AFFIRM; and Opinion Filed July 17, 2018.




                                                 In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-01094-CV

                           TRG-BRAES BROOK, LP, Appellant
                                        V.
                        JAMES P. HEPFNER, JOHN W. AIRHART,
                          and CHRISTOPHER SMITH, Appellees

                       On Appeal from the 44th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-16-00088

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Evans, and Schenck
                                Opinion by Justice Lang-Miers
       In this breach of contract dispute arising out of a real estate transaction, a jury made

findings in favor of appellees James P. Hepfner, John W. Airhart, and Christopher Smith, and the

trial court rendered judgment for appellees. In five issues, appellant TRG-Braes Brook, LP

contends the trial court erred by denying its motions for summary judgment and for directed

verdict, and challenges the legal and factual sufficiency of the evidence to support the jury’s

verdict. We affirm the trial court’s judgment.

                                          BACKGROUND

       The Residences at Wycliff, Ltd., a limited partnership (“Wycliff”), owned real property on

Congress Avenue in Dallas. Hepfner, Airhart, and Smith were “the sole and exclusive individual

owners” of Wycliff. In 2012, Wycliff sold the property to an affiliate of appellant TRG-Braes
Brook, L.P. (“TRG”). As part of that transaction, Wycliff as “Seller” and TRG as “Owner” signed

a “Participation Agreement” dated February 14, 2012, which provided:

       The parties hereto agree and acknowledge that Owner has not yet determined its
       final equity and capital structure for ownership, development and financing of the
       Property (which shall be determined by Owner in its sole discretion), but the
       parties contemplate that $200,000 (the “Carried Interest”) of the Owner’s
       promoted interest in the Property (the “Promote”), if any, shall be granted to
       Seller. The parties hereto agree (a) that the Carried Interest shall not earn any
       interest payment and will be subordinate to Owner’s promoted interest and shall
       not be received until Owner achieves a 2.0 equity multiple, . . . . (c) that the
       Carried Interest and the terms of this Agreement shall be subject to approval in all
       respects by Owner’s future lenders and Owner’s future equity investors (Seller
       acknowledging that it shall not receive any such Carried Interest if Owner’s future
       lenders or future equity investors do not permit or approve the same, but Owner
       shall exercise reasonable efforts to obtain such approval of the Carried
       Interest from its future lenders and equity investors) . . . .

(Emphasis added).

       Hepfner and TRG’s chief executive officer Brian Tusa negotiated the Participation

Agreement. Both subsequently testified at trial about their negotiations and their understanding of

the agreement’s terms. The Carried Interest was a bonus payment to Wycliff if TRG’s development

of the property was successful.

       In August 2012, Encore Housing Opportunity Fund, L.P. (“Encore”) invested in TRG’s

project to build apartments on the property TRG had purchased from Wycliff. Encore did not

consent to the Carried Interest payment to Wycliff.

       Subsequently, Wycliff assigned its rights under the Participation Agreement to appellees.

Wycliff and the appelles obtained TRG’s consent to the assignment in an agreement dated August

21, 2012, entitled “Assignment of Ownership and Interest in Payments.”

       In July 2015, TRG sold the property at a profit, but did not make the Carried Interest

payment to appellees. Appellees sued TRG for breach of contract, and the case was tried before a

jury. Appellees contended that TRG did not use “reasonable efforts” to obtain Encore’s approval

of the Carried Interest payment.
                                               –2–
       Relevant to this appeal, the jury found that TRG did not “utilize ‘reasonable efforts’ to

obtain its investor’s consent.” The jury also answered “yes” to the question, “Was the 2.0 equity

multiplier in the Participation Agreement waived or excused by TRG?” The trial court rendered

judgment on the jury’s verdict, awarding appellees $200,000 in actual damages, plus attorney’s

fees, interest, and costs. This appeal followed.

                               ISSUES AND STANDARDS OF REVIEW

       In its first two issues, TRG argues the trial court erred by denying its first and second

motions for summary judgment. Because the challenged rulings are not appealable, we overrule

these issues without further discussion. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625

(Tex. 1996) (“The general rule is that a denial of a summary judgment is not reviewable on

appeal.”).

       In its third issue, TRG argues the trial court erred by denying its motion for directed verdict.

In its fourth and fifth issues, TRG challenges the legal sufficiency of the evidence to support the

jury’s findings on two issues on which it did not have the burden of proof. We review these

complaints under a legal sufficiency or “no evidence” standard of review. See Mauricio v. Castro,

287 S.W.3d 476, 478–79 (Tex. App.—Dallas 2009, no pet.) (denial of motion for directed verdict);

Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011) (legal sufficiency

challenge to jury’s adverse findings).

       We will sustain a legal sufficiency challenge when there is a complete absence of evidence

of a vital fact; the court is barred by rules of law or of evidence from giving weight to the only

evidence offered to prove a vital fact; the evidence offered to prove a vital fact is no more than a

mere scintilla; or the evidence conclusively establishes the opposite of the vital fact. King Ranch,

Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). We consider the evidence in the light most

favorable to the verdict and indulge every reasonable inference that would support it. City of Keller

                                                   –3–
v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We “must credit favorable evidence if reasonable

jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id. at 827.

Evidence is legally sufficient if it “would enable reasonable and fair-minded people to reach the

verdict under review.” Id.

          TRG’s fourth and fifth issues also challenge the factual sufficiency of the evidence to

support two of the jury’s findings. In considering a challenge to the factual sufficiency of the

evidence, we review the entire record and may set aside the verdict only if it is so against the great

weight and preponderance of the evidence as to be manifestly unjust. Golden Eagle Archery, Inc.

v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Exxon Corp. v. Breezevale, Ltd., 82 S.W.3d 429,

438 (Tex. App.—Dallas 2002, pet. denied). The factfinder is the sole judge of the credibility of

the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819 (legal

sufficiency review); Golden Eagle Archery, Inc., 116 S.W.3d at 761 (factual sufficiency review).

We may not substitute our own judgment for that of the factfinder merely because we might reach

a different result. City of Keller, 168 S.W.3d at 819, 822; Golden Eagle Archery, Inc., 116 S.W.3d

at 761.

                                            DISCUSSION

          A. Reasonable efforts to obtain investor approval

          In its fourth issue, TRG challenges the legal and factual sufficiency of the evidence to

support the jury’s finding that TRG failed to use reasonable efforts to obtain Encore’s approval for

the Carried Interest payment. The jury answered “No” to Question 1, “Did TRG utilize ‘reasonable

efforts’ to obtain its investor’s consent?” In Question 1, the trial court defined “reasonable efforts”

as “the kind of efforts which a reasonable person in the actor’s situation would rationally make to

accomplish that goal or purpose.”




                                                 –4–
          Appellees offered evidence at trial about the purpose of the Carried Interest payment.

Hepfner testified that in 2012, Wycliff’s lender was “calling the note” on the property, but Wycliff

was not in a position to “pay it off.” TRG approached Wycliff about purchasing the property, and

negotiations commenced. Wycliff attempted to negotiate a higher price, but “Mr. Tusa stated a

couple of times that there wasn’t anymore [sic] money to give us.” Hepfner took Tusa aside in the

negotiations, asking “could we have a Carried Interest payment in it which would get us to the

number” Wycliff sought as the selling price. Tusa agreed, and the parties negotiated the necessary

documents, including the Participation Agreement.1

          The parties understood that TRG planned to obtain financing from an outside investor or

lender in order to develop the property, and Hepfner testified that Wycliff “didn’t want to hamper

any of [TRG’s] ability to get [its] financing.” Consequently, Wycliff agreed that the Carried

Interest payment was subject to consent by future lenders and equity investors. But in return, TRG

promised to exercise “reasonable efforts to obtain such approval of the Carried Interest from its

future lenders and equity investors.” Hepfner explained that “[i]f my memory serves me correct,

we wanted to make sure that he [Tusa] explained the deal to whoever it was that was out there—

whether it was the bank or whether it was the equity player—in its entirety and that it was coming

out of his side. That a reasonable effort was made.” He continued,

          Q. Why did you want to make sure on behalf of your company that Mr. Tusa/TRG
          had to reasonably explain to the investor that the money was coming out of TRG’s
          pocket? Why did you want that to occur?

          A. Primarily so that we get paid the $200,000. We believed that if it was explained
          in a reasonable manner, and it was—then we would probably end up getting the
          $200,000 if he was successful in his development.




     1
       The parties also agreed that Wycliff would “receive $200,000 of any construction management fee” paid to TRG. There is no dispute
regarding this fee.

                                                                 –5–
       Hepfner testified that the documents relating to the sale, including the Participation

Agreement, referred to the Carried Interest payment as “$200,000 (the “Carried Interest”) of the

Owner’s [TRG’s] promoted interest in the Property (the “Promote”), if any.” Hepfner explained

that the “purchaser’s promote” meant “TRG’s share.”

       Following the sale, TRG proceeded to seek financing to develop the property, and began

negotiations with Encore. Appellees offered evidence at trial that Joe DiCristina, Encore’s

president and chief investment officer who negotiated with Tusa on Encore’s behalf, refused to

consent to the Carried Interest payment because he thought—incorrectly—that Encore’s profits

would be diluted by it. Appellees also introduced evidence that Tusa did nothing to correct

DiCristina’s misapprehension.

       Tusa testified that he discussed the subject of Encore’s consent with DiCristina only once,

in a telephone conversation. Tusa did not tell DiCristina that the Carried Interest payment was to

be paid solely from TRG’s funds. Tusa testified that after DiCristina read documents Tusa

provided, DiCristina “thought the money was coming out of the investment, his pocket.” Tusa did

not correct DiCristina’s understanding:

       Q. Did you tell [DiCrisitina] that that wasn’t the case, that the money was actually
       supposed to come out of TRG’s pocket?

       A. No.

Similarly, DiCristina testified:

       Q: In that phone conversation in 2012, did Mr. Tusa ever tell you that the carried
       interest fee was not coming out of the partnership profits; it was coming solely from
       TRG’s share?

       A. Not to my recollection.

       Although he could not point to specific language in the Participation Agreement to support

it, Tusa testified that the Carried Interest payment “was always going to be coming out of the



                                               –6–
equity partner,” that is, Encore. But appellees countered that paragraph 2 of the Participation

Agreement prohibited them from sharing in Encore’s profits:

       2. Nothing in this Agreement shall be construed as creating a partnership or joint
       venture or other relationship between Owner [TRG] and Seller [Wycliff]. Seller’s
       only interest created hereunder is the contractual right to certain sums as expressly
       set forth in Section 1. Seller shall not have any rights or approvals regarding the
       Property, including without limitation any rights in any entity owning and operating
       the Property.

When questioned at trial about paragraph 2, Tusa admitted:

       Q. So under section 2, [appellees] could never have any rights in your entity that
       you created with Encore to develop and operate the property.

       A. No.

       Q. So did you ever tell Mr. DiCristina that?

       A. I don’t recall specifically pointing out paragraph 2, as I have already said. But
       Mr. DiCristina had a copy of this agreement.

       ...

       Q. Regardless of what he had, I’m more focused on what you told him. It sounds
       like you never told him—

       A. I don’t specifically recall discussing paragraph 2. . . .

       ...

       Q. But you agree with me that this provision, section 2, says that my guys
       [appellees] could never have any rights, could never share any interest with your
       new venture with Encore.

       A. That is correct.

DiCristina recalled that Tusa told him the money was to come from Encore:

       Q. So in that phone conversation with Mr. Tusa in 2012, who first raised the idea
       that the carried interest payment was coming out of the partnership profits?

       A. To the best of my recollection, Mr. Tusa.

       Tusa testified that DiCristina refused to consent to the Carried Interest payment “because

he thought the money was coming out of the investment, his pocket.” Similarly, DiCristina testified


                                                 –7–
that he refused Encore’s consent because “[i]f there was a third party entering the transaction, there

would be a dilution of Encore’s profits, which was not acceptable to us.” He explained:

            A. . . . Encore was entering into an investment with Trinsic.2 We were not entering
            into an investment with anyone other than Trinsic. And so in terms of a carried
            interest, we expected to be receiving profits at the venture that would only be shared
            between us and Trinsic. . . . So I objected to the Participation Agreement when
            [Tusa] asked me to—if we were willing to enter into this.

            DiCristina also testified that he had no objection to TRG’s paying any of its own funds to

a third party:

            Q. But fees that didn’t impact Encore, regardless of what they’re called, they’re of
            no consequence to Encore. TRG was able to pay whatever fees out of its own pocket
            that it wanted as long as it didn’t impact Encore?

            A. Yes.

            Q. That’s true with respect to whatever we call it? A development fee, construction
            fee, carried interest fee?

            A. Yes.

            TRG relies on DiCristina’s testimony that there was nothing more Tusa could have done

to obtain his consent. But DiCristina’s reason for saying so was that his “investment strategy was

to have a business deal with Trinsic and with no one else.” And the record reflects that Tusa did

not explain the terms of the Participation Agreement to DiCristina or correct his misapprehension

of its terms. DiCristina testified:

            Q. In your telephone conversation with Mr. Tusa in 2012, did he tell you that he
            wanted to honor this Participation Agreement with my clients?

            A. He didn’t use those words.

            Q. Did he say he wanted to make these carried interest payments to my clients and
            please let us do that?

            A. He didn’t use those words.




    2
        Throughout the record, the parties often referred to TRG and its affiliates as “Trinsic,” a related entity.

                                                                         –8–
        Tusa also admitted that he never communicated Encore’s refusal to consent to appellees.

Instead, approximately eight days after his conversation with DiCristina, Tusa signed an agreement

assigning the Carried Interest payment to appellees individually when they sought to dissolve the

Wycliff partnership entity.

        In sum, Tusa testified that his efforts to obtain Encore’s consent consisted of (1) providing

a copy of the Participation Agreement to DiCristina, and (2) asking DiCristina once, in one

telephone conversation, whether Encore would consent to the Carried Interest payment, without

explaining that the payment would come from TRG’s, not Encore’s, share of any profits in the

venture. This evidence, if believed by the jury, was sufficient to support a finding that TRG did

not “utilize . . . the kind of efforts which a reasonable person in the actor’s situation would

rationally and logically make to accomplish” the “goal and purpose” of obtaining Encore’s consent

to the Carried Interest payment, as TRG had promised to do.

        Considering the evidence in the light most favorable to the jury’s verdict, we conclude that

it “would enable reasonable and fair-minded people to reach the verdict under review.” City of

Keller, 168 S.W.3d at 827. Nor is the jury’s finding manifestly unjust. Jackson, 116 S.W.3d at

761. Because the evidence was legally and factually sufficient to support the jury’s finding that

TRG did not utilize reasonable efforts to obtain Encore’s consent, we decide TRG’s fourth issue

against it.

        B. Jury’s waiver finding

        In its fifth issue, TRG argues the evidence was legally and factually insufficient to support

the jury’s finding that TRG “waived the condition precedent that a 2.0 equity multiple be achieved

on the investment project prior to payment of the Carried Interest payment.” Appellees respond

that there was legally and factually sufficient evidence of waiver. They argue that TRG did not




                                                –9–
rely on the equity multiple in denying payment, and otherwise prevented calculation of the equity

multiple by refusing to provide the necessary financial information.

       The jury found in response to Question 2 that the 2.0 equity multiplier condition was not

satisfied. But in response to Question 5, the jury also found that the 2.0 equity multiplier condition

was waived or excused. In Question 5, the trial court defined “waiver” as “an intentional surrender

of a known right or intentional conduct inconsistent with claiming that right.” The supreme court

has explained, “[w]aiver—the ‘intentional relinquishment of a known right’—can occur either

expressly, through a clear repudiation of the right, or impliedly, through conduct inconsistent with

a claim to the right.” G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511 (Tex.

2015); see also Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 722 (Tex. App.—Dallas

2004, no pet.) (“Contractual rights can be waived.”).

       Hepfner, Tusa, and Joseph Barrett testified about the 2.0 equity multiplier condition.

Hepfner testified that he asked Barrett, TRG’s chief operating officer, for information supporting

TRG’s contention that the 2.0 equity multiple had not been met, but Barrett refused:

       A. . . . I called [Barrett] on the phone and asked him. He said, yeah, it [the property]
       had sold. I asked him about the carried interest payment. He said he would have to
       talk to Brian [Tusa]. He called me back and said that they hadn’t received the two
       times equity multiple. That was it. I said, well, how do we know that? He said, well,
       we are telling you that we didn’t—we didn’t get to the two times equity
       multiple. . . . I said, why don’t you prepare just a one-page spreadsheet, Johnny
       [Airhart] and I will come by the office, we will talk about it, and show me that we
       didn’t receive the two times equity multiple. We will come by and talk about it.

       Q. And how did Mr. Barrett respond to your request to go by and look at documents
       or spreadsheets about whether this multiple was there?

       A. I believe he said . . . let me talk to Brian. And we hung up the phone. He called
       me back and said, We are not doing that. Brian says we don’t have to provide
       anything.

       Barrett also wrote a letter dated July 23, 2015, to Wycliff stating that the property was sold

on July 17, 2015, but “TRG did not obtain the approval of its lenders and equity investors to the


                                                –10–
payment to you of the $200,000 Carried Interest. In addition, TRG failed to achieve a 2.0 equity

multiple with respect to the Property at any time prior to the date of the sale.” Tusa approved the

letter, and testified about its statement that the equity multiple was not achieved:

       Q. Okay. What calculations had TRG done to calculate this 2.0 equity multiple?

       A. None.

       Q. None?

       A. None. We didn’t—we didn’t calculate it, so we presumed that it hadn’t been
       achieved. We didn’t calculate it. We could have calculated it, but we didn’t.

       Q. Say that last part again. I’m sorry.

       A. We could have calculated it, but we didn’t.

       Q. And why didn’t you calculate it then, if you could have?

       A. Because the consent wasn’t made, so there was no point in calculating it.

       Tusa testified unequivocally that the reason TRG never made the calculation to determine

whether the 2.0 equity multiple had been met was because TRG’s equity investor did not consent:

       Q. And it’s never been calculated?

       A. Well, no.

       Q. And this 2.0 equity multiple is not a reason that you didn’t pay my clients the
       carried interest payment?

       A. We didn’t pay it because our equity investor didn’t—

       Q. Didn’t consent?

       A. Didn’t consent.

       Q. And that’s the sole reason you didn’t pay the carried interest payment?

       A. Yes.

       Q. Okay. My clients wouldn’t have any financial information from TRG to be able
       to calculate the 2X multiple, would they?

       A. No.

       Q. Not unless you gave it to them.

                                                 –11–
        A. Correct.

        Q. And you didn’t give it to them.

        A. No, there was no point in giving it to them.

        Q. No point in giving it to them?

        A. Our equity investor hadn’t consented, so—There were two conditions, and one
        of them hadn’t been met in our opinion.

        Q. So the second of the conditions, this 2.0 multiple, my clients couldn’t compute
        it unless you gave them the information.

        A. Correct.

        On receipt of Barrett’s letter, Hepfner again tried to obtain information from Barrett.

Barrett again refused:

        Q. What reason did Mr. Barrett give you for not providing any information about
        this investor consent or this two times equity multiple?

        A. We didn’t have any right to it.

        Hepfner also testified that “if we had gotten a one-page deal that we asked for, we would

have talked it out. We would have resolved it that day.” Instead, “[w]e were told that we had no

right to anything.” Appellees then engaged counsel to obtain information from TRG about the

investor’s refusal to consent and the failure to achieve the 2.0 equity multiple. But until they filed

this suit, appellees were unable to obtain any information from TRG on either subject. Hepfner

testified:

        Q. Mr. Hepfner, how were you supposed to calculate the two times equity multiple
        if you didn’t get any information from TRG on it?

        A. It would be pretty impossible.

        Q. Did you have any of that information on your own?

        A. We were—no.

        Q. Did you have any access to information on the two times equity multiple other
        than through TRG?


                                                –12–
           A. No. . . . We never received anything. We were told time and time again, we had
           no right to it. So how were we supposed to know whether they achieved it, they
           didn’t achieve it, whether they got consent, didn’t get consent[?].

           TRG relies on Hepfner’s testimony admitting that there is nothing in the Participation

Agreement requiring TRG to calculate the 2.0 equity multiplier if TRG’s investor did not consent.

TRG also relies on Tusa’s testimony that “it was not our intention” to waive the requirement. But

the jury was the sole judge of the credibility of the witnesses and the weight to be given their

testimony. City of Keller, 168 S.W.3d at 819; Golden Eagle Archery, Inc., 116 S.W.3d at 761. We

presume that the jury resolved these conflicts in appellees’ favor. See City of Keller, 168 S.W.3d

at 819–21.

           The evidence is not disputed that appellees requested, and TRG repeatedly refused to

provide, the data from which appellees could determine whether TRG “achieve[d] a 2.0 equity

multiple,” as provided in the Participation Agreement. There is no dispute that TRG’s refusal was

intentional. As Tusa testified, TRG considered the necessary information to be “sensitive financial

information” that “we don’t give . . . to anyone outside the organization,” and expressly refused

appellees’ requests for it. It is also undisputed that TRG never attempted the calculation itself in

lieu of providing the necessary information to appellees; Tusa testified that it was not necessary to

do so because the investor consent condition had not been met. TRG does not suggest any method

by which appellees could have overcome TRG’s repeated refusals to provide the information and

could make the calculation themselves, other than by filing suit, obtaining the information in

discovery, and hiring an expert to provide calculations and opinion testimony. Instead, appellees

pleaded, offered evidence, and obtained a jury finding that TRG waived the condition.3




     3
         We also note that “‘[i]t is elementary that one who prevents or makes impossible the performance of a condition precedent upon which his
liability under a contract is made to depend cannot avail himself of its nonperformance.’” Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 146 (Tex.
App.—Dallas 2012, no pet.) (quoting II Deerfield Ltd. P’ship v. Henry Bldg., Inc., 41 S.W.3d 259, 265 (Tex. App.—San Antonio 2001, pet.
denied)).

                                                                    –13–
       We conclude there was legally and factually sufficient evidence to support the jury’s

finding of waiver in answer to Question 5. We decide TRG’s fifth issue against it.

       C. Motion for directed verdict

       At the close of plaintiffs’ case, TRG moved for directed verdict. TRG argued there was no

evidence the 2.0 equity multiple was achieved, and consequently, no evidence that a condition

precedent was met for payment of the $200,000 Carried Interest. The trial court denied TRG’s

motion and the issue was submitted to the jury. The jury made a finding in TRG’s favor on the

issue. But in its third issue on appeal, TRG argues the trial court’s ruling was error.

       The jury found in response to Question 2 of the charge that “the 2.0 equity multiplier

condition” was not satisfied. But the jury also found, as we have discussed, that TRG waived this

condition. Consequently, even if the trial court had granted TRG’s directed verdict motion and

instructed the jury that the condition was not met, judgment for appellees would have been proper

based on the jury’s finding that TRG waived the condition. Assuming the trial court’s denial of

TRG’s motion was error, it did not cause the rendition of an improper judgment. TEX. R. APP. P.

44.1(a)(1) (no judgment may be reversed on ground that trial court made error of law unless court

of appeals concludes that the error complained of probably caused the rendition of an improper

judgment).

       We conclude that any error by the trial court in denying TRG’s motion for directed verdict

did not cause the rendition of an improper judgment. We decide TRG’s third issue against it.

                                           CONCLUSION

       We affirm the trial court’s judgment.




                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
171094F.P05                                         JUSTICE
                                                –14–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 TRG-BRAES BROOK, LP, Appellant                        On Appeal from the 44th Judicial District
                                                       Court, Dallas County, Texas
 No. 05-17-01094-CV          V.                        Trial Court Cause No. DC-16-00088.
                                                       Opinion delivered by Justice Lang-Miers;
 JAMES P. HEPFNER, JOHN W.                             Justices Evans and Schenck, participating.
 AIRHART, and CHRISTOPHER SMITH,
 Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellees James P. Hepfner, John W. Airhart, and Christopher
Smith recover their costs of this appeal from appellant TRG-Braes Brook, LP.


Judgment entered this 17th day of July, 2018.




                                                –15–
