                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                 NO. 2-07-002-CV


BROCK INDEPENDENT SCHOOL                                         APPELLANT
DISTRICT
                                           V.

TONY BRIONES D/B/A WEST TEXAS                                     APPELLEES
CONCRETE AND METAL
BUILDINGS, SAMUEL TREVINO
D/B/A SAM’S CONSTRUCTION
                           ------------

           FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

                                       ------------

                          MEMORANDUM OPINION 1

                                       ------------

                                   I. INTRODUCTION

      Appellant Brock Independent School District (“BISD”) sued Appellees

Tony Briones d/b/a West Texas Concrete and Metal Buildings (“Briones”) and

Samuel Trevino d/b/a Sam’s Construction (“Trevino”) (collectively “Appellees”)



     1
         See T EX. R. A PP. P. 47.4.
for damages resulting from Appellees’ installation of a roof in connection with

a school construction project. A jury awarded BISD $519,771.00. In five

issues, BISD argues that the trial court erred by submitting two instructions,

that the jury’s negligence apportionment finding and “No” answer to the

contract-compliance question are against the great weight and preponderance

of the evidence, and that the evidence is factually insufficient to support the

jury’s damages finding. We will affirm.

                  II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      BISD sought to build a new elementary and middle school in late 2001.

It hired D.S.A., Inc. as a construction manager to assist with the bidding

process and oversee the project. BISD hired Stuckey Architects, Inc. as the

architect. Stuckey prepared a project manual for BISD setting forth the general

and supplemental conditions and specifications for the project and instructions

for placing bids on the project. BISD ultimately awarded each phase of the

project to a different subcontractor, who contracted directly with BISD, the

owner, as a trade contractor.

      Burton Sandefur, a project manager for DSA, knew Briones from previous

jobs and contacted him about the BISD project.        Briones, who performs

concrete and metal building construction, subsequently signed a contract with

BISD in March 2002 to furnish equipment and labor to erect “all pre-engineered

                                      2
metal building components and all structural steel,” which included building new

metal buildings and laying a new roof on an existing gymnasium. Briones’s

crew   installed the roof overlay on the old gymnasium, but Briones

subcontracted much of the rest of the work to Trevino, another contractor who

performs metal building erection. The project manual called for a standing seam

metal roof, and it required the manufacturer, RollCOM, to warranty the roof for

weathertightness. BISD did not select RollCOM to furnish the metal roof until

after BISD had entered into its contract with Briones.

       Trevino’s crew began constructing their portion of the project sometime

between July and September 2002. Tom Weaver was the job superintendent

at the time, followed by Drew Scott and Rowdy Hutchins.           According to

Sandefur, the superintendent was responsible for overall coordination and had

no authority to change the project’s specifications or deviate from the contract

documents. There was evidence, however, that Weaver was “in charge” at the

project site. Although the roof was supposed to be installed by laying and

securing the panels from one end of the roof to the other, Weaver erroneously

instructed Trevino’s crew to install the roof by setting the panels at both ends

of the roof and working towards the middle.

       Errors in the installation of the roof installed by Trevino manifested

sometime in the Spring of 2003 when DSA sought to have RollCOM issue its

                                       3
warranty. RollCOM declined to issue the weathertightness warranty after its

representatives inspected the roof and discovered that the roof did not fully

comply with RollCOM’s specifications. RollCOM inspected the roof a second

time and once again found errors in its installation.          BISD retained Exterior

Consulting Innovations, Inc. (“ECI”) to independently evaluate the roof. ECI

counted 115 leaks and opined that the roof had not been installed in

accordance      with   the    specifications   or   the   manufacturer’s   installation

instructions.    Sandefur acknowledged that the plans provided to the trade

contractors in the bidding process did not include the RollCOM installation

instructions, and Frank Trevino, Samuel Trevino’s son, recounted that the “shop

drawings” for the roof that Trevino’s crew had were not as detailed as the

RollCOM instruction manual, which he saw for the first time just two days

before testifying at trial.

      DSA gave Briones an opportunity to remedy the defects in the roof, but

Briones was ultimately unsuccessful. In March 2004, BISD declared Briones in

breach of his contract and terminated his right to complete the project. ECI

opined that the roof was beyond repair and that BISD would have to install a

new roof to correct the problems. Stuckey opined that a new roof or overlaying

the roof with another roof layer would be needed to cure the problems.




                                           4
      BISD sued Briones and Trevino for breach of contract, breach of

warranty, violations of the Deceptive Trade Practices Act (“DTPA”), and

negligence. Briones and Trevino sued DSA, but the trial court granted DSA’s

no evidence motions for summary judgment as to both Briones’s and Trevino’s

claims. In its charge to the jury, the trial court included an instruction that “the

actions of DSA, Inc. are those of Brock Independent School District.” The jury

found that BISD, Briones, and Trevino were all negligent, apportioning 85% of

the negligence to BISD, 10% of the negligence to Briones, and 5% of the

negligence to Trevino. The jury answered “No” to the DTPA question and “No”

to the question asking whether Briones failed to comply with his contract with

BISD. The jury, however, answered “Yes” to the question asking whether

Briones failed to comply with a warranty, and it awarded BISD damages in the

amount of $519,771.00. BISD filed a motion for new trial, which the trial

court denied. This appeal followed.

                           III. S UFFICIENCY A RGUMENTS

      In its third issue, BISD argues that the jury’s damages finding of

$519,771.00 is “not supported by the evidence” because it was “inadequate,

contrary to the evidence, and had no rational basis.” 2 In its fifth issue, BISD


      2
       Although BISD does not specifically state that the jury’s damages finding
is “against the great weight and preponderance of the evidence” (like in its

                                         5
argues that the jury’s “No” answer to the contract-compliance question is

against the great weight and preponderance of the evidence.

      A.    Standard of Review

      When a party challenges the factual sufficiency of a finding on an issue

on which it had the burden of proof, it must demonstrate that the adverse

finding is against the great weight and preponderance of the evidence. Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). When reviewing an

issue asserting that a finding is “against the great weight and preponderance”

of the evidence, we must consider and weigh all of the evidence and set aside

the finding only if the evidence is so weak or the finding is so contrary to the

great weight and preponderance of the evidence as to be clearly wrong and

unjust. Id.; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

The trier of fact is the sole judge of the credibility of witnesses and the weight




second and fifth issues), the relief that BISD prays for (that the trial court’s
judgment be reversed and that the case be remanded for a new trial) is
consistent with the relief accompanying a determination that the evidence is
factually insufficient to support a finding. See Glover v. Tex. Gen. Indem. Co.,
619 S.W.2d 400, 401–02 (Tex. 1981) (op. refusing writ n.r.e.) (stating that
when a court of appeals sustains a point or issue because the evidence is
factually insufficient, it must reverse the judgment of the trial court and remand
for a new trial). We therefore construe BISD’s third issue as challenging the
factual sufficiency of the evidence to support the finding.

                                        6
to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116

S.W.3d 757, 761 (Tex. 2003).3

      B.    Damages Finding

      The jury generally has broad discretion to award damages within the

range of evidence presented at trial. Gulf States Utils. Co. v. Low, 79 S.W.3d

561, 566 (Tex. 2002); Clary Corp. v. Smith, 949 S.W.2d 452, 467 (Tex.

App.—Fort Worth 1997, pet. denied). A jury may not, however, arbitrarily

assess an amount neither authorized nor supported by the evidence presented

at trial. Mills v. Jackson, 711 S.W.2d 427, 434 (Tex. App.—Fort Worth 1986,

no writ). In other words, a jury may not “pull figures out of a hat.” Neiman-

Marcus Group, Inc. v. Dworkin, 919 F.2d 368, 373 (5th Cir. 1990). When the

trial evidence supports a range of damages awards, as opposed to two distinct

options, an award within that range is an appropriate exercise of the jury’s

discretion, and the reviewing court is not permitted to speculate on how the

jury actually arrived at its award. Potter v. GMP, LLC, 141 S.W.3d 698, 704




      3
       BISD had the burden of proof on its breach of warranty claim.
Considering our determination below that the entire damages award is
attributable to BISD’s warranty claim, we conduct our factual sufficiency review
of BISD’s damages argument pursuant to the standard of review articulated in
Dow Chemical Co., not pursuant to the standard of review used when a party
without the burden of proof challenges the factual sufficiency of the evidence
to support a fact finding.

                                       7
(Tex. App.—San Antonio 2004, pet dism’d); Mayberry v. Tex. Dep’t of Agric.,

948 S.W.2d 312, 317 (Tex. App.—Austin 1997, writ denied).

      Here, BISD contends that it provided the jury with only two damages

calculations—$1,027,205.45 and $898,011.73—and that these amounts were

“based upon competitive bids that were submitted to complete the necessary

replacement and repair work” of the roof and building. But these were not the

only figures before the jury.    A “Project Proposal Register,” one of BISD’s

exhibits at trial, lists prospective bidders for the roofing project and the amounts

of their respective bids. Three of the contractors submitted base bids in the

amounts of $493,314, $514,462, and $610,456. Moreover, a May 24, 2004

bid proposal submitted by Lon Smith Roofing contains a bid to overlay the roof

in the amount of $503,914 and a bid in the amount of $15,857 to “[r]emove

leak damaged ceiling panels in [the] gym, and furnish labor and materials to

install new panels as needed to match existing panels.”         Although it is not

necessary that we determine how the jury arrived at its damages finding, the

combined total of Lon Smith Roofing’s bids equals the jury’s damages finding

of $519,771.00.

      Additionally, included within the $1,027,205.45 figure are amounts for

“Construction Document preparation and construction administration (ECI

proposal)”—$93,680.00—and “Rental of portable buildings”— $304,875.00.

                                         8
Included within the $898,011.73 figure are amounts for “Added cost for

weekend      and   out   of   school   work     to   limit   disturbance   and

learning”—$182,565.00—and the $93,680 ECI proposal. The jury could have

concluded that these services were unnecessary, thus lowering each bid

amount by the total of the deemed unnecessary services, bringing the totals

that BISD claims were the only two damages calculations before the jury

significantly more in line with the bids contained in the “Project Proposal

Register.”

      BISD argues that Briones’s failure to repair the roof was a continuing

breach of warranty such that the appropriate time to measure damages for

failure to repair is the time of trial. BISD’s argument is unpersuasive because

it provided written notice to Briones in March 2004 that it was declaring

Briones “in breach of contract” and that it was terminating Briones’s right to

complete the contract. Damages for Briones’s failure to repair cannot extend

to the time of trial because BISD expressly prohibited Briones from performing

any further repairs in March 2004.

      Accordingly, BISD provided the jury with a range of damages awards, and

it was within the jury’s discretion to award BISD damages in the amount of

$519,771.00—an amount that was not arbitrarily assessed. See Potter, 141

S.W.3d at 704. Having considered and weighed all of the evidence, we hold

                                       9
that the jury’s damages finding in the amount of $519,771.00 is not so weak

or so contrary to the great weight and preponderance of the evidence as to be

clearly wrong and unjust.      See Dow Chem. Co., 46 S.W.3d at 242.          We

overrule BISD’s third issue.

        C.    Compliance with Contract

        The jury charge included the following question: “Did Tony Briones d/b/a

West Texas Concrete and Metal Buildings fail to comply with the contract dated

March 12, 2002, with Brock Independent School District?” The jury answered

“No.”    BISD argues that the jury’s answer is against the great weight and

preponderance of the evidence because Briones agreed (1) to warrant his work

per the project’s plans and specifications and (2) to not hire a subcontractor to

perform work on the project without prior written approval.

        The evidence shows that RollCOM declined to issue its weathertightness

warranty because the roof did not meet RollCOM’s installation specifications.

RollCOM observed after conducting its inspections that panels had not been

hand crimped, incorrect fasteners had been used, and sealants were insufficient

or missing, among other things. ECI also evaluated the roof and determined

that it had not been installed in accordance with RollCOM’s installation

instructions or the specifications. ECI discovered numerous leaks inside and

opined that a new roof would be needed to remedy the problems.

                                       10
      There was also evidence, however, that Weaver erroneously instructed

Trevino’s crew to install the roof by setting the panels at both ends of the roof

and to work towards the middle. Weaver told the contractors to use three

fasteners when installing the panels instead of four because they were short on

material. There was evidence that Weaver was “in charge” at the project site

and that he often informed the crews that the project was behind schedule,

urging them to speed up their respective work. He even had the contractors

work in the rain “several times.” Briones testified that he is used to following

a chain of command when at a project site, that a contractor cannot just say

“no” to a superintendent, and that a person might get fired for going over the

superintendent’s head on an issue. Sandefur agreed that if a contractor had a

question, then the person to see was the superintendent.          Frank Trevino

testified that Weaver answered questions posed by the contractors and that

Weaver said there was no need for the contractors to talk to the architect

because that was his job.

      RollCOM requires that its roofs be installed by certified installers, but

neither Briones’s crew nor Trevino’s crew had completed the certification prior

to installing the roof. When Briones requested time to get his crew certified,

Weaver told him that the project could not wait and that it needed to be

completed.

                                       11
      Sandefur acknowledged that the plans provided to the trade contractors

in the bidding process did not include the RollCOM installations instructions,

and Frank Trevino recounted that the “shop drawings” for the roof that

Trevino’s crew had were not as detailed as the RollCOM instruction manual,

which he saw for the first time just two days before testifying at trial.

      Trevino’s crew experienced complications when they started working on

the project and roof: anchor bolts did not line up, purlins did not fit, the

concrete was off square by four to six inches, and red iron was rusted. Part of

the problems ultimately associated with the roof’s installation were attributable

to the seams not being tightly bundled against each other. Briones explained

that the mechanical roof seamer (used to crimp the metal panels together) was




                                       12
not made available until the entire roof had been installed.4 Vice grips, or a

“hand crimper,” needed to install the roof were also not on the job.5

      Regarding BISD’s prior approval of Briones’s intent to subcontract part of

the work to Trevino and his crew, Briones testified that he informed Sandefur

that he intended to use Trevino for part of the job before both his and Trevino’s

crew arrived at the project site. Sandefur said it was okay.




      4
      Sandefur partially explained the standing seam roof and mechanical
seamer as follows:

      You have – a standing seam roof has two – it’s like a U. And
      when you lay those panels down, there’s a clip that stands up
      that’s screwed to the purlin below it. The two panels are supposed
      to bump one another. This seam sealer is a mechanical – kind of
      like a can opener that sits over the top of it, if you will. And when
      you turn it on, it’s electric, and it rolls – it rolls the seam to where
      it rolls it over into itself which seals the roof.
      5
          Sandefur explained a hand crimper as follows:

      In installing a standing seam roof, with the parts that come from
      the metal building component people, they send what they call a
      hand crimper, which looks like a big pair of vice grips, basically,
      with a – duck bill vice grips, if you will. And you – the instructions
      are as you’re installing those sheets, you line the sheets, set them
      over the – over the clips that are screwed to the purlins, and then
      you hand crimp the top metal and the bottom of [the] sheets that
      are approximately 30 foot or less. . . . Then, basically, you don’t
      need the seam sealer until you’re nearly through with the roof.


                                        13
      The jury assessed the credibility of witnesses and the weight to be given

to their testimony, which we may not disturb. Having considered and weighed

all of the evidence, we cannot say that the evidence supporting the jury’s “No”

answer to the contract compliance question is so weak or so contrary to the

great weight and preponderance of the evidence as to be clearly wrong and

unjust.   See Dow Chem. Co., 46 S.W.3d at 242; see generally Fraser v.

Baybrook Bldg. Co., No. 01-02-00290-CV, 2003 WL 21357316, at *2–3 (Tex.

App.—Houston [1st Dist.] Jun. 12, 2003, pet. denied) (mem. op.) (holding

evidence factually sufficient to support finding that contractor complied with

agreement). Accordingly, we overrule BISD’s fifth issue.




                 IV. INSTRUCTIONS AND A PPORTIONMENT F INDING

      In its first issue, BISD argues that the trial court erred by instructing the

jury that “the actions of DSA, Inc. are those of [BISD].” BISD contends that

the instruction was improper because it misstated the law of agency, removed

the question of agency from the jury, was not supported by the pleadings and

evidence, and constituted a comment on the weight of the evidence. Related

to its first issue, BISD argues in its second issue that, assuming the agency

instruction was proper, the jury’s 85% negligence apportionment to BISD

finding is against the great weight and preponderance of the evidence. In its

                                       14
fourth issue, BISD argues that the trial court erred by including a damages

mitigation instruction because it was not supported by sufficient evidence.

      A trial court must submit “such instructions and definitions as shall be

proper to enable the jury to render a verdict.” T EX. R. C IV. P. 277; Union Pac.

R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). When an instruction

is given, the question on review is whether it is proper. M.N. Dannenbaum, Inc.

v. Brummerhop, 840 S.W.2d 624, 631 (Tex. App.—Houston [14th Dist.] 1992,

writ denied). An instruction is proper if it assists the jury, accurately states the

law, and finds support in the pleadings and evidence. See T EX. R. C IV. P. 278;

In re Commitment of Almaguer, 117 S.W.3d 500, 502 (Tex. App.—Beaumont

2003, pet. denied); Williams, 85 S.W.3d at 166. Rule 277 affords the trial

court considerable discretion in deciding what instructions are necessary and

proper. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451–52 (Tex. 1997).

Indeed, a trial court is afforded even more discretion when submitting

instructions than when submitting questions.              Wal-Mart Stores, Inc. v.

Middleton, 982 S.W.2d 468, 470 (Tex. App.—San Antonio 1998, pet. denied).

Accordingly, we review the trial court’s submission of instructions for an abuse

of discretion. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); James v. Kloos,

75 S.W.3d 153, 162 (Tex. App.—Fort Worth 2002, no pet.). A trial court

abuses   its   discretion   by   acting   arbitrarily,   unreasonably,   or   without

                                          15
consideration of guiding principles. Walker v. Gutierrez, 111 S.W.3d 56, 62

(Tex. 2003). We will not reverse a judgment based on charge error in the

absence of harm, which results if the error “probably caused the rendition of an

improper judgment” or “probably prevented the petitioner from properly

presenting the case to the appellate courts.”      T EX. R. A PP. P. 44.1; Tex.

Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563,

580 (Tex. App.—Austin 2007, pet. denied).

      A.    “[T]he actions of DSA, Inc. are those of [BISD]” and
            Apportionment Finding

      Appellees initially argue that BISD failed to preserve for review some of

its arguments complaining of the trial court’s instruction that “the actions of

DSA, Inc. are those of [BISD].” Because BISD only objected that the instruction

was a comment on the weight of the evidence and that there was no evidence

that BISD “ratified or approved DSA’s actions,” Appellees contend that BISD

waived its arguments that the instruction misstated the law of agency,

prevented the jury from deciding disputed fact questions, and did not conform

to the pleadings and evidence. We disagree.

      The test for determining whether a party has preserved error in the jury

charge is whether the party timely and plainly made the trial court aware of the

complaint and obtained a ruling.    State Dep’t of Highways v. Payne, 838


                                      16
S.W.2d 235, 241 (Tex. 1992); see also T EX. R. C IV. P. 274 (requiring a party

objecting to a charge to point out distinctly the objectionable matter and the

grounds of the objection); T EX. R. A PP. P. 33.1(a). As explained below, each of

BISD’s arguments essentially complain that Weaver, DSA, or both were acting

outside the scope of his or its actual or apparent authority when engaging in the

negligent activity.   Though not expressed as eloquently as its exhaustive

appellate arguments, BISD’s objection that it did not ratify or approve of DSA’s

actions comports with its arguments on appeal and timely and plainly made the

trial court aware of its complaint. We will therefore consider BISD’s argument

in its entirety.

      BISD couches its four arguments challenging the trial court’s instruction

in different terms, but the ultimate contention underlying each argument is the

same— that it was error for the trial court to include the instruction because

Weaver’s or DSA’s negligent activity (the erroneous instructions explaining how

to install the roof) did not occur within the scope of Weaver’s or DSA’s actual

or apparent authority.6   BISD stresses that the contract documents clearly


      6
        Under BISD’s argument that the instruction misstates the law of agency,
it contends that there was no evidence that Weaver was within his actual or
apparent authority as either a BISD or DSA agent “for any alleged roof
installation instructions” and that there was no evidence conclusively
establishing that “every single act committed by DSA was within the scope of
its agency relationship with” BISD. [Emphasis added.]. Under BISD’s argument

                                       17
define DSA’s authority and that there was no evidence that it extended DSA’s

or Weaver’s authority so that either of them could direct Appellees’ means,

methods, techniques, and sequences for the construction work.             Thus,

according to BISD, because Weaver or DSA did not have the authority to

instruct or direct the Appellees’ manner or means, the trial court’s instruction

erroneously   imputed   Weaver’s    or    DSA’s   outside-the-scope-of-authority

negligent activity to BISD.

      The record is clear that the jury also found Briones liable for breach of

warranty and that it awarded BISD damages in the amount of $519,771.00.

Although the $519,771.00 award is a lump sum total not broken down by the

various causes of action, the entire amount of the award can be attributed to




that the instruction improperly removed the question of agency from the jury,
it contends that there was conflicting evidence whether DSA or Weaver acted
within their apparent authority when “allegedly directing [Appellees] on roof
installation.” Under BISD’s actual and apparent authority arguments, it
contends that the evidence did not conclusively establish that DSA or Weaver
had actual or apparent authority as BISD’s agents “for roof installation
instructions.” Under BISD’s argument that the instruction was not supported
by the pleadings and evidence, it contends that there was no evidence to
support the trial court’s instruction that all of DSA’s acts were the acts of
BISD. And under BISD’s argument that the instruction was an improper
comment on the weight of the evidence, it contends that the instruction
presumed that DSA or Weaver were acting as BISD’s agent when the alleged
negligent acts were committed and that the instruction removed from the jury’s
consideration any evidence that DSA acted outside of its authority “when it
allegedly exercised specific control over the performance of [Appellees’] work.”

                                         18
the jury’s affirmative breach of warranty finding because the trial court rendered

judgment for BISD against Briones for the full amount of the $519,771.00

award; the trial court did not reduce the award by any amount based on the

jury’s 85% negligence-apportionment finding.7 The complained of instruction

also did not factor into the jury’s damages finding because the damages

question specifically instructed the jury to “not reduce the amount, if any, in

your answer because of the negligence, if any, that you have attributed to

Brock Independent School District.”         No party challenges the breach of

warranty finding, and we have affirmed the damages award above. Thus, the

inclusion of the instruction that “the actions of DSA, Inc. are those of [BISD]”

had no effect on the trial court’s judgment, which rendered judgment for BISD

on its breach of warranty claim for the full amount of the jury’s damage award.

For the same reasons, the jury’s 85% negligence-apportionment finding likewise

had no effect on the trial court’s judgment. Accordingly, assuming that the trial

court abused its discretion by including the instruction, the error was harmless.

See T EX. R. A PP. P. 44.1; Tex. Disposal Sys. Landfill, Inc., 219 S.W.3d at 580.

We overrule BISD’s first and second issues.

      B.    Mitigation Instruction


      7
     See T EX. C IV. P RAC. & R EM. C ODE A NN. §§ 33.001, 33.012(a) (Vernon
1997 & Supp. 2007) (setting forth proportionate responsibility scheme).

                                       19
      BISD further argues that there was insufficient evidence to include a

damages mitigation instruction in the jury charge. In arguing that the alleged

error was harmful, BISD contends, “If the mitigation instruction had not been

included in the charge, the jury would have followed the only calculations that

it was given[,] and the damages award would have been based upon the

evidence.”   Thus, according to BISD, the mitigation instruction must have

caused the jury to award less damages because the finding is less than the only

two damages calculations that were before the jury.          Assuming without

deciding that the trial court abused its discretion by including the mitigation

instruction in the jury charge, we cannot conclude that the error was harmful

because, as explained in our evidentiary sufficiency analysis of the jury’s

damages finding, the jury clearly arrived at its damages finding by adopting the

amounts reflected in a contractor’s bid to perform a roof overlay and to remove

and replace the damaged ceiling panels in the gymnasium, which, in addition

to BISD’s proposed damages calculations, was one of a number of calculations

in evidence. There is nothing to indicate that the mitigation instruction had any

effect on the jury’s damages finding or probably caused the rendition of an

improper judgment. See T EX. R. A PP. P. 44.1. We overrule BISD’s fourth issue.

                                IV. C ONCLUSION




                                       20
     Having overruled each of BISD’s arguments, we affirm the trial court’s

judgment.




                                        PER CURIAM


PANEL B: HOLMAN, DAUPHINOT, and WALKER, JJ.

DELIVERED: March 13, 2008




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