03-14-00738-CV

In the Court of Appeals

For the Third District of Texas at Austin

Elness, Swenson, Graham Architects, Inc., 

 Appellant, 

v. 

RLJ II-C Austin Air, LP, RLJ II-C Austin Air Lessee, LP, 

and RLJ Lodging Fund II Acquisitions, LLC, 

 Appellees. 

On Appeal from the 

200th Judicial District Court of Travis County, Texas

Cause Number: D-1-GN-002325

The Honorable Stephen Yelenosky, Presiding Judge

 REPLY IN SUPPORT OF APPELLANT’S BRIEF 

Attorneys for Appellant

MACDONALD DEVIN, PC 

3800 Renaissance Tower

Dallas, Texas 75270

214.744.3300 telephone

214.747.0942 facsimile

Gregory N. Ziegler

Texas Bar No. 00791985

GZiegler@MacdonaldDevin.com

Weston M. Davis

Texas Bar No. 24065126

WDavis@MacdonaldDevin.com 

Steven R. Baggett

Texas Bar No. 01510680

SBaggett@MacdonaldDevin.com

Oral argument requested

ACCEPTED

03-14-00738-CV

6106044

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/16/2015 5:26:54 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/16/2015 5:26:54 PM JEFFREY D. KYLE Clerk
i 915635.1 402/122

TABLE OF CONTENTS

Table of Contents .....................................................................................................i

Index of Authorities .............................................................................................. iii

Summary...................................................................................................................1

I. The “no net recovery” rule does not apply to credits 

based on third-party settlements (Issue No. 1).................................2

II. RLJ did not receive an assignment of any claims against ESG 

(Issue No. 2)..........................................................................................6

A. The PSA did not include an assignment of any 

causes of action ....................................................................................6

B. RLJ’s alleged, invalid assignment of ESG’s contract 

did not convey pre-existing causes of action...................................11

III. RLJ failed to establish evidentiary requisites for admission 

of the ESG contract (Issue No. 3).....................................................14

IV. ESG did not agree to warrant or “perform” structural 

engineering services (Issue No. 4). ...................................................15

V. The trial court erred in awarding RLJ diminution in value 

damages because the evidence was legally insufficient

(Issue No. 5). ......................................................................................16

A. Mr. Hornsby’s ipse dixit is not competent evidence ................16

B. RLJ provides no legal basis for the legally insufficient 

appraisal date ..............................................................................17

C. Two wrongs don’t make a right: RLJ’s improper Appraisal 

Date is not cured by submission of an improper 

jury question................................................................................19
ii 915635.1 402/122

D. RLJ did not provide required evidence to support the alleged 

lost market value of the Hotel attributable to ESG.................21

E. The determination of lost market value damages requires 

admissible expert testimony, which RLJ did not provide.......23

Prayer .....................................................................................................................24

Certificate of Service .............................................................................................25

Certificate of Compliance .....................................................................................25
iii 915635.1 402/122

INDEX OF AUTHORITIES

Cases

A.D. Willis Co. v. Metal Bldg. Components, Inc.., 

No. 03-99-00574, 2000 Tex. App. LEXIS 6812

(Tex. App. Austin Oct. 12, 2000, pet. denied) ...............................................3 

Adams v. Great American Lloyd’s Ins., 

891 S.W.2d 769 (Tex. App.–Austin 1995, no writ) .......................................7

Allodial Ltd. v. N. Texas Tollway Auth., 

176 S.W.3d 680 (Tex. App.–Dallas 2005, pet. denied) ...............................12

Baroid Equipment, Inc. v. Odeco Drilling, Inc., 

184 S.W.3d 1 (Tex. App.–Houston [1st Dist.] 

2010, pet. denied) ........................................................................................ 11

Barraza v. Koliba, 

933 S.W.2d 164 (Tex. App.–San Antonio, 1996, writ denied) ....................18

Barry v. Jackson, 

309 S.W.3d 135 (Tex. App.-Austin 2010, no pet.) ......................................18

Birchfield v. Texarkana Mem’l Hosp.,

747 S.W.2d 361 (Tex. 1987) ........................................................................17

Birnbaum v. Swepi LP., 

48 S.W.3d 254 (Tex. App – San Antonio 2001, pet. denied) ........................7 

Browne v. King, 

196 S.W. 884 (Tex. Civ. App.–San Antonio 1917) .......................................7 

Buccaneer Homes of Ala., Inc. v. Pelis, 

43 S.W.3d 586 (Tex. App.–Houston [1st Dist.] 2001, no pet.) .......................4 

Ceramic Tile Int’l, Inc. v. Balusek, 

137 S.W.3d 722 (Tex. App.–San Antonio, 2004, no pet.) .............................9
iv 915635.1 402/122

C.M. Asfahl Agency v. Tensor, Inc., 

135 S.W.3d 768 (Tex. App.–Houston [1st Dist.]

2004, no pet.) .............................................................................................. 20

City of Austin v. Houston Lighting & Power Co., 

844 S.W.2d 773 (Tex. App–Dallas 1992, pet. denied) ............................... 15

City of Keller v. Wilson, 

168 S.W.3d 802 (Tex. 2005) ....................................................................... 17

Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 

136 S.W.3d 227 (Tex. 2004.) .......................................................................17

Commerical Structures & Interiors, Inc. v. Liberty Edu. Ministries, Inc., 

192 S.W.3d 827 (Tex. App.–Fort Worth 2006, no pet.) ..........................9, 12 

David J. Sacks, P.C. v. Haden,

266 S.W.3d 447 (Tex. 2008) ........................................................................10

E.I. du Pont Nemours and Co. v. Robinson, 

923 S.W.2d 549 (Tex. 1995) ........................................................................22 

Felton v. Lovett, 

388 S.W.3d 656 (Tex. 2012) ........................................................................21

Galle, Inc. v. Pool, 

262 S.W.3d 564 (Tex. App.— Austin 2008, pet. denied) ......................... 3, 6

Gharda USA, Inc. v. Control Solutions, Inc., 

No. 12-0987, 2015 Tex. LEXIS 432 

(Tex. May 8, 2015) ................................................................................ 23-24

Gibraltar Resources, Inc., 

211 B.R. 216 (Bkrtcy. N.D. Tex. 1997) .......................................................12

Goldman v. Olmstead, 

414 S.W.3d 346 (Tex. App.-Dallas 2013, pet. denied) ............................... 18
v 915635.1 402/122

G.R.A.V.I.T.Y. Enterps. v. Reece Supply Co.,

177 S.W.3d 537 (Tex. App. – Dallas Aug. 9, 2005,

no pet.) ........................................................................................................... 4

Green Intern., Inc. v. Solis, 

951 S.W.2d 384 (Tex. 1997) ...................................................................... 4-6

Guadalupe-Blanco River Auth. v. Kraft, Davis,

77 S.W.3d 805 (Tex. 2002) ......................................................................... 19

Guevara v. Ferrer, 

247 S.W.3d 662 (Tex. 2007) ....................................................................... 24

Gulley v. Davis, 

321 S.W.3d 213 (Tex. App.–Houston (1st Dist.] 2010, pet. denied) ........... 10

Hoffman-La Roche, Inc. Zeltwanger, 

144 S.W.3d 438 (Tex. 2004) ....................................................................... 21

Holland v. Wal-Mart Stores, 

1 S.W.3d 91 (Tex. 1999) ............................................................................. 21

Houston Unlimited, Inc. v. Mel Acres Ranch, 

443 S.W.3d 820 (Tex. 2014) ................................................................. 23-24

Imperial Lofts, Ltd. v. Imperial Woodworks, Inc., 

245 S.W.3d 1 (Tex. App.—Waco 2007, pet. denied) ................................... 4

Intercontinental Group Partnership v. KB Home Lone Star L.P., 

295 S.W.3d 650 (Tex. 2009) .........................................................................5 

Island Recreational Develop. Corp. v. Republic of Texas Savings Ass’n, 

710 S.W.2d 551 (Tex. 1986) ....................................................................... 13

Keller Founds., Inc. v. Wausau Underwriters Ins. Co., 

626 F.3d 871 (5th Cir. 2010) .................................................................. 13-14

Kingsbery v. Phillips Petroleum Co., 

315 S.W.2d 561 (Tex. Civ. App.-Austin 1958, 
vi 915635.1 402/122

writ ref’d n.r.e.) ............................................................................................ 11

KMG Kanal-Muller-Gruppe Deutschland v. Davis, 

175 S.W.3d 379 (Tex. App.–Houston [1st Dist] 2005, no pet.) ....................19

LMB, Ltd. v. Moreno, 

201 S.W.3d 686 (Tex. 2006) ........................................................................17

Marquis Acquisitions, Inc. v. Steadfast Ins. Co., 

409 S.W.3d 808 (Tex. App.-Dallas 2013, no pet.) ...................................... 21

MBM Financial Corp. v. Woodlands Operating Co., L.P.,

292 S.W.3d 660 (Tex. 2009) ......................................................................... 5

McCrea v. Commerce Title Co., 

No. 04-08-00521, 2009 Tex. App. LEXIS 5597

(Tex. App.-San Antonio July 22, 2009, no pet.) ......................................... 12

McGinty v. Hennen, 

372 S.W.3d 625 (Tex. 2012) ................................................................. 18, 21

McKinley v. Drozd, 

685 S.W.2d 7 (Tex. 1985) .......................................................................... 2-5

Minnesota Mining and Mfg. Co. v. Nishika Ltd., 

953 S.W.2d 733 (Tex. 1997) ....................................................................... 22

Osbourne v. Jaregui, 

252 S.W.3d 70 (Tex. App. - Austin 2008, pet. denied) ............................. 3-6

Osterberg v. Peca, 

12 S.W.3d 31 (Tex. 2000) .......................................................................... 19

Pape Equip. Co. v. I.C.S., Inc., 

737 S.W.2d 397 (Tex. App.–Houston [14th Dist.]

1987, writ ref’d n.r.e.) ............................................................................... 8-9

Reuben H. Donnelley Corp. v. McKinnon, 

688 S.W.2d 612 (Tex. App.-Corpus Christi 1985, writ re’f n.r.e.) ............. 14
vii 915635.1 402/122

Richey v. Stop N Go Markets of Texas, 

654 S.W.2d 430 (Tex. 1983) ................................................................... 9, 13

Seaview Hospital, Inc. v. Medicenters of Am., Inc., 

570 S.W.2d 35 (Tex. Civ. App.–Corpus Christi 1978, no writ) ................. 15

Senn v. Texaco, Inc., 

55 S.W.3d 222 (Tex. App.–Eastland 2001, pet. denied) ............................. 13

State Dept. of Highways v. Payne, 

838 S.W.2d 235 (Tex. 1992) ....................................................................... 20

Stewart Title Guar. Co. v. Sterling, 

822 S.W.2d 1 (Tex. 1991) ........................................................................... 22

Stone v. Midland Multifamily Equity REIT, 

334 S.W.3d 371 (Tex. App.–Dallas 2011) ...................................................10

Texarkana Mem’l Hosp. v. Murdock, 

946 S.W.2d 836 (Tex. 1997) ....................................................................... 22

Texas Development Co. v. Exxon Mobil Corp., 

119 S.W.3d 875 (Tex. App.–Eastland 2003, no pet.) .................................. 14

Thomas v. Bobby D. Assocs., 

No. 12-08-00007, 2008 Tex. App. LEXIS 5881

(Tex. App. – Tyler Aug. 6, 2008, no pet.) ..................................................... 3

THPD, Inc. v. Continental Imports, Inc., 

260 S.W.3d 593 (Tex. App.–Austin 2008, no pet.) ..................................... 19

University Gen. Hosp., LLC v. Prexus Health Consultants, LLC 

403 S.W.3d 547 (Tex. App.-Houston [14th Dist.] 

2013, no pet.) ............................................................................................... 22

Waffle House, Inc. v. Williams, 

313 S.W.3d 796 (Tex. 2010) ....................................................................... 21
viii 915635.1 402/122

Westminster Falcon/Trinity L.L.P. v. Shin, 

No. 07-11-0033-CV, 2012 Tex. App. LEXIS 8833

(Tex. App.—Amarillo Oct. 23, 2012, no pet.) ........................................... 18

Rules

Tex. R. Evid. 901(a).................................................................................................14

Tex. R. Civ. P. 274 ..................................................................................................20

Tex. R. App. P. 9.4 ................................................................................................. 26
1 915635.1 402/122

03-14-00738-CV

In the Court of Appeals

For the Third District of Texas at Austin

Elness, Swenson, Graham Architects, Inc.,

 Appellant,

v.

RLJ II-C Austin Air, LP, RLJ II-C Austin Air Lessee, LP, 

and RLJ Lodging Fund II Acquisitions, LLC,

 Appellees.

On Appeal from the 

200th Judicial District Court of Travis County, Texas

Cause Number: D-1-GN-002325

The Honorable Stephen Yelenosky, Presiding Judge

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Appellant Elness, Swenson, Graham Architects, Inc. (“ESG”) files this 

Reply in Support of Appellant’s Brief, and shows: 

SUMMARY

It is undisputed that Appellees RLJ II-C Austin Air, LP, RLJ II-C Austin Air 

Lessee, LP, and RLJ Lodging Fund II Acquisitions, LLC (collectively, “RLJ”) did 

not recover any damages. As a result, RLJ cannot avoid Texas Supreme Court 

precedent precluding recovery of attorney’s fees under Texas Civil Practice and 
2 915635.2 402/122

Remedies Code Chapter 38 (“Chapter 38”). It is also undisputed that RLJ was not 

a party to the contract underlying its breach of contract claim. Because RLJ did 

not receive an express assignment of pre-existing causes of action from the 

previous Hotel1

owner, South Ausaircourt, L.P. (“South Ausaircourt”), RLJ had no 

standing or capacity to sue ESG. 

The trial court erred in admitting ESG’s contract into evidence because RLJ 

failed to provide an adequate foundation or authentication for admissibility and in 

submitting a breach of contract question to the jury that included contractual 

responsibilities outside the scope of ESG’s contract. 

Finally, the jury’s verdict cannot stand because RLJ did not present legally 

or factually sufficient evidence to support the jury’s lost market value damages 

finding.

I. The “no net recovery” rule does not apply to credits based on thirdparty settlements (Issue No. 1).

RLJ argues that the “no net recovery” rule, established by the Texas 

Supreme Court in McKinley v. Drozd, allows RLJ to recover attorney’s fees even 

though RLJ did not recover any damages. Response, 8. RLJ’s argument 

contradicts numerous opinions both from this Court and the Texas Supreme Court.

Under the “no net recovery” rule, a party who prevails on a breach of 

contract claim, but has damages for that claim completely offset by the other 

 1 The “Hotel” refers to the Courtyard Austin Airport Hotel located at 7809 East Ben White 

Boulevard, Austin, Texas. CR:9.
3 915635.2 402/122

party’s counterclaim may still recover attorney’s fees under Chapter 38. McKinley, 

685 S.W.2d at 10-11; A. D. Willis Co. v. Metal Bldg. Components, Inc., No. 03-99-

00574, 2000 Tex. App. LEXIS 6812, at *15-16 (Tex. App. Austin Oct. 12, 2000, 

pet. denied). The “no net recovery” rule does not apply in this case because RLJ’s 

damages were not offset by any counterclaim pursued by ESG. In fact, ESG did 

not file or pursue any counterclaim. No counterclaim was submitted to the jury. 

No offset scenario exists here. RLJ settled with another party, so RLJ’s damages 

were paid before the jury issued its verdict.

This Court, in Osbourne v. Jaregui, Inc., directly addressed and refuted 

RLJ’s argument, holding the following: 

the rule that a net recovery is not necessary for a plaintiff 

to be considered a prevailing party “does not apply in a 

case in which a consumer has already received payment 

of an amount equal to or greater than the damages 

found by the fact finder in the trial of the consumer's 

case against the non-settling defendant . . . the [Texas 

Supreme Court in McKinley] did not hold that a claim 

entirely offset by the settlement of that same claim by 

other defendants could support an award of attorney's 

fees. 

252 S.W.3d 70, 75-76 (Tex. App.—Austin 2008, pet. denied) (citations omitted)

(emphasis added). Four months later this Court reversed a trial court’s award of 

attorney’s fees where settlement credits exceeded the jury’s breach of contract 

damage award and ordered that the trial court enter a take nothing judgment. 

Galle, Inc. v. Pool, 262 S.W.3d 564, 574 (Tex. App.—Austin 2008, pet. denied).
4 915635.2 402/122

There is no Texas case holding that RLJ is entitled to attorney’s fees under 

these circumstances. See e.g., Thomas v. Bobby D. Assocs., No. 12-08-00007, 

2008 Tex. App. LEXIS 5881, at *4 (Tex. App.—Tyler Aug. 6, 2008, no pet.);

Imperial Lofts, Ltd. v. Imperial Woodworks, Inc., 245 S.W.3d 1, 7 (Tex. App.-

Waco 2007, pet. denied); G.R.A.V.I.T.Y. Enterps. v. Reece Supply Co., 177 S.W.3d 

537, 550-51 (Tex. App.—Dallas Aug. 9, 2005, no pet.); Buccaneer Homes of Ala., 

Inc. v. Pelis, 43 S.W.3d 586, 591 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

RLJ attempts to graft the analysis in McKinley to this case, arguing that a 

jury’s verdict awarding damages triggers liability for attorney’s fees under Chapter 

38. Response, 8-10. Under RLJ’s theory, a jury’s verdict awarding damages 

entitles the claimant to attorney’s fees, regardless of any action that nullifies the 

damages thereafter. Id. 

RLJ’s theory cannot apply here because the Texas Supreme Court has 

expressly held that “[t]o recover attorney's fees under Section 38.001, a party must 

(1) prevail on a cause of action for which attorney's fees are recoverable, and (2) 

recover damages. Green Intern., Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997) 

(emphasis added). RLJ attempts to discount this precedent by stating that the Solis

opinion did not refer to McKinley (Response, 14, n.11), but McKinley simply does 

not apply where there is no offset resulting from a counterclaim. Osbourne, 
5 915635.2 402/122

S.W.3d at 75-76. Solis is the law in this state.2 See Intercontinental Group P’ship 

v. KB Home Lone Star L.P., 295 S.W.3d 650, 652, n.1 (Tex. 2009) (stating that 

Solis provides the definition of “prevailing party” under Chapter 38).

RLJ’s proposed rule would also violate Texas Supreme Court precedent 

where a trial court issues a judgment notwithstanding the verdict. Under RLJ’s 

proposed rule, as long as a claimant follows the presentment procedures in Chapter 

38, attorney’s fees are recoverable the instant the jury returns a verdict in the 

claimant’s favor. Response, 15-21. RLJ’s rule would allow recovery of attorney’s 

fees even after a jury verdict is overturned by a judgment notwithstanding the 

verdict. 

RLJ’s argument directly contradicts the Texas Supreme Court’s holding in 

MBM Financial Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660 (Tex. 

2009). There, the jury awarded $1,000 in damages and $150,000 in attorney’s 

fees, but there was insufficient evidence to support the $1,000 damage award. Id. 

at 663, 666. The Supreme Court reversed the damage award and attorney’s fees. 

Id. at 666. According to RLJ, the claimant in MBM Financial was entitled to 

attorney’s fees despite the insufficient evidence supporting damages. RLJ’s 

argument does not comport with Texas Supreme Court precedent. 

 2 RLJ’s analysis of the legislative history of Chapter 38 and the presence of the word “judgment” 

in that statute (Response, 9-10), which mirrors the analysis in McKinley, cannot contradict 

precedent set by the Texas Supreme Court. 
6 915635.2 402/122

RLJ also argues that failing to award Chapter 38 attorney’s fees in this case 

would provide a disincentive to settlement during trial. Response, 18-20. 

However, nothing in Chapter 38 or its legislative history evinces any intent to

assist settlements. Indeed, RLJ cites the legislative history, which identifies the 

effects of attorney’s fees on the “losing party” and the “winner.” Response, 24. 

Chapter 38 was not intended to induce settlements, but to provide recompense to a 

prevailing party. Id.; Solis, 951 S.W.2d at 390. Texas law clearly establishes that 

such recompense is not appropriate where, prior to any verdict or judgment, the 

plaintiff is fully compensated for its damages. Osbourne, S.W.3d at 75-76; Galle, 

262 S.W.3d at 574. The trial court erred in awarding attorney’s fees under Chapter 

38 because RLJ did not recover any damages.

II. RLJ did not receive an assignment of any claims against ESG

(Issue No. 2). 

A. The PSA3 did not include an assignment of any causes of action.

RLJ cannot identify any contractual language expressly assigning preexisting causes of action against ESG. Response, 25-38. Absent such express 

language, RLJ argues that the transfer of “intangible assets,” an undefined term, 

constitutes an express assignment. Despite RLJ’s textual distortions, it cannot 

make the agreements at issue include an assignment that does not exist. 

 3 “PSA” refers to the “New Hotels Purchase and Sale Agreement.” CR:606-76.
7 915635.2 402/122

No dictionary definition or Texas precedent addressing the term “intangible 

asset” includes causes of action.4

 RLJ conflates the term “intangible asset” with 

the terms “personal property right” and “intangible property,” attempting to 

incorporate a meaning of the term “intangible asset” not supported by the contract. 

Response, 27-34. Contractual terms are given their plain, ordinary, and generally 

accepted meaning unless the instrument shows that the parties used such terms in a 

technical or different sense. Birnbaum v. Swepi LP, 48 S.W.3d 254, 257 (Tex.

App.—San Antonio 2001, pet. denied). The term “intangible asset,” on its face, 

does not include “property” or “causes of action.” The PSA does not define the 

term.

The PSA defines the terms “Assets,” “Property,” and “Personal Property,” 

none of which include pre-existing causes of action. CR:613; 618-19. RLJ turns 

to the general definition of “property,” which includes the “right of possession” or 

“right of ownership,” and argues that the transfer of personal property to RLJ 

included causes of action. Response, 27-29.5

 However, South Ausaircourt did not 

 4 RLJ cites bankruptcy cases identifying causes of action as “intangible assets” according to 

federal law interpreting bankruptcy statutes. Response, 28. These cases do not apply here 

because federal bankruptcy statutes do not apply to this case. RLJ cannot cite any case in which 

“intangible assets” associated with the voluntary transfer of property or contracts were held to 

expressly include causes of action. 

5 RLJ’s case law in support refers to intangible “rights,” none of which were assigned. See 

Adams v. Great Am. Lloyd’s Ins., 891 S.W.2d 769, 772 (Tex. App.—Austin 1995, not writ) (“a 

chose in action is an intangible property right”); Browne v. King, 196 S.W. 884, 887 (Tex. Civ. 

App.—San Antonio 1917) (“The chose in action is an intangible or incorporeal right”) (cited in 

Response, 27).
8 915635.2 402/122

assign RLJ any “intangible property” or any other property outside of the defined 

terms identified above. In fact, South Ausaircourt specifically excluded from the 

sale “all property owned by [South Ausaircourt] or any of its Affiliates not 

normally located at such Property and used, but not exclusively, in connection with 

the operation of such Property.” CR:615. South Ausaircourt specifically reserved 

and did not transfer these “Excluded Assets.” CR:615; 621.

RLJ argues that the assignment of intangible assets operated as a “Mother 

Hubbard” clause that assigned all pre-existing causes of action and that the PSA 

required South Ausaircourt to “cooperate with RLJ to enforce any rights”6 under 

ESG’s contract. Response, 30. RLJ argues this agreement to “cooperate” in the 

future proves assignment of all pre-existing causes of action.

7

 Id. Such linguistic 

gymnastics fails to reach the platform of intent to assign anything, let alone causes 

of action, falling flat on its face.

Because RLJ cannot identify any express words of transfer, this argument 

addresses an equitable assignment. Unlike an express assignment, an equitable 

assignment does not require express words of transfer. Pape Equip. Co. v. I.C.S., 

Inc., 737 S.W.2d 397, 402 (Tex. App.—Houston [14th Dist.] 1987, writ ref'd 

 6 RLJ cites numerous portions of the record to support this proposition excluded by the trial court 

from the summary judgment evidence. Response, 26 (citing CR:602-04); 29 (citing CR:692). 

As established below, these statements cannot be considered on appeal.

7 RLJ’s contradictory interpretation of ESG’s definition of the term “intangible asset” is incorrect 

and inconsequential. Notably, RLJ does not identify any source that defines “intangible asset” to 

expressly include causes of action. Response, 28-29.
9 915635.2 402/122

n.r.e.). An equitable assignment requires evidence of intent to transfer the interest 

and the transferor’s relinquishment of control over the interest. Id. RLJ cannot 

make this argument because it did not plead equitable assignment.8

 CR:184-202; 

Commercial Structures & Interiors, Inc. v. Liberty Edu. Ministries, Inc., 192 

S.W.3d 827, 834 (Tex. App.—Fort Worth 2006, no pet.).

Further, longstanding Texas law requires express assignment of pre-existing 

causes of action. See Pape Equip., 737 S.W.2d at 402-403 (explaining differences 

between express and equitable assignments); Richey v. Stop N Go Mkts. of Tex., 

654 S.W.2d 430, 432 (Tex. 1983). RLJ attempts to distinguish these cases by 

arguing that they did not address the conveyance of personal property, which RLJ 

contends includes causes of action. Response, 32-33. However, (1) RLJ was not 

assigned all personal property related to the Hotel, (2) RLJ was not assigned any 

intangible “property,” and (3) the PSA specifically reserved “Excluded Assets.” 

CR:615, 618, 621, 701. There is no intent discernable from the actual words of the 

PSA that South Ausaircourt transferred RLJ all personal property or any preexisting causes of action. Those words are not in the contract.

Lastly, RLJ argues that assignment is confirmed by an affidavit excluded 

from summary judgment evidence by the trial court. Response, 34-35. ESG 

objected to this affidavit (CR:760-764), which the trial court sustained in a written 

 8 RLJ did plead equitable subrogation, a different legal theory, but the trial court disposed of that 

claim by summary judgment, which RLJ did not appeal.
10 915635.2 402/122

order (CR:1064). The trial court excluded this affidavit based on “violation of the 

parol evidence and best evidence rules, improper legal and/or factual conclusions,” 

hearsay, and relevance. CR:1064.9

 

RLJ did not challenge the trial court’s evidentiary rulings on appeal, 

precluding this Court from considering the evidence. Stone v. Midland Multifamily 

Equity REIT, 334 S.W.3d 371, 378 (Tex. App.—Dallas 2011). Even if properly 

before the Court, RLJ’s argument only addresses the trial court’s exclusion based 

on the parol evidence rule. Response, 34-35. RLJ’s failure to address the trial 

court’s remaining bases for excluding this evidence precludes any potential 

reversal. See Gulley v. Davis, 321 S.W.3d 213, 218 (Tex. App.—Houston [1st 

Dist] 2010, pet. denied).

RLJ also misconstrues the contours of the parol evidence rule to argue that, 

because the inadmissible affidavit was authored after the contract, it is outside the 

rule. Response, 35. The date of authorship is irrelevant—the testimony constitutes 

evidence seeking to establish an agreement (assignment of causes of action) 

entered contemporaneously with the PSA.10 That is parol evidence. David J. 

Sacks, P.C. v. Haden, 266 S.W.3d 447, 451 (Tex. 2008). 

 9 RLJ also cites, without explanation, affidavit testimony of Carl Mayfield that the trial court 

excluded. See Response, 29 (citing CR:692). Paragraphs 11-13 of RLJ’s citation were excluded 

from the summary judgment evidence. CR:1064.

10 RLJ’s interpretation is a logical fallacy. It would allow parties to introduce extrinsic evidence 

of any kind, so long as the evidence is created after execution of the contract. 
11 915635.2 402/122

RLJ also appears to argue that the alleged assignment was a collateral 

agreement consistent with the PSA, but that exception cannot apply because the 

terms in the affidavit vary from the PSA. Id. Specifically, the affidavit purports to

include an assignment of “tangible and intangible rights” associated with ESG’s 

contract, which were not assigned or addressed by the PSA. CR:603. RLJ’s last 

argument, that ESG does not have standing to assert the parol evidence rule, is 

belied by RLJ’s own authority. See Baroid Equip., Inc. v. Odeco Drilling, Inc., 

184 S.W.3d 1, 13-14 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (if used to 

provide evidence of contractual intent the parol evidence rule “would apply, even 

though the evidence is being offered by or against a person not a party to the 

instrument”) (quoting Kingsbery v. Phillips Petroleum Co., 315 S.W.2d 561, 571-

72 (Tex. Civ. App.—Austin 1958, writ refd n.r.e.)). Because the PSA does not 

include an assignment of South Ausaircourt’s pre-existing causes of action against 

ESG, the trial court erred in finding that RLJ had standing to pursue its breach of 

contract claim against ESG.

B. RLJ’s alleged invalid assignment of ESG’s contract did not 

convey pre-existing causes of action.

RLJ also argues that the PSA’s introductory clause stating that RLJ “desires” 

to purchase “right, title, and interest” to the Properties constitutes an express 

assignment of South Ausaircourt’s pre-existing causes of action. Response, 36. It 

does not. An agreement is not an assignment where there are no present words of 
12 915635.2 402/122

transfer. Allodial Ltd. v. N. Texas Tollway Auth., 176 S.W.3d 680, 683 (Tex.

App.—Dallas 2005, pet. denied). The statements by the sellers and purchaser in 

the PSA regarding the “desire” to purchase “right, title, and interest” to the 

Properties were contingent on completion of the agreement and did not constitute a 

“present” transfer of any rights. Id.

The Fifth Court in Allodial found that a subsequent property owner did not 

have standing where the agreement stated that the seller “shall assign over to 

Allodial all rights” to pre-existing causes of action. Id. Despite this language, the 

agreement did not include an express assignment. Id. Like RLJ, Allodial argued 

(including reference to extrinsic affidavit testimony) that the language established 

a present assignment of rights. Id. The Fifth Court “defer[red] to the language of 

the contract” and found no assignment and no standing. Id.; see also McCrea v. 

Commerce Title Co., No. 04-08-00521, 2009 Tex. App. LEXIS 5597, at *6-8 (Tex. 

App.—San Antonio July 22, 2009, no pet.); Commercial Structures, 192 S.W.3d at

833-34; In re Gibraltar Resources, Inc., 211 B.R. 216, 220 (Bankr. N.D. Tex. 

1997) (“A transaction that requires a further act to complete a transfer will not 

effect an assignment.”).

The PSA was undisputedly a preliminary agreement, subject to additional 

obligations and later closing of the purchase. Response, 4-5. The initial statement 

regarding “right, title, and interest” to the Properties was not a present transfer of 
13 915635.2 402/122

anything. South Ausaircourt’s subsequent transfer of contracts, leases, and 

licenses associated with the Hotel confirms this fact. CR:695-705. The 

assignment documents comprise the scope of rights, contracts, and other items 

assigned and do not include pre-existing causes of action. 

RLJ’s argument also fails because the “right, title, and interest” language at 

issue is identical to language found insufficient to transfer causes of action relating 

to real property. The Texas Supreme Court in Richey found that conveyance of 

land “together with all and singular the rights and appurtances thereto” did not 

convey pre-existing causes of action. Richey v. Stop N Go Markets of Texas, 654 

S.W.2d 430, 431 (Tex. 1983); see also Senn v. Texaco, Inc., 55 S.W.3d 222, 226-

27 (Tex. App.—Eastland 2001, pet. denied). 

Finally, even if something in the PSA or ancillary agreements did purport to 

assign ESG’s contract, Texas law enforces anti-assignment provisions and voids 

assignments in violation. See Island Recreational Develop. Corp. v. Republic of 

Texas Sav. Ass’n, 710 S.W.2d 551, 556 (Tex. 1986) (“by the terms of the 

paragraph in question the letter of commitment was not assignable without 

consent” and “any attempted assignment . . . would be of no force and effect”).

RLJ argues that assignment of a contract in the face of an anti-assignment 

provision does not void the assignment if it occurs post-performance. Response, 

37-38. This directly contradicts Texas law. See Keller Founds., Inc. v. Wausau 
14 915635.2 402/122

Underwriters Ins. Co., 626 F.3d 871, 874 (5th Cir. 2010) (Texas law enforces antiassignment clauses even for assignments made post-performance or loss).

RLJ’s only Texas authority, Reuben H. Donnelley Corp. v. McKinnon, 688 

S.W.2d 612 (Tex. App.—Corpus Christi 1985, writ ref'd n.r.e.), has never been 

followed for this proposition and has been distinguished by other Texas courts. 

See Texas Dev. Co. v. Exxon Mobile Corp., 119 S.W.3d 875, 881 (Tex. App.—

Eastland 2003, no pet.) (declining to follow Donnelley and holding that the court 

was bound by the Island Recreational decision, among others). 

The trial court erred in allowing RLJ to proceed with its breach of contract 

claim against ESG because the claim was never assigned to RLJ.

III. RLJ failed to establish evidentiary requisites for admission of the ESG 

contract (Issue No. 3).

RLJ argues that various pre-trial procedures predetermined the admissibility 

of the ESG contract, but ignores the actual testimony and evidence offered at trial. 

Response, 39-41. RLJ could have authenticated the ESG contract via affidavit 

testimony, or possibly the testimony of its witness, Carl Mayfield. See Tex. R. 

Evid. 901(a). At trial, RLJ did neither and, after the trial court overruled ESG’s 

evidentiary objection, simply entered the contract without proper authentication. 

RR:V.3, 109:11-110:11. The trial court erred in admitting this unauthenticated 

evidence.
15 915635.2 402/122

IV. ESG did not agree to warrant or “perform” structural engineering 

services (Issue No. 4).

ESG’s contract provided that it would “include” structural engineering 

services. CR:72 (§2.4.1). RLJ conflates the term “include” with the term 

“perform,” contending that ESG was responsible for the quality of the structural 

engineering work provided because “reasonable performance is implied in every 

contractual undertaking.” Id. (emphasis added). The trial court erred in submitting 

this question to the jury because there is no evidence to support RLJ’s contention 

that ESG contractually agreed to perform structural engineering services. ESG 

agreed to arrange for structural engineering services and satisfied this contractual 

duty by hiring Marlin, Bridges & Associates (“MBA”) as an independentlycontracted structural engineer. This fact is not disputed.

RLJ misconstrues the purpose of ESG’s citation to Seaview Hosp., Inc. v. 

Medicenters of Am., Inc., 570 S.W.2d 35, 39-40 (Tex. Civ. App.—Corpus Christi 

1978, no writ), which was to identify the difference between “including” and 

“performing” services. Response, 48-50. Inclusion of services provided via an 

independent contractor does not impose an implied duty of skill and care on the 

party including (as opposed to “performing”) the services. See City of Austin v. 

Houston Lighting & Power Co., 844 S.W.2d 773, 789 (Tex. App.—Dallas 1992, 

pet. denied). Contracting with an engineer to perform those services satisfied

ESG’s contractual duty, regardless of any failure to perform by the engineer. Id. 
16 915635.2 402/122

The gravamen of ESG’s issue is that RLJ failed to present any evidence that 

ESG violated its contract because (1) it is undisputed that ESG did “include” 

structural engineering services and (2) ESG did not contractually agree to 

“perform” those services. RLJ presented no evidence that ESG failed to comply 

with the contractual requirement to “include” structural engineering services and 

ESG objected to the charge on that basis. RR:V.9, 152. ESG was not required to 

specially except or otherwise plead this issue because RLJ failed to provide any 

evidence at trial to support a breach of contract on this basis.11 Accordingly, the 

trial court erred in submitting a contract question to the jury outside of the 

contractual terms at issue in the ESG contract.

V. The trial court erred in awarding RLJ diminution in value damages 

because the evidence was legally insufficient (Issue No. 5).

A. Mr. Hornsby’s ipse dixit is not competent evidence.

RLJ’s only evidence to support its alleged lost market value damages was 

the irrelevant and unreliable expert testimony of appraiser Paul Hornsby 

(“Hornsby”). RLJ argues this Court should disregard the deficiencies in Hornsby’s 

testimony and consider only evidence supporting the jury’s verdict because 

Hornsby’s testimony included a “scintilla” of factual support. Response, 51. 

RLJ’s own authority holds the contrary, finding that appellate courts are 

 11 Further, ESG did file a verified denial of liability in the capacity sued. CR:48 (“Defendants 

deny that Plaintiffs are entitled to recover in the capacity in which they sue”).
17 915635.2 402/122

empowered to consider whether “evidence” supporting a judgment is competent, 

and throw out the judgment if it is not. 

Specifically, the Texas Supreme Court stated “evidence that might be ‘some 

evidence’ when considered in isolation is nevertheless rendered ‘no evidence’ 

when contrary evidence shows it to be incompetent.” City of Keller v. Wilson, 168 

S.W.3d 802, 812 (Tex. 2005) (cited in Response, 51). Hornsby’s mere ipse dixit is 

not competent evidence that can support a judgment. See LMB, Ltd. v. Moreno, 

201 S.W.3d 686, 688-89 (Tex. 2006); Coastal Transp. Co. v. Crown Cent. 

Petroleum Corp., 136 S.W.3d 227, 231-33 (Tex. 2004).

B. RLJ provides no legal basis for the legally insufficient appraisal 

date.

RLJ asserts Hornsby’s opinion concerning the Hotel’s alleged impaired and 

unimpaired values as of August 31, 2010 (the “Appraisal Date”) complied with 

applicable appraisal standards. Response, 52-53. RLJ ignores that the appraisal in 

this case must support recovery of breach of contract damages. To be relevant, 

Hornsby’s opinions on market value had to be based on applicable legal standards. 

See Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex. 1987) 

(stating that expert opinion must be based on “relevant issues” and “proper legal 

concepts”).

In determining lost market value damages for breach of a contract related to 

real estate and improvements, “the measure of damages is the difference between 
18 915635.2 402/122

the contract price and the property’s market value at the time of the breach.” 

Barry v. Jackson, 309 S.W.3d 135, 140 (Tex. App.—Austin 2010, no pet.) 

(emphasis added); see also McGinty v. Hennen, 372 S.W.3d 625, 628 (Tex. 2012); 

Goldman v. Olmstead, 414 S.W.3d 346, 361 (Tex. App.—Dallas 2013, pet. 

denied).12

Based on the nature of RLJ’s breach of contract claim, the relevant date for 

measuring any lost market value damages is the date the Hotel was completed. 

Barry, 309 S.W.3d at 141; see also Westminster Falcon/Trinity L.L.P. v. Shin, No. 

07-11-0033-CV, 2012 Tex. App. LEXIS 8833, at *2, 8-9 (Tex. App.—Amarillo 

Oct. 23, 2012, no pet.) (mem. op.). Use of that date was “essential to the damages 

calculation” in determining lost market value damages. Barraza v. Koliba, 933 

S.W.2d 164, 170 (Tex. App.—San Antonio 1996, writ denied). Instead of using 

that date, however, Hornsby used an arbitrary date several years after completion 

of the Hotel.13 See Opening Brief, 39. As a consequence, Hornsby’s market value 

opinions are not relevant to RLJ’s legal claim to recover damages, and cannot 

support the Final Judgment in this case. See McGinty, 372 S.W.3d at 628-29.

 12 RLJ asserts that cases involving sales of real estate should not be applied to this case, but 

offers no legal authorities to support that assertion or to justify Hornsby’s use of the Appraisal 

Date in this case.

13 At trial, Hornsby testified the Appraisal Date was chosen primarily because it coincides with 

the first date Hornsby happened to inspect the Hotel after RLJ retained him to provide expert 

testimony in this case. RR:V.7, 124-25.
19 915635.2 402/122

C. Two wrongs don’t make a right: RLJ’s improper Appraisal Date 

is not cured by submission of an improper jury question. 

Despite the improper Appraisal Date, RLJ argues Hornsby’s testimony is 

admissible because the damages question submitted to the jury used the same 

improper date. Response, 54-55. Unlike this case, RLJ’s supporting authority did 

not involve inadmissible expert testimony or the use of a date several years after 

the date required. See Osterberg v. Peca, 12 S.W.3d at 55; THPD, Inc. v. 

Continental Imports, Inc., 260 S.W.3d 593, 608 (Tex. App.—Austin 2008, no 

pet.).

ESG properly objected to the improper Appraisal Date. RR:V.9, 143:14-

145:9-147:13; 153:6-11; CR:1130-37. RLJ asserts that ESG’s objection was not 

sufficiently specific, precluding ESG’s challenge to Mr. Hornsby’s improper 

testimony. Response, 54-55. A party complaining about the admissibility of 

expert testimony fully reserves its right to complain on appeal by filing a motion to 

exclude the testimony prior to trial. See Guadalupe-Blanco River Auth. v. Kraft, 

77 S.W.3d 805, 807 (Tex. 2002); KMG Kanal-Muller-Gruppe Deutschland v. 

Davis, 175 S.W.3d 379, 389-90 (Tex. App.—Houston [1st Dist.] 2005, no pet.). 

That is exactly what ESG did in this case. CR:920-1056. The trial court heard 

ESG’s objections and entered a written order denying ESG’s motion to strike Mr. 

Hornsby’s testimony. CR:1082. RLJ cites no authority requiring specific 
20 915635.2 402/122

objections to a jury question in order to complain about the admissibility of expert 

testimony.

14

ESG also objected to the submission of the jury question on damages based 

on the improper Appraisal Date. Prior to submission of the damages question to 

the jury, counsel for ESG specifically objected in ESG’s motion for directed 

verdict that Hornsby’s market value testimony was improperly “based on the 

wrong date.” RR:V.9, 145:11-13 (“Mr. Hornsby's testimony was lacking in 

foundation and is based on the wrong date.”). ESG’s counsel then incorporated 

that objection in ESG’s objection to the damages question, which was based on the 

Appraisal Date.15 RR:V.9, 153.

“There should be but one test for determining if a party has preserved error 

in the jury charge, and that is whether the party made the trial court aware of the 

complaint, timely and plainly, and obtained a ruling.” State Dept. of Highways v. 

Payne, 838 S.W.2d 235, 241 (Tex. 1992). ESG made its objection to the Appraisal 

 14 RLJ also argues that ESG failed to submit a question with the proper date. Response, 54. This 

is incorrect. ESG submitted a question (despite that RLJ bore the burden of proof on this issue) 

identifying the proper date as “the time and place of ESG’s performance.” CR:1111. 

15 RLJ appears to incorporate analysis from a First Court of Appeals decision, C.M. Asfahl 

Agency v. Tensor, Inc., 135 S.W.3d 768, 795-96 (Tex. App.—Houston [1st Dist.] 2004, no pet.), 

to argue that ESG improperly incorporated its directed verdict arguments into objections to the 

jury charge. Response, 55. Rule 274 provides that an objection to one part of the charge may 

not be adopted by reference for another part of the charge. Tex. R. Civ. P. 274. Nothing 

precludes the specific references to specific objections in ESG’s directed verdict motion issued 

minutes before the charge objection. Unlike the circumstances in C.M. Asfahl, the trial court 

understood the content of the objection, which is clearly evident in the record. RR:V.9, 145-153.
21 915635.2 402/122

Date known from its pre-trial motion to exclude Hornsby’s testimony through its

motion for directed verdict and objections to the jury charge. 

Even if ESG had not objected to the damages question, RLJ cannot recover 

lost market value damages based on the Appraisal Date because it is several years 

after any alleged breach. See McGinty, 372 S.W.3d at 628-29. Because the jury’s 

answer to the question on lost market value damages as of the Appraisal Date was 

legally immaterial, no pre-submission objection was even necessary. See Felton v. 

Lovett, 388 S.W.3d 656, 660 n.9 (Tex. 2012); Waffle House, Inc. v. Williams, 313 

S.W.3d 796, 802 (Tex. 2010); Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 

438, 450 (Tex. 2004).

D. RLJ did not provide required evidence to support the alleged lost 

market value of the Hotel attributable to ESG.

RLJ bore the burden of establishing the damages “resulting” from ESG’s 

alleged breach. See Marquis Acquisitions, Inc. v. Steadfast Ins. Co., 409 S.W.3d 

808, 813 (Tex. App.—Dallas 2013, no pet). Hornsby freely acknowledged, 

however, that his testimony did not distinguish lost market value allegedly caused 

by ESG from lost market value caused by other parties whose acts and omissions 

allegedly resulted in defects to the Hotel. RR:V7, 159-60.

Hornsby’s testimony regarding the alleged total loss in market value 

attributable to all contractors does not answer the question of the amount of 

damages “resulting” from ESG’s alleged breach. Because Hornsby’s testimony 
22 915635.2 402/122

was not “sufficiently tied to the facts of the case that it will aid the jury” in 

answering the question of what alleged damages are attributable to ESG, it cannot 

support a judgment for damages against ESG. See E.I. du Pont Nemours and Co. 

v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

RLJ cannot support its argument that Hornsby’s testimony is still “some” 

evidence of lost market value damages. Response, 61-62. The court in each 

authority cited by RLJ actually reversed the judgment in favor of the plaintiff and 

only used the findings that the non-specific evidence was “some evidence” of 

damages to justify remand instead of rendition of judgment in favor of the 

defendant. See Minesota Mining and Mfg. Co. v. Nishika Ltd., 953 S.W.2d 733, 

738-39 (Tex. 1997); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 12 (Tex. 

1991).

Moreover, none of these cases involved a complete absence of competent 

evidence to support damage claims. University Gen. Hosp., LLC v. Prexus Health 

Consultants, LLC, 403 S.W.3d 547, 555 n.4 (Tex. App.—Houston [14th Dist.]

2013, no pet.). Hornsby’s testimony is neither relevant nor reliable, and cannot 

establish any amount of recoverable lost market value damages with reasonable 

certainty. See Opening Brief, 38-52. See also University Gen. Hosp., 403 S.W.3d 

at 555, 558.

E. The determination of lost market value damages requires admissible 

expert testimony, which RLJ did not provide.
23 915635.2 402/122

RLJ also incorrectly argues that expert testimony was not required to prove 

damages resulting from ESG’s alleged breach. Response, 62-63. Without expert 

testimony regarding alleged lost market value of the Hotel attributable to ESG, the 

evidence is legally insufficient to support any recovery of such damages. See 

Houston Unlimited, Inc. v. Mel Acres Ranch, 443 S.W.3d 820, 838 (Tex. 2014).

Within the last few weeks, the Texas Supreme Court reaffirmed the wellestablished principle that “[e]xpert testimony is required when an issue involves 

matters beyond jurors’ common understanding.” Gharda USA, Inc. v. Control 

Solutions, Inc., No. 12-0987, 2015 Tex. LEXIS 432, at *18 (Tex. May 8, 2015). 

RLJ attempts to argue that juries are often asked to make determinations regarding 

the proportionate responsibility of multiple parties for injuries in other cases 

without expert testimony. Unlike finding percentages of proportionate 

responsibility, a jury’s “guess” as to actual and hypothetical values of commercial 

property is not as good as the determination of a qualified expert. These types of 

complex and specialized issues are clearly not within the common understanding 

of typical jurors, and thus require expert testimony. See, e.g., Gharda USA, 2015 

Tex. LEXIS 432, at *19; Guevara v. Ferrer, 247 S.W.3d 662, 669-70 (Tex. 2007). 

In this case, there is no evidence in the record to support any jury finding on lost 

market value damages, and this lack of evidence requires a reversal of any award 

of such damages. See Houston Unlimited, 443 S.W.3d at 838.
24 915635.2 402/122

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant Elness, Swenson, 

Graham Architects, Inc. prays that this Court reverse the Final Judgment of the 

trial court and render a take-nothing judgment in favor of ESG; and for general 

relief. 

Respectfully submitted,

 /s/ Weston M. Davis 

Gregory N. Ziegler

Texas Bar No. 00791985

GZiegler@MacdonaldDevin.com 

Weston M. Davis

Texas Bar No. 24065126

WDavis@MacdonaldDevin.com

Steven R. Baggett

Texas Bar No. 01510680

SBaggett@MacdonaldDevin.com 

MACDONALD DEVIN, PC

1201 Elm Street

3800 Renaissance Tower

Dallas, Texas 75270

214.744.3300 telephone

214.747.0942 facsimile

Attorneys for Appellant

Elness, Swenson, Graham 

Architects, Inc.
25 915635.2 402/122

CERTIFICATE OF SERVICE

The undersigned attorney certifies that a true and correct copy of the 

foregoing Appellant’s Reply Brief was served on all counsel of records in 

accordance with the Texas Rules of Appellate Procedure via eFiling, on July 16, 

2015: 

Michael Huddleston

Stephen Gibson

Benton T. Wheatley

Tracy L. McCreight

Jessica C. Neufeld

MUNSCH HARDT KOPF & HARR, P.C.

401 Congress Ave, Suite 3050

Austin, Texas 78701

512.391.6100

512.391.6149 fax

 /s/Weston M. Davis

Weston M. Davis

CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4, I hereby certify that this petition contains 

5,558 words. This is a computer-generated document created in Microsoft Word, 

using 14-point typeface for all text, except for footnotes which are in 12-point 

typeface. In making this certificate of compliance, I am relying upon the word 

count provided by the software used to prepare the document. 

 /s/Weston M. Davis 

Weston M. Davis