### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00134- CV

Alexander K osaka, App ellant

v. Hook an d Anchor Marine and Watersport s, LLC, App ellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 119 TH JUDICI AL DISTRICT NO. B -09 -06 41- C, H ONO RAB LE JAY K . WEATH ERB Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Alexander Kosaka broug ht suit ag ainst appellee Hook and Anchor Marine and W ater sports, L L C (“H ook & A nchor” ), alleging that one of its employ ee’ s neg lige nce cause d

an automobile acc ident in which Kosaka was injured. After allowing a settlement cre dit that exceede d the total amount of dama g es aw arde d by the jury , the trial cour

t rende red a

take- nothing judgme nt ag ainst Kosaka

. On appea l, Kosaka challeng es an evidentiar y ruling by the trial court and the jury ’s zero-dama g es finding s for past medical expenses, past phy sical impairment, and past and future disfig ureme nt. For the rea sons that follow, we a ffirm the judg ment.

BACK GR OUND Kosak a an d J ay

me L y nn J ones, an employ ee of Hook & Anchor , wer e invol ved in

an automobile acc ident on October 21, 2008. J ones was running a work-r elated err and for Hook
& Anchor and failed to y ield the rig ht of way to the vehicle opera ted by Kosaka

. Kosaka sustainedinjuries as a resu l t o f t h e ac cident. His injuries included broken ribs, torn ligaments in one of his

knees, a torn disc and a “par s defe ct at L 5-S1.” His medical tre atment af ter the acc ident included 1
surg ery to repa ir his anterior c rucia te liga ment (ACL ). Kosaka broug ht suit for the persona l injuries t h at h e s u stained from the acc ident
ag ainst J ones, Hook & Anchor , and another company that owned the vehicle that J ones was driving
at the time of the acc ident. After Kosaka settled his claims ag ainst the other company and J ones for $320,000, his rema ining claims ag ainst Hook & Anchor proce eded to a jury trial in October 2010. Hook & Anchor ’s defe nses included contributory neg lige nce, but the primary dispute betwee n the parties was the appropr iate awa rd of damag es for the injuries sustained by Kosaka as a result of the

acc ident. Kosaka

soug ht damag es for

past and futur e medica l expenses, pain and mental ang uish, loss of ear

ning capa city , disfigur ement, and phy sical impairment. The witnesses included Kosaka , his sister-in-law and brother, his trea ting neurosur g eon and orthopedic surg eon, and vocational and economics e x perts.

At trial, Ko s aka stipulated that $44,733.69 was the amount that his health car e providers would acc ept as full pay ment for the service s rende red to him up to the time of trial. This
amount included the medical expenses to surg ically repa ir his ACL

. He also prese nted evidenc e to

s u p p o rt his reque st for an awa rd of $150,000 for future medical expenses. Evidence showed t h at Kosaka probably neede d to have two additional surg erie s: a posterior cruc iate ligament (PCL ) repa ir and an “ante rior and posterior lumbar fusion.” As to his loss of ear ning capa city , Kosaka prese nted

One of the doctors testified that “a pars defe ct is a kind of a traumatic event in which the 1 joints at the affe cted leve l frac ture.” 2evidenc e that: (i) he lost his hourly job in which he ear ned $9.15 an hour beca

use he “had been out
too long” afte r t h e accident, (ii) he was unemploy ed for sever al months afte r he lost his job, and (iii) af t er he was able to obtain employ ment, it was part-time, minimum -wa g e positions. He

rema ined employ ed on a part-time basis at the time of trial. Kosaka also prese nted evidenc e about
h o w th e acc ident has aff

ecte d him, including his pain and phy sical limit ations beca use of his injurie s . He testified that it was “[ h ] ar d t o bend” and that “I ’m still a littl e moveable, but not as quick as I used to be.” His sister-in-law and brother also testified that he was phy sically “limi t ed ” afte r the ac cident.
At the close of the evidenc e, the trial court submitted the ca se to the jury . The jury found that the neg li gen ce of both J ones and Kosaka proxi mately cause d the acc ident and that Kosaka ’s perc entag e of responsibi lity was 10% and J ones’s was 90%. The jury found amounts which “would fairly and rea sonably compensa te Alexander Kosaka for his injuries, if any , that resulted f rom the occ urre nce in que stion” as follows:
Phy sical pain a

nd mental ang uish (past) $ 5,000 Phy sical pain a

nd mental ang uish (future) $10,000 L oss of ea

rning capa city

(past) $20,534 L oss of ea

rning capa city

(future ) $84,613 Phy sical I mpairment (f

uture) $10,000 Medica l car e expenses (f

uture) $80,000

The jury also made zero-d amage s finding s for disfigur ement in the past and future, phy sical impairment in the past, and medic al ca re e x penses incur

red in the pa st.
Be cause the settlement cre dit of $320,000 exceede d $189,132.30—the total amount

awa rded by the jury reduc ed by 10%—the trial court rende red a t ak e- nothing judgme nt
3ag ainst Kosaka

. Kosaka filed a motion for new trial which was den i ed afte r a hear ing. This

appea l followed.

ANALYSIS

On appeal, Kosaka reque sts that this Court reve rse the trial court and rema nd for a

new trial and raises three issues to support his reque sted relief

. He contends that: (i) the trial court’s admission of ev i dence of “settlement monies” rec eived by Kosaka befor e trial resulted in an improper verdic t; ( ii) the jury improperly awa rded zero f

or his pa st me dical expenses; a nd (iii) the jury improperly awa

rded zero for phy sical impairment sustained in the past and disfigur ement in the past and futur e.
Evidence of

“settlem ent m onies”
I n his first issue, Kosaka challeng es the trial court’s admission of evidenc e of “settlement monies.” We revie w a trial court’s decision t o admit evidenc e under the abuse- of-discr etion standard. In re J.P.B. , 180 S.W .3d 570, 575 (Tex. 2005)

. A trial court abuses its discretion when it acts unrea sonably or “without ref ere nce to any g uiding rules and principles.” Downer v. Aquam arine Operators, Inc

. , 701 S.W .2d 238, 241–42 (Tex. 1985).

Kosaka contends that a line of questioning by defe nse counsel to Kosaka allowed the jury to infer that he had rec eived signific ant amounts of money in settlement befor e the trial. Kosaka
urg es that the trial court err ed by allowing the questioning based on rule 408 of the rules of evidenc e and the collater al source rule. See Tex. R. Evid. 408; Brown v. American Transfer & Storage Co. , 601 S.W .2d 931, 934–95 (Tex. 1980) (discussing collater al source ru l e)

. Rule 408 g ener ally

4prohi b i t s i ntroducing evidenc e of compromise and settlement. Tex. R. Evid. 408. The collater al

source rule g ener ally proh i b i t s a d efe ndant from introducing evidenc e of pay ments from other

source s for the plaintiff’s injuries. Taylor v. American Fabritech , Inc. , 132 S.W .3d 613, 626 (Tex. App.—Houston [14th Dis t.] 2004, pet. denied)

.

The complained- of questioning occur red during cross examination o f Kosaka

. Def ense counsel questioned Kosaka about his testimony on direc t as to his ability to pa y for future medical c are for his injuries and K osaka’ s counsel objec ted as follows:
[Defense Counsel] : Mr. Kosaka , y ou told the jury about y our inability to pay bills

at y our brother’ s house and also y ou have told them that y ou wer e unable to g et the surg erie s perf ormed that y ou’re say

ing that y ou’re needing . Do y ou reme mber that testimony ? [Kosaka]: What I meant by those thi ng s, these wer e, I think, afte r the

acc ident, y ou know. There wer e—wha t I meant wer e afte r the acc ident. I

had no job, y ou know, nothing. I couldn’t do—I couldn’t g et nothing done

.

. . . [Defense Counsel] : Ha v e y o u s ch ed u l ed t h o s e s u rge ri es , b ack s u rge ry i f

that’s what y o u t hink y ou need, and y our PCL , y our other knee sur g ery ? [Kosaka]: No. These—those —those thin gs we re mentioned to me. I

told the doctors that—at that time that I couldn’t aff ord those things be cause that’s rig ht after the ac cident. [Defense Counsel] : Okay

. What my question is, have y ou schedule d surg erie s on

y our knee and y our back so that y ou can g et fee ling better and g et bac k working full-time and better job? [Kosaka]: Yea h. Well, I could have schedule d them at that time beca use I didn’t have the money to pay for them and those things. (sic)

5[Defense Counsel] : That’s not my questi o n . Ha v e y o u resc heduled the surg ery now? [Kosaka]: No. Now, no. [Defense Counsel] : You have the money to p ay fo r t h o s e s u rge ri es now, do

y ou not? [P laintiff Counsel]: J udg e, I ’ll object for the record on g rounds of relevanc e and

collater al source

. The Court: To the question as a sked, I will deny the objection.

. . . [Defense Counsel] : M y q u es t i o n i s , d o y ou have the money now t o p ay t h e

surg erie s that y ou say y ou need and told the jury that y ou need to have? [Kosaka]: Do I have the money

now? [Defense Counsel] : Yes, sir. [Kosaka]: Not quite what—the money of eve ry thing to g et it all done. [Defense Counsel] : Well, how much mone y do y ou believe it’s g oing to take for y ou to schedule those sur g erie s? [Kosaka]: I k n ow for my knee surg ery , we don’t know y et what t h e

rounding of that one y et, what it’s g oing to c ost. [Defense Counsel] : Well, it’s been two y ear s sinc e t h e ac ci d en t

. What’s the

problem with knowing those numbers that y ou’re g oing to— [Kosaka]: I ’m having trouble seeing these doctors to know

these—these —thes e numbers, beca use those time when I didn’t have the money . I can’ t g o and keep seeing t h em . I can’ t aff ord to be seeing doctors all the t i me. MRI s wher e—I ’m supposed t o have done, I couldn’t have it done beca use I didn’t have the money to have it done, at those time. [Defense Counsel] : But y ou do have the money now to do those things?

6[Kosaka]: I have the money now, but not—not what I need to do.

Def ense counsel continued this line of questioning with questions about the s pecif ic medical
proce dures that Kosaka anticipated having done, their estimated costs, and whether Kosaka had

en o u gh m o ney to pay for the proce dures. Kosaka ’s counsel objected on other g rounds to a fe w questions, but he did not raise the c ollatera l source r ule or a rule 408 objec tion. 2
As to the objected- to question stated above, Kosaka ’s counsel did not raise rule 408

as a g round for his objection and, there fore , has failed to prese rve er ro r based upon this rule. See
Tex. R. App. P. 33.1; Bay Area Healthcare Grp., Ltd. v. McShane , 239 S.W .3d 231, 235 (Tex. 2007) (“To prese rve err or for appellate revie w, the complaining party must timely and specific ally object
to the evidenc e and obtain a ruling .”). Kosaka ’s counsel raised “collate ral source ” as a basis for the objection, but the question did not ask Kosaka to reve al the source of any funds that he had available to pay for medical procedure s g oing forwa rd. The question asked w hether he had f unds available

or not. We cannot conclude then that the trial court abused its discretion by overr uling the objection and allowing Kosaka

to answer

this question.
As to Kosaka ’s global challeng e to this line of questioni ng , he did not prese rve his appellate arg uments as to rule 408 or the collater al source rule. Tex. R. App. P. 33.1; McShane , 239 S.W .3d at 235. But, ev en i f h e h ad , we would conclude that the trial court did not abuse its

He objected to one question as “aske d and answe red.” He also objected to other questions 2 on the g round that “ther e hasn’t been any evidenc e or testimony about the actua l cost of the PCL or back sur g ery .” 7discretion by allowing the questioning. Kosaka was not a sked, and no evidenc e was admitted that

showed that he settled with other def endants be fore trial or the a mount of the settlement. Kosaka also raised the issue of his ability to pay on direc t examination. He testified that he did not complete medical trea tments for his injuries beca use he “just couldn’t aff

ord it” and
t h at “eve r si nce I g ot let g o . . . , my insurance and every thing stopped.” The defense ’s q u es t i o n s challeng ing Kosaka ’s stated rea son on direc t for the delay in trea tment—inability to pay —then wer e rele vant for impeachme nt purposes. See Tex. R. Evid. 408 (exclusion of ev i d en ce not require d “whe n the evidenc e is offe red for another purpose” ); Macias v. Ramos , 917 S.W .2d 371, 374 (Tex. App.—San Antonio 1996, no writ) (discussing exception to c ollatera l source r ule when a

plaintiff raises inability to pay bills). Fur ther, why Kosaka delay ed medical trea tments, including the two additional surg erie s t h at h e contende d that he neede d until the time of trial—two y ear s afte r the

acc ident—was contested and rele vant as to the appropr iate amoun t o f s e v e r a l c a te g o r ie s o f d a

ma g e s . 3
We overrule Kosaka ’s first issue.

For example, whether he would have the surg erie s afte r the trial was rele vant to his reque st 3 for medical expenses in the future and whether the surg erie s wer e nece ssary and the s co pe of his rec overy assuming that he had the surg erie s wer e rele vant to his reque st for loss of ear ning capa city in the future. Kosaka was 36 y ear s old at the time of the trial, and he soug ht loss of ear ning capa city for approximately 30 y ear s based upon his injuries. But Kosaka also testified that, once he had his surg erie s, “It wi ll g et me wher e I need to g et me to fee l better and ever y thing,” and he answe red “Ye s” when asked, “And once [t he phy s i ci an s ] fi n ish with what they need, y ou think y ou will be back up r unning f ull speed? ” 8Zero-D am ages Findin g for Past Medical Expenses
I n his second issue, Kosaka arg ues t hat t he jury improperly awa rded z ero damag es for his past medical expenses and that the jury ’s deter mination as to th i s categ ory of damag es is
g rounds for a

new tria l.
“I n addit i o n t o an y other limit ation under law, rec overy of medical or health car e
expenses incurre d is limit ed to the amount actua lly paid or incurre d by or on behalf of the claimant.”
Tex. Civ. Prac. & Rem. Code Ann. § 41

. 0 1 0 5 (West 2008); see Haygood v. De Escabedo , 356 S.W .3d 390, 399 (Tex. 2011) (holding that “only evidenc e of rec overa ble medical expenses is admissible at trial”). Kosaka stipulated that $44,733.69 was the amount that h i s h ealth car e providers would acc ept as full pay ment for the medical services r ender ed to him up to the t ime of trial. Kosaka ’s rec overy for past medical expenses then was limit ed by his stipulation to $44,733.69—“the amount actua lly paid or incurre d by or on [hi s] behalf .” See Tex. Civ. Prac. & Re m. Code Ann. § 41.0105.

Assuming without deciding that the awa rd for past medical expense s should have been $44,733.69, we conclude that Kosaka has failed to show that the jury ’s zero-dama g es finding supports reve rsing the trial court’s judgme nt for a new trial. See Tex. R. App. P. 4 4

. 1 (j udg ment
may not be reve rsed on appea l on t h e ground that the trial court made an err or of law

u n less the complained- of err or probably cause d the rendition of an improper judgme nt). T h e
amount of settlemen t cr ed i t , $320,000, would still have exceede d the jury ’s awa rd even if the
amount of $44,733.69 was included in t h e am o u n t s awa rded by the jury

. See Galle, Inc. v. Pool , 262 S.W .3d 564, 573 (Tex. App.—Austin 2008, pet. denied) (noting t h at t ak e-nothing judgme nt

9proper when settlement cre dit exceeds amount of damag es awa rd). On this basis, we o v er rule Kosaka ’s sec ond issue. 4

Zero-D am ages Findin gs for Physical Im pairm ent and Disfigu rem ent
I n his third issue, Kosaka arg ues that this Court sho u l d re v er s e the trial court’s judgme nt and rema

nd for a new trial beca

use the jury improperly awa rded zero damag es for phy sical impairment sustained i n the past and dis fig ureme nt i n the past and future. We construe Kosaka’ s third issue as a challeng e to the fac tual sufficie ncy of the evidenc e to support the jury ’s zero-dama g es finding s as to these c ateg ories of da mag es. 5
i) Standard of Re view Disfig ureme nt, phy sical impairment, and mental ang uish are overla pping cate g ories of damag es. Golden Eagle Archery , Inc. v. Jack

son , 116 S.W .3d 757, 775 (Tex. 2003)

. Reviewing the fac tual sufficie ncy of the evidenc e for overla pping cate g ories, we first “dete rmine if the evidenc e

I n the section of his brief entitled “Summary of Arg ument,” Kosaka also arg ues that “the 4 jury improperly reduc ed t h e am o unt of future [m edica l expenses] from an amount in excess of $150,000.00 to an amount of $80, 0 00.00.” He fails to cite authorities or the rec ord for this contention and, there fore , has waived it. See Tex. R. App. P. 38.1(i) (appe llant’s brief must contain “appr opriate citations to authorities and rec ord”) ; Mayhe w v. Dealey , 1 43 S.W .3d 356, 368 (Tex. App.—Dallas 2004, pet. denied) (noting err or “wa ived for inadequa te bri ef i n g ” when brief did not contain a clea

r and concise arg ument for the contention made with approp ri at e citations to authorities and the rec ord); Jin v. PNC Bank , No. 03-10-00392- CV, 2011 Tex. App. L EXI S 1751, at * 8 (Tex. App.—Austin Mar. 9, 2011, pet. denied) (mem. op.) (finding arg ument waived for inadequa te brief

ing)

. Hook & Anchor also ar gu es that Kosaka ’s briefing as to his third issue fails to comport 5 with the require ments of rule 38. See Tex. R. App. P. 38.1(i); Dealey , 143 S.W .3d at 368. Be cause we conclude that the evidenc e was fac tually sufficie nt to support t he jury ’s finding s, we need not addre ss this arg ument. See Tex. R. App. P . 47.1. 10unique to eac h cate g ory is fac tually sufficien t” when the appellant, as is the case here , challeng es

“the jury ’s failure to find g rea ter damag es in mo re t h an o ne overla pping cate g ory .” Id

. I f the evidenc e unique to a cate g ory is not sufficie nt, we “conside r all the overla pping evidenc e, toge ther with the evidenc e unique to eac h cate g ory , to deter mine if the total amount awa rded in the overla pping cate g ories is fac tually s u ff i cient.” Id

. Be cause Kosaka bore the burden to prove his damag es, we may set aside the challenge d zero-dama g es finding s for fac tual insufficienc y only if they are so co ntrary to “the g rea t weig ht and preponde ranc e of the evidenc e as to be manifestly unjust, shock the conscie nce, or clea rly demonstrate bia s.” See id. at 775.
We are also mindful that the jury is g iven considera ble discretion and latitude in its finding s of persona l injury damag es. W eidner v. Sanchez , 14 S.W .3d 353, 372 (Tex. App.—Houston [14t h Di s t

. ] 2 0 0 0, no pet.); see also HCRA of Tex., Inc. v. Johnston , 178 S.W .3d 861, 871 (Tex. App.—For

t Worth 2005, no pet.) ( “The proce ss of awa rding damag es for amorphous, discretionar y injuries such as mental anguish or pain and suffe ring is inhere ntly difficult beca use the alleg ed injury is a subjective, unliquidated, nonpecunia ry loss.”(citing Dollison v. H a y e s , 7 9 S. W. 3 d 246, 249 (Tex. App.—Texarkana 2002, no pet.)))

. Fur ther, we may n ot substitut e our judgme nt for the jury ’s.
Ma r i time Ove rseas Corp. v. Ellis , 971 S.W .2d 402, 407 (Tex. 1998); see also McG alli a r d

v. Kuhlmann , 722 S.W .2d 694, 697 (Tex. 1986) (trier of fac t may believe one witness and disbelieve others, may resolve inconsistencies in the testimony of any witness, and “is aff

orded considera

ble discretion in eva luating opinion testimony on the issue of da mag es”)

.

11ii) Damages for Disfigurement in the Past and Future “Disfig ureme nt ha s been define d as that which impairs the appea ranc e of a person,

or that wh i ch rende rs one’s appea ranc e unsightly , misshapen, imperfe ct, or defor med in some

manner .” Enright v. Go o d ma n Distrib., Inc. , 330 S.W .3d 392, 402 (Tex. App.—Houston [14t h Dist.] 2010, no pet.) (citing Figueroa v. Davis , 318 S.W .3d 53, 64 (Tex. App.—Houston [1st Dist.] 2010, no pet.)).

Kosaka points to the “voluminous evidenc e” in the record to support his challeng e to the jury ’s zero-damag es finding s, but he fails to point to specific evide nce tha t would support a finding that he was disfigur ed by the 2008 acc ident or that he would be disfigur ed in the future. Our revie w of the rec ord simil arly did not locate evidenc e to support a finding that Kosaka was disfigur ed by the acc ident or that he would be disfigur ed in the future. Kosaka pulled up his pants leg to show the jury a knee brac e that he wore , but there was no evidenc e to support a finding that the brac e made his appea ranc e “unsig htly ” or otherwise disfigur ed. As to damag es for disfigur ement in the future, the evidenc e showed that he may have two additio n al s u rge ri es, but this evidenc e standing alone does not support reve rsing the trial court’s judgme nt. See Belford v. W alsh , No. 14-09-00825- CV,
2011 Tex. App. L EXI S 6179, at *20-22 (Tex. App.—Houston [14t h Dist.] Aug. 9 , 2 0 11, no pet.) (mem. op.) (upholding jury ’s finding of zero damag es for past and future disfigur ement and reje cting
arg ument that proof of surg ery is pr oof of disfigur ement beca use surg ery nece ssarily leave s scar s).
On this rec ord, we cannot say that the jury ’s zero-dama g es finding s for disfigur ement in the past and futur e we re so ag ainst the gre at weight and preponde ranc e of the evidenc e as to be

12“manif

es t l y unjust, shock t he conscience , or clearly demonstrate bias.” See Jack son , 116 S.W .3d
at 775. We there fore conclude that the evidenc e was fac tually sufficie nt to support these finding s.

iii) Damages for Phy

sical Impairment in the Past Phy sical impairment damag es compensa te for the loss of “for

mer lifesty le.” Enright , 330 S.W .3d at 402; Patlyek v. Brittain , 149 S.W .3d 781, 785 (Tex. App.—Austin 2004, pet. denied)

. To rec over damag es for phy sical impairment in the past, Kosaka had to prove “that (1) he incurre d injuries that are distinct from, or extend bey ond, injuries compensa ble throug h other damag e elements; and (2) these distinct injuries have had a ‘substantial’ eff ect.” Enright , 330 S.W .3d at 402 (citing Patlyek

, 149 S.W .3d at 786); see also K r o g er C o
. v. Brown , 267 S.W .3d 320, 324 (Tex. App.—Houston [14t h Di s t

. ] 2 008, no pet.) (stating “‘[p] hy sical i mpairment’ encompasses loss of the injured pa

rty ’s forme r lifesty le, the ef fec t of which must be substantial and extend bey ond any pain, suffe ring , mental ang uish, lost wag es, or diminis hed ear ning capa city ”); Dollison , 79 S.W .3d
at 253 (“Phy sical impairment is an element of damag es that extends bey ond loss of ear ning capa city and bey ond any pain and suffe ring , to the ex tent that it produce s a separate loss that is substantial or extremely

disabling.” ).
L ike his argu m en t conce rning damag es for disfigur ement, Kosaka points to the “voluminous evidenc e” in the rec ord to support his contention that the jury improperly awa rded zero damag es for phy sical impairment sustained in the past, but he has failed to point to spec i fic evidenc e—and we have found none—that would support reve rsing the trial court’s judgme nt. See Enright , 330 S.W .3d at 402. Although there was evidenc e that he was “limited” phy sically beca use of his injuries, the jury

was instructe d not to compensate him twice for the same loss a nd awa rded

13him the amounts of $5,000 for phy sical pain and mental ang uish sustaine d in the past and $20,534

for loss of ear

ning capa city sustained in the past. See Rentec h Steel, L.L.C

. v. Teel , 299 S.W .3d 155,
166 (Tex. App.—Ea s tl a

n d 2 0 0 9 , p e t. dism’d) (dama g es for phy sical impairment “enc ompass the loss of enjoy ment of life, the eff

ect of which must be substantial and extend bey ond any pain, suffe ring , mental ang uish, lost wage s, or diminished earning capa city ”).

On this rec ord, we ca n n o t say that the jury ’s zero-dama g es finding for phy sical impairment sustained in the past was so ag ainst the g rea t weig ht and preponde ranc e of the evidenc e

as t o be “manife stly unjust, shock the conscie nce, or clea rly demonstrate bias.” See Jacks o n , 116 S.W .3d at 775. We there fore conclude that the evidenc e was fac tually sufficie nt to support this finding and over

rule Kosa ka’s third issue.

CONCLUSION
For these re asons, we a ffirm the tria l court’s judg ment.

__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Rose and Goodwin
Affir med Filed: Nove mber 8, 2012

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