Opinion issued August 30, 2012

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00675-CV

———————————

BRYAN L. SIMS, Appellant

V.

LOUISIANA TRANSPORTATION, INC., Appellee

On Appeal from the County Court at Law No. 2

Harris County, Texas

Trial Court Case No. 931,244

MEMORANDUM OPINION

Appellant, Bryan Sims, challenges the trial court’s judgment, entered after a 

jury trial, in favor of appellee, Louisiana Transportation, Inc. (“LTI”), in LTI’s suit 

against Sims for breach of contract. In two issues, Sims contends that the evidence 
2

is legally and factually insufficient to support the jury’s findings that LTI’s breach 

of contract was excused and his breach of contract was not excused. 

We affirm. 

Background

On January 4, 2007, LTI, which operates a transportation business, entered 

into a Consultant’s Agreement with Sims for him, as an independent contractor, to 

provide LTI consulting services in LTI’s development of a “break bulk” business.

LTI agreed to pay Sims $6,234 per month “for each month worked,” reimburse 

him for reasonable business expenses, and pay him a bonus of one-half percent to 

one percent of certain revenue if he achieved a sales target minimum of $1,250,000 

per quarter. The Consultant’s Agreement was for a one-year term, which would

renew annually. In the event that either party desired to terminate the agreement, 

“cancellation [would] require 30 day written notice.” 

Two days after executing the Consultant’s Agreement, Sims executed a 

Demand Promissory Note as “an addendum to the Consulting Agreement,” which 

evidenced that LTI had agreed to “loan” him $20,000. The Promissory Note 

provided,

PAYBACK AMOUNT $20,000 plus interest due 12/31/07 less and 

except any principal amounts deducted pursuant to bonus 

compensation distribution set forth in [the] Consulting Agreement 

unless termination of Consulting Agreement at which time Demand 

Promissory Note is in default and hereinabove default provisions

would be in force. It is agreed and understood that loan funding will 
3

be in 4 installments of $5,000 distributed on the tenth day of each 

month until fully funded. 

The Promissory Note further provided that the “entire principal and any accrued 

interest shall be fully and immediately payable UPON demand of any holder 

thereof.” Sims authorized LTI “to deduct the payback amount” from his “bonus 

compensation to be paid pursuant to the Consulting Agreement.”

On January 4, 2008, LTI and Sims executed a Renewal and Amendment to 

the Consultant’s Agreement, which provided that the Consultant’s Agreement was 

amended, among other things, to grant Sims a 2% commission in “all revenue . . .

in excess of the annual revenue budget in place for new accounting year.” The 

Renewal Agreement also reaffirmed that “[a]ll bonus proceeds [were] to be 

applied” to the Promissory Note.

On March 10, 2008, LTI sent Sims a letter stating that it had “elected to 

terminate and not renew” the Consultant’s Agreement. On March 18, 2008, LTI 

and Sims executed a Commissioned Agent Agreement, which provided that Sims 

would work for LTI in the capacity of a commissioned agent and his commission 

would be increased to 8%.

LTI subsequently filed suit against Sims, alleging that he had breached the 

Consultant’s Agreement and Promissory Note by not repaying the $20,000 loan. 

LTI sought to recover its damages in the amount of $20,000, plus interest and 

attorney’s fees. Sims filed verified and general denials and a counter-claim for 
4

breach of contract against LTI, alleging that LTI had agreed to pay him a “sign-on 

bonus” of $20,000. Sims further alleged that LTI had breached the Consultant’s

Agreement by not providing him 30-days’ notice of termination, not paying him

compensation in the amount of $56,106 “for the remaining months under the 

[Consultant’s] [A]greement,” and not reimbursing him for out-of-pocket expenses 

in the amount of $1,850. Sims also asserted a fraud claim against LTI, alleging 

that LTI had made material false representations to him. Sims sought actual and 

exemplary damages and attorney’s fees.

At trial, both parties introduced into evidence the relevant contractual 

documents described above. Additionally, Sims and Ralph Castille, vice president 

of LTI, testified. 

Sims testified that, under the Consultant’s Agreement, he had the ability to 

“earn” a bonus if he reached certain target sales goals. For example, if he made a 

quarterly sales target of $1,250,000, i.e., annual sales of $5 million, he was entitled 

to receive a bonus of approximately $25,000 for the year. Sims agreed that the 

express terms of the Promissory Note reflected that he owed LTI $20,000 less any 

amount deducted for any bonus compensation he earned; if he earned a bonus, it 

“would go to pay this note”; he would be in default of the Promissory Note if he 

failed to pay it; and “if [he] failed to earn a bonus, [he] still owed the $20,000 to 

[LTI].” Sims acknowledged that he received the $20,000 from LTI in four 
5

separate monthly payments of $5,000, he had never paid LTI the $20,000 or earned 

any portion of it, and LTI had demanded repayment. He also agreed that he had 

sold “far short” of the $5 million sales target under the Consultant’s Agreement in 

2007, he had not been paid any bonuses for 2007, and he had never asked for a 

bonus for his work in 2007.

Sims noted that the parties’ Renewal Agreement modified the Consultant’s

Agreement because they were not “making quite as much money” as expected. 

Sims explained that this occurred because LTI had him performing duties other 

than developing business. Under the Renewal Agreement, Sims’s bonus program 

was “reworked,” but any bonus he earned was still to be applied to the Promissory 

Note. Sims did not meet the sales targets in the Renewal Agreement or earn any 

bonus in 2008 prior to LTI’s termination of the contract.

Sims further testified that, despite the express terms of the above written 

documents, he and LTI had a different “oral agreement” that the $20,000 payment 

was actually a sign-on bonus that he was not required to repay, even though he 

never earned a bonus under the terms of the Consultant’s Agreement. Sims 

asserted that, prior to entering into the Consultant’s Agreement, he had asked for a 

sign-on bonus, and Castille told him, “[W]e can’t call it a bonus and we’ll have to 

call it” something else “to circumvent the people at headquarters.” Sims also 

asserted that because LTI had included the $20,000 payment in a 1099 tax form
6

that it submitted to the Internal Revenue Service (“IRS”), “it [was] no longer a 

loan.”

Sims stated that LTI terminated the Consultant’s Agreement on March 10, 

2008 without providing him a reason for doing so, and he orally complained that 

he had not been given 30-days’ notice. Sims noted that, in LTI’s contract 

termination letter, it did not make any mention of the outstanding loan. However, 

Sims agreed that, shortly after the contract terminated, he voluntarily entered into 

the Commissioned Agent Agreement with LTI. After entering into the 

Commissioned Agent Agreement, Sims did not send any business to LTI, and he 

agreed that he “dropped” the agreement. 

Sims asserted that LTI was indebted to him under the Consultant’s

Agreement for $1,850 for reimbursable expenses, and he introduced into evidence

a letter from LTI admitting that it owed him this amount. Sims agreed that LTI 

had paid him for every month that he had worked. He also agreed that the 

Consultant’s Agreement allowed either party to terminate the agreement at any 

time with 30-days’ notice. 

Castille testified that the $20,000 payment made by LTI to Sims was 

“always a loan” and LTI had agreed to provide it to Sims so that he could resolve

some personal tax liabilities. Castille explained that the Promissory Note was “tied 

to the bonus,” so that, if Sims achieved sales goals, any bonus revenue earned
7

under the Consultant’s Agreement would “retire a portion of the debt associated 

with the loan.” Castille noted that he had discussed this fact with Sims before he

signed the Promissory Note, and Sims “understood.” 

Castille stated that Sims never achieved the sales targets prescribed in the 

Consultant’s Agreement and Renewal Agreement, even though he had represented 

he could achieve them. And Sims never repaid the loan. Castille noted that LTI 

had been disappointed in Sims’s performance in 2007. Accordingly, LTI, in the 

Renewal Agreement, agreed to “focus” Sims’s duties, incentivize Sims by 

increasing his bonus percentage, and decrease Sims’s sales targets. Castille also 

noted that the Renewal Agreement also specifically mentioned applying Sims’s 

bonus proceeds to repay the Promissory Note. 

Castille explained that when Sims continued to underperform in 2008, LTI 

decided to terminate the Consultant’s Agreement, but LTI looked for 

“alternatives.” During Castille’s conversation with Sims in which he informed 

Sims that LTI intended to terminate the Consultant’s Agreement, he offered Sims

the opportunity to work with LTI as a commissioned agent. At that time, Sims told 

Castille that he would consider this offer. Shortly thereafter, Sims entered into the 

Commissioned Agent Agreement with LTI.

Castille acknowledged that LTI had not provided Sims 30-days’ notice

before terminating the Consultant’s Agreement, but he explained that this was 
8

because LTI was “interested” in pursing the “agency agreement” with Sims. 

Castille explained that the Commissioned Agent Agreement represented an 

“opportunity” for Sims and a “win-win” for both Sims and LTI. Castille noted 

that, under the Commissioned Agent Agreement, Sims could have achieved higher 

bonuses than he was previously entitled to receive under the other agreements. In 

light of Sims’s agreement to the change in the parties’ relationship, LTI did not

provide Sims 30-days’ notice or compensate Sims for any period following 

termination of the Consultant’s Agreement. And, at the time that he and Sims 

discussed termination of the Consultant’s Agreement and entering into the agency 

agreement, Sims did not raise any concern about not receiving 30-days’ notice. 

Rather, Sims understood that LTI’s offer of an agency agreement represented “a 

great opportunity” and Sims “agreed to the agency agreement with the valuable 

consideration that was being offered to him by taking” an existing “book of 

business” and “grow[ing] it to the levels” that Sims thought were achievable.

LTI offered, and the trial court admitted, into evidence an internal e-mail in 

which Castille had indicated to others at LTI that, if Sims ultimately chose not to 

enter into the Commissioned Agent Agreement, LTI could “discuss some debt 

forgiveness in lieu of notice.” Castille explained that, if Sims had not signed the 

Commissioned Agent Agreement, LTI was “going to honor the 30 day notice” and 
9

address compensation for that period, which would have been applied to the 

Promissory Note. 

In regard to LTI’s submission of the 1099 tax form to the IRS, Castille 

explained that the $20,000 payment had been included on the tax form because it

was “a loan tied to a bonus” and LTI’s accounting department instructed how the

payment should be handled for tax purposes. Castille noted that Sims had 

originally complained to him about LTI’s inclusion of the payment on the 1099 tax 

form because Sims considered it a “loan.” To Castille’s knowledge, LTI never 

issued a new 1099 tax form, and this issue remained with LTI’s “accounting and 

legal” departments. Castille acknowledged that LTI owed Sims approximately 

$1,850 in expenses, and he stated that this issue, along with the outstanding debt 

owed by Sims, was addressed by LTI’s legal department.

The jury found that both Sims and LTI failed to comply with the 

Consultant’s Agreement, “which included as an addendum the Demand 

Promissory Note.” The jury further found that Sims’s failure to comply was not 

excused but that LTI’s failure to comply was excused. The trial court had 

instructed the jury that Sims’s failure to comply was excused if (1) LTI 

“previous[ly] fail[ed] to comply with a material obligation of the same agreement”;

(2) LTI waived compliance; or (3)(a) LTI “by words or conduct made a false 

representation or concealed material facts,” “with knowledge of the facts or with 
10

knowledge or information that would lead a reasonable person to discover the 

facts,” and with the intention that [Sims] would rely on the false representation or 

concealment in acting or deciding not to act” and (b) Sims did not know and had 

no means of knowing the real facts and relied to his detriment on the false 

representation or concealment of material facts. The trial court had further

instructed the jury that LTI’s failure to comply was excused if (1) “compliance 

[was] waived by [Sims],”1(2) “the parties agreed that a new agreement would take 

[the Consulting Agreement’s] place,” or (3) Sims “previous[ly] fail[ed] to comply 

with a material obligation of the same agreement.” 

The jury awarded LTI damages in the amount of $18,150 for Sims’s breach, 

necessarily deducting the portion of reimbursable expenses that LTI had 

acknowledged that it owed to Sims. The jury also found that LTI had not 

committed fraud against Sims. And, the trial court entered judgment in favor of 

LTI, awarding it damages of $18,150 for breach of contract and its attorney’s fees, 

costs, and interest. 

Standard of Review

We will sustain a legal-sufficiency or “no-evidence” challenge if the record 

shows one of the following: (1) a complete absence of evidence of a vital fact, (2) 

 

1

The trial court had further instructed the jury that “[w]aiver is an intentional 

surrender of a known right or intentional conduct inconsistent with claiming the 

right.”
11

rules of law or evidence bar the court from giving weight to the only evidence 

offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no 

more than a scintilla, or (4) the evidence establishes conclusively the opposite of 

the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In 

conducting a legal-sufficiency review, a “court must consider evidence in the light 

most favorable to the verdict, and indulge every reasonable inference that would 

support it.” Id. at 822. If there is more than a scintilla of evidence to support the 

challenged finding, we must uphold it. Formosa Plastics Corp. USA v. Presidio 

Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). “‘[W]hen the 

evidence offered to prove a vital fact is so weak as to do no more than create a 

mere surmise or suspicion of its existence, the evidence is no more than a scintilla 

and, in legal effect, is no evidence.’” Ford Motor Co. v. Ridgway, 135 S.W.3d 

598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 

(Tex. 1983)). However, if the evidence at trial would enable reasonable and fairminded people to differ in their conclusions, then jurors must be allowed to do so. 

City of Keller, 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118 

S.W.3d 742, 751 (Tex. 2003). “A reviewing court cannot substitute its judgment 

for that of the trier-of-fact, so long as the evidence falls within this zone of 

reasonable disagreement.” City of Keller, 168 S.W.3d at 822.
12

In conducting a factual-sufficiency review, we must consider, weigh, and 

examine all of the evidence which supports and which is contrary to the jury’s 

determination. Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.

1989). We note that each party seeking to establish the affirmative defense of 

excuse for its failure to comply bore the burden of proof on that defense. See 

Trencor, Inc. v. Cornech Mach. Co., 115 S.W.3d 145, 153 (Tex. App.—Fort Worth 

2003, pet. denied) (citing TEX. R. CIV. P. 94) (stating that excuse is affirmative 

defense upon which defendant has burden of proof). When a party is challenging 

the factual sufficiency of a finding on an issue upon which that party had the 

burden of proof, that party must demonstrate that the adverse finding is against the 

great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 

S.W.3d 237, 242 (Tex. 2001). When a party attacks the factual-sufficiency of an 

adverse finding on an issue on which it did not have the burden of proof at trial, it 

must show that there is insufficient evidence to support the adverse finding. 

Vongontard v. Tippit, 137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004,

no pet.). The jury is the sole judge of the witnesses’ credibility and the weight to 

be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 

757, 761 (Tex. 2003).
13

LTI’s Breach

In his first issue, Sims argues that the evidence is legally and factually 

insufficient to support the jury’s finding that LTI’s failure to comply with the 

Consultant’s Agreement was excused because there is no evidence that he waived 

his right to recover under the Consultant’s Agreement, he failed to comply with a 

material obligation prior to LTI’s failure to comply, or he agreed to a novation of 

the Consultant’s Agreement.

In regard to waiver, Sims asserts that there is no evidence that he 

“intentionally relinquished his to right to recover his $1,850 in expense money,” 

his “compensation for the 30 day notice period in March 2007 for $6,234,” or his 

“remaining nine months of the Consultant’s Agreement totaling $56,106.” Sims 

notes that he testified that he was never told that, when LTI terminated the 

Consultant’s Agremeent and he agreed to enter into the Commissioned Agent 

Agreement, that agreement would “replace the Consultant’s Agreement thereby 

giving up his aforementioned rights.”

Waiver is the intentional relinquishment of a known right or intentional 

conduct inconsistent with claiming that right. Jernigan v. Langley, 111 S.W.3d 

153, 156 (Tex. 2003). To prove waiver, a party must show that the other party to 

the contract had knowledge of the right and remained silent or inactive for an 

unreasonable period of time or engaged in intentional conduct inconsistent with 
14

that right. Tenneco, Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 643 (Tex. 1996); 

Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987). The 

elements of waiver include (1) an existing right, benefit, or advantage held by a 

party; (2) the party's actual knowledge of its existence; and (3) the party's actual 

intent to relinquish the right, or intentional conduct inconsistent with the right. 

Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008). The 

question of waiver is ordinarily one of fact. Tenneco, 925 S.W.2d at 643. Because 

waiver is largely a matter of intent, a court must consider the words, acts, and

conduct of the parties. See Mandell v. Mandell, 214 S.W.3d 682, 692 (Tex. 

App.—Houston [14th Dist.] 2007, no pet.); Robinson v. Robinson, 961 S.W.2d 

292, 299 (Tex.App.-Houston [1st Dist.] 1997, no writ); see also EZ Pawn Corp. v. 

Mancias, 934 S.W.2d 87, 89 (Tex. 1996).

First, we note that LTI never disputed that it owed Sims $1,850 in 

reimbursable expenses under the Consultant’s Agreement. LTI acknowledged this 

amount in correspondence to Sims prior to litigation, and it continued to 

acknowledge this debt throughout the litigation and trial. However, LTI also 

presented evidence that it retained this payment in light of Sims’s refusal to honor 

his debt reflected by the Promissory Note. The jury necessarily found that the 

$20,000 payment from LTI to Sims constituted a loan or an advance that was to be 

earned pursuant to the Consultant’s Agreement or repaid by Sims. And, as 
15

discussed below, LTI presented ample evidence that the $20,000 payment 

consitued a loan for which LTI was entitled to recover. Second, the matters that 

the parties primarily contested at trial were whether the $20,000 payment 

represented a sign-on bonus and whether Sims was entitled to damages for LTI’s 

failure to provide 30-days’ notice of termination. Sims concedes in his appellate 

briefing that the jury found that LTI failed to comply “on the only ground . . .

alleged, that LTI terminated [the Consultant’s Agreement] without giving him 30 

days written notice.” Thus, in considering the sufficiency of the evidence to 

support the jury’s finding of excuse, we analyze the evidence that Sims waived his 

right to seek damages for LTI’s failure to provide him 30-days’ notice of 

termination of the Consultant’s Agreement.

LTI presented evidence, through the testimony of Castille, that when it 

terminated the Consultant’s Agreement, Sims did not object to LTI’s not providing

him 30-days’ notice or compensation for that notice period. Rather, Castille 

testified that he and Sims discussed transitioning their relationship from the 

Consultant’s Agreement to a commissioned-agency relationship. Castille further 

testified that, after thinking about LTI’s proposal, Sims expressed that “he was in 

agreement with that particular change,” and, based upon this fact, notice was not 

necessary. LTI also introduced into evidence internal LTI correspondence 

demonstrating that Castille had raised the issue of compensating Sims for the 
16

notice period with others at LTI, and the decision to compensate Sims was 

dependent upon whether Sims chose to enter into a new agency relationship with 

LTI. If not, according to Castille, LTI would have provided Sims compensation 

for the notice period through “debt forgiveness.” Castille also explained that LTI 

had offered Sims a new agency relationship on an “eat-what-you-kill basis” and 

the “sky [was] the limit in terms of the compensation [Sims] could make” under 

the new Commissioned Agent Agreement. Castille noted that Sims had an 

“entrepreneurial spirit,” and he anticipated that Sims might have a “better focus” 

and improved performance under the new agreement. LTI even granted Sims 

rights to an existing book of business, and it told him that it would “throw in all the 

business and customers that had been created while he was . . . on the salary” under 

the Consultant’s Agreement. Castille’s testimony supports an implied finding that 

Sims, by accepting from LTI an increased percentage on his commissions, 

revenues from and access to existing business, and other valuable consideration, 

agreed to enter into a new relationship, which necessarily terminated the 

Consultant’s Agreement. Thus, LTI was not required to provide 30-days’ notice of 

termination of the Consultant’s Agreement, and Sims waived any right to 

compensation in exchange for maintaining a modified business relationship with 

LTI. In sum, when asked if LTI had was required to give Sims 30-days’ notice of 

termination of the Consultant’s Agreement, Castille specifically testified, 
17

With the understanding that the conversation [Sims] and I had was 

that he was going to agree to the agency agreement and was going to 

take over the existing business at 8% commission; and because he was 

entering into this second agreement, that the 30-day notice situation 

would not be required.

Although Sims offered contrary testimony that he had orally complained 

about a lack of notice, LTI presented sufficient evidence to create a fact issue on 

whether Sims, by agreeing to enter into the Commissioned Agent Agreement, 

intentionally waived his right to 30-days’ notice of termination of the Consultant’s

Agreement.

2

 Accordingly, we hold that the evidence is legally and factually 

sufficient to support the jury’s implied finding that Sims waived his right to 30-

days’ notice of termination of the Consultant’s Agreement finding and, thus, its 

express finding that LTI’s breach was excused.

We overrule Sims’s first issue.

Sims’s Breach

In his second issue, Sims argues that that the evidence is legally and 

factually insufficient to support the jury’s finding that Sims’s failure to comply 

with the Consultant’s Agreement was not excused because, among other things,

there is “uncontroverted evidence” of LTI’s prior material breach and LTI waived 

its right to repayment of the $20,000.

 

2

Sims presented no evidence that he would have been entitled to compensation for 

the entire remaining year on the Consultant’s Agreement. The terms of the 

documents support, at most, a claim for compensation during the 30-day notice 

period.
18

Sims’s argument concerning LTI’s prior material breach is based upon his 

assertion that the $20,000 payment constituted a sign-on bonus rather than a loan 

or advance that Sims was required to earn. LTI presented documentary evidence 

and testimony that the payment from LTI was a loan, which Sims was required to 

repay. Also, as addressed above, the evidence supports the jury’s implied finding

that, by entering into the Commissioned Agent Agreement, Sims agreed to waive 

any required notice of termination of the Consultant’s Agreement. Thus, there is 

legally and factually sufficient evidence to support the jury’s finding that LTI did 

not commit a prior material breach of the Consultant’s Agreement that excused

Sims’s breach. 

Sims’s argument concerning LTI’s alleged waiver of its right it to seek 

repayment of the $20,000 is primarily based upon the evidence that LTI submitted 

to the IRS a 1099 tax form that included the payment, Sims paid taxes on this 

payment, Sims always disputed that he had received a loan, and LTI never issued a 

corrected 1099 tax form. However, LTI presented ample evidence demonstrating 

that the $20,000 payment constituted a loan. Castille also testified that the tax 

treatment of the payment had been handled according to LTI’s accounting 

department, and Sims did not present any evidence that this tax treatment 

converted the payment from a loan to a bonus that he was not required to repay. 

Additionally, LTI presented evidence that, when LTI made the $20,000 advance to 
19

Sims, all parties expected that Sims would earn that amount during the term of the 

Consultant’s Agreement and would pay the Promissory Note by earning his bonus. 

Thus, there is legally and factually sufficient evidence to support the jury’s finding 

that Sims’s failure to comply with the Consultant’s Agreement was not excused by 

any waiver by LTI of its right to seek repayment of the $20,000. 

Finally, Sims’s argument concerning fraud is based upon his testimony that 

Castille informed him that the contractual documents had been drafted in such a 

way as to “circumvent” “headquarters,” as well his other testimony that he 

understood the $20,000 payment to be a sign-on bonus, which Sims was not 

required to repay. However, Castille disputed that any such conversation occurred, 

and the jury could have considered the contrary documentary evidence in rejecting 

Sims’s fraud allegations. Thus, there is legally and factually sufficient evidence to 

support the jury’s finding that Sims’s failure to comply with the Consultant’s

Agreement was not excused by LTI’s commission of fraud. In sum, we hold that 

the evidence is legally and factually sufficient to support the jury’s finding that 

Sims’s failure to comply with the Consultant’s Agreement was not excused.

We overrule Sims’s second issue.
20

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice 

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.