### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 91-2506

_______________

IN THE MATTER OF: 5300 MEMORIAL INVESTORS, LTD.,

Debtors.

IN

5300 MEMORIAL INVESTORS, LTD.,

Appellant,

Cross-Appellee,

VERSUS

RESOLUTION TRUST CORPORATION,

As Receiver of

SAN JACINTO SAVINGS ASSOCIATION

and

SAN JAC FINANCIAL SERVICES, INC.,

Appellees,

Cross-Appellants.

_________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________ (September 16, 1992)

Before KING, WILLIAMS, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

The facts and underlying transactions in this complex commercial case are set forth in the substitute opinion of the Texas

Court of Appeals, which we attach as an appendix to this opinion.

See San Jac Fin. Servs. v. 5300 Memorial Investors

, No. 01-88-

00579-CV, 1990 Tex. A pp. LEXIS 1857 (Tex. App. ) ) 

### Houston [1st

Dist.] July 26, 1990, writ mooted by removal to federal district

### 2

court) (unpublished) (on motion for rehearing). After the issuance of the state court of appeals's opinion, and while a writ of

error to the Texas Supreme Court was pending, San Jacinto Savings

Ass ociation failed, and the Resolution Trust Corporation (RTC)

was appointed as its receiver. Pursuant to 12 U.S.C.

§ 1441a( l )(3)

, the RTC removed the action to the United States

District Court fo r the Southern District of Texas, which adopted

the judgment of the Texas Court of Appeals as its own. The

plaintiff, 5300 Memorial Investors, Ltd. ("5300 Memorial"), appeals that judgment, and the RTC cross-appeals.

II.

A.

We must examine the basis of our jurisdiction, on our own

motion if necessary. U nited States v. Cronan

, 93 7 F.2d 163, 164

(5th Cir. 1991). Although neither party raised, in its brief,

the question of federal jurisdiction, we sua sponte requested the

parties to file supplemental briefs add ressing whether removal

jurisdiction exists here. On the basis of a recent en banc opinion of this court, we conclude that we have jurisdiction.

At the time of the instant removal, section 1441a( l )(3) provided that the RTC

may remove any action, suit, or proceeding from a State

court to the United States district court with jurisdicti on over the place where the action, suit, or proceeding is pending, to the United States district court

for the District of Columbia, or to the United States

district court with jurisdiction over the principal

place of business of any institution for which the Corporation has been appointed conservator or receiver if

### 3

the action, suit, or procee ding is brought against the

i nstitution or the corporation as conservator or receiver of such institution . . . .

In Federal Deposit In surance Corp. v. Meyerland Co. (In re

Meyerland Co.)

, 960 F.2d 512 (5th Cir. 1992) (en banc), we

construed a similarly-worded statute conferring extraordinary

powers of removal upon the Federal Deposit In surance Corporation

(FDIC). That provision, 12 U.S.C. § 1819(b)(2)(B), states that

the FDIC "may

. . . remove any [action to which it is a party]

from a state court to the appropriate United States d istrict

court." Removal also was based upon 12 U.S.C. § 1819(b)(2)(A),

stating that "all suits of a civil nature at common law or in

equit y to which the [FDIC], in any capacity, is a party shall be

deemed to arise under the laws of the United States." Similarly,

in the instan t case, 12 U.S.C. § 1441a( l )(1) grants federalquestion status to actions to which the RTC is a party:

Notwithstandi ng any other provision of law, any civil

action, suit, or proceeding to which t he [RTC] is a

party shall be deemed to arise under the laws of the

United States, and the United States dist rict courts

shall have original jurisdiction over such action,

suit, or proceeding.

In Me yerland , the action was removed after oral argument in

the Texas Court of Appeals but before a decision was rendered.

Here, the state court of appeals has issued an opinion, and a

writ of error to the state supreme cou rt was pending when the

removal petition was filed. In Meyerland

, we concluded the

following:

Any action in a state court may be removed. This

language does not limit removable actions to those that

have not yet reached a state trial cour t judgment, n or

### 4

does it limit removable actions to those that come to

the federal courts from a specific sta te court (i.e.,

from state trial, as opposed to appellate, court)

.

960 F.2d at 516 (emphasis added).

This unequivocal statement plainly encompasses the

circumstance in the case sub judice : A case to which the RTC

becomes a party is removable from any state court. Certainly,

since the Texas Supreme Court qualifies as a "state court," we

need not query whether a matter pending on writ of error is in

the sta te court of appeals or the state supreme court. Either

way, it is in state court and subject to remo val under section

1441( l )(1).

We see no principled basis upon which to distinguish this

case from Meyerland

. There, we reasoned that "[t]he significant

factor . . . is that state appellate proceedings had not yet been

exhausted when removal was effected ." 960 F.2d at 517 (citing

Murray v. Ford Motor Co. , 770 F.2d 461, 463 (5th Cir. 1985) (per

curiam)); Butner v. Neustadter

, 324 F .2d 783 (9th Cir. 1963);

Munsey v. Testworth Labs. , 227 F.2d 902, 903 (6th Cir. 1955) (per

curiam). S ee F DIC v. Yancey Camp Dev. , 889 F.2d 647, 648 (5th

Cir. 1989).

Here, plainly, the state appellate process was moving

forward when the RTC removed. The fact that the state court of

appeals had rendered its decision is of no moment, given our

reasoning in Meyerland

. Although we recognize the federalism

concerns expressed in the dissent in Meyerland

, see 960 F.2d at

522-26 (Politz, C.J., dissenting), we note that, as in Meyerland

,

### 5

we merely are playing the hand that Congress has dealt us. S ee

id. 960 F.2d at 519-20.

B.

Having concluded that removal was jurisdictionally proper,

we must consider the appropriate procedur al disposition of the

case once removal was effected. In M eyerland

, citing Granny

Goose Foods v. Brotherhood of Teamsters, Local No. 70

, 415 U.S.

423, 435-36 (1974), we noted that "[a] case removed from state

court simply comes into the federal system in the same condition

in which it left the state system." 960 F.2d at 520.

Accordingly, we held that upon receipt of the removed proceeding,

"the district court [should] take the state judgment as it finds

it, prepare the record as required for appeal, and forward the

case to a federal appellate court for review." Id.

That is precisely what the federal district court did in the

instant matter. Citing Granny Goose Foods , on April 16, 1991, it

issued a one- page opinion stating that "[t]he July 26, 1990,

order of the Court of Appeals will be adopted as an order of this

court so that the parties may have the opportunity to pursue

their appeals in the federal courts." The opinion was

accompanie d by a contemporaneous judgment stating that "[t]he

judgment signed on July 26, 1990, by the Texas Court of Appeals

for the First District in C ause No. 01-88-00579-CV is ordered

entered as the judgment of this court."

Thus, the district court anticipated our directive in

Meyerland by more than a year. It correctly entered the state

### 6

cou rt's judgment as its own, complying with the requirement set

f orth in Granny Goose Foods

. A ccord Walker v. FDIC

, Nos. 89-

2866, 89-2983, 1992 U.S. App. LEXIS 2053 7, at *19 & n.12 (5th

Cir. Sept. 2, 1992). We note, as well, that it makes no

differe nce that the adopted judgment here is from a state

appellate court rather than, as in Meyerland

, from a state trial

court: It is a state judgment, nonetheless.

III.

We also have raised, sua sponte

, the question of whether,

under section 1441a( l )(3), this matter should have been re moved

to the United States District Court for the District of Columbia

instead of to the United States District Court for the Southern

District of Texas. The obvious reading of this plain language is

that unless the RTC was involved in the original dispute that

spawned the state court litigation, the only federal court to

which the case may be removed is in the District of Columbia. At

least one other circuit court of appeals has so held, s ee RTC v.

Westgate Partners

, 937 F.2d 526, 531 (10th Cir. 1991), and none

to our knowledge has disagreed; accord RTC v. Sloan , 775 F. Supp.

326, 332 (E.D. Ark. 1991); Piekarski v. Home Owners Sav. Bank

,

743 F. Supp. 38, 41 (D.D.C. 1990).

On the other hand, Congress has amended section 1441a( l )(3),

effective February 1, 1992 (subsequ ent to the instant removal),

to allow removal, in cas es such as this, to the District of

Columbia, "or if the action, suit, or proceeding arises out of

### 7

the actions of the [RTC] with respect to an institution for which

a conservator or a receiver has been appointed, the United States

district court for the district where the institution's principal

business is located." S ee Resolution Trust Corporati o n

Refinancing, Restructuring and Improvement Act of 1991, P.L. 102-

233, 105 Stat. 1772, 12 U.S.C. § 1441a( l )(3)(A). If that

amendment is to be applied retroactively, removal here to the

Southern District of Texas undeniably was appropriate.

We need not decide the question of retroa ctivity, however.

Provisions permitting suit to be brought only in certain district

courts, including those conferrin g special venue in the District

of Columbia, are treated as venue, rather than jurisdiction al,

requirements. S ee generally 1A J AMES 

### W. M OORE ET AL



### ., M OORE 

### ' S 

### F EDERAL



### P RACTICE 

### ¶ 0.344[17 ] (2d ed. 1991). T his court and others

consistently have construed the former provision in section

1441a( l )(3), allowing removal only to the District of Columbia,

as concerning solely venue an d not jurisdiction. In R TC v.

Sonny's Old Land Corp. , 937 F.2d 128, 130-31 (5th Cir. 1991), for

exa mple, we held that the provision is procedural, not

jurisdictional, and that a party that had not asserted a

seasonable objection to improper venue had waived the defect.

See also RTC v. Lightfoot , 938 F.2d 65, 66 (7th Cir. 1991).

Here, the parties never r aised the potential defect of

removal to a district other than the District of Columbia.

Consequently, we consider the matter waived.

### 8 V.

A.

In its comprehensive substitute opinion, the Texas Court of

Appea ls reversed the judgment of the state trial court and

remanded for a new trial. We agree that that is the proper

resolution of the merits of this case. For the reasons set forth

in the state court of appeals's opinion, we vacate the judgment

of the federal district court and remand to it for a new trial.

B.

The RTC contends that it is entitled to assert its rights

under D'Oench, Duhme & Co. v. FDIC , 315 U.S. 447 (1942), and its

codification in 12 U.S.C. § 1823(e). 5300 Memorial argues that

the RTC cannot raise such matters for the first time on appeal.

Obviously, the reason these matters were not raised

previously is that the RTC was not a party until it was appointed

receiver, which was after trial and after the Texas Court of

Appeals had issued its opinion. Importantly, the RTC urges

D'Oench, Duhme and section 1823(e) in support of the judgment of

the state court of appeals, which was in existence at the time

the RTC became receiver.

We have stated that under such circumstances, these defenses

may be asserted for the first time on appeal. See Meyerland , 960

F.2d at 519 ( dictum ) ; RTC v. McCrory

, 951 F.2d 68, 71-72 (5th

Cir. 1992), petition for cert. filed

, 60 U.S.L.W. 3816 (U.S. May

11, 1992) (No. 91-1842); Union Bank v. Minyard , 919 F.2d 335, 3361 S ee also FDIC v. Castle

, 781 F.2d 1101, 1105 (5th Cir. 1986) ; W ard v.

RTC , No. 91-3015, 1992 U.S. App. LEXIS 17424, at *6-*7 (8th Cir. July 30,

1992) (citing Meyerland ); Capitol Bank & Trust Co. v. 604 Columbus Ave. Realty

Trust (In re 604 Columbus Ave. Realty Trust) , Nos. 91-1976, 91-1977, 1992 U.S.

App. LEXIS 14258, at *29 (1st Cir. June 19, 1992). B ut cf. Thurman v. FDIC

, 889 F.2d 1441, 1447 (5th Cir. 19 89); Olney Sav. & Loan Ass'n v. Trinity Banc

Sav. Ass'n , 885 F.2d 266, 275 (5th Cir. 1989).



### 9 (5th Cir. 199 0). 1 

### Accordingly, on remand the RTC may urge the

defenses afforded by D'Oench, Duhme and section 1823(e).

VACATED and REMANDED.

### 10 APPENDIX

Opinion

In The

Court of Appeals

For The

First District of Texas

__________

NO. 01-88-00579-CV

__________

SAN JAC FINANCIAL SERVICES and SAN JACINTO SAVINGS ASSOCIATION,

Appellants

V.

5300 MEMORIAL INVESTORS, LTD., JOHN M. MC GINTY, MILTON B. MC GINTY,

B. BURKE MC GINTY, and J. L. PARISH, Appellees

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 87-09314

ON MOTION FOR REHEARING

Appellants and appellees filed motions for rehearing. We overrule the

motions for rehearing, withdraw our earlier opinion dated February 15, 1990,

and in its place substitute the following.

This is an appeal from a judgment based on a j ury's answers to 43 jury

questions in a contract lawsuit. We reverse and remand.

In eleven points of error, appellants San Jaci nto Financial Services,

Inc. ("the Purchaser") and San Jacinto Savings Association ("the Escrow

Holder") assert that: the evidence was legally and factually insufficient to

### 11

support certain of the jury's answers to jury questi ons; the trial court

should have reformed the contract to reflect the true agreement of the

parties; the tr ial court erred in failing to enter judgment in favor of

Purchaser on its usury claim; the trial court erred in awarding at t orneys'

fees to appellee, 5300 Memorial Investors, Ltd., and in not awarding

attorneys' fees to appellants; and certa in of the jury's answers to jury

questions fatally conflict and are irreconcilable.

In three cross points, app ellees assert that: the trial court erred in

submitting jury question No. 33 to the jury; the trial cou rt erred in

overruling appellees' motion for le ave to file a sixth amended original

petition; and the trial court erred in failing to award prejudgment interest

at the rate of 12% per annum.

The following facts are uncontested:

5300 Memorial Investors, Ltd., a limited partnership ("Seller"), built

an office building at 5300 Memorial Drive in Houston, Te xas, in 1982, and by

1984 it was almost 70% leased. The general partner, John "Jack" McGinty, was

approached in 1984 by a real estate broker who said that Southmark Corporation

was interested in purchasing the building. On January 17, 1985, Southmark

s igned a letter of intent to buy the building, and Jack McGinty began

discussions with representatives of Southmark. The agreed price for the

building was $17,900,000. The parties, in addition to signing a purchase and

sale agreement, were to sign a finishout, lease-u p and rental guarantee

agreement, guaranteeing a minimum rental inc ome to Purchaser for a term of 3

years . The parties also agreed that an escrow fund would be set up, with

$1,156,900 to be deposited by Seller, to secure the gu aranteed yield to be

paid to Southmark.

Seller provided copies of all the leases to Southmark. In April and May

of 1985, the various general and limited partne r s of Seller began signing the

purchase and sale agreement. On May 23, 1985, the chairman of Southmark, Gene

Phillips, during a 10-day period of inspection of the buildin g, threatened to

cancel the purchase of the building if t here were no additional monies set

### 12

aside in the escrow fund. The parties signed a letter agreement modifying the

terms of the purchase and sale contract by hav ing Seller put an additional

$400,000 into the escrow account, in exchange for an increase in t he sale

price represented by a $150,000 p romissory note benefitting Seller, which was

also added to the escrow account. The escrow fund therefore contained

$1,556,900, plus the value of the $150,000 note.

The closing of the sale was on June 19, 1985; the effective date of the

sale was July 2, 1985. The purchaser of the building was San Jac Financial

Services. San Jacinto Savings, a Southmark subsidiary, was the escrow holder.

The preamble to the Finishout, Leas e-up and Rental Guarantee Agreement,

reads as follows:

WHEREAS, simultaneously herewith, pursuant t o that certain

Agre ement of Purchase and Sale dated April, 1985, Seller has

conveyed to Purchaser that certain property known as 5300 Memorial

Office Building (the "Project") and,

WHEREAS, Purchaser and Seller Acknowledge that a po r tion of

the space at the Project is unfinished and/or unleased; and,

WHEREAS , the parties hereto have reached an understanding

with respect to the obligation of the Seller, under the

circumstan ces as provided herein, to complete the work necessary

to finish the unfinish ed space at the Project, at Seller's cost

and expense, and to pay certai n amounts in regard to the leasing

of the unleased space; and,

WHEREAS, the par ties hereto have reached an understanding

that, under the ci rcumstances as provided herein, Seller shall

guarantee to Purchaser, for a specified time, a minimum rent a l

income in connection with the Project.

NOW THEREFORE,

. . . the parties hereto, intending to be

bound, hereby agree as follows:

The main dispute in this case involves the calculation of the "minimum

rental income" guaranteed to Purchaser by Seller, and the par ties' respective

rights to the sums placed in escrow pursuant to the guaranty.

The first critical element of the Rental Guarantee Agreement was the

"Mont h ly Guarantee Amount": $149,167. On a monthly basis, that amount was to

be compared w ith the Purchaser's Accrual Net Rental Income. If the Monthly

Guarantee Amount wa s larger, the difference constituted the "Monthly Payment"

owed to the Purchaser, for which Purchaser was required to submit an invoice2 F or example, the Hill and Parker lease stated that the tenant shall



### 13 to Seller and th e Escrow Holder within 45 days after the end of that

particular month.

That calculatio n and procedure controlled throughout the three years of

the Agreement's term, except that the Monthly Payment was adjusted on a

quarterly basis to credit Purchaser for accrued income which was never

actually collected. The Monthly Guarantee Amount was multiplied by three to

reach the Quarterly Guarantee amount of $447,501, which was then compared

against the sum of the Cash Net Rental Income for Existing Tenants and the

Accrual Net Rental Income for New Tenants. If the Quarterly Guarantee Amount

was greater, the difference would constitute the Quarterly Obligation Amount,

which was compared against the sum of the quarter's Monthly Payments. If the

Quarterly Obligation Amount was greater, then the difference constituted the

Quarterly Payment owed to Purchaser, for which Purchaser was required to

submit an invoice to Seller and the Escrow Holder within 45 days after the end

of that particular quarter.

The critical definitions for these calculations were "Cash Net Rental

Income" and "Accrual Net Rental Income":

Cash Net Rental Income : All rental income and

reimburs ements . . . actually collected by Purchaser pursuant to

the Project's tenant l eases . . ., less the aggregate amount of

the Expense Stop for all such leases.

Accrual Net Rental Income : All rental income and reimbursements . . .

accruing p u rsuant to the Project's tenant leases, less the aggregate

amount of the Expense Stop for all such leases . . . .

The definition of Expense Stop was as follows:

Expense Stop : The sum specified in each Project tenant lease per square

foot of net rentable space per year for full common area maintenance and

operating expenses (including all ad valorem tax and o ther assessments)

which does not pass through to the tenant but is an obligation of the

landlord.

Every lease in 5300 Memorial contained a n "additional rent" provision,

stating a dollar amount per square foot which defined the landlord's and

tenant's resp onsibilities for the maintenance and operating expenses. That

dollar amount was commonly known as the "expense stop." 2reimburse to the landlord a pro rata share of the Basic T axes and Basic

Operating Cost which exceeded $3.50, and therefore hand an expense of $3.50

per square foot.



### 14 Purchaser was authorized to invoice for payment from the Escrow Fund

only if Purchaser's previous income from rentals was less than the Monthly and

Quarterly Guarantee Amounts. Conversely, Seller was allowed to apply for a

refund from the Escrow Fund when the money in the Escrow Fund exceeded the

level necessary to guarantee the Purchaser's income for the remainder of the

Agreement's term. The Rental Guarantee Agreement provided the procedure by

which Seller could apply for a refund of the excess escrow amount:

From time to time d uring the Term, but no more often than

quarterly, Seller may submit to Purchaser a detailed accounting

demonstrat ing the amount by which the current balance of the

Escrow Fund exceeds the Required Escrow Fund.

Purchaser was then required to respond within 30 days in one of three ways:

Purchaser shall have thirty days to review such accounting . On or

before the e nd of such thirty days, Purchaser shall do one of the

following: 1) submit an invoice (the "Refund Invoice") to Seller and

Escrow Holder, directing the Escrow Holder to pay to Seller, from the

Escrow Fund, the Escrow Refund Amo unt claimed by Seller; 2) submit an

invoice (the "Adjusted Refund Invoice") to Seller and Escrow Holder

directing the Escrow Holder to pay to Seller, from the Escrow Fund , the

Escrow Refund Amount as calculated by Purchaser. Along with the

Adjusted Refund Invoice Purchaser shall submit a detailed accounting of

the Escrow Refund Amount; 3) submit to Seller a detailed accounting

ind icating that the Required Escrow Fund does not exceed the actual

Escrow Fund.

Within 5 days after its receipt of eithe r the Refund Invoice or Adjusted

Refund Invoice, the Escrow Holder was required to ("shall") p a y to Seller the

indicated amount.

Despite the procedures established i n the Rental Guarantee Agreement of

July 2, 1985, no attempts were made by either party to withdraw any funds from

the escrow account until February, 1986.

On February 28, 1986, Purchaser withdrew $29 7 ,261.09 from the escrow

account without presenting an invoice, and without notifying Seller. Seller,

on March 4, 1986, wrote to River Oaks Bank & Trust (where the es crow funds

were held), instructing them to make no more disbursements to Purchaser. In

addition , Seller's attorney wrote the bank on March 7, 1986, stating that no

### 15

new disbursements should be made to Purchase r. On March 13, 1986, Seller

wrote a letter to an analyst for Sout hmark, asking for more cooperation and

better communication between the parties.

After additional communications between Seller a nd Purchaser, on

April 17, 1986, Southmark supplied Seller with finan cial statements covering

the period f rom July 1985 to march 1986. At the same time, Southmark said

that Purchaser would w i thdraw another $321,132.92 from the escrow account;

however, no such withdrawa l has ever been made. On November 25, 1986,

Purchaser sent additional financial information to Seller covering t he period

from July 1985 to October 1986; the controller for Southmark supplied the

information. A revised version of this analysis was delivered to Seller on

December 31, 1986. The revision showed that Purchaser was entitled to a total

of $409,406.70 out of the escrow account through October, 1986. After

deducting the $297,261.09 previously with drawn from the escrow account by

Purchaser, the analysis showed that $112,145.61 was due to Purchaser.

On December 22, 1986, Seller sent Purchase r its first application for a

refund from the escrow fund, accompanied by a detailed accounting which

reflected that an excess of $989,244.00 was in the escrow account. Seller

made the application for refund based on the detaile d accounting sent to

Seller by Purchaser in November, 1986. When Seller received Purchaser's

revised accounting on December 31, 1986, Seller reduced its request for refund

to $962,742.00.

In a letter dated January 13 , 1987, Seller wrote to Purchaser saying

that Seller had dec ided to remove its objections to any further distributions

from the escrow account to Purchaser, since Purchaser was then substantially

in compliance with the requirements of the rental guarantee agreement. Seller

also stated it did not waive any rights it had in the agreement. Seller

acknowledged that Purchaser was entitled to withd raw $112,145.61 from the

escrow account, in addition to the $297,261.09 Purchaser had already

withdrawn; therefore, th e total amount Seller acknowledged was due Purchaser

t hrough October 31, 1986, was $409,407.00. Seller stated that the new

### 16

withdrawal could be made upon proper invoice, and notice to Seller.

By letter dated March 2, 1987 (more than 30 days after Seller had

submitted its application for refund), Purchaser responded to Seller's

application for refund, stating that Purchas er's analysis indicated that the

refund due to Seller was $99,537.00 as of October 31, 1986. However, prior to

receiving Pur c haser's response, Seller had already filed suit against

Purchaser and the Escrow Holder on February 26, 1987 , alleging breach of

contract, conversion and breach of fiduciary responsibility.

On July 31, 1987, Seller wrote Purchaser requesting an additional refund

of $128,777.00. Attachments to this request continued to show that the "total

due Purchaser through 10 /31/86" was $409,407.00, "per invoice from Purchaser

delivered to Seller 12/31/86." This same document also showed monthly

payments "due Purch aser" for the months of November, 1986 through June, 1987,

totalling $153,075.00. Adding the two figures together, this document showed

that Seller acknowledged that Purchaser was entitled to withdraw from the

escrow account the sum of $562,482.00 through June, 1987.

Purchaser responded to Seller 's July 31, 1987 request for refund by

stating that the total refund amount due Seller was $212,564.00. Seller

disagreed, stating that the tota l refund amount due was in excess of

$1,000,000.00.

By letter dated October 15, 1987, Se ller requested an additional refund

of $700,048. 00. In this letter, Seller no longer showed Purchaser was

entitled to the $562,482.00 amount that Seller had previously acknowledged to

be due to Purchaser upon proper invoice, and notice to Seller. Seller had not

applied for a total of $1,818,069.00 in refunds from the escrow account.

Purchaser reviewed the application and prepared an adjusted refu n d invoice

directing the escrow holder to pay th e Seller $425,114.38. It is contested

whether this adjusted invoice was ever delivered to the escrow holder;

however, by letter dated November 9, 1987, a check for this amount was sent to

Seller's lawyers. By letter dated November 13, 1987, the check was returned

on the same day it was received.

### 17 In the lawsuit, which had been pending since February 26, 1987,

Pu rchaser filed a counterclaim on December 31, 1987 stating there was a

material mutual mistake, or a unilateral mistake accompanied by

misr epresentations of Seller, with regard to the use of the term "expense

stop" in the agreement. Purchaser alleged in part that, when Seller computed

" net rental income", no expenses were deducted for vacant space in t h e

building, and "additional rents" (tenant obligations f or expenses that exceed

the expense stop), continued to be included as an income item, w ithout a

corresponding deductio n for expenses actually incurred by the building.

Purchaser sought a rescission of the contract, and alternatively prayed for a

resulting trust, or a constr uctive trust, or a reformation of the rental

guarantee agreement, or a declaratory ju dgment construing the rights and

obligations of the parties.

River Oaks Bank & Trust filed a plea in intervention, and a petition for

interpleader to deposit in the trial court the sum of $1,514,022.66 out of the

escrow accoun t. The trial court signed the order for the interpleader, and

River Oaks Bank & Trust was released from liability in the suit.

F ifteen days after the trial commenced, the court submitted the case to

the jury on 43 jury questions. After the return of the verdict, Purchaser

filed a motion to di sregard the jury's answers to jury questions 1, 2, 3, 4,

5, 6, 7, 8, 9, 11, 18(b), 19, 20, 30, 34, 35, 40, 41, and 43. The trial court

denied the motion and entered its judgment awarding Seller $1,818,069.00, plus

interest, exemplary damages, expert witness fees and attorney s ' fees.

Appellants filed a motion for new trial, whi ch was denied on the same day.

Seller also filed a motion for new trial, which was denied.

In their first point of error, appellants argue that the trial court

erred in overruling their motion to disregard the jury's finding of the amount

due to S eller, in response to jury question number four, because there is no

evidence to s upport the answer and, as a matter of law, the amount is

determinable by mathematical computation. Jury question number four reads as

follows:3 W e note that the jury awarded Seller the amount requested in its

December 22, 1986 application for refund, even though Seller later amended

that application to seek a refund in the lesser amount of $962,742.00.



### 18 What sum of money, if any, do you find from a preponderance

of the evidence that is due to 5300 Memorial Investo rs under the

Rental G uarantee Agreement for the following Applications For

Refund?

Answer in dollars and cents, if any.

Answer

1. December 22, 1986 $ 989,244

(Plaintiff's Exhibit 4)

2. July 31, 1987 $ 128,777

(Plaintiff's Exhibit 10)

3. October 15, 1987 $ 700,048

(Plaintiff's Exhibit 16)

The jury was asked only to fill in the blanks in the "Answer" column.

Appellants did not object to the form or substance of jury question four. The

amounts list ed in answers 4(1)-4(3) are identical to the amounts requested by

Seller in its three applications for refund submitted on Dece mber 22, 1986,

July 31, 1987 and October 15, 1987, totalling $1,818,069. 3

In a related argument, under point of error three, appellants assert

that the trial court erred in overruling their motion to disregard the jury's

answers to jury questions five, six and seven (whereby the jury found

purchaser wa ived its right to contest seller's erroneous applications for

refund), because there is no evidence to support the answers and, as a matter

of law, purchaser did not waive the right to cont est erroneous applications

for refund.

Jury question number five reads as follows:

YOU ARE INSTRUCTED THAT

It is undisputed that, within thirty (30) days of the

submission of the December 22, 1986 Application for Refund

(Plaintiff's Exhibit 4), San Jac Financial Servic es failed to

p erform its obligations according to Section I on Page 5 of the

Rental Guarantee Agreement.

Do you find from a preponderance of the evidence that, by

failing to perform its obligations as set forth above, San Jac

Financial Services waived its right to contest 5300 Memorial

Investors' December 22, 1986 Application for Refund?4 T his withdrawal was made by Purchaser without presenting an invoice and

without notifying Seller in advance. However, Seller later acknowledged the

amount withdrawn was appropriate.



### 19

Answer "Yes" or "No."

ANSWER: Yes

You are instructed that a waiver is an intenti onal

relinquishment o f a known right or intentional conduct

inconsistent with claiming such right.

Jury questions six and seven address Seller's July 31, 1987 and October 15,

1987 applications for refund, and are otherwise identical to jury question

number five. The jury likewise answered questions six and seven "yes".

In determining "no evidence" points, we are to consider only the

evidence and inferences that tend to support the finding, and we disregard all

evidence and inf erences to the contrary. K ing v. Bauer

, 688 S.W.2d 845, 846

(Tex. 1985). There is some evidence to support a finding, and more than a

scintilla, if the evidence furnishes som e reasonable basis for differing

conclusions by reas onable minds as to the existence of a vital fact. K indred

v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983). However, where the evidence

is undisputed, so that the questi on is one purely of law, a jury's finding on

the question is immaterial and of no force or effect. B arnes v. Archer

, 77

S.W.2d 883, 885 (Tex. Civ. App. )) San Antonio 1935, no writ).

Appellants first argue that, as a matter of law, the jury award in

response t o question number four should be reduced by $562,482.00 ("the

forfeited amount"). It is undisputed that Seller had acknowledged in writing

that Purchaser was entitled to withdraw this amount from t he escrow account

"upon submitting a proper invoice." It is also undisputed that Purchaser had

already withdrawn $297,261.09 of that sum ou t of the escrow account as early

as February 28, 198 6. 4 However, even though Seller had acknowledged that the

sums totalling $562,482.00 were properly "due" Purchaser under the agreement,

Seller argues that Purchaser failed to submit invoices to the Escrow Holder in

such total amount, and therefore Purchas er forfeited its right to receive the

sums. Thus, when Seller submitted its October 15, 1987 application for refund

### 20

(October 15, 1987, being almost eigh t months after the present lawsuit was

filed), for the first time Seller omitted any reference to the sums Seller had

previously acknowledged were due to Purchaser upon proper invoice. Not only

did Seller no longer acknowledge that Purchaser was due, upon invo i ce, any

portion of the monies still in escrow, S e ller also denied, in its accounting,

that Purchaser was due the $297,261.09 it had withdrawn in February 1986.

Appellants correctly point out that there is no provision in the Re ntal

Guarantee Agreement specifying that Purchaser would forfeit amounts "due" it

under the Agreement if it failed to submit invoices timely, or if it failed to

timely reply to seller's applications for refund. The law does not favor

forfe i tures, and they are to be avoided if possible. S chwarz-Jordan, Inc. v.

Delisle Constr. Co.

, 569 S.W.2d 878, 881 (Tex. 1978); H ohenberg Bros. Co. v.

George E. Gibbons & Co.

, 537 S .W.2d 1, 3 (Tex. 1976); P erry v. Welch

, 725

S.W.2d 347, 348 (Tex. App. )) Corpus Christi 1987, no writ).

We conside r it relevant that Seller does not claim it had incorrectly

calculated the amounts payable to Purchaser from the escrow account (totalling

$562,482.00); Seller a cknowledges those sums were payable to Purchaser upon

presentment of an invoice to the Escrow Holder. Rather, Seller relies solely

on the argument that when, eight months into the pending litigation, Seller

submitted its application for refund claiming entitlement to the ful l balance

in the escrow account, Purchaser had to respond to Seller's application within

30 days, or else Purchaser waived its right to complain about Seller's

calculations.

The jury's finding of "waiver" was conditioned upon, and limited to, the

ques tion of whether Purchaser waived its right to contest Seller's

applications for refund solely as a result of Purchaser's failure to respond

to the applications within 30 days. Even if there was other evidence

indicating waiver, the jury's answer was restricted to a consideration only of

the fact that Purchaser did not timely respond to three applications for

refund.

We note that there is no clause in the contract providing that "time is

### 21

of the essence."

We also cons ider relevant the following provision in Paragraph IV B of

the Rental Guarantee Agreement:

Furthermore, Purchaser, by any act, delay, omission or otherwise,

shall not be deemed to have waived any of its ri ghts, privileges

and or remedies hereunder.

The Rental Guarantee Agree ment authorized Seller to apply for a refund of

excess amounts in the escrow account quarterly. The agreement allows

Purchaser 30 day s to review Seller's accounting, and then requires "[o]n or

before the end of such thirty days, Purchaser shall do one of the following,"

listing three types of responses a llowed Purchaser. The agreement does not

specify the consequences of Purchaser's failure to respond within thirty days.

Seller argues, and the jury found, that by failing to re s pond within

thirty days, Purchaser waived its right to contest Seller's a pplication for

refund, regardless of how erroneous they may have been. The correctness of

this position depends on whether the thirty day requirement in the contract is

a "condition precedent" or a "covenant." The difference is explained well in

Landscape Design & Constr., Inc. v. Harold Thomas Excavating, Inc. , 604 S.W.2d

374 (Tex. Civ. App. )) Dallas 1980, writ ref'd n.r.e.):

A condition precedent is a fact which must exist before a du t y of

immediate performance of a promise arises. A ndretta v. W est , 318

S.W.2d 768, 773 (Tex. Civ. App. )) Texarkana 1958, writ ref'd

n.r.e.). A covenant, as distinguished from a condition precedent,

is an agreement to act or refrain from acting in a certain way. A

breach of a covenant which is a part of a legally enforceable

contract gives rise to a cause of action for d amages rather than

affe cting enforceability of the provisions of the agreement.

Reinert v. Lawson

, 113 S.W.2d 293, 295 (Tex. Civ. App. ) ) Waco

1938, no writ).

* * *

T he general rule of delineation between covenants and conditio n s

i s set out in Hohenberg Brothers Co. v. George E. Gibbons & Co

. , 537 S.W.2d 1, 3 (Tex. 1976). Normally a term such as "if",

"provided that", "on condition that", or some p hrase of

cond itional language must be included that makes performance

specifically conditional. Otherwise the language will be

c onstrued as a covenant in order to prevent a forfeiture. More

specifically, as stated in Schwartz-Jordan, Inc. v. Delisle

Construction Co.

, 569 S.W.2d 878, 88 1 (Tex. 1978), language will

not be construed as a conditi on precedent when another reading of

the contract is possible.5 The evidence shows that Purchaser apparently did respond to Seller's third application for refund within thirty days,

showing disagreement with Seller's calculations. (The first time Seller indicated Purchaser was not entitled to any of the monies

in escrow, was in that third application for refund.)



### 22 Id. at 376-77.

In view of these rules of constr uction, we hold that, as a matter of

law, the 30 day response provision in the agreement is a covenant or a promise

by Purchaser that it will respond to Seller' s applications for refund within

30 days, but it is not a condition prece dent to Purchaser's right to withdraw

designated funds, upon invoice and notice to Seller.

We hold that the evidence was legally insufficient to support the jury's

answers t o jury questions five, six and seven. The undisputed evidence

presented a question of law, and we hold the jury's "waiver " findings are

contrary to the law and are immaterial. We sustain appellant's point of error

three.

In connectio n with the jury answer to jury question four, we hold that

Purchaser did not forfeit its right to receive the f unds from the escrow

account which Seller acknowledged were payable to Purchaser upon invoice and

notice. Purchaser's failure to timely submit invoices to the Escrow Holder,

and its alleged failure to timely contest Seller's applications for refund 5

,

p erhaps gave rise to a claim for damages for breach of contract; however,

Seller did not plead or pr ove it was damaged by Purchaser's failure to

withdraw the money it was entitled to receive.

We hold that Seller's Octobe r 15, 1987 application for refund

erroneously overstated the amount payable to Seller, as a matter of law. The

evidence was legally insufficient to support the jury's answer to jury

question 4(3). We, therefore, sustain appellant's point of error one.

In their eleventh point of error, appellants assert that the trial court

erred in entering judgment for Seller in the amount of $1,818,069.00, because

the jury's answer to jury questio n four, and its answers to jury question 22,

30, 31, 33, 36 and 37, fatally conflict and are irreconcilable.

In response to jury question four, t he jury found that Seller was

entitled to recover the full amount sought under its th ree applications for6 Mutual mistake was defined for the jury as follows: "Mutual mistake" may arise when parties to an agreement have the

same intention and understanding as to the terms to be embodied in a proposed written agreement, but in the effort to reduce their

agreement to writing, both mistake its terms so that the writing does not represent the real co ntract. Mutual mistake is not

readily established by the admissions of the parties. A mutual mistake may arise from all the facts and circumstances surrounding

the parties and their execution of the instrument, as well as their conduct after the execution of the instrument.

7

" Expense Stop" being the sum per square foot of net rentable space per year for common area maintenance and operating expenses which does not pass

through to the tenant but is an obligation of the landlord.



### 23 refund, totalling $1,818,069.00. Appellants argue that this finding is

inconsistent, and irreconcilable, with the following additional findings:

Jur y question 22 (mutual mistake) : Purchaser and Seller were

mutually mistaken upon execution of the Rental Guarantee Agreement

in believi ng that, for purposes of the agreement, additional

rental income would not be included as an item of income without a

corresponding de duction for expenses for which the additional

rental income would be reimbursement. 6

Jury question 30 (expense stop under Natural Resources Lease):

Purchaser and Seller intended, upon executi on of the Rental

Guarantee Agreement, that the expense stop i n Natural Resources'

lease was 4.00 per square foot. 7

Jury question 31 (mutual mistake re: Nat ural Resources' expense

stop): Purchaser and Seller were mutually mistaken, upon

execution of the Renta l Guarantee Agreement with respect to the

amount of the expense stop in the Natural Resources lease for

purposes of the Rental Guarantee Agreement.

Jury question 33 (no forfeiture intended): Purchaser and Seller

did not intend that the failure of Purchaser to submit an invoice

within a specified amount of ti me would result in a forfeiture of

any amounts to which Purchas er would have been entitled, for

purposes of the Rental Guarantee Agreement.

Jury questio n 36 (re: Hill & Parker Lease): Purchaser's

renegotiation of the Hill & Parker l ease was prudent and

customary.

Jury question 37 (Seller's ratification): The Seller did ratify

Purchaser's conduct in withdrawing $297,261.09 out o f the escrow

account.

Re: Natural Resources Lease Expense Stop

(Answers to Jury Questions 30 and 31)

Appellants argue that the amounts the jury found "due" Seller in

response to jury question four are further incorrect because Seller's

calculations, which the jury adopt ed, erroneously used $.50 per square foot

per year as the expense stop in the Natural Resources Lease.

Not only is Natural Resources the largest tenant in the 5300 Memorial

building, occupying two full floors (31,250 sq. feet), it is also a limited

partner in Seller. The difference between the $.50 per square foot used by8 Response to Question 30.

9 Response to Question 31.



### 24 Seller as the Natural Resources' expense stop, and the $4.00 found by the jury

to be the intended expense stop, is $3.50. $3.50 multiplied by 31,250 sq.

feet, multiplied by three years, equals $328,1 25.00. Appellants argue that

Seller's calculations, therefore, erroneously overstate the amount of Seller's

refund due from the escrow account by an additional $328,125.00, according to

the jury's answer to jury question numbers 30 and 31.

the Rental Guarantee Agreement states that t he "expense stop" is

determined by the "sum specified in each Project tenant lease." The Natural

Resources lease provides that the expense stop (the amount of expenses that

remains the obli gation of the landlord, and is not passed through to the

tenant) is 50 cents. However, the rent roll and estoppel certificate provided

by Seller in connection with the sale of the building listed the expense stop

for Natural Resourc es at $4.00. Seller claims this was a clerical error, and

that the true expense stop is 50 cents.

The jury found that the parties intended, upon executi on of the Rental

G uarantee Agreement, that the expense stopped specified in the Natur a l

Resources lease was $4.00 per square foot of net rentable space per year. 8 The

jury further found that the Purchaser and Seller were mutually mistaken with

respect to the amount of the expense stop in the Natural Resources l ease. 9

Purchaser was therefore entitled to have the rental guarantee agreement

construed and enforced in ac cordance with the true agreement of the parties.

See Thalman v. Martin , 635 S.W.2d 411, 413 (Tex. 1982).

We agree that the jury's a nswer to question number four, which adopted

Seller's applications for refund based on a .50 expe nse stop for the Natural

Resources lease, conflicts with the jury's findings that the parties intended

to use a $4.00 expense stop and were mutually mistaken with resp ect to the

amount of the expense stop in that lease.

### 25 Re: Hill & Parker Lease

(Answer to Jury Question Number 36)

Appellants next a rgue that Seller's applications for refund further

erroneously calculated the amount "due" by including the amounts which would

have been paid by Hill & Parker under their old lease, rather than under the

existing, renegotiated lea se. It is uncontroverted that, like Natural

Resources, Hill & Parker is also a substantial tenant in the 5300 Memorial

building; it occupied 15,625 square feet in June 1985. Members of the law

firm are also limited partners in Seller. Effective September 1, 1986, the

Hill & Parker lease was renegotiated, with Purchaser to provide additional

space and a longer term, in exchange for certain rental concessions.

The Rental Guarantee Agreement required Purchaser to "manage the project

in a manner which is considered customary and prudent among managers of office

buildi ngs of similar size and quality in the Houston area." The jury found,

in response to Question 36, that the renegotiation of Hill & Parker lease was

prudent and customary.

Despite the fact that the renegotiation of the Hill & Parker lease was

found to be prudent and customary, Seller calculated the amount "due" it in

its applications us i ng the old Hill & Parker lease, rather than the existing,

renegotiated lease. According to appellants, the difference between Seller's

ref und from the escrow account as shown by the applications using the old

leas e

, versus calculations using the existing, renegotiated lease, is

$324,667.66.

Seller responds that a separate Cross indemnity Agreement between Seller

and Purchaser prevents Purchaser from benefitting from the re negotiated lease

in thi s way. We disagree. In our opinion, a prudent and customary

renegotiation of a lease involving limited partners in Seller is not the ty p e

of "act" covered by Purchaser's agreement to indemnify the Seller from

"liabilities, losses, damages, costs, and expenses."

We conclude that there is a conf lict between the jury's answer to

question 36 and the jury's answer to que stion four which adopted Seller's1 0 These were the three Applications for Refund listed in jury question

No. 4, the dam age issue complained of. We note that in response to jury

question No. 43, the jur y found that the Purchaser is not estopped from

asserting that it is entitled to contest the same three Applications for



### 26 calculations using the old Hill & Parker lease.

We further conclude that the answer to jury question four is

inconsistent with the answers to jury questions 22, 33 and 37.

A court may not strike down jury findings on the basis of irreconcilable

conflict "if there is any reasonable basis upon which they may be reconciled."

See Luna v. Southern Pac. Transp. Co. , 724 S.W.2d 383, 384 (Tex. 1987); Bender

v. Southern Pac. Transp. Co. , 600 S.W.2d 257, 260 (Tex. 1980); Roach v. Roach

,

735 S.W.2d 479, 482 (Tex. App. ) ) Houston [1st Dist.] 1987, no writ). The

presumption is always that the jurors intended their answers to be consistent.

See Huber v. Ryan , 627 S.W.2d 145, 146 (Tex. 1981); W oodyard v. Hunt

, 695

S.W.2d 730, 732 (Tex. App. )) Houston [1st Dist.] 1985, no writ).

A conflict is fatal when, ignoring the conflicting findings and taking

into consideration all of the remainder of the verdict that i s supported by

the evidence, the resultin g judgment would necessarily be different from that

which the court has entered. L ittle Rock Furniture Mfg. Co. v. Dunn , 222

S.W.2d 985, 9 91 (Tex. 1949); S traite v. Krisman

, 737 S.W.2d 80, 82-83 (Tex.

App. )) Houston [14th Dist.] 1987, no writ); Smith v. Washburn

, 721 S.W.2d 453,

455 (Tex. App. ) ) Tyler 1986, no writ). Appellants argue that, disregarding

the jury's r esponse to Questions No. 4, and taking into consideration all of

the remainder of the verdict (without considering the usury claim), Seller is

entitled to only $602,795.00, rather than the $1,818,069.00 found in response

to Question No. 4.

Appellees respond that, in view of the other jury findings considered as

a wh ole, the jury's answers are completely consistent. Appellees point

specifically to the following additional jury findings:

Jury questions 5, 6 and 7 (waiver by Purchaser): Purchaser, by

failin g to respond within 30 days to Seller's Applications for

Refund dated December 22, 1986, Ju ly 31, 1987 and October 15,

1987, waived its right to contest Seller's Applications for

Refund. 10Refund; however, appellant does not complain that this answer conflicts with

the answers to jury question Nos. 5, 6 & 7 re: waiver.



### 27 Jury question 40 (ratification by Purchaser ) : Purchaser, despite

any alleged fraud or mistake, ratified the Rental Guarantee

Agreement.

Jury question 41 (laches): Purchaser delayed for an unreasonable

length of time before asserting a mutual mistake or a unilateral

mistak e or any ambiguity in connection with the Rental Guarantee

Agreement, and Seller was disadvantaged by such delay.

Appellees argue that the jury's findings of (1) mistak e

, (2) lack of

in terest to forfeit, (3) ratification of Purchaser's withdrawal, and

(4) prudent renegotiation of the Hill & Parker le ase, are all superseded by

the findings that the purchaser (1) ratified the mistaken contract and

(2) waived its rights to contest the applications for refund filed by Seller.

We agree that, if the evidence supported the jury's findings against

Purchaser of waiver, ratification and laches, then the jury's answers would

not be in fatal and irreconcilable conflict. However, such is not the case.

As already discussed, we find the evidence is legally insufficient to

support the jury's "waiver" findings. Additionally, we find that the evidence

is legally insufficient to support the jury findings of ratification and

laches, as asserted by Appellants in points of error six and eight.

The jury was instructed that

"ratification" occurs when a party, after entering into a contract

because of fraud or mi stake, continues to accept benefits under

the contract a fter he became aware of the fraud or mistake or

conducts himself in such a manner as to recognize the contract as

binding.

On December 22, 1986, Seller submitted its first application for refund.

Purchaser apparently did not agree with Seller's figures, causing Seller to

file suit approximately two months later, on February 26, 1987.

On March 2, 1987, Purchaser informed Seller in writing that, according

to Purchaser's computations, Seller's application for refun d was almost

$900,000.00 too high. Additionally, in March 1987, Purchaser filed a general

denial of Seller's claims in its lawsuit.

The evidence is undisputed that, from and after the first indication

### 28

that Purchaser and Seller were making their computations differently as a

result of their interpreting the Rental Guarantee Agreement diff erently,

Purchaser did n ot withdraw any further funds out of the escrow account.

Because Purchaser did not benefit from the a ccount after the discrepancy was

apparent and the dispute arose, we hold that as a matter of law, Purchaser did

not "ratify" that part of the written agreement that the jury found did not

reflect the true agreement of the parties as a result of mutual mistake. S ee

Spellman v. Amer ican Univ. Inv. Co. , 687 S.W.2d 27, 30 (Tex. App. ) ) Corpus

Christi 1984, writ ref'd n.r.e.).

For the same reasons, we find the evidence is legally insufficient to

support the following jury finding on laches:

Question No. 41

Did San Jac Fin ancial Services (Purchaser) delay for an

unreasonable length of time before asserting a mutual mistake or a

unilateral mistake or an ambiguity in connection with the Rental

Guarantee Agreem ent and that 5300 Memorial (Seller) was

disadvantaged by such delay?

Answer: Yes

Again, according to the evidence, the first indication of a difference

of "interpretation" of the Agreement by Seller and Purchaser occurre d as a

result of Seller 's December 22, 1986, application for refund. Within

approximately two months of receiving Seller's application, Purchaser made it

clear to Seller that Purchaser construed the co ntract substantially

differently. Seller filed suit, and Purchaser contested Seller's claim. The

fact that Purchaser did not specifically identify the bases for its contest in

terms of "mutual mistake", "misrepresentations", "am biguity", etc. until

Purchaser filed its counterc laim in December, 1987, is a matter governed by

the Texas Rules of Civil Procedure. The equitable doctrine of "laches" does

not appl y to pleadings and pre-trial conduct of parties after litigation has

been instituted.

We sustain appellants' points of error six, eight, and 11. We find that

the jury's answer to jury question four is a specific finding that is in fatal

### 29

and irreconcilable conflict with the specific findings in response to jury

questions 22, 30, 31, 33, 36 and 37. Accordingly, the judgment must be set

aside and the cause remand ed for a new trial. S traite v. Krisman

, 737 S.W.2d

at 83-4.

In view of our disposition of the points of error already discussed, it

is not neces sary for us to rule on the remaining points of error and cross

points, and we decline to do so.

The judgment is reversed, and the cause is remanded.

/s/ Margaret Garner Mirabal

Margaret Garner Mirabal

Justice

Justices Bass and Cohen also sitting.

Do not publish. Tex. R. App. p. 90.

Judgment rendered and opinion delivered

True Copy Attest:

________________________ Kathryn Cox

Clerk of Court