to see how

Central Plains' nonprofit corporate status strips it of its identity as a governmental entity.

We reject CRS's contention that Concho Valley and Central Plains are not valid

community centers. Having so held, we turn to those causes of action asserted by CRS turning

on the premise that the centers are invalid, and thus not governmental entities entitled to sovereign

immunity.

RICO Claims

CRS contends in its tenth issue that the trial court erred in disposing of its cause of

action asserting RICO violations. As conceded by CRS in its brief to this Court, however, its

RICO claims fail if this Court finds Concho Valley and Central Plains are legitimate community

centers entitled to sovereign immunity from these claims. Moreover, CRS's RICO claims against

appellees other than Concho Valley and Central Plains are premised on their alleged improper

holding out of the community centers as legitimate. Because we reject CRS's contention that the

centers are illegitimate, the RICO claims against all appellees fail accordingly. We hold that the

trial court did not err in rendering judgment that CRS take nothing by its RICO cause of action.

Common-law Tort Claims

CRS next challenges the trial court's rejection of its common-law tort claims against

all appellees, including claims of fraud, negligence, and tortious interference with contract. CRS's

challenge fails for two reasons.

First, CRS provides no authority or argument to this Court that sovereign immunity

has been waived; accordingly, CRS has failed to present anything for us to review, and the

judgment should be affirmed on this ground alone. See Rodriguez v. Morgan , 584 S.W.2d 558,

559 (Tex. Civ. App.--Austin 1979, writ ref'd n.r.e.). To the extent CRS asserts that sovereign

immunity has been waived due to Concho Valley's and Central Plains' not being valid community

centers, and therefore not governmental units, we have rejected this argument, as discussed above.

Second, appellees asserted grounds for summary judgment before the trial court that

are not addressed by CRS on appeal. In granting summary judgment against CRS on this claim,

the trial court did not specify the basis for its ruling; thus, the summary judgment may be affirmed

on any ground presented in appellees' motion. See Cincinnati Life Ins. Co. v. Cates , 927 S.W.2d

623, 625 (Tex. 1996). If summary judgment may have been granted on a ground not challenged,

failure to address each theory that might support the trial court's rendition of summary judgment

requires an affirmance. See, e.g. , Holloway v. Starnes , 840 S.W.2d 14, 23 (Tex. App.--Dallas

1992, writ denied), cert. denied , 510 U.S. 828 (1993). Because CRS failed to assign error to all

bases upon which the appellees moved for summary judgment on its common-law tort claims,

complaint on appeal has been waived.

We hold that the trial court did not err in granting appellees a take-nothing

judgment on CRS's common-law tort causes of action.

DTPA Claims

In its ninth issue presented, CRS asserts that the trial court erred in dismissing its

DTPA claims against all appellees because they are not shielded by sovereign immunity. We

disagree. To the extent CRS contends that the appellees do not enjoy sovereign immunity because

Central Plains and Concho Valley are "imposter" community centers, we have previously rejected

this contention. Although CRS presents additional creative arguments as to why the DTPA waives

sovereign immunity, none are viable. We hold there was no error.

Section 1983

In its eleventh issue, CRS complains that the trial court erred in dismissing its

"section 1983" cause of action. See 42 U.S.C.A § 1983 (West 1994 & Supp. 1999). In granting

summary judgment against CRS on this claim, the trial court did not specify the basis for its

ruling; thus, the summary judgment may be affirmed on any ground presented in appellees'

motion. See Cincinnati Life , 927 S.W.2d at 625 . Because CRS failed to assign error to all bases

upon which the appellees moved for summary judgment on its section 1983 claims, complaint on

appeal has been waived.

Injunction

CRS sought to enjoin Concho Valley from membership in the Texas Council, a

nonprofit corporation created by community centers from throughout the state in a joint effort to

effectuate the centers' responsibilities to mentally challenged Texans. CRS claims that Concho

Valley lacks statutory authority to be a dues-paying member of a corporation such as the Council,

and that Concho Valley's membership violates that portion of article 3, section 52 of the Texas

Constitution prohibiting public entities from holding stock in a corporation. See Tex. Const. art.

III, § 52.

Concho Valley counters that CRS lacks standing to seek an injunction to void its

membership in the Council. CRS argues it has standing because it pays ad valorem taxes on five

residential properties to Tom Green County and the City of San Angelo, which, in turn, fund

Concho Valley. Alternatively, CRS argues it has standing as a citizen with a peculiar interest

adversely affected by the actions of Concho Valley.

We agree with CRS that, generally speaking, a taxpaying citizen has standing to

seek an injunction to enjoin public officials from the illegal expenditure of public funds. See, e.g. ,

Lara v. Williams , 986 S.W.2d 310, 314-15 (Tex. App.--Fort Worth 1999, pet. filed) (citing

Osborne v. Keith , 177 S.W.2d 198, 200 (Tex. 1944); Hoffman v. Davis , 100 S.W.2d 94, 95 (Tex.

1937)). However, CRS does not seek to enjoin an expenditure by Tom Green County or the City

of San Angelo to Concho Valley, or Concho Valley's expenditure to the Council in the form of

membership dues. Rather, CRS seeks to enjoin Concho Valley from remaining a member of the

Council. Because CRS has not properly placed itself within the parameters of taxpayer standing,

CRS's taxpayer status cannot in itself provide it with the necessary standing to maintain its request

for injunction.

CRS argues alternatively that it has standing to seek injunctive relief as a citizen

with a special interest adversely affected by Concho's membership in the Texas Council. The

general rule is that standing to bring suit depends upon some interest peculiar to the person

individually, and not as a member of the general public. See, e.g. , Hunt v. Bass , 664 S.W.2d

323, 324 (Tex. 1984). More specifically, a person has standing to sue if:

(1) he has sustained, or is immediately in danger of sustaining, some direct injury

as a result of the wrongful act of which he complains; (2) there is a direct

relationship between the alleged injury and the claim to be adjudicated; (3) the

plaintiff has a personal stake in the controversy; (4) the challenged action has

caused the plaintiff some injury in fact , either economic, recreational,

environmental, or otherwise; or (5) the plaintiff is an appropriate party to assert the

public interest in the matter as well as his own interest.

Lake Medina Conservation Soc'y, Inc./Bexar-Medina-Atascosa Counties WCID No. 1 v. Texas

Natural Resource Conservation Comm'n , 980 S.W.2d 511, 515 (Tex. App.--Austin 1998, pet.

denied) (emphasis added); see also Amerada Hess Corp. v. Garza , 973 S.W.2d 667, 680 (Tex.

App.--Corpus Christi 1996, no writ); Billy B., Inc. v. Board of Trustees , 717 S.W.2d 156, 158

(Tex. App.--Houston [1st Dist.] 1986, no writ).

CRS concedes that following the rendition of the final summary judgment in this

case, it sold its licenses by which it had been authorized to provide residential services to mentally

retarded persons. CRS asserts that it nevertheless maintains standing to seek an injunction because

it leases real property to a company that currently operates residential service centers on that

property. In effect, CRS contends that, because it has a financial stake in the profitability of its

lessee, who in turn is allegedly affected by Concho Valley's membership in the Council, it

maintains an interest adversely affected by Concho Valley's actions.

We conclude that the lessor/lessee relationship between CRS and its tenant does not

create the special interest needed to support standing. Assuming Concho Valley's membership

in the Council is improper, CRS, as landlord, has not sustained, and is not in danger of sustaining,

a direct injury as a result of the membership. Further, the relationship between the possible injury

to CRS and the allegedly improper membership of Concho Valley in Council is attenuated, at best.

We certainly cannot say the relationship is direct . Finally, CRS has no personal stake in Concho

Valley's membership, and CRS can point to no injury in fact resulting from the membership.

Accordingly, we hold that CRS lacks standing to enjoin Concho Valley's

membership in the Texas Council. Because lack of standing is a ground for dismissal rather than

a take-nothing judgment on the merits, see Alexander v. City of Greenville , 585 S.W.2d 333, 334

(Tex. Civ. App.--Dallas 1979, writ ref'd n.r.e.), the proper course for this Court is to vacate the

portion of the summary judgment ordering that CRS take nothing by its request for injunctive

relief, and to render judgment dismissing that portion of the cause in its entirety.

Persons with Mental Retardation Act

In its thirteenth issue presented, CRS urges this Court to find error in the trial

court's disposal of its claims under the Persons with Mental Retardation Act ("PMRA"). See

Health & Safety Code §§ 591.001-.025 (West 1992 & Supp. 1999). We decline.

The PMRA creates a statutory cause of action to redress violations of the rights of

mentally retarded persons. See id. § 591.022. However, the right to sue is expressly limited to

the person injured, the injured party's parent or guardian, or next friend. Id. § 591.022(d). CRS

argues that it is a "person injured" and is therefore entitled to maintain suit. This precise

contention has been advanced and rejected previously in Develo-Cepts, Inc. v. City of Galveston ,

668 S.W.2d 790, 794 (Tex. App.--Houston [14th Dist.] 1984, no writ) (PMRA "clearly restricts

recovery to mentally retarded persons and to those entitled to bring suit in their behalf"). CRS's

conclusory statement that Develo-Cepts is erroneous is not persuasive.

Because CRS had no right to sue under the PMRA, the trial court properly granted

summary judgment disposing of this claim.

Claims Against Hale County

All of CRS's claims against Hale County are derivative in nature. CRS asserts that

because Hale County participated in the creation, controlling, and funding of Central Plains, it is

vicariously liable for the wrongdoings and liabilities of Central Plains. Because we have

concluded that Central Plains is not liable under any theory advanced by CRS, there can be no

vicarious liability imputed to Hale County. We hold that the trial court properly granted summary

judgment for Hale County.

Interlocutory Default Judgment

CRS complains in issues three through six that the trial court erred in: (1) refusing

to sign an interlocutory default judgment against Tom Green County after such judgment was

rendered on the record in open court; (2) holding a "show cause" hearing on whether the court

should sign an interlocutory default judgment against Tom Green County; (3) applying an

improper legal test at the "show cause" hearing; and (4) making findings of fact at the "show

cause" hearing.

As a prerequisite to presenting an argument for appellate review, the record must

show that the complaint was first made to the trial court. See Tex. R. App. P. 33.1(a). CRS

failed to complain to the trial court regarding the default judgment issues presented, and failed to

obtain a ruling on any complaint; therefore, CRS has not preserved error for appellate review.

See id.

Even if CRS had preserved error, and assuming CRS is correct that the trial court

orally rendered an interlocutory default judgment, CRS's complaints are still without merit. The

trial court had broad, virtually unlimited discretion to vacate an interlocutory order prior to its

rendition of a final judgment. See Tex. R. Civ. P. 329b; Fruehauf Corp. v. Carrillo , 848 S.W.2d

83, 84 (Tex. 1993) (trial court has continuing power over interlocutory orders and may set them

aside at any time before final judgment is entered). We find no error.

Procedural Rulings

In its final two issues presented, CRS complains of procedural rulings made in

connection with the granting of summary judgment. By a scheduling order dated June 6, 1997,

the trial court set deadlines after which the parties would not be permitted to file summary

judgment argument or evidence. That order gave CRS until July 11, 1997, to complete summary

judgment filings, and gave appellees until July 18, 1997. Appellees filed additional summary

judgment argument and evidence on July 18. CRS filed an omnibus motion requesting the trial

court to grant it leave to reply to the newly filed argument and evidence. The motion was denied.

CRS asserts that the June 6 order improperly allowed appellees (as movants) the "last word" and

that the trial court erred in denying its omnibus motion.

The record does not show that CRS complained to the trial court about the June 6

order or secured a ruling on any complaint; therefore, the point is waived. See Tex. R. App. P.

33.1. Furthermore, CRS provides no authority to this Court to support its assertion that it was

error to allow movants the "last word." Error was therefore waived. See, e.g. , March v.

Wallace , 924 S.W.2d 423, 425 (Tex. App.--Austin 1996, no writ). Even if CRS's contention had

not been waived, we would still find it to be without merit. The order did not preclude CRS from

responding to any additional summary judgment argument or evidence presented by appellees;

rather, it required CRS to seek leave of court before doing so. We do not find an abuse of

discretion in the filing of the scheduling order.

As to the denial of the omnibus motion, while the trial court did deny the motion's

general request for additional time to respond, the court granted CRS leave to file the only

evidence specifically identified by CRS as necessary to respond to appellee's July 18 filing. The

remainder of the omnibus motion, in essence, was simply a request for a continuance for more

time to gather potentially responsive evidence. The granting or denial of a continuance is within

the sound discretion of the trial judge. See State v. Crank , 666 S.W.2d 91, 94 (Tex. 1984). The

denial of a motion for continuance will not be disturbed unless the record shows a clear abuse of

discretion. See id. Given the extended time frame within which the parties filed and responded

to motions for summary judgment; the numerous motions for continuance that had previously been

granted in this case; and the fact that CRS was granted leave to file the evidence it contends was

responsive to appellee's July 18 filing, we conclude that the trial court did not abuse its discretion

by generally denying CRS's omnibus motion.

CONCLUSION

We hold that CRS lacks standing to seek to enjoin Concho Valley from future

membership in the Texas Council; accordingly, we vacate that portion of the trial court's final

summary judgment that CRS take nothing by its request for injunctive relief and render judgment

dismissing that claim. Having found all remaining issues presented by CRS to be without merit,

we affirm the summary judgment in all other respects.

J. Woodfin Jones, Justice

Before Justices Jones, Kidd and Patterson

Affirmed in Part; Vacated and Dismissed in Part

Filed: August 26, 1999

Do Not Publish

1. There are 23 named appellees in this appeal, generally referred to collectively as appellees.

As necessary, we will refer to appellees individually by name.

2. The trial court rendered the following orders: (1) summary judgment for Tom Green County

dated May 28, 1996, disposing of all claims against the county; (2) summary judgment for Concho

Valley, Young, Finn, Sheppard, Texas Council, McClure, and Central Plains dated October 29,

1996, disposing of all claims arising under the Texas Free Enterprise Antitrust Act; (3) summary

judgment for Hale County dated September 15, 1995, disposing of all claims against the County;

and (4) final summary judgment dated December 19, 1997, disposing of all claims against all

defendants.

3. See Tex. Bus. & Com. Code Ann. § 17.46 (West 1987 & Supp. 1999) .

4. See 18 U.S.C.A. § 1961 (West 1984 & Supp. 1999).

5.

See 42 U.S.C.A. § 1983 (West 1994 & Supp. 1999).

6. See Tex. Health & Safety Code Ann. §§ 591.001 -.025 (West 1992 & Supp. 1999).

7. Tex. Bus. & Com. Code Ann. §§ 15.01 -.52 (West 1987 & Supp. 1999).

8. This is to be contrasted with municipalities, which are not themselves sovereign, and

therefore carry a higher burden to demonstrate that their anti-competitive actions are authorized

by the state pursuant to the state's policy to replace competition with regulation. See

Town of

Hallie v. City of Eau Claire , 471 U.S. 34, 40-42 (1985) .

9.

We note that section 3.01 was amended in 1969 to require the governing bodies creating a

community center to enter into a contract. See Act of June 12, 1969, 61st Leg., R.S., ch. 688,

§ 3, 1969 Tex. Gen. Laws 2010 , 2012 (since repealed and codified as amended at Health & Safety

Code Title VII). We believe this supports our conclusion that prior to the amendment, when

Concho Valley and Central Plains were created, no contract was required.

10. Tex. Rev. Civ. Stat. Ann. art. 1396--1.01-11.01 (West 1997 & Supp. 1999).

been waived, we would still find it to be without merit. The order did not preclude CRS from

responding to any additional summary judgment argument or evidence presented by appellees;

rather, it required CRS to seek leave of court before doing so. We do not find an abuse of

discretion in the filing of the scheduling order.

As to the denial of the omnibus motion, while the trial court did deny the motion's

general request for additional time to respond, the court granted CRS leave to file the only

evidence specifically identified by CRS as necessary to respond to appellee's July 18 filing. The

remainder of the omnibus motion, in essence, was simply a request for a continuance for more

time to gather potentially responsive evidence. The granting or denial of a continuance is within

the sound discretion of the trial judge. See State v. Crank , 666 S.W.2d 91, 94 (Tex. 1984). The

denial of a motion for continuance will not be disturbed unless the record shows a clear abuse of

discretion. See id. Given the extended time frame within which the parties filed and responded

to motions for summary judgment; the numerous motions for continuance that had previously been

granted in this case; and the fact that CRS was granted leave to file the evidence it contends was

responsive to appellee's July 18 filing, we conclude that the trial court did not abuse its discretion

by generally denying CRS's omnibus motion.

CONCLUSION

We hold that CRS lacks standing to seek to enjoin Concho Valley from future

membership in the Texas Coun