                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00124-CV


EMPIRE EQUIPMENT                                                  APPELLANTS
INTERNATIONAL AND ROBERT                                        AND APPELLEES
RUSSELL

                                         V.

PIPELINE MACHINERY                                                   APPELLEE
INTERNATIONAL, L.P.                                             AND APPELLANT


                                      ----------

           FROM 141ST DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1
                                        ----------
                                   I. Introduction

      Appellants Empire Equipment International, Inc. and Robert Russell 2

(collectively, Empire) appeal from the trial court‘s take nothing judgment in favor

of Appellee Pipeline Machinery International, L.P. (Pipeline). Empire contends in

      1
       See Tex. R. App. P. 47.4.
      2
       Russell is the sole shareholder of Empire.
five issues that the trial court erred by refusing to set aside the execution, levy,

bill of sale, and sale of its property; by striking its second amended petition in

intervention for a declaratory judgment that the execution and sale were void; by

denying leave to join two subsequent purchasers as parties; and by granting two

summary judgments for Pipeline. By cross-appeal, Pipeline contends that this

court lacks jurisdiction over Empire‘s appeal because Empire did not timely file its

notice of appeal. We affirm.

                                 II. Background

      Alan Bell loaned approximately $1.2 million to Russell and Empire for the

purchase of heavy equipment used in the pipeline industry (the Equipment). In

September 2005, Bell was unable to locate Russell, who was hospitalized for

treatment of a severe bipolar condition. Bell sued Russell contending Russell

failed to repay the loan and seeking recovery of actual and punitive damages and

attorneys‘ fees and a prejudgment writ of attachment on the Equipment. Bell

thereafter sought service on Russell by publication. The trial court authorized

service by publication and entered an ―Order for Issuance of Writ of

Attachment.‖3

      Russell did not answer the lawsuit, and the trial court signed an

interlocutory default judgment in December 2005.       Bell subsequently filed an

      3
       See Tex. Civ. Prac. & Rem. Code Ann. §§ 61.001–.002 (Vernon 2008);
.0021 (Vernon Supp. 2010); .003–.021 (Vernon 2008); .022 (Vernon Supp.
2010); .023–.063 (Vernon 2008). The order for writ of attachment also required
the placement of GPS tracking devices on the Equipment.


                                     2
amended petition, and the trial court signed a second interlocutory default

judgment on January 27, 2006. The January 27, 2006 judgment awarded Bell

actual damages of $1,155,000 and stated that the amount of punitive damages

would ―be determined in future proceedings.‖ It also foreclosed Bell‘s attachment

lien against the Equipment, ordered that the Equipment be delivered to Bell, and

stated that an order of sale pursuant to rule of civil procedure 309 would issue

upon request by Bell.4 The Equipment was sold at a public auction on March 15,

2006, and Pipeline placed the highest bid—$1,230,000.

      Seven days after the sale to Pipeline, Russell appeared in the lawsuit and

filed a motion for reconsideration and to set aside the interlocutory default

judgments, contending that he had not been properly served.5 In May 2006, after

being informed that Bell and Russell had agreed that the trial court should set

aside the interlocutory judgments, the trial court entered an order setting aside

the default judgments and declaring them ―void ab initio, and of no force and




      4
         See Tex. R. Civ. P. 309 (providing that judgments foreclosing liens ―shall
be that the plaintiff recover his debt, damages and costs, with a foreclosure of the
plaintiff‘s lien on the property subject thereto, and, . . . that an order of sale shall
issue to any sherriff or any constable . . . directing him to seize and sell the same
as under execution‖).
      5
       In a subsequent hearing, Russell testified that he had received a copy of
the original petition by early December 2005 and that he hired his attorney
―immediately.‖ Russell‘s attorney testified that he also knew about the lawsuit,
that he called the clerk‘s office periodically to check for a return of service, but
that he ―dropped the ball‖ and did not file an answer to the lawsuit.


                                      3
effect at any time.‖ The trial court also ordered that the proceeds from the sale to

Pipeline be deposited into the registry of the court.

      In July 2006, Empire filed a petition in intervention and a third-party petition

against Pipeline.   In the third-party petition, Empire contended, among other

things, that the sale to Pipeline was void because there was no final judgment to

support it, that the Equipment belonged to Empire, and that Pipeline should

return the Equipment to Empire and pay damages for Empire‘s ―loss of the

reasonable rental value of the [E]quipment.‖ Pipeline answered the third-party

petition in August 2006 and later asserted counter-claims against Empire for,

among other things, a declaratory judgment that the sale to Pipeline was valid

and that Pipeline acquired good title to the Equipment. By April 2007, Pipeline

had sold or leased all of the Equipment to Challenger Services and Gregory &

Cook, Inc. (collectively, the Subsequent Purchasers).

      Empire and Russell eventually settled with Bell, and the trial court entered

an order releasing the funds in the registry of the court to Bell‘s attorney. Both

before and after Pipeline answered the third-party petition, Empire filed several

motions and pleadings seeking the return of the Equipment and to set aside the

sale to Pipeline. Empire‘s filings included: (1) a motion for immediate return of

the Equipment under civil practice and remedies code section 34.021; 6 (2) an



      6
      See Tex. Civ. Prac. & Rem. Code Ann. § 34.021 (Vernon 2008) (―A
person is entitled to recover his property that has been seized through execution
of a writ issued by a court if the judgment on which execution is issued is

                                     4
application for injunctive relief; (3) a motion for leave to add the Subsequent

Purchasers as third-party defendants; (4) a third-party petition against the

Subsequent Purchasers; (5) a second amended petition for declaratory relief

against Pipeline; (6) a motion to have the sale to Pipeline invalidated as void ab

initio; and (7) a supplemental petition against Pipeline seeking equitable relief.

The trial court denied each of Empire‘s motions, struck Empire‘s pleading against

the Subsequent Purchasers, struck Empire‘s pleading for declaratory relief

against Pipeline, and entered summary judgment for Pipeline on all of Empire‘s

causes of action. The trial court also sanctioned Empire because Empire filed

the third-party petition against the Subsequent Purchasers after the trial court

had denied Empire leave to file it. After granting the second summary judgment

for Pipeline, the trial court severed Empire‘s claims against Pipeline, and this

appeal followed.

                    III. Jurisdiction Over Empire’s Appeal

      We address Pipeline‘s cross appeal first because it concerns our

jurisdiction over Empire‘s appeal. At the February 12, 2009 hearing on Pipeline‘s

second motion for summary judgment, the trial court granted summary judgment

against Empire and stated, ―I will sever the claims that exist and have been

asserted between Pipeline and [Empire] into a new cause of action.‖ The trial

court also stated that ―[o]nce the severance order is signed[,] this case will be

reversed or set aside and the property has not been sold at execution.‖
(emphasis added)).


                                    5
final.‖7 The trial court then signed the severance order on February 13, 2009.

However, although Empire was present at the February 12, 2009 hearing and

agreed to sever its claims against Pipeline, Empire did not receive notice from

the trial court clerk or acquire actual knowledge that the February 13, 2009

severance order had been signed until March 23, 2009.8

      By its cross-issue, Pipeline argues that we do not have jurisdiction over

Empire‘s appeal because Empire had actual knowledge of the trial court‘s oral

rendition of severance at the February 12, 2009 hearing but did not file a notice

of appeal within thirty days of the February 13, 2009 severance order. 9 See Tex.


      7
      The severance order is the final judgment in this case because the
summary judgment was interlocutory until Empire‘s claims against Pipeline were
severed from the existing lawsuit. See Diversified Fin. Sys, Inc. v. Hill, Heard,
O’Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001).
      8
        We abated this appeal for the trial court to determine the date on which
Empire ―received notice or acquired actual knowledge that the February 13, 2009
judgment had been signed.‖ See Tex. R. App. P. 4.2(c); Tex. R. Civ. P. 306a(5).
The trial court had previously conducted a hearing pursuant to rule 306a(5) on
Empire‘s motion to determine the date on which appellate deadlines began, but
the trial court did not make a finding as to the date Empire acquired actual
knowledge of the signing. After we abated the appeal, the trial court made a
finding of fact that ―the date on which [Empire] received notice or acquired actual
knowledge that the February 13, 2009 Judgment had been signed was March 23,
2009.‖
      9
      Pipeline‘s issue on cross appeal is that the trial court erred by failing to
make findings of fact that (1) the trial court rendered final judgment on February
12, 2009, when it orally severed Empire‘s claims into a new cause number; (2)
Empire had actual knowledge of the trial court‘s February 12, 2009 oral order of
severance; (3) Empire agreed to the severance in open court at the February 12,
2009 hearing; and (4) the trial court signed a written order granting the severance
on February 13, 2009. Building on its contention that the trial court should have
made these findings, Pipeline argues that Empire should have filed its notice of

                                    6
R. App. P. 26.1(a) (providing that ―a notice of appeal must be filed within 30 days

after the judgment is signed‖ unless the party timely files a request for findings of

fact and conclusions of law or a plenary power extending motion).            Empire

responds that it did not receive notice or acquire actual knowledge that the

severance order had been signed until March 23, 2009, and that it timely filed its

notice of appeal within thirty days of acquiring that knowledge. See Tex. R. Civ.

P. 306a(4)–(5) (providing that if a party does not receive notice from the trial

court clerk that an order has been signed within twenty days of the signing, the

applicable deadlines run from the date the party receives notice or actual

knowledge of the signing of the order); Tex. R. App. P. 4.2(a)(1) (same).

      Pipeline is correct in its contention that a judgment is rendered at the time

the trial court announces its decision in open court. See Samples Exterminators

v. Samples, 640 S.W.2d 873, 875 (Tex. 1982). However, Pipeline‘s cross appeal

is based entirely on the incorrect premise that appellate timetables run from the

date that judgment is rendered rather than the date that the judgment is signed. 10

For purposes of appellate timetables, such as the appellate timetable involved

here for filing a notice of appeal, the critical date is the date on which the


appeal within thirty days of the February 13, 2009 severance order because
Empire had actual knowledge of the trial court‘s oral rendition of severance at the
February 12, 2009 hearing.
      10
        The case on which Pipeline bases its cross-issue says as much. See
Tex. Life Ins. Co. v. Tex. Bldg. Co., 307 S.W.2d 149, 154 (Tex. Civ. App.—Fort
Worth 1957, no writ). For purposes of deadlines other than the timetables for
appeal, the controlling date is the date that judgment is rendered. See id.

                                     7
judgment or appealable order is signed. Farmer v. Ben E. Keith Co., 907 S.W.2d

495, 496 (Tex. 1995) (providing that ―appellate timetable runs from the signing

date of whatever order that makes a judgment final and appealable,‖ such as an

order of severance); see Tex. R. App. P. 26.1(a) (providing that ―a notice of

appeal must be filed within 30 days after the judgment is signed‖ (emphasis

added)); see also Cont’l Cas. Co. v. Davilla, 139 S.W.3d 374, 379 (Tex. App.—

Fort Worth 2004, pet. denied) (citing Tex. R. Civ. P. 306a(4), and stating that

―[t]he party adversely affected by the ruling of the trial court must prove in the trial

court, on sworn motion and notice, the date he or his attorney first received

notice or acquired actual knowledge of the signing‖ (emphasis added)).

      Pipeline does not dispute that Empire first received notice or acquired

actual knowledge on March 23, 2009, that the severance order had been signed

on February 13, 2009; that March 23, 2009, was a date more than twenty but

less than ninety-one days after the trial court signed the February 13, 2009

severance order; or that Empire filed its notice of appeal within thirty days of

March 23, 2009. See Tex. R. Civ. P. 306a(4), (5); Tex. R. App. P. 4.2(a)(1).

Thus, even if the trial court had made each of the findings of fact that Pipeline

contends it should have made, the findings would be immaterial to our

jurisdictional analysis because Empire first received notice or acquired actual

knowledge of the signing more than twenty but less than ninety-one days after

the severance order was signed, and Empire filed its notice of appeal within thirty

days of receiving notice of the signing. See Tex. R. Civ. P. 306a(4), (5); Tex. R.

                                      8
App. P. 4.2(a)(1), 26.1(a). We hold that Empire timely filed its notice of appeal

and that we have jurisdiction over Empire‘s appeal. See Tex. R. Civ. P. 306a(4),

(5); Tex. R. App. P. 4.2(a)(1), 26.1(a). We therefore overrule Pipeline‘s sole

cross-issue.

                               IV. Empire’s Appeal

A. Empire Has Exclusive Remedy Against Judgment Creditor

      Empire contends in its first and fourth issues that the trial court erred by

granting summary judgment to Pipeline and by refusing to set aside the sale and

order the Equipment returned to Empire. Empire asserts in its third issue that the

trial court erred by denying it leave to join the Subsequent Purchasers as third-

party defendants.

      Empire argues that because the January 26, 2007 default judgment was

interlocutory, the execution, order of sale, sale, and any titles passing as a result

of the sale are void. Therefore, according to Empire, it may seek the return of

the Equipment from Pipeline or the Subsequent Purchasers. Pipeline responds

that civil practice and remedies code section 34.022—which permits a judgment

debtor such as Empire to recover the market value of seized property from a

judgment creditor such as Bell if the judgment upon which an execution sale is

based is later set aside or reversed—sets forth Empire‘s exclusive remedy. See

Tex. Civ. Prac. & Rem. Code Ann. § 34.022 (Vernon 2008). Thus, according to

Pipeline, even though the January 26, 2007 default judgment was set aside,




                                     9
section 34.022 bars Empire from asserting claims against Pipeline or any entity

that purchased or leased the Equipment from Pipeline.

       1. Execution on Interlocutory Judgment

      ―[A]n interlocutory judgment may not be enforced through execution.‖ In re

Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 831 (Tex.

2005) (citing Tex. R. Civ. P. 622; Nalle v. Harrell, 118 Tex. 149, 12 S.W.2d 550, 551

(1929)). The January 26, 2007 judgment in this case was interlocutory because it

reserved a determination of punitive damages for a later time. See id. at 828, 830–

31. And because the January 26, 2007 judgment was interlocutory, the trial court

abused its discretion by authorizing execution on that judgment. Id. at 831; see also

In re Discount Rental, Inc., 216 S.W.3d 831, 832 (Tex. 2007) (holding that default

judgment and subsequent execution were void when default judgment was obtained

without proper service on the plaintiff). Our inquiry does not end here, however,

because we must still determine whether Empire can seek recovery of the

Equipment from Pipeline (or an entity to which Pipeline sold or leased the

Equipment) or whether Empire is limited to the recovery from Bell of the market

value of the Equipment at the time of the sale.11

       2. Civil Practice & Remedies Code Sections 34.021 and 34.022

      Civil practice and remedies code section 34.021 states: ―A person is entitled

to recover his property that has been seized through execution of a writ issued by a

      11
       Empire has already pursued a claim against Bell for the market value of
the Equipment and reached a settlement with him.


                                      10
court if the judgment on which execution is issued is reversed or set aside and the

property has not been sold at execution.‖ Tex. Civ. Prac. & Rem. Code Ann. §

34.021 (emphasis added). In addition, civil practice and remedies code section

34.022 provides:

      (a) A person is entitled to recover from the judgment creditor the
      market value of the person‘s property that has been seized through
      execution of a writ issued by a court if the judgment on which execution
      is issued is reversed or set aside but the property has been sold at
      execution.

      (b) The amount of recovery is determined by the market value at the
      time of sale of the property sold.

Id. § 34.022 (emphasis added). Relying on section 34.022, Pipeline argues that

because the Equipment was sold at execution before the January 26, 2007

judgment was set aside, Empire has an exclusive remedy against Bell—the

judgment creditor—and that Empire is precluded from recovering the Equipment

from Pipeline or the Subsequent Purchasers.

      The meaning of a statute is a legal question, which we review de novo.

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); F.F.P.

Operating Partners., L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). We

begin by examining the exact wording and apply the tenet that the legislature

chooses its words carefully and means what it says. See In re M.N., 262 S.W.3d

799, 802 (Tex. 2008); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540

(Tex. 1981); Benish v. Grottie, 281 S.W.3d 184, 192–93 (Tex. App.—Fort Worth

2009, pet. denied).



                                     11
      Applying these rules of statutory construction to section 34.022, we note that

Empire‘s claims against Pipeline are common law claims for trespass to chattels12

and conversion, that Pipeline is not the judgment creditor, and that Empire pursued

and settled its claims against Bell—the judgment creditor. Had the Equipment not

been sold when the trial court set aside the default judgments, Empire could have,

pursuant to section 34.021, sought the return of the Equipment. See Tex. Civ. Prac.

& Rem. Code Ann. § 34.021; see also In re Discount Rental, 216 S.W.3d at 832

(ordering return of property held by constable). Indeed, section 34.021 does not on

its face prohibit a judgment debtor from seeking the return of its property so long as

the property has not been sold. See Tex. Civ. Prac. & Rem. Code Ann. § 34.021.

But Empire‘s property was sold, and section 34.022 therefore applies. See id. §

34.022(a). And unlike section 34.021, section 34.022 limits Empire‘s claim to one

against the judgment creditor. See id. Therefore, because the Equipment had been

sold before the trial court set aside the default judgments, we hold that Empire‘s

exclusive remedy was against Bell—the judgment creditor. See id.; Waffle House v.

Williams, 313 S.W.3d 796, 802–04, 809 (Tex. 2010) (holding common law claim

abrogated by impliedly exclusive statutory scheme). We hold that the trial court did

not abuse its discretion by refusing to set aside the execution sale to Pipeline or by

denying leave for Empire to join the Subsequent Purchasers as third-party

      12
       Empire‘s pleading actually alleges an ―action sounding in replevin,‖ but
Empire‘s responses to Pipeline‘s special exceptions and motion for summary
judgment clarified that its ―action sounding in replevin‖ is a cause of action for
trespass to chattels.


                                      12
defendants.13 We further hold that the trial court properly granted Pipeline‘s first

motion for summary judgment. We overrule Empire‘s first, third, and fourth issues.

B. Empire’s Pleading for Declaratory Relief Against Pipeline

      Empire contends in its second issue that the trial court erred by striking its

pleading for declaratory relief against Pipeline in which Empire sought a declaration

that the execution, levy, sale, and bill of sale were void. Empire argues that the trial

court‘s order was a ―partial death penalty‖ and that the striking of the pleading was

not a just sanction against Empire.

      At the time that Empire filed its pleading for declaratory relief against Pipeline,

Empire had pending claims against Pipeline for trespass to chattels, conversion,

and wrongful execution, levy, and seizure—all of which sought the return of the

Equipment based on the alleged invalidity of the sale. In addition, Pipeline had a

pending counterclaim for declaratory relief that Empire‘s ―remedies, if any, are

limited to recovery of damages from parties other than [Pipeline].‖ In its brief in this


      13
         Empire relies on Burlington Coat Factory to support its contention that
the trial court should have ordered the return of its Equipment. But Burlington
Coat Factory was a mandamus proceeding, a sale had not yet occurred, and the
trial court had already set aside the default judgment before refusing to set aside
the order of sale. See, 167 S.W.3d at 831. None of those facts are present
here. Moreover, Empire‘s reliance on Ferris v. Security Savings & Loan
Association, 545 S.W.2d 208, 213 (Tex. Civ. App.—Eastland 1976, no writ), and
York Division, Borg-Warner Corp. v. Security Savings & Loan Association, 485
S.W.2d 327, 330–31 (Tex. Civ. App.—Houston [1st Dist.] 1972, writ ref‘d n.r.e.), is
unconvincing because those cases were decided before the enactment of civil
practice and remedies code section 34.022. See Act of June 16, 1981, 67th Leg.,
R.S., ch. 714 § 3(a), 1981 Tex. Gen. Laws (1981) (current version at Tex. Civ. Prac.
& Rem. Code Ann. §§ 34.021-.022).


                                      13
court, Empire asserts that it filed its pleading for declaratory relief against Pipeline

because it ―sought to meet [Pipeline‘s] counter-claim with [its] pleading for a

declaratory judgment that the constable‘s sale was void.‖               However, ―[t]he

Declaratory Judgments Act is ‗not available to settle disputes already pending

before a court.‘‖ BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838, 841 (Tex.

1990) (quoting Heritage Life v. Heritage Grp. Holding, 751 S.W.2d 229, 235 (Tex.

App.—Dallas 1988, writ denied)).        Thus, because the issue of the validity of

Pipeline‘s title to the Equipment was already pending before the court at the time

Empire filed its pleading for declaratory relief against Pipeline, the trial court

could have validly stricken Empire‘s pleading for declaratory relief on this ground.

See Sanchez v. AmeriCredit Fin. Servs., Inc., 308 S.W.3d 521, 524 (Tex. App.—

Dallas 2010, no pet.) (―A counterclaim for declaratory judgment is improper if it is

nothing more than a mere denial of the plaintiff‘s claims and the counterclaim

fails to have greater ramifications than the original suit.‖). And because we are

bound to uphold the trial court‘s ruling if it reached the correct result, we hold that

the trial court did not abuse its discretion by striking Empire‘s pleading for

declaratory relief against Pipeline. See Markel Ins. Co. v. Muzyka, 293 S.W.3d

380, 385 (Tex. App.—Fort Worth 2009, no pet.) (―[R]egardless of the reasoning

employed by the trial court . . . , if the trial court reached the correct result, we will

affirm its ruling.‖).14 We overrule Empire‘s second issue.


      14
        The trial court‘s order striking Empire‘s pleading for declaratory relief
against Pipeline does not give the reason for the trial court‘s ruling. Empire

                                       14
C. Pipeline’s Second Motion for Summary Judgment

      In its fifth issue, Empire argues that the trial court erred by granting Pipeline‘s

second motion for summary judgment. After the trial court granted Pipeline‘s first

motion for summary judgment, Empire filed a supplemental pleading in which it

alleged that the sale to Pipeline should be set aside in equity because irregularities

in the sale led to the Equipment being sold for a grossly inadequate price. Pipeline

then filed its second motion for summary judgment and requested summary

judgment on three grounds: (1) res judicata based on the trial court‘s prior

interlocutory rulings; (2) mootness because Pipeline no longer possessed the

Equipment; and (3) no evidence of alleged irregularities in the execution sale that

led to a grossly inadequate price. Empire responded to Pipeline‘s second motion

for summary judgment and presented argument and evidence that its equitable

claim differed from the claims on which the trial court had previously ruled or

granted summary judgment and that irregularities in the execution sale caused a

grossly inadequate price. However, Empire presented no argument or evidence

concerning the mootness ground raised in Pipeline‘s second motion for summary

judgment. Empire also does not brief this court as to why its claim for equitable

relief against Pipeline is not moot.

argues on appeal that the striking of its pleading was an inappropriate sanction,
and Pipeline responds that the sanction was appropriate because Empire‘s
pleading was groundless and brought in bad faith. We express no opinion on the
validity of the trial court‘s ruling on those grounds and simply hold that the trial
court had a different basis for which it could have validly stricken Empire‘s
pleading for declaratory relief against Pipeline. See Markel, 293 S.W.3d at 385.


                                       15
      When the trial court‘s judgment rests upon more than one independent

ground or defense, the aggrieved party must assign error to each ground, or the

judgment will be affirmed on the ground to which no complaint is made. Scott v.

Galusha, 890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied). One of

the grounds asserted by Pipeline in its second motion for summary judgment was

mootness, but Empire did not respond to this ground in the trial court and does not

challenge this ground on appeal. Therefore, we must affirm the summary judgment.

See id.; see also Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998);

Torres v. Johnson, 91 S.W.3d 905, 908 n.3 (Tex. App.—Fort Worth 2002, no pet.)

(affirming summary judgment on unchallenged ground); King v. Tex. Employers’ Ins.

Ass’n, 716 S.W.2d 181, 182–83 (Tex. App.—Fort Worth 1986, no writ) (affirming

summary judgment ―because summary judgment may have been granted, properly

or improperly,‖ on the ground set out in the motion, and the appellant did not

challenge that ground). We overrule Empire‘s fifth issue.

                                  V. Conclusion

      Having overruled Pipeline‘s sole cross-issue and each of Empire‘s issues,

we affirm the trial court‘s judgment.




                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: March 3, 2011


                                        16
