Mattox v. County Commissioner's Court-Grimes Cty. (Tex.App.- Houston [14th Dist.] Oct.
29, 2009)(Hedges)(cancellation of a roadway dedication, interpretation of section 232.008 of the Texas Local
Government Code, which governs cancellation of all or part of a subdivision located outside of any
municipality) (mandamus against a public official) (both parties' motions for summary judgment denied)
REVERSED AND REMANDED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00193-CV Gregory R. Mattox and Barbara Wilkerson v. County Commissioners' Court-Grimes County,
Betty Shiflett-Grimes County Judge, John Bertling-County Commissioner Pct 1., and Pam Finke-County
Commissioner Pct 4
Appeal from 506th Judicial District Court of County
Trial Court Judge: Albert M McCaig Jr.
Dissenting Opinion by Justice Frost in Mattox v. County Commissioners' Court of Grimes County
("Because this court reverses and remands based on a different analysis, I respectfully dissent.")
M A J O R I T Y O P I N I O N
Appellants, Gregory R. Mattox and Barbara Wilkerson, appeal the trial court's judgment denying their petition
for writ of mandamus to compel appellees, Grimes County Commissioners Court, Betty Shiflett, John Bertling,
and Pam Finke, to order the cancellation of a roadway dedication. In five issues, appellants argue that: (1)
the trial court erred by denying their petition for writ of mandamus; (2) the affidavits attached to appellees'
motion for summary judgment were not competent summary judgment evidence; (3) the trial court erred by
denying appellants' motion for summary judgment; (4) the trial court erred by granting appellees' motion for
summary judgment, and (5) the trial court erred by denying appellants' motion for sanctions. We reverse and
remand.
I. BACKGROUND
Appellants purchased lots 35 and 36 of the Hill Forest Manor subdivision in May 2005. The two adjoining lots
were located in the southwest corner of Hill Forest Manor. After purchasing their lots, appellants learned that
a portion of an unpaved roadway dedicated as a county road encroached upon their newly-acquired
property. The dedicated county road, Hill Forest Lane, ran across the southern border of Hill Forest Manor,
and the last 134 feet on the west part of Hill Forest Lane extended across appellants' property. Appellants
sought to cancel the dedication on the 134-foot portion of Hill Forest Lane that extended onto their property
by filing an application with the commissioners court pursuant to chapter 232 of the Local Government Code.
A. Proceedings Before Grimes County Commissioners Court
Section 232.008(e) of the Local Government Code mandates a commissioners court to authorize cancellation
of “a subdivision or any phase or identifiable part of a subdivision, including a dedicated easement or
roadway" upon application by “the owners of 75 percent of the property included in the subdivision, phase or
identifiable part."[1] Section 232.008(e) further provides that “if owners of at least 10 percent of the property
affected by the proposed cancellation file written objection to the cancellation with the court, the grant of an
order of cancellation is at the discretion of the court."[2] After appellants filed their application to cancel the
dedication, proper notices were filed, and a hearing was conducted before the commissioners court.
At the hearing, appellants presented their application and argued that cancellation was mandatory under
section 232.008(e) because (1) the 134-foot portion of Hill Forest Lane sought to be cancelled was an
“identifiable part" of Hill Forest Manor for purposes of subsection (e), (2) appellants owned 100% of this
identifiable part, (3) no written objection to the proposed cancellation had been made by owners of at least
10% of the property to be cancelled, and (4) the cancellation did not interfere with the established rights of
any owner in Hill Forest Manor.
In response, the county and counsel for Clifford and Eleanor Jackson (collectively “the Jacksons"), adjoining
landowners, argued that cancellation was not mandatory, but discretionary under section 232.008(h).
Subsection (h) vests a commissioners court with discretion to grant or deny a request to cancel a roadway
dedication if “the cancellation will prevent the proposed interconnection of infrastructure to pending or existing
development."[3] Relying on subsection (h), the Jacksons argued that they owned land immediately outside of
Hill Forest Manor, but adjoining appellants' lots (“the Jackson property"), and the proposed cancellation would
affect any intended, pending, and existing development on the Jackson property. Specifically, the Jacksons
argued that they had prepared an unrecorded plat dividing their property into various lots and had been
selling those partitioned lots. The Jacksons further claimed that they intended to divide other parts of their
property and sell those partitioned parts in the future. However, such development would be vitiated by the
proposed cancellation because Hill Forest Lane is the only road that could provide adequate access to
developments on the Jackson property. The only other access to the Jackson property was by way of a 36-
foot-wide easement, a path that was insufficient to accommodate access to any pending or prospective
developments on the Jackson property. Appellants disputed the applicability of subsection (h), contending
that there was no evidence in the county records of a pending or existing development on the Jackson
property. Appellants further contended that the Jacksons had not sold any part of their property since 1995.
The county argued that Hill Forest Lane was a public road and provided access to other residents. Petitions
signed by county residents generally opposing “the closing of any county road" in Grimes County were
submitted to the commissioners court for consideration. Additionally, a former county commissioner and local
resident both appeared before the commissioners court and expressed their opposition to the proposed
cancellation. At the close of the hearing, two of the four county commissioners and the county judge voted to
deny appellants' application to cancel the road dedication. The county judge and two commissioners voting to
deny the application are appellees Betty Shiflett, John Bertling, and Pam Finke. Subsequently, appellants
challenged the commissioners court's decision by filing a petition for writ of mandamus with the district court.[4]
B. Mandamus Proceeding Before the District Court
In their petition for writ of mandamus, appellants asked the trial court to order appellees to cancel the roadway
dedication on the portion of Hill Forest Lane that extended onto their property because the commissioners
court was required to do so under section 232.008(e). Specifically, appellants argued that they owned 100%
of the portion of the roadway sought to be cancelled, and no written objection by owners of at least 10% of the
affected property had been filed with the court. Furthermore, appellants argued that the exception under
subsection (h) vesting a commissioners court with discretion to deny an application to cancel a roadway
dedication did not apply because there were no proposals for interconnecting infrastructure to the Jackson
property and no pending or existing developments on the Jackson property. Appellants urged the trial court to
grant their writ and mandamus the commissioners court to order cancellation of the 134-foot portion of Hill
Forest Lane that encroached upon their property.
Appellees responded to the writ by general denial and, subsequently, by amended answer. In the amended
answer, appellees specifically denied the allegations set forth in appellants' petition for writ of mandamus.
Appellees contended that subsection (h) authorized the commissioners court to deny appellants' application to
cancel Hill Forest Lane because (1) the proposed cancellation would prevent an interconnection between Hill
Forest Manor and the Jackson property and (2) there was pending and existing development on the Jackson
property. Thereafter, both parties moved for summary judgment, primarily disputing the applicability of
subsection (h). Both parties submitted affidavits supporting their position as to whether (1) there was a
proposed interconnection between Hill Forest Manor and the Jackson property and (2) there was pending or
existing development on the Jackson property. The trial court ultimately found in favor of appellees, denying
appellants' motion for summary judgment and sanctions and granting appellees' motion for summary
judgment.
C. Issues on Appeal
On appeal, appellants challenge the trial court's judgment in favor of appellees. In issues one, three, and
four, appellants challenge the applicability of subsection (h): whether there was competent summary judgment
evidence reflecting a proposed interconnection between Hill Forest Lane and pending or existing development
on the Jackson property. In their second issue, appellants contend that the affidavits attached to the
appellees' summary judgment motion were not competent summary judgment evidence. In their fifth issue,
appellants contend that the trial court erred in denying their motion for sanctions.
II. STANDARDS OF REVIEW
A. Summary Judgment
Appellants moved for summary judgment under rule 166a(c), while appellees moved for summary judgment
under both rule 166a(c) and rule 166a(i). Traditional summary judgment under civil procedure rule 166a(c) is
proper only when a movant establishes that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640,
644 (Tex. 1995); Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 908 (Tex. App.-Houston [14th Dist.]
2009, no pet.). In deciding whether there is a disputed issue of material fact, every doubt must be resolved in
favor of the nonmovant, and evidence favorable to the nonmovant must be taken as true. Fort Worth
Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).
Under rule 166a(i), a party may move for summary judgment on the ground that there is no evidence of one or
more essential elements of a claim or defense on which an adverse party would have the burden of proof at
trial. See Tex. R. Civ. P. 166a(i).; W. Invs., Inc., v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). To defeat a no-
evidence motion for summary judgment, the nonmovant must produce summary judgment evidence raising a
genuine issue of material fact. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); McInnis v.
Mallia, 261 S.W.3d 197, 202 (Tex. App.-Houston [14th Dist.] 2008, no pet.). A genuine issue of material fact
exists if the evidence Arises to a level that would enable reasonable and fair-minded people to differ in their
conclusions." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms.,
Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). If the evidence does no more than create a mere surmise
or suspicion of fact, less than a scintilla of evidence exists, summary judgment is proper. See id. (quoting
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
When, as here, both parties move for summary judgment and the trial court grants one motion and denies the
other, we review the summary judgment evidence presented by both sides, determine all questions presented,
and render the judgment the trial court should have rendered. Tex. Worker's Comp. Comm'n v. Patient
Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004). We must affirm a summary judgment if any of the
summary judgment grounds are meritorious. Id.
B. Petition for Writ of Mandamus
Appellants in this case did not pursue a direct appeal from the commissioners court's decision to the district
court. Rather, appellants filed an original proceeding in the trial court seeking a writ of mandamus against the
commissioners court and those who voted against appellants' application to cancel the roadway dedication.
Generally, a party is entitled to mandamus relief against a public official when there is (1) a legal duty to
perform a nondiscretionary act, (2) a demand for performance of that act, and (3) a refusal to perform.
Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991); Sheppard v. Thomas, 101 S.W.3d 577,
581 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). An act is nondiscretionary, or ministerial, when the law
clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the
exercise of discretion. Anderson, 806 S.W.2d at 793; Sheppard, 101 S.W.3d at 581; Harris County v.
Walsweer, 930 S.W.2d 659, 667-68 (Tex. App.-Houston [1st Dist.] 1996, writ denied). The Texas Supreme
Court has recognized an exception, however, which authorizes mandamus relief in cases involving a
discretionary act: “a writ of mandamus may issue in a proper case to correct a clear abuse of discretion by a
public official." Anderson, 806 S.W.2d at 793.
The burden is upon the petitioner to negate by affirmative allegation and prove every fact or condition which
would have authorized the public official to take action sought to be enforced upon him. Wortham v. Walker,
133 Tex. 255, 128 S.W.2d 1138, 1151 (1939); Rash v. City Council of City of Houston, 557 S.W.2d 324, 326
(Tex. Civ. App.-Houston [1st Dist.] 1977, writ ref'd n.r.e.). Without such proof, there is no basis for finding an
abuse of discretion. Wortham, 133 Tex. at 279, 128 S.W.2d at 1151.
III. ANALYSIS [5]
The issue on appeal is not whether the commissioners court abused its discretion in denying appellants'
petition for cancellation, but whether the commissioners court had discretion to deny the petition under section
232.008(h). See Anderson, 806 S.W.2d at 793. Thus, if section 232.008(e) applies, the commissioners court
had no discretionary authority to deny the petition, because appellants established its criteria as a matter of
law. In contrast, if section 232.008(h) applies, the commissioners court could deny the petition in its
discretion. The trial court properly granted summary judgment in favor of appellees only if appellees
established as a matter of law that section 232.008(h) applies. There must be no genuine issue of material
fact concerning the existence of authoritative criteria under section (h). The trial court should have granted
appellant's motion for summary judgment only if appellants had established as a matter of law that section
232.008(e) applied.
A. Section 232.008(e)
Section 232.008(e) mandates a commissioners court to order the cancellation of “a subdivision or any phase
or identifiable part of a subdivision, including a dedicated easement or roadway" upon application by “the
owners of 75 percent of the property included in the subdivision, phase or identifiable part." Tex. Loc. Gov't
Code § 232.008(e). However, “if owners of at least 10 percent of the property affected by the proposed
cancellation file written objection to the cancellation with the court, the grant of an order of cancellation is at
the discretion of the court." Id. Accordingly, if an applicant shows that he is the owner of at least 75% of the
property to be cancelled and no written objection is filed with the court by owners of at least 10% of the
property affected by the proposed cancellation, the act of cancellation is ministerial, leaving nothing to the
exercise of discretion by the commissioners court. See id.; see also Anderson, 806 S.W.2d at 793.
In the sworn application for cancellation, the petition for writ of mandamus, and appellants' sworn affidavits,
appellants averred that the 134 feet of Hill Forest Lane sought to be cancelled lay wholly within their two lots;
thus, they owned 100% of the identifiable part sought to be cancelled. Furthermore, appellants averred that
because they owned 100% of the property to be cancelled, no written objection by owners of at least 10% of
the same property could be filed with the court and indeed had not been filed. Appellees do not dispute
appellants' evidence supporting the subsection (e) requirements, which would render the act of cancellation
ministerial. Instead, appellees argue that the commissioners court's determination is a discretionary act under
subsection (h).
B. Applicability of Section 232.008(h) [6]
Section 232.008(h) provides that A[t]he commissioners court may deny a cancellation under this section if the
commissioners court determines the cancellation will prevent the proposed interconnection of infrastructure to
pending or existing development." Tex. Loc. Gov't Code § 232.008(h). The parties dispute whether the
cancellation will prevent a proposed interconnecting infrastructure from Hill Forest Manor to the Jackson
property and whether there is a pending or existing development on the Jackson property.
1. Proposed Interconnection
Appellants request that we define “proposed interconnection" as “a proposal or a proffer to another party, in
this case the County Commissioner's Court." We reject this interpretation of “proposed interconnection." We
review the statutory construction of the term “proposed interconnection" under a de novo standard. See
Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002).
In construing statutory provisions, our objective is to determine and give effect to the legislature's intent. Nat'l
Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). We assume that the legislature tried to say
what it meant; therefore, its words should be the surest guide to its intent. Segal v Emmes Capital, L.L.C., 155
S.W.3d 267, 286 (Tex. App.-Houston [1st Dist.] 2004, pet. dism'd). If the meaning of the statutory language is
unambiguous, we will adopt the interpretation supported by the plain meaning of the provision's words. St.
Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). We must not engage in forced or
strained construction; instead we yield to the plain sense of the words the legislature chose. See id.
The unambiguous meaning of proposed is to “intend," “suppose," or “to offer for consideration, discussion,
acceptance, or adoption." See Webster's Third New Int'l Dictionary 1819 (1993). Thus, the plain language of
subsection (h) requires a showing of an (1) infrastructure that is intended to be used as the interconnection or
(2) interconnection offered for consideration as the interconnecting infrastructure.
Contrary to appellants' argument, the plain unambiguous language of subsection (h) does not require that the
“proposed interconnection" be formally dedicated by or filed or platted with the county. Moreover, the plain
unambiguous language of subsection (h) does not require that the “proposed interconnection" be recently
dedicated or platted. We conclude that the plain unambiguous meaning of “proposed interconnection" under
subsection (h) is infrastructure that is intended to be used as the interconnection or an interconnection
offered for consideration as the interconnecting infrastructure.
With respect to the evidence produced on the proposed interconnection between Hill Forest Manor and the
Jackson property, appellants relied on the affidavit of County Commissioner Bill Pendley, who voted to grant
appellants' application for cancellation. Pendley indicated that there was “no proposal pending before the
Commissioners Court with regard to making an interconnection between the Jackson property and Hill Forest
Manor." Appellants also argue that no proposals or plats had been filed for an interconnecting infrastructure
between Hill Forest Manor and the Jackson property.
Disputing appellants' evidence, appellees submitted the minutes and transcript from the hearing before the
commissioners court, together with the affidavits of Betty Shiflett, John Bertling, and Pam Finke. The hearing
minutes and transcript reflect that Hill Forest Manor was platted with the “intent to leave a road that could" be
used to access the Jackson property and that “Hill Forest Lane was platted up to the Jackson property with
this in mind." Appellees argue that because Hill Forest Lane was originally platted up to the Jackson property,
in part, to provide access to the Jackson property, Hill Forest Lane is the proposed interconnection between
Hill Forest Manor and the Jackson property and that cancelling the last 134 feet of Hill Forest Lane connecting
Hill Forest Manor to the Jackson property would prevent interconnection between the properties.
We find that the Pendley affidavit and the hearing minutes and transcript submitted by the parties create a
genuine issue of material fact as to whether there is a proposed interconnection of infrastructure between Hill
Forest Manor and the Jackson property, namely, whether Hill Forest Lane, a platted county road, is a
“proposed interconnection of infrastructure" between Hill Forest Lane and the Jackson property and whether
cancellation of the last 134 feet of Hill Forest Lane would prevent that proposed interconnection. Having
found a genuine issue of material fact on the first subsection (h) requirement, we now turn to the second
requirement.
2. Pending or Existing Development
Appellants also rely on the Pendley affidavit to support their contention that there was no pending or existing
development on the Jackson property. Pendley attested in his affidavit that there was “no subdivision or
development of any kind" on the Jackson property and Clifford Jackson told Pendley that he, Clifford Jackson,
“was not going to develop his land because he was too old, [but] . . . wanted to keep the option open."
Appellees attempted to dispute appellants' evidence by asserting an intent to develop the Jackson property.
Appellees also cite to portions of the hearing transcript presenting evidence of a pending or existing
development on the property. The cited portions of the transcript reflect that the Jacksons had prepared
unrecorded plats dividing their land into separate tracts and that they had been selling those partitioned
tracts. We find that this evidence compared with the Pendley affidavit creates a genuine issue of material fact
as to whether there is a pending or existing development on the Jackson property. Because there are
genuine issues of material fact as to whether subsection (h) applies, neither party is entitled to summary
judgment.
The evidence submitted for summary judgment does not conclusively prove that subsection (e) applies.
Appellants, therefore, did not meet their burden of proof and were not entitled to mandamus as a matter of
law. Accordingly, we overrule appellants' first and third issues. Moreover, appellees were not entitled to
summary judgment because genuine issues of material fact precluded such relief. The evidence reflects a
factual dispute as to whether subsection (h) applies, which ultimately determines whether appellants are
entitled to mandamus relief against appellees. Accordingly, we sustain appellants' fourth issue.[7]
C. Motion for Sanctions
In their last issue, appellants argue that the trial court erred in denying their motion for sanctions. Below,
appellants filed a motion for sanctions against appellees and county attorney Jon C. Fultz, asserting multiple
grounds, including filing groundless pleadings for improper purposes and in bad faith and making false and
misleading representations to the court. Appellants requested sanctions pursuant to Rule 13 of the Texas
Rules of Civil Procedure and section 10.001 of the Texas Civil Practice and Remedies Code. See Tex. R. Civ.
P. 13; Tex. Civ. Prac. & Rem. Code § 10.001.
A trial court's ruling on a motion for sanctions is reviewed under an abuse-of- discretion standard. Cire v.
Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The test for abuse of discretion is not whether, in the opinion
of the reviewing court, the facts present an appropriate case for the trial court's action, but whether the court
acted without reference to any guiding rules and principles. Id. at 838-39. Civil procedure rule 13 authorizes
sanctions against an attorney, a represented party, or both if the evidence establishes a pleading is either (1)
groundless and brought in bad faith, or (2) groundless and brought to harass. Tex. R. Civ. P. 13. Groundless
“means no basis in law or fact and not warranted by good faith argument for the extension, modification, or
reversal of existing law." Id.
Sanctions under chapter 10 of the Civil Practice and Remedies Code are authorized if the evidence
establishes that (1) a pleading or motion was brought for an improper purpose, (2) there were no grounds for
legal arguments advanced, or (3) a factual allegation or denial lacked evidentiary support. Tex. Civ. Prac. &
Rem. Code § 10.001. Furthermore, we must presume that the challenged pleadings were filed in good faith.
Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Thottumkal v. McDougal, 251 S.W.3d 715, 718 (Tex. App.-
Houston [14th Dist.] 2008, pet. denied). The party seeking sanctions bears the burden of overcoming the
presumption of good faith in the filing of pleadings. Low, 221 S.W.3d at 614.
Appellants sought sanctions based primarily upon their belief that appellees filed pleadings and affidavits
containing false and misleading statements. Appellants also argue on appeal that they were entitled to
sanctions against appellees because appellees did not respond to their motion for sanctions. The motion filed
with the trial court sought sanctions for appellants' belief that the pleadings and affidavits asserted false and
misleading statements. However, those beliefs were not supported by sufficient evidence. Although
appellants accompanied their sanctions motion with exhibits, the evidence did not establish that appellees
knowingly filed pleadings with false or misleading statements or knowingly filed false affidavits. The sanctions
evidence simply controverts appellees' position in the mandamus proceeding. Appellees' motion essentially
sought sanctions for their disagreement with the factual and legal assertions made by appellees, which does
not warrant sanctions.
Therefore, we cannot conclude on the record before us that appellees' claims, pleadings, or evidence had no
basis in law or fact or that the pleadings were not supported by a good faith argument. Further, we cannot
conclude that appellees acted in bad faith or for the purpose of harassment or for any improper purpose in
attempting to defend against appellants' petition for writ of mandamus. Accordingly, the trial court did not
abuse its discretion in denying appellants' request for sanctions. We overrule appellants' fifth issue.
IV. CONCLUSION
We overrule appellants' first, second, third, and fifth issues. Further, we sustain appellants' fourth issue,
reverse the summary judgment in favor of appellees, and remand to the trial court for further proceedings
consistent with this opinion.[8]
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Yates and Frost. (Frost, J. dissenting).
[1] See Tex. Loc. Gov't Code § 232.008(e).
[2] See id.
[3] Id. § 232.008(h).
[4] District courts have jurisdiction to review and issue writs of mandamus against a commissioners court. Section 24.020 of
the Texas Government Code provides that “[t]he district court has appellate jurisdiction and general supervisory control over the
commissioners court . . ." Tex. Gov't Code § 24.020. Furthermore, the Texas Constitution and the Government Code authorize
the district court to “grant writs of mandamus . . . and all other writs necessary to the enforcement of the court's jurisdiction."
Tex. Const. art. V, § 8; Tex. Gov't Code § 24.011; see also Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104,
109 (Tex. 1981) (acknowledging that district courts are vested with original mandamus jurisdiction over county officials and
“general supervisory control over the orders of the commissioners court").
[5] Appellants argue that mandamus should be granted exclusively on appellees' failure to file a verified response to the
petition for writ of mandamus. After appellants filed their petition with the trial court, appellees filed a general unverified denial
and, later, an amended verified answer specifically denying the petition's allegations. Appellants argue that because appellees
failed to file a verified response, we must take the allegations in the petition as true and grant mandamus based exclusively on
appellees' failure to file a verified response. See Patton v. Terrell, 101 Tex. 221, 105 S.W.1115, 1116 (1907); Sansom v. Mercer,
68 Tex. 488, 5 S.W. 62, 65B66 (1887). Contrary to appellants' assertions, appellees disputed the petition's allegations with a
verified amended answer specifically contesting the allegations set for in the petition. Accordingly, we find that appellants are
not entitled to mandamus on this basis.
[6] Subsection (h) applies only to land subdivided or plats filed on or after its effective date of September 1, 1999. See Act of
May 5, 1999, 76th Leg., R.S., ch. 129, § 8, secs. 7, 10, 1999 Tex. Gen. Laws 574, 578. Because neither party challenges the
applicability of subsection (h) on the basis of its September effective date, we do not review the applicability of subsection (h) on
this ground.
[7] In their second issue, appellants challenge the affidavits of Betty Shiflett, John Bertling, and Pam Finke on the basis that they
contain conclusory statements. Having found that the hearing transcript alone, which is not challenged on appeal and is relied
upon by both parties, creates a genuine issue of material fact and, thus, precludes summary judgment for either party, we need
not address the propriety of the affidavits submitted by appellees. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753B55
(Tex. 1995) (concluding that successful evidentiary challenge requires a showing that the judgment turned on the complained-
of evidence). Accordingly, we overrule issue two.
[8] Our colleague contends that we should reverse and remand based upon the statutory language of 232.008(b). However,
appellants made no complaint in their briefing under subsection (b). Because we cannot reverse a judgment in a civil case
based upon unassigned error, we can neither analyze this case under subsection (b) nor reverse and remand under this
subsection. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (per curiam); Exxon Mobil Corp. v. Hines, 252 S.W.3d
496, 507 (Tex. App.-Houston [14th Dist.] 2008, pet. denied).