In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00015-CV

______________________________

JAVIER D. CORONA, Appellant

V.

PILGRIM'S PRIDE CORPORATION, Appellee

 

On Appeal from the 276th Judicial District Court

 Camp County, Texas

Trial Court No. CV-05-178

 

Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Chief Justice Morriss
Corona formed Centex Foods Corporation with business partner Ismael DeLeon. 1

The suit against Centex was severed because Centex declared bankruptcy. 

2

The law is well settled that "[a] party proceeding pro se must comply with all applicable 3

procedural rules" and is held to the same standards as a licensed attorney. Weaver v. E-Z Mart

Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.—Texarkana 1997, no pet.). "On appeal, as at trial,

the pro se appellant must properly present his or her case." Strange v. Cont'l Cas. Co., 126 S.W.3d

676, 678 (Tex. App.—Dallas 2004, pet. denied). We review and evaluate pro se pleadings with

liberality and patience, but otherwise apply the same standards applicable to pleadings drafted by

lawyers. Foster v. Williams, 74 S.W.3d 200, 202 n.1 (Tex. App.—Texarkana 2002, pet. denied). 

2

O P I N I O N

When Javier D. Corona personally guaranteed payment to Pilgrim's Pride Corporation of the

accounts of his newly formed Centex Foods Corporation, he expected Centex to be successful in

1

distributing meat products in Austin and its environs. Business did not go as Corona expected, and

Centex accumulated a debt to Pilgrim's Pride of $25,538.37, representing thirteen past due invoices.

Pilgrim's Pride filed a suit on a sworn account against Centex and Corona. The trial court 2

granted the motion for summary judgment filed by Pilgrim's Pride and dismissed Corona's

counterclaims. Corona appeals pro se.

3

We affirm the judgment of the trial court because we hold: (1) the trial court properly

dismissed Corona's counterclaims, (2) the trial court properly excluded Corona's summary judgment

affidavit as hearsay, (3) Corona failed to raise any fact issue on Pilgrim's Pride's claim for

debt, (4) the trial court was not required to allow Corona to appear by telephone, (5) Corona's
3

complaint about discovery was not preserved for appellate review, and (6) Corona's complaint about

venue was not preserved for appellate review.

(1) The Trial Court Properly Dismissed Corona's Counterclaims

Corona claimsthe trial court erred by dismissing his counterclaims. In response to Pilgrim's

Pride's lawsuit, Corona asserted counterclaims for breach of contract, negligence, fraud, conspiracy

to commit fraud, conversion, and malicious prosecution against Pilgrim's Pride. Corona claims that

Pilgrim's Pride employees allowed products to be ordered without authorization by Centex and

redirected deliveries to unauthorized locations. Corona also claims the suit brought by Pilgrim's

Pride was meritless.

With the exception of the malicious prosecution claim, all of the counterclaims alleged by

Corona belong to Centex. The claims are all based on the allegation that Pilgrim's Pride employees

delivered products to unauthorized locations and the products were charged to Centex's account.

Corona sought damages for injuries allegedly caused to Centex, a corporation of which Corona is

a shareholder. The Texas Supreme Court has repeatedly held a corporate shareholder cannot

personally recover damages for wrongdoing against the corporation. Wingate v. Hajdik, 795 S.W.2d

717, 719 (Tex. 1990); Commonwealth of Mass. v. Davis, 140 Tex. 398, 168 S.W.2d 216, 221 (1942)

(corporation and itsshareholders are distinct legal entities). Further, Texas courts have consistently

held that a nonattorney may not appear pro se on behalf of a corporation. See, e.g., Kunstoplast of

Am., Inc. v. Formosa Plastics Corp., USA, 937 S.W.2d 455, 456 (Tex. 1996) (per curiam); Moore
We also note Centex had declared bankruptcy. The record does not contain any indication 4

that the bankruptcy trustee had authorized these counterclaims. Further, Centex had been severed

from this lawsuit at the time the counterclaims were filed.

4

by & Through Moore v. Elektro-Mobil Technik GMBH, 874 S.W.2d 324, 327 (Tex. App.—El Paso

1994, writ denied); cf. Am. Home Assur. Co. v. Unauthorized Practice of Law Comm., 121 S.W.3d

831, 839 (Tex. App.—Eastland 2003, pet. granted). Corona could not bring these counterclaims

either personally or on behalf of the corporation.4

Corona failed to allege facts sufficient to plead a case of malicious prosecution. Corona

claimed Pilgrim's Pride committed malicious prosecution by bringing suit against Corona on a

meritless claim. 

To prevail in a suit alleging malicious prosecution of a civil claim, the plaintiff must

establish: (1) the institution or continuation of civil proceedings against the plaintiff;

(2) by or at the insistence of the defendant; (3) malice in the commencement of the

proceeding; (4) lack of probable cause for the proceeding; (5) termination of the

proceeding in plaintiff's favor; and (6) special damages.

Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996). Corona's counterclaim for

malicious prosecution fails to allege any facts sufficient to establish the above elements. Corona

failed to allege any facts sufficient to constitute malice, lack of probable cause, or termination of the

proceedings in Corona's favor. The trial court did not err in dismissing Corona's counterclaims.

(2) The Trial Court Properly Excluded Corona's Summary Judgment Affidavit as Hearsay

Corona submitted two affidavits as summary judgment evidence, one signed by Corona and

one signed by Jorge Suchomlinow. The trial court overruled Pilgrim's Pride's objections to
5

Suchomlinow's affidavit, but sustained the objections to Corona's affidavit. Corona argues the trial

court erred in not considering his summary judgment affidavit. In the affidavit, Corona states:

I was informed by a previous employee of my corporation that some of my employees

have been receiving merchandise deliveries billed to Centex Foods Corporation. I was

told by witnesses that Pilgrim's Pride delivery drivers have been consistently

delivering merchandise invoiced to my company to unauthorized locations. 

At the summary judgment hearing, Corona stated the prior employee was not a legal resident and was

afraid to sign an affidavit. 

We review a trial court's rulings in admitting or excluding evidence under an abuse of

discretion standard. Nat'l Liab. &Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527–28 (Tex. 2000). Under

an abuse of discretion standard, we cannot overrule the trial court's decision unless the trial court

acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles.

Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Davis v. Huey, 571 S.W.2d 859,

861–62 (Tex. 1978). The affidavit in question consists entirely of hearsay. The trial court did not

abuse its discretion in excluding Corona's affidavit. See TEX. R. CIV. P. 166a(f); TEX. R. EVID. 802;

Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex. App.—Houston [1st Dist.] 1992, writ dism'd

w.o.j.) (op. on reh'g) (affidavits based solely on hearsay inadmissible as summary judgment evidence).

(3) Corona Failed to Raise Any Fact Issue on Pilgrim's Claim for Debt

Corona argues the trial court erred in granting summary judgment in favor of Pilgrim's Pride

because there are genuine issues of material fact. Corona alleged negligence, fraud, breach of

contract, and conversion as affirmative defenses. The factual basis of the above defenses can be
6

summarized as alleging Pilgrim's Pride employees conspired with Centex employees to order goods

without authorization and to deliver said goods to unauthorized locations. In addition, Corona alleged

the defense of partial satisfaction.

The standards of review for both a traditional motion for summary judgment and a

no-evidence motion for summary judgment are well established. When reviewing a traditional

summary judgment, we take as true all evidence favorable to the nonmovant and indulge every

reasonable inference and resolve any doubts in the nonmovant's favor. Limestone Prods. Distrib., Inc.

v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002). Summary judgment is proper when the movant

establishes that there is no genuine issue of material fact and that the movant is entitled to judgment

as a matter of law. TEX.R.CIV. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671 (Tex. 1979). A nonmovant will defeat a no-evidence summary judgment motion if the

nonmovant presents more than a scintilla of probative evidence on each element of his or her claim.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Jackson v. Fiesta Mart, Inc., 979

S.W.2d 68, 70–71 (Tex. App.—Austin 1998, no pet.). More than a scintilla of evidence exists when

the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In a

summary judgment hearing, the trial court's decision is based on written pleadings and written

evidence rather than live testimony. See TEX. R. CIV. P. 166a(c). 
7

To obtain summary judgment on a guaranty agreement, a party must conclusively

prove: (1) the existence and ownership of the guaranty contract, (2) the performance of the terms of

the contract by plaintiff, (3) the occurrence of the condition on which liability is based, and

(4) guarantor's failure or refusal to perform the promise. Barclay v. Waxahachie Bank & Trust Co.,

568 S.W.2d 721, 723 (Tex. Civ. App.—Waco 1978, no writ). Pilgrim's Pride introduced summary

judgment evidence in the form of business records with the necessary business-records affidavit.

Pilgrim's Pride's summary-judgment evidence conclusively established that Corona signed the

guaranty agreement for payment of Centex obligations to Pilgrim's Pride, that Centex owed Pilgrim's

Pride a balance of $25,538.37, that Pilgrim's Pride had demanded Corona pay the indebtedness of that

debt, and that Corona failed to do so. 

In response, Corona presented the trial court with two affidavits as summary judgment

evidence. As referenced above, the trial court sustained Pilgrim's Pride's objections to Corona's

affidavit because it was entirely hearsay. Corona's remaining summary judgment evidence consisted

of the affidavit of Suchomlinow. Suchomlinow's affidavit provides in pertinent part:

I witnessed PILGRIM'S PRIDE CORPORATION's delivery trucks unload many cases

of meat products at my place of business parking lot (El Dorado Meat Market, 5001

Airport Blvd[.], Austin, TX 78746). I witnessed the merchandise being personally

handed to then CENTEX's employee Ismael Deleon. It was until [sic] on or

about May 20th, 2005 that I approached the delivery drivers and emphatically

prohibited them ofmaking any further deliveries at my place of business since I finally

realized there was some suspicious activity going on between PILGRIM's delivery

drivers and Ismael Deleon. I told the delivery driver that I would report them if such

behavior would continue. 
We note Corona claims Pilgrim's Pride deviated from the standard course of dealing between

5

the parties by not notifying Corona by telephone of the past due invoices or the fact that Centex's

credit limit had been exceeded. Corona, though, presented no evidence to support this allegation.

"Pleadings do not constitute summary judgment proof." Clear Creek Basin Auth., 589 S.W.2d at

678. Even if there was evidence to support this allegation, Corona has failed to provide this Court

with legal authority establishing this deviation as a defense to his obligations under the guaranty

agreement. See TEX. R. APP. P. 38.1.

We note Corona alleges the "bankruptcy trustee has offered payment in the form of the 6

corporation's assets," but fails to provide this Court to a cite in the record in support of this

statement. The record does contain a letter to Pilgrim's Pride where Corona offers to tender the

corporation's assets to satisfy the debt. We will assume, without deciding, that the letter constitutes

summary judgment evidence.

8

Suchomlinow's affidavit merely provides some evidence that Centex employees received products

from Pilgrim's Pride at an "unauthorized" location. Suchomlinow's belief that the activity was

suspicious is less than a scintilla of evidence that the products delivered were not accepted and used

by Centex or that Centex was invoiced for any products it did not receive. There is no evidence of

negligence, fraud, breach of contract, or conversion. 5

Corona also argues the debt was partially satisfied because he offered to tender assets of the

corporation to satisfy the outstanding debt. There is no evidence in the record that Pilgrim's Pride 6

agreed to accept the corporate assets or received partial payment of the outstanding debt. Under the

terms of the guaranty agreement, Corona was an absolute guarantor of payment. Absolute guaranties

are conditioned solely on default of the principal debtor. Mid-South Telecomms. Co. v. Best, 184

S.W.3d 386, 391 (Tex. App.—Austin 2006, no pet.). An absolute guarantor is primarily liable and

waives any requirement that the creditor take action against the principal obligor as a condition
9

precedent to his or her liability on the guaranty. Hopkins v. First Nat'l Bank at Brownsville, 551

S.W.2d 343, 345 (Tex. 1977); Joseph Thomas, Inc. v. Graham, 842 S.W.2d 343, 345 n.2 (Tex.

App.—Tyler 1992, no writ). Because Corona was an absolute guarantor, Pilgrim's Pride was not

required to seek recovery from Centex before instituting suit against Corona.

Corona also argues there are genuine issues of material fact concerning whether Pilgrim's

Pride permitted Centex to exceed the contractual credit limit. Corona, though, did not expressly plead

a defense based on a material alteration of the contract. On its application for credit, Centex applied

for a credit limit of $20,000.00, but Pilgrim's Pride allowed Centex to accumulate a debt of

$25,538.37. 

Corona did not adequately raise this issue in any response before the trial court. A summary

judgment cannot be reversed on appeal due to an issue that was not expressly and timely presented

to the trial court by written response or other document. TEX. R. CIV. P. 166a(c); see Clear Creek

Basin Auth., 589 S.W.2d at 677. Corona mentions that the credit limit was exceeded while asserting

negligence as an affirmative defense. The amended response provides as follows in pertinent part:

3. Defendants claim negligence as an affirmative defense and do not recognize

the amount on the alleged defaulted invoices and claims that Plaintiff's negligent

behavior created and compounded the alleged default. Additionally, during this

alleged default the credit line amount was raised unilaterally by Plaintiff. Defendants

never requested nor authorized such an increase so therefore it is not binding.

The fact the credit limit was exceeded is contained in a paragraph alleging negligence. Corona failed

to provide any legal argument as to the effect of exceeding the credit limit. 
10

The above quotation was insufficient to expressly present the defense for a material alteration

of the contract to the trial court. While the quotation probably was sufficient to inform the trial court

of the facts complained of, the quotation is insufficient to inform the trial court of any legal effect of

those facts. We are prohibited from considering grounds the nonmovant failed to expressly present

to the trial court in a written response. Brown v. Reeter, 170 S.W.3d 151, 154 (Tex. App.—San

Antonio 2005, no pet.). To the extent Corona may have had a partial defense for a material alteration

of the contract, this issue is not preserved for our review. Further, Corona has failed to provide this

Court with any legal argument or authority as to the effect of exceeding the credit limit. As such, this

issue was also inadequately briefed on appeal. See TEX. R. APP. P. 38.1.

Because there are no genuine issues of material fact, the trial court did not err in granting

summary judgment in favor of Pilgrim's Pride.

(4) The Trial Court Was Not Required to Allow Corona to Appear by Telephone

Corona argued that, because of his medical condition, he could not physically appear in Camp

County. Although not bedridden, Corona argued extended stays in a wheelchair could pose a severe

health risk because he is subject to decubitus ulcers. Corona argues the trial court was required to

grant his request under the Americans with Disabilities Act (ADA). The trial court permitted Corona

to attend the summaryjudgment hearing bytelephone. At the hearing, the trial court informed Corona

he would not be allowed to continue to appear by telephone. 
11

The trial court did not abuse its discretion in denying Corona's motion to appear by telephone.

The Texas Rules of Judicial Administration permit, but do not require, courts to allow parties to

attend pretrial hearings via telephone. See TEX. R. JUD. ADMIN. 7a(6)(b). Title II of the ADA

provides that "no qualified individual with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity." 42 U.S.C.A. § 12132 (West 2007). To

state a claim under Title II, Corona must allege that (1) he is a "qualified individual with a disability";

(2) he is being excluded from participation in or being denied the benefits of some "services,

programs, or activities" by reason of his disability; and (3) the entity which provides the service,

program, or activity is a public entity. See id.; Kiman v. N.H. Dep't of Corr., 451 F.3d 274, 283 (1st

Cir. 2006); Soto v. City of Newark, 72 F. Supp. 2d 489, 492 (D.N.J. 1999). The ADA requires public

entities to provide "meaningful access" to their programs and services. Chaffin v. Kan. State Fair Bd.,

348 F.3d 850, 857 (10th Cir. 2003); see also Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).

Under regulations promulgated by the Department of Justice, public entities are required to

"make reasonable modifications in policies, practices, or procedures when the modifications are

necessary to avoid discrimination on the basis of disability . . ." 28 C.F.R. § 35.130(b)(7) (2003);

see 42 U.S.C.A. § 12134(a) (West 2003). The regulations also provide:

 (a) A public entity shall take appropriate steps to ensure that communications with

applicants, participants, and members of the public with disabilities are as effective

as communications with others.
12

(b)(1) A public entity shall furnish appropriate auxiliary aids and services where

necessary to afford an individual with a disability an equal opportunity to participate

in, and enjoy the benefits of, a service, program, or activity conducted by a public

entity.

(2) In determining what type of auxiliary aid and service is necessary, a public entity 

shall give primary consideration to the requests of the individual with disabilities.

28 C.F.R. § 35.160 (2008). However, a public entity is not required "to take any action that it can

demonstrate would result in a fundamental alteration in the nature of a service, program, or activity

or in undue financial and administrative burdens." 28 C.F.R. § 35.164 (2008).

Corona has failed to cite any authority, nor are we aware of any, for the proposition that a

violation of the ADA voids an otherwise valid judgment. A person alleging discrimination under

Title II of the ADA has the remedies, procedures, and rights set forth in Section 505 of the

Rehabilitation Act of 1973. 42 U.S.C.A. §§ 12131–65 (West 2003); 42 U.S.C.A. §§ 2000e-5, 2000e16 (West 2003); 29 U.S.C.A. § 794a (West 2003); AM. JUR. 2D Americans with Disabilities Act

 Analysis and Implications § 307 (LEXIS 2007).

It is not necessary for us to decide whether Corona's due-process rights were violated by the

alleged violation of the ADA. Assuming that a violation of the ADA could void a judgment, the First

District Court of Appeals has held the claim is an affirmative defense that must be pleaded and proved

to avoid waiver. In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

Corona failed to plead an affirmative defense based on a violation of the ADA. Even if Corona's

motion to transfer venue pled an affirmative defense based on a violation of the ADA and assuming
13

a violation of the ADA would void a judgment, Corona has failed to prove the trial court's actions

violated the ADA. The trial court took judicial notice the courthouse was wheelchair accessible, and

Corona failed to prove he could not access the courtroom. Although Corona did provide some

medical records to prove he is a paraplegic, Corona failed to provide the trial court with any evidence

he could not travel to Camp County to attend court proceedings. A public entity is not required to

grant the specific accommodation requested, so long as the accommodation granted is adequate. The

record does not establish the accommodation provided, i.e., a wheelchair accessible courtroom, was

inadequate. Further, the accommodation requested by Corona might fundamentally alter the

proceedings. See McLaughlin v. Pyles, No. 99CA0013, 1999 Ohio App. LEXIS 5556 (Ohio Ct. App.

1999) (not designated for publication) (refusal to allow party to appear by telephone did not violate

ADA). Corona has not shown the trial court abused its discretion in not granting his motion to appear

by telephone.

(5) Corona's Complaint About Discovery Was Not Preserved for Appellate Review

Corona filed a motion to compel discovery March 1, 2006. According to Corona, Pilgrim's

Pride ignored discovery requests made the prior November, including interrogatories, requests for

disclosure, requests for production, and requests for admissions. Corona did not attempt to secure

a ruling on his motion to compel. At the hearing for summary judgment, Corona complained about

Pilgrim's Pride not responding to his discovery requests. The trial court noted there was no record

Corona had ever requested a hearing. Corona admitted he had not requested a hearing and stated he
14

"was under the impression that once you filed a motion that automatically the motion would be

docketed." At the hearing, Corona did not explicitly request a ruling on the motion.

The Texas Supreme Court has held "the failure to obtain a pretrial ruling on discovery disputes

that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that

conduct." Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993). This is in accord with

the general rule that, as a prerequisite to a complaint for appellate review, the record must show that

the trial court, either expressly or implicitly, ruled on the motion. TEX. R. APP. P. 33.1(a)(2)(A).

Admittedly, there is a significant difference between a hearing on a motion for summary judgment

and a trial. But the failure "to obtain a pre-trial ruling on any discovery dispute existing before

commencement of summary judgment proceedings constitutes a waiver" of any claim for relief.

White v. Cole, 880 S.W.2d 292, 296 (Tex. App.—Beaumont 1994, writ denied). We agree. Corona

failed to present the motion to compel discovery to the trial court until the summary judgment

hearing. At the hearing, Corona did not request the trial court rule on the motion. Further, Corona

did not file a motion for continuance. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647

(Tex. 1996) ("When a party contends that it has not had an adequate opportunity for discovery before

a summary judgment hearing, it must file either an affidavit explaining the need for further discovery

or a verified motion for continuance."). Corona did not preserve error, if any, for our review.
15

(6) Corona's Complaint About Venue Was Not Preserved for Appellate Review

Corona filed a motion to transfer venue October 17, 2005, alleging that defending himself in

Camp County, Texas, was too burdensome because he is a paraplegic. According to Corona,

extended stays in a wheelchair could pose a severe health risk because he is subject to decubitus

ulcers. Corona states he filed, in December 2005, a copy of his medical discharge summary. The

only medical discharge summary we have located in the record was attached to his amended motion

to transfer venue, which was filed after the trial court had rendered summary judgment in favor of

Pilgrim's Pride. The medical discharge corroborates Corona's medical condition, but it does not

contain any information establishing Corona was medically unable to appear in Camp County. 

Corona failed to preserve any error for our review. It was Corona's responsibility to request

a hearing and obtain a ruling on the motion to transfer venue. See TEX.R.CIV. P. 87. Corona waived

any issue concerning venue by not requesting a hearing or ruling. See, e.g., Cliff Jones, Inc. v.

Ledbetter, 896 S.W.2d 417, 418–19 (Tex. App.—Houston [1st Dist.] 1995, no writ). 

 Even if Corona had preserved error, Corona has not shown the trial court erred. The

guaranty agreement contained a forum selection clause establishing Camp County, Texas, as the

appropriate venue and waiving "any objections to the above-referenced jurisdiction and venue." The

Texas Supreme Court has held "enforcement of a forum-selection clause is mandatory, absent a

showing that 'enforcement would be unreasonable and unjust or that the clause was invalid due to

fraud or overreaching.'" Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 793 (Tex.
16

2005); see In re Automated Collection Techs., 156 S.W.3d 557, 559 (Tex. 2004) (per curiam); In re

AIU Ins. Co., 148 S.W.3d 109, 115 (Tex. 2004) (adopting the standards applied by the United States

Supreme Court in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)). The party opposing

enforcement of a forum selection clause bears the burden of showing enforcement would be

unreasonable or unjust, or that the clause is invalid. Automated Collection Techs., 156 S.W.3d at 559.

Camp County, Texas, is not "remote alien forum." See AIU Ins. Co., 148 S.W.3d at 114. Even if

Corona had preserved error, he has not shown either that the forum selection clause is unenforceable

or that he was medically unable to attend proceedings in Camp County.

The trial court did not err in dismissing Corona's counterclaims, and Corona raised no genuine

issue of material fact on Pilgrim's Pride's claims against him. Even if a violation of the ADA would

result in a void judgment, Corona failed to plead such a defense and failed to show that an ADA

violation occurred. Because Corona's affidavit was entirely hearsay, the trial court did not abuse its

discretion in sustaining Pilgrim's Pride's objection to it. Corona failed to preserve any error on his

motions to compel discovery and to change venue. 
Corona also alleges the trial court engaged in ex parte communications with Pilgrim's Pride, 7

but there is no support in the record for this claim.

17

For the reasons stated, we affirm the trial court's judgment.7

Josh R. Morriss, III

Chief Justice

Date Submitted: September 10, 2007

Date Decided: January 18, 2008