AFFIRMED IN PART AND REVERSED AND REMANDED IN PART,

Opinion Filed April 30, 1996

In The

(&aurl of Appeals

3fiftlf Itstrtrt at Qkxas at Dallas

No. 05-95-00281-CV

COLLIN COUNTY, Appellant

V.

COY JOHNSON, ET AL., Appellees

On Appeal from the 354th District Court

Hunt County, Texas

Trial Court Cause No. 54,955

OPINION

Before Justices Morris, James, and Hankinson

Opinion By Justice James

Collin County appeals a summary judgment in favor of Coy Johnson, William Don

Watson, and NadineWatson. In eightpoints of error, Collin County contends generally the

trial court erred in granting summary judgment because: (1) the motion for summary

judgment did not address all of Collin County's claims; (2) Collin County had a statutory
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lien and a contract with the insured giving it a subrogation right; (3) Collin Countywas not

required to intervene in the underlying lawsuit; (4) the doctrine of collateral estoppel does

not apply; and (5) there was no evidence or, alternatively, insufficient evidence to show

Nadine's damages exceeded her recovery. Collin County also contends the trial court erred

in denying its motion for summary judgment. We affirm in part and reverse and remand

in part.

BACKGROUND

William Watson was an employee of Collin County. William received health

insurance for himself and hiswife, Nadine, from the Collin CountyInsurance Fund. Nadine

was injured in an automobile accident on August 10, 1989. The Collin County Insurance

Fund paid Nadine's medical expenses in the amount of$30,279.82. On February 12, 1990,

William signed a subrogation agreement in connection with the injuries suffered byNadine.

Nadine filed a personal injury lawsuit against Texoma Advertising Co.,Inc. and Jerry

Andrew Rodaway. William was not a party to this lawsuit. By letter dated February 22,

1990, Collin County notified theWatsons andAmerican StatesInsurance Company, Texoma

Advertising's insurer, of its subrogation interest. A mediation session was scheduled for

September 26, 1992. On September 24, 1992, Kevin Martin, Risk Manager for Collin

County, sent an overnight letter to Johnson, Nadine's attorney. Martin's letter notified

Johnson of Collin County's subrogation interest.

The personal injury lawsuit settled for $275,000. The parties put $30,279.82 into the

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registry of the court. Shortly after the mediation, Collin County contacted American States

and learned that the money had been placed into the registry of the court. On October 6,

1992, Nadine filed a motion to release funds. The trial court granted the motion and

released the $30,279.82 to Nadine.

Martin sent letters to Johnson on December 1, 1992 and January 4, 1993 inquiring

why Collin County had not received the $30,279.82 that had been placed in the registry of

the court. Johnson sent a reply letter on January 8, 1993 stating that the trial court had

released the funds to Nadine. On February 26, 1993, Martin sent Johnson a letter

demanding payment of $30,279.82. This lawsuit followed. Appellees and Collin County

both moved for summary judgment. The trial court granted appellees' motion and denied

Collin County's motion.

STANDARD OF REVIEW

The standard of review in a summary judgment case is well established. See Tex. R.

Civ. P. 166a(c); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Rodriguez v. Naylor

Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989); Nixon v. Mr.Property Management Co., Inc.,

690 S.W.2d 546, 548-49 (Tex. 1985); Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983);

City ofHouston v. ClearCreekBasin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979); Gulbenkian

v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). When the trial court does not

specify the grounds upon which it grants summary judgment, we affirm the trial court's

judgment if any of the movant's grounds support the summary judgment. Carr v. Brasher,

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776 S.W.2d 567, 569 (Tex. 1989). If a movant does not show its entitlement to judgment

as a matter of law, we must remand the case to the trial court. Gibbs v. General Motors

Corp., 450 S.W.2d 827, 829 (Tex. 1970).

When both parties move for summary judgment, each party "bears the burden of

establishing that it is entitled to judgment as a matter of law." Guynes v. Galveston County,

861 S.W.2d 861, 862 (Tex. 1993). However, if the trial court grants one motion and denies

the other, we may render the judgment the trial court should have rendered. Jones v.

Strauss, 745 S.W.2d 898, 900 (Tex. 1988).

JOHNSON AND THE WATSON'S MOTION FOR SUMMARY JUDGMENT

In its first point of error, Collin County contends generally that the trial court erred

in granting appellees' motion for summary judgment. Appellees moved for summary

judgment on the grounds of failure to intervene, collateral estoppel, and no right of

equitable subrogation.

A. Intervention

In its fourth point of error, Collin County contends the trial court erred in granting

summary judgment because it was not required to intervene in the underlying personal injury

lawsuit. We agree. Appellees did not cite any authority for this proposition in the trial

court. Our own research fails to find a case requiring intervention in a fact situation similar

to this case. Collin County relies on a worker's compensation case holding that intervention

is not necessary. Travelers Ins. Co. v. Seidel, 705 S.W.2d 278, 281 (Tex. App.—SanAntonio

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1986, writ dism'd). Seidel points to the fact that the statute providing worker's

compensation carriers with the right to reimbursement is silent as to intervention. Id. Here,

too, the statute providing political subdivisions with a right to subrogation is silent as to

intervention. See Tex. Loc. Gov't Code Ann. § 172.015 (Vernon Supp. 1996). Because

case law does not require intervention in this situation and the statute providing the right

to subrogation is silent as to intervention, we conclude Collin County was not required to

intervene in the underlying lawsuit in order to bring a subrogation action. Collin County's

fourth point of error is sustained.

B. Collateral Estoppel

In its fifth point of error, Collin County contends the trial court erred in granting

summary judgment because it was not collaterally estopped from seeking subrogation. To

invoke the doctrine of collateral estoppel, a party must establish: (1) the facts sought to be

litigated in the present action were fully and fairly litigated in the prior action; (2) those

facts were essential to the judgment in the first action; and (3) the parties were cast as

adversaries in the first action. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.

1984).

In applying these factors, we conclude the doctrine of collateral estoppel does not

apply to this case. First, although Collin County's subrogation right was litigated at the

hearing on the motion to release funds, Collin County was not present at that hearing nor

was it informed of the hearing. Second, Collin County's subrogation right was not essential

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to the judgment in Nadine's personal injury action. Third, the parties were not cast as

adversaries in the first action because Collin County was not a party to the first action. The

factors necessary to invoke the doctrine of collateral estoppel do not exist in this case. The

trial court erred in granting appellees' motion for summary judgment on the ground that

Collin County is collaterally estopped from seeking subrogation. We sustain Collin County's

fifth point of error.

C. Equitable Subrogation Right

In Collin County's seventh point of error, it contends the trial court erred in granting

summary judgment on the ground that it does not have an equitable right of subrogation.

Appellees contend Collin County has no equitable right of subrogation because Nadine's

damages exceeded her recovery.

Insurers have a right of equitable subrogation to prevent an insured from receiving

a double recovery. Ortiz v. Great Southern Fire &Cas. Ins. Co., 597 S.W.2d 342, 343 (Tex.

1980). An insurer's right to subrogation derives from the rights of the insured and is limited

to those rights. Interstate FireIns. Co. v. First Tape, Inc., 817 S.W.2d 142, 145 (Tex. App.-

Houston [1st Dist.] 1991, writ denied). Recovery of medical expenses is community

property. Graham v. Franco, 488 S.W.2d 390, 396 (Tex. 1972); Dawson v. Garcia, 666

S.W.2d 254, 266 (Tex. App.--Dallas 1984, no writ). Assuming Nadine did recover for past

medical expenses, then William did receive a double recovery and Collin County does have

a subrogation right.

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Collin County has the burden to show that Nadine did recover for past medical

expenses. See Ortiz, 597 S.W.2d at 344. In Ortiz, a fire damaged the Ortiz home and its

contents. The Ortizes purchased a fire insurance policy on their house from Great Southern

Fire and Casualty Insurance Company. They did not purchase insurance covering the

contents of their house. Great Southern paid $4,000 for repairs to the house. The Ortizes

sued Stacy-Mason, Inc. alleging the fire was caused by the negligent placement of carpet

padding. They alleged damages in the amount of at least $4,000 to their house and at least

$11,614 to their personal property.

The parties settled for $10,000. The trial court granted Great Southern's subrogation

claim for $4,000. Id. at 343. The court of appeals affirmed. The supreme court reversed,

holding that an insurer is not entitled to subrogation if the insured's loss is in excess of the

amounts recovered from the insurer and the third party causing the loss. Id. However, if

any portion of the settlement agreement is intended as compensation for damage covered

by the insurer, the insurer would be entitled to subrogation to the extent that the sum of

insurance collected plus the amount allocated in the settlement agreement to the covered

damage exceeded the insured's loss. Id. at 344. It is the insurer's burden to show what

amount, if any, of the settlement proceeds was allocated to the covered loss. Id. Because

Great Southern failed to show what portion, if any, of the $10,000 settlement was allocated

for real property loss, it did not have a subrogation right to the settlement proceeds. Id.

We do not know what damages Nadine sought in her lawsuit. In her motion to

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release funds, Nadine outlined damages in excess of $1million. Of that amount, $43,101.01

was for past medical expenses. Nadine settled for $275,000. Collin County had the burden

to show what portion, if any, of that settlement amount was intended as recovery for past

medical expenses. See Ortiz, 597 S.W.2d at 344.

Appellees contend that equitable subrogation does not apply in this case because

Nadine's damages exceeded her recovery. After the parties settled, $30,279.82 was placed

into the registry of the court. That amount was the exact amount that the Collin County

Insurance Fund paid for Nadine's medical expenses. Collin County contends that the

placement of the moneyinto the registry of the court shows that $30,279.82 of the $275,000

settlement was allocated for past medical expenses. We conclude that a fact issue has been

raised precluding summary judgment on this ground. We sustain Collin County's seventh

point of error.

D. Conclusion

We conclude the trial court erred in granting appellees' motion for summary

judgment. Accordingly, we sustain Collin County's first, fourth, fifth, and seventh points of

error. Because of our disposition of these points of error, we do not reach Collin County's

second, third, and sixth points of error.

COLLIN COUNTY'S MOTION FOR SUMMARY JUDGMENT

In its eighth point of error, Collin County complains of the denial of its motion for

summary judgment. In its second amended petition, Collin County raised nine causes of

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action: (1) breach of contract by William; (2) tortious interference by all appellees; (3)

violation of the deceptive trade practices act by Johnson; (4) fraud by all appellees; (5)

conversion by all appellees; (6) negligence by all appellees; (7) negligent and intentional

misrepresentation by all appellees; (8) civil conspiracy by all appellees; and (9) attorney

malpractice by Johnson. Collin County sought summary judgment on all of its claims.

The summary judgment evidence consisted of: (1) the subrogation agreement signed

by William; (2) the February 22, 1990 letter from Martin to American States; (3) the

September 24, 1992overnight letter from Martin to Johnson; (4) the December 4, 1992 and

January 4, 1993 letters from Martin to Johnson; (5) the January 8, 1993 letter from Johnson

to Martin with both motion and order to release funds attached; (6) the January 20, 1993

letter from Martin to Johnson; (7) the Martin affidavit; and (2) the two Johnson affidavits.

A. Attorney Malpractice

Collin County contends Johnson was negligent, committing attorney malpractice.

Specifically, Collin County contends Johnson was negligent in: (1) failing to tender the

$30,279.82 owed to Collin County; (2) failing to inform Collin County that Nadine filed a

motion to release funds; (3) failing to advise Collin County of a conflict of interest; (4)

failing to pay the money recovered on Collin County's behalf upon request; (5) failing to

advise Collin County he would not represent it at the mediation; and (6) failing to advise

Collin County that he would not undertake representation of Collin County. Johnson

counters that he never had an attorney-client relationship with Collin County.

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%,,*>"

A cause of action for attorney malpractice is based on negligence. Cosgrove v.

Grimes, 11A S.W.2d 662, 664 (Tex. 1989). To maintain an attorney malpractice action

against Johnson, Collin County had to establish that it was Johnson's client. Parker v.

Carnahan, 772 S.W.2d 151, 156 (Tex. App.-Texarkana 1989, writ denied). The legal

relationship of attorney and client is purely contractual and results from the mutual

agreement and understanding of the parties concerned. Id. The attorney-client relationship

may be either express or implied from the conduct of the parties. Id. It is sufficient if both

parties, explicitly or by their conduct, manifest an intention to create an attorney-client

relationship. Id.

In the absence of evidence that an attorney knew that the parties had assumed that

he was representing them in a matter, the attorney has no affirmative duty to inform the

party that he is not the party's attorney. Dillardv.Broyles, 633 S.W.2d 636, 643 (Tex. App.-

-Corpus Christi 1982, writ refd n.r.e), cert, denied, 103 S. Ct. 3539 (1983). An attorney

may be obligated to inform a party he is not representing the party even though no facts

prove an attorney-client relationship. See Parker, 772 S.W.2d at 157. This duty to advise

arises if the fact finder determines that the attorney was aware or should have been aware

that the attorney's conduct would have led a reasonable person to believe that he was being

represented by the attorney. Id. Where there is no evidence that the attorney was aware

the party assumed that he was the party's attorney in the matter, no duty to affirmatively

deny the representation arises. Dillard, 633 S.W.2d at 643.

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To support its position that an attorney-client relationship existed, Collin County

relies on Martin's affidavit, Martin's September 24, 1992 letter to Johnson, and the motion

to release funds. In his affidavit, Martin states that it was his understanding and good faith

belief that Johnson represented Collin County at the mediation. Martin's good faith belief

was apparently based on Johnson's failure to decline to represent Collin County. Two days

prior to the mediation, Collin County sent its first letter to Johnson informing him of its

subrogation interest. This letter states, in part, "We wish to recover the amount we have

paid out, along with any attorney fees you may be charging us for this recovery." Collin

County also relies on the language in the motion to release funds that alternatively requests

recovery of attorney's fees in the event the trial court determined that Collin County was

entitled to a subrogation right.

Johnson filed two counter affidavits, one attached to appellees' motion for summary

judgment and the other attached to their response to Collin County's motion for summary

judgment. In his affidavits, Johnson denies the existence of an attorney-client relationship.

Johnson always stated to any representative of Collin County that he was not representing

Collin County. Johnson stated that the money was placed into the court registry at the

insistence of Texoma Advertising and Rodaway. Johnson and Nadine consistently

maintained that Collin County did not have a subrogation interest in the money.

The record is devoid of any facts that Johnson knew or should have known Collin

County believed Johnson represented it in the mediation or thereafter. Johnson was one

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ofseveral persons Collin County advised ofits subrogation interest. Collin County contacted

American States Insurance more than two years prior to contacting Johnson. After the

mediation, Collin County contacted American States Insurance, not Johnson, to determine

the outcome. This conduct ofCollin County indicates that it waslooking to American States

Insurance rather than to Johnson to protect its subrogation interest.

This evidence fails to establish as a matter of law that Collin County and Johnson,

through their conduct, manifested an intent to create an attorney-client relationship. This

evidence also fails to establish as a matter of law that Johnson had an affirmative duty to

inform Collin County that he was not its attorney. See Dillard, 633 S.W.2d at 643. Because

Collin County failed to prove as a matter of law that an attorney-client relationship exists

between Johnson and Collin County, Collin County is not entitled to summary judgment on

its claim of legal malpractice.

B. Violation of the Deceptive Trade Practices Act

Collin County contends Johnson violated the deceptive trade practices actwhen (1)

he represented to Collin County that he would represent its interests at the mediation and

(2) he filed the motion to release funds and obtained an orderreleasing the funds to Nadine

without giving Collin County prior notice. A party maybe held liable under the deceptive

trade practices act if: (1) he fails to disclose information to a consumer concerning services

which was known at the time of the transaction; (2) if such failure was intended to induce

the consumer into a transaction; and (3) the consumer would not have entered into the

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transaction had the information been disclosed. Tex. Bus. & Com. Code Ann. § 17.46 (a)

& (b)(23) (Vernon 1987 & 1996Supp.). A consumer is someone who seeks or acquires by

purchase or lease, anygoods or services. Tex. Bus. & Com. Code Ann. § 17.45 (4) (Vernon

1987). The deceptive trade practices act does include legal services. DeBakey v. Staggs, 612

S.W.2d 924, 925 (Tex. 1981) (per curiam). A consumer of legal services is someone who

either purchases or has an agreement to purchase legal services. See Roberts v.Burkett, 802

S.W.2d 42, 47 (Tex. App.-Corpus Christi 1990, no writ).

We previously held that Collin County failed to prove an attorney-client relationship

existed between itself and Johnson. Collin County has likewise failed to prove as a matter

of law that it either purchased or had an agreement to purchase legal services from Johnson.

See Roberts, 802 S.W.2d at 47. Without proving consumer status, Collin County was not

entitled to summary judgment on its cause of action under the deceptive trade practices act.

C. Breach of Contract

Collin County asserts William breached the contract when Nadine obtained the

release of the funds from the registry of the court. Collin County had a subrogation

agreement with William. Pursuant to that agreement, William agreed to repay the Collin

County Insurance Fund any money he or his dependent may recover from a third party as

reimbursement for medical expenses paid by Collin County. The elements of a breach of

contract claim are: (1) a contract between the parties; (2) a breach by the defendant; and

(3) damages resulting from the breach. Snyder v. EanesInd. SchoolDist., 860 S.W.2d 692,

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695 (Tex. App.-Austin 1993, writ denied).

William's duty under the subrogation agreement was to repay the Collin County

Insurance Fund in the event he or Nadine recovered from a third person for the damages

Nadine sustained in the August 10, 1989 automobile accident. Collin County alleged

William breached his agreement when the $30,279.82 was released to Nadine. Nadine's

obtaining the release of the money did not constitute a breach of the subrogation agreement

by William, because William's duty under his contract with Collin County arose only after

he or Nadine received the funds. Because Collin County failed to allege facts to establish

a breach of William's contract with Collin County, the trial court properly denied Collin

County's motion for summary judgment on its breach of contract cause of action.

D. Tortious Interference

Collin County contends Johnson, acting with malicious intent, induced William to

breach his subrogation agreement, damaging Collin County in the amount of $30,279.82.

Further, Collin County alleges that appellees conspired by concerted action to cause the

breach of contract that resulted in its damages.

To establish tortious interference with a contract, a plaintiff must show: (1) a

contract existed that is subject to interference; (2) the act of interference was willful and

intentional; (3) such intentional act was a proximate cause of the plaintiff's damages; and

(4) actual damage occurred. Central Savings &Loan Ass'n v. Stemmons Northwest Bank,

NA., 848 S.W.2d 232, 241 (Tex. App.-Dallas 1992, no writ). A person cannot tortiously

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interfere with his own contract. Frost Nat'I Bank v. Matthews, 713 S.W.2d 365, 369 (Tex.

App.—Texarkana 1986, writ ref'd n.r.e.).

The summaryjudgment record is devoid of any evidence of a willful interference with

the subrogation agreement. Collin County failed to establish as a matter of law the

necessary elements of its tortious interference cause of action. The trial court properly

denied summary judgment on Collin County's tortious interference cause of action.

E. Fraud

Collin County contends all appellees committed fraud when they concealed the

motion to release funds. The elements of fraud are: (1) a material representation, which

was false, and which was either known to be false when made or was asserted without

knowledge of its truth; (2) that was intended to be acted upon; (3) that was relied upon;

and (4) that caused injury. Sears, Roebuck &Co. v. Meadows, 877 S.W.2d 281, 282 (Tex.

1994) (per curiam).

The summary judgment evidence shows that Johnson, on behalf of Nadine, filed a

motion to release funds and that Collin County was unaware of the filing. This evidence

alone does not establish as a matter of law the elements of fraud. The trial court properly

denied summary judgment on Collin County's cause of action for fraud.

F. Conversion

Collin County contends appellees committed conversion when they obtained release

of the $30,279.82 that had been set aside for Collin County. Conversion is the wrongful

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exercise of dominion and control over another's property in denial of or inconsistent with

his rights. Tripp Village Joint Venture v. MBank Lincoln Centre, 11A S.W.2d 746, 750 (Tex.

App.—Dallas 1989, writ denied). An action for conversion of money will lie if the money

can be identified as a specific chattel. Edlund v. Bounds, 842 S.W.2d 719, 727 (Tex. App.-

Dallas 1992, writ denied). An action for conversion of money will not lie if an indebtedness

can be discharged by the payment of money generally. Id.

Nadine consistently disputed Collin County's right to the $30,279.82 in the court's

registry. Collin County's claim for conversion fails because it failed to establish ownership

of the funds in the court's registry. Accordingly, the trial court properly denied summary

judgment on Collin County's cause of action for conversion.

G. Negligence

Collin County contends appellees were negligent in failing to notify it of the motion

to release funds and the hearing on the motion to release funds. The elements of negligence

are a duty owed by one person to another, a breach of that duty, and damages proximately

caused by the breach. Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994). The summary

judgment evidence fails to establish as a matter of law that appellees had a duty to notify

Collin County of the motion to release funds and the hearing thereon. For this reason, the

trial court properly denied Collin County's motion for summary judgment on its negligence

cause of action.

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...... ^*es#

H. Misrepresentation

Collin County contends that appellees' conduct in obtaining release ofthe $30,279.82

from the trial court's registry constituted misrepresentation. The elements of

misrepresentation are: (1) the representation is made by the defendant in the course of its

business or in a transaction in which it has a pecuniary interest; (2) the defendant supplies

false information as a guide to others; (3) the defendant did not exercise reasonable care

in obtaining or communicating the information; and (4) the plaintiff incurs damages by

justifiably relying on the representation. First Interstate Bank ofTexas v. SB.F.L, Inc., 830

S.W.2d 239, 245 (Tex. App.-Dallas 1992, no writ).

The summary judgment evidence does not establish as a matter oflaw that appellees

supplied false information to either Collin County orthe trial court. Collin County did not

establish its entitlement to summary judgment onits misrepresentation cause ofaction. The

trial court properly denied Collin County's motion for summary judgment on its

misrepresentation claim.

I. Conspiracy

Collin County contends appellees committed civil conspiracy by making claims for

medical payments under the Collin County Insurance Fund, claiming to represent Collin

County's interest at the mediation, and filing a false motion to release funds. The elements

of civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) a

meeting of the minds on the object or course of action; (4) one or more unlawful, overt

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acts; and (5) damages as a proximate result. Central Savings &Loan Ass'n, 848 S.W.2d at

241.

The summaryjudgment evidence does not establish as a matter of law that appellees

engaged in any unlawful act. There is no evidence that the motion to release funds

contained false statements. The evidence before the trial court at the summary judgment

hearing did not establish Collin County's entitlement to summary judgment on its civil

conspiracy cause of action.

We conclude the trial court properly denied Collin County's motion for summary

judgment. We overrule Collin County's eighth point of error.

CONCLUSION

We affirm that portion of the trial court's judgment denying Collin County's motion

for summary judgment. We reverse that portion of the trial court's judgment granting

appellees' motion for summary judgment. We remand this cause to the trial court for

proceedings consistent with this opinion.

Do Not Publish

Tex. R. App. P. 90

950281F.U05

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