                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                             NO. 2-08-300-CV


WOOD CARE CENTERS, INC.                                          APPELLANT

                                      V.

EVANGEL TEMPLE ASSEMBLY OF GOD                                     APPELLEE
OF WICHITA FALLS, TEXAS

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

         FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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

                                 OPINION

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

I.   Introduction

     This breach of contract case concerns a facility that Appellant Wood Care

Centers, Inc. (“Wood Care”) leased to Appellee Evangel Temple Assembly of

God of Wichita Falls, Texas (“Evangel Temple”) in fall 2005 for the immediate

purpose of housing Hurricane Katrina evacuees. Evangel Temple terminated the

parties’ lease agreement (the “Agreement”) after the last hurricane evacuees
left the facility. Wood Care later sued Evangel Temple and argued Evangel

Temple was obligated to find other uses for the facility before terminating the

Agreement. The trial court entered a take-nothing judgment against Wood Care

after a bench trial.

      In two issues, Wood Care argues the trial court improperly considered

parol evidence in its interpretation of the Agreement and the evidence is legally

and factually insufficient to support the trial court’s conclusion that Evangel

Temple did not breach the Agreement. We affirm.

II.   Factual and procedural background

      Mike Wood testified for Wood Care at trial. He said Wood Care originally

owned and operated as many as eleven nursing homes. Wood Care previously

sold its other nursing home facilities but was unable to sell the facility at issue

because it was closed and no longer licensed to operate as a nursing home.

      After Hurricane Katrina made landfall on August 29, 2005, Evangel

Temple contacted Wood Care to lease the facility to assist Katrina evacuees.

Wood testified that after the parties reached an initial agreement, Evangel

Temple retained an attorney to finalize the Agreement. Wood testified Evangel

Temple’s attorney drafted the document, but Evangel Temple’s business

administrator said Wood provided the initial draft to Evangel Temple.




                                        2
      The parties exchanged several drafts of the proposed agreement and

signed the final version of the twenty-year lease on September 6, 2005.

Evangel Temple’s monthly lease payment was $10,997, although Wood Care

made a charitable contribution to Evangel Temple during the initial term in the

form of a reduced monthly lease payment. The Agreement contained a “ten-

percent termination clause” that stated:

      Tenant, however, shall have the option of terminating this lease at
      any time by giving Landlord written notice of its election to do so
      and payment to Landlord of a sum of money equal to 10% of the
      balance of the rental payments then owed under the terms of this
      lease.

The Agreement also contained a “tax-exemption termination clause” that

stated:

      Both parties agree to cooperate with each other to achieve any
      available property tax exemption. In the event a property tax
      exemption for the leased premises is denied or suspended, Tenant
      shall have the option to terminate this lease. If, notwithstanding,
      the denial of such property tax exemption, Tenant elects to
      continue the lease, then Tenant shall be responsible for the
      payment of all property taxes and assessments and shall timely pay
      such taxes or assessments.

      The original draft of the Agreement did not include the tax-exemption

termination clause.   Wood testified that although he did not specifically

remember, he thought Evangel Temple added the tax-exemption termination

clause because a church is traditionally tax-exempt. Wood also testified he



                                      3
understood Evangel Temple would initially use the facility to house Hurricane

Katrina evacuees.

      After signing the Agreement, Evangel Temple sought a tax exemption for

the facility, stating in the application that the primary use was “to house

victims of natural disasters.” The appraisal district granted the exemption and

informed Evangel Temple in writing that if the use ever changed, the church

must notify the appraisal district.

      For the first nine months, Evangel Temple paid reduced rental payments

to Wood Care while receiving financial assistance from FEMA, but the last

evacuees left the facility in approximately May 2006.      In late June 2006,

several Evangel Temple representatives met with Wood and gave Wood Care

notice that Evangel Temple would soon move out of the facility.        Evangel

Temple sent a termination letter to Wood Care on June 30, 2006, and Wood

Care sent a response the same day making demand for payment of ten percent

of the remaining lease payments under the ten-percent termination clause.

      Evangel Temple vacated the facility in approximately July 2006.

According to Wood, Wood Care was unable to sell or lease the facility after

Evangel Temple vacated, and he testified Wood Care’s damages totaled

$256,279.90 in lost rent, ad valorem taxes, insurance premiums, and

maintenance costs. Wood testified he believes Evangel Temple breached the

                                      4
Agreement because it had a duty to implement other tax-exempt uses at the

facility and could have easily done so.

      Kile Bateman testified that he is the lead pastor of Evangel Temple and

that Chad Sykes was the business administrator, outreach pastor, and director

of “Called To Compassion.” Bateman testified that Evangel Temple had a few

tax-exempt properties and that, typically, tax exemptions are available if

property is used for non-profit purposes.       Evangel Temple’s tax-exempt

properties included undeveloped property next to the church and a facility that

housed Masters Commission students, drug and alcohol counseling, a college

and career ministry, and flood victims.

      Bateman testified that the Agreement did not limit Evangel Temple’s use

of the facility and that the parties contemplated future tax-exempt uses for the

facility when negotiating the Agreement. 1 However, Bateman testified that he

understood Evangel Temple’s right to terminate the Agreement was dependent

on Evangel Temple having a program in place that could operate in a self-

sustaining manner at the facility. Bateman believed that if the facility lost its

tax exemption, Evangel Temple had a choice to terminate the Agreement




      1
       Sykes gave similar testimony but added that Evangel Temple was
always aware the evacuees would eventually go back home.

                                          5
without liability or continue with the Agreement in the hope that something

arose in the future.

      Bateman agreed it would have been possible to use the facility for the

Masters Commission ministry, “very limited” worship services, or bible study

groups. He also said Evangel Temple “could have” submitted a new application

for tax-exempt status citing “religious purposes” as the primary use of the

facility and conducted some type of activity on the property that would have

allowed the property to remain tax-exempt. Although Bateman agreed that

“[a]nything is possible,” he testified that “not everything is reasonable.”

      Bateman testified that if there were another possible use for the facility,

Evangel Temple would have maintained the tax-exempt status, but that there

were no other reasonable uses for the facility.     He explained that Evangel

Temple considered using the property for a children’s home, a women’s shelter,

and a Sudanese refugee center. After the lawsuit was filed, Evangel Temple

considered using the facility to house at-risk teenagers or as a Life Challenge

ministry.   Ultimately, Bateman believed Evangel Temple did not have any

reasonable uses available for the facility.   He testified he believed Evangel

Temple did not breach the Agreement because Evangel Temple did not have

any needs that were not being fulfilled by another facility and because Evangel

Temple did all it could to locate another tax-exempt use.

                                       6
       The trial court conducted a bench trial over two days in January and April

2008 and rendered a take-nothing judgment against Wood Care on June 13,

2008. Wood Care requested and the trial court signed findings of fact and

conclusions of law.

III.   The Trial Court’s Interpretation of the Agreement

       A. Applicable law

       When construing contracts and other written instruments, our primary

concern is to ascertain the true intent of the parties as expressed in the

instrument. NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463

(Tex. App.—Fort Worth 2007, no pet.). We must examine and consider the

entire contract in an effort to harmonize and give effect to all provisions so that

none are rendered meaningless. Id.; see also J.M. Davidson, Inc. v. Webster,

128 S.W.3d 223, 229 (Tex. 2003). “We construe contracts ‘from a utilitarian

standpoint bearing in mind the particular business activity sought to be served’

and ‘will avoid when possible and proper a construction which is unreasonable,

inequitable, and oppressive.’” Frost Nat’l Bank v. L & F Dist., Ltd., 165 S.W.3d

310, 312 (Tex. 2005) (quoting Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527,

530 (Tex.1987)).

       Lack of clarity or a disagreement among the parties does not necessarily

create an ambiguity. Universal Health Servs., Inc. v. Renaissance Women’s

                                        7
Group, P.A., 121 S.W.3d 742, 746 (Tex. 2003). Rather, whether “a contract

is ambiguous is a question of law that must be decided by examining the

contract as a whole in light of the circumstances present when the contract

was entered.” Id. “If, after the pertinent rules of construction are applied, the

contract can be given a definite or certain legal meaning, it is unambiguous and

we construe it as a matter of law.” Frost Nat’l Bank, 165 S.W.3d at 312

(citing Webster, 128 S.W.3d at 229).

      B.    Conflicting Termination Clauses

      Wood Care contends in part of its first issue that the trial court improperly

considered parol evidence because the conflict between the tax-exemption

termination clause and the ten-percent termination clause could be resolved by

applying rules of contract construction and did not create an ambiguity. 2 In

response, Evangel Temple argues the conflict between the tax-exemption




      2
         Wood Care states in its brief that it will “assume” that the question
of terminating the Agreement for loss of tax-exempt status presents a patent
ambiguity, but then states that the rules of construction resolve the ambiguity,
so the “Agreement is not rendered ‘ambiguous’ in the sense that the Court may
consider extrinsic evidence” to determine its meaning. See RSI Int’l, Inc. v.
CTC Transp., Inc., 291 S.W.3d 104, 106 (Tex. App.—Fort Worth 2009, no
pet.) (“A contract is ambiguous only if, after the application of established rules
of construction, an agreement is still susceptible to more than one reasonable
meaning.”).

                                        8
termination clause and the ten-percent termination clause created an ambiguity

and the trial court properly considered parol evidence.

      The Agreement included both a ten-percent termination clause and a tax-

exemption termination clause. 3 The ten-percent termination clause required

Evangel Temple to pay Wood Care “10% of the balance of the rental payments

then owed under the terms of [the Agreement]” if Evangel Temple terminated

the Agreement before the twenty-year lease expired.        The tax-exemption

termination clause, however, allowed Evangel Temple to terminate the

Agreement without liability “[i]n the event a property tax exemption for the

leased premises [was] denied or suspended.”

      Wood Care correctly asserts that, if possible, the Agreement must be

construed in a way that neither the ten-percent termination clause nor the tax-

exemption termination clause are rendered meaningless.       See Potter, 230

S.W.3d at 463 (stating courts must examine and consider the entire contract

“in an effort to harmonize and give effect to all provisions so that none are

rendered meaningless”). Interpreting the Agreement to require Evangel Temple

to pay a ten-percent penalty for terminating the Agreement when the property

was no longer tax-exempt renders the tax-exemption termination clause



      3
        The Agreement had other termination clauses that are not relevant to
this appeal.

                                      9
meaningless. Therefore, the tax-exemption termination clause controls over the

ten-percent termination clause in the event the property loses its tax-exempt

status, as it did in this case, and there is no ambiguity. See RSI Int’l, Inc., 291

S.W.3d at 106 (stating contract ambiguous only if still susceptible to more than

one reasonable meaning after applying rules of construction).

      Because the conflict between the ten-percent termination clause and the

tax-exemption termination clause does not create an ambiguity, the trial court

erred by admitting parol evidence on this issue. See Carbona v. CH Med., Inc.,

266 S.W.3d 675, 681 (Tex. App.—Dallas 2008, no pet.) (recognizing “courts

do not consider extrinsic evidence in interpreting [an] agreement” when it is not

ambiguous). But Wood Care has not shown the trial court’s consideration of

parol evidence led to an improper judgment or prevented Wood Care from

properly presenting the case to this court. See Tex. R. App. P. 44.1(a). The

trial court admitted only brief testimony concerning the parties’ intent for the

tax-exemption termination clause to control over the ten-percent termination

clause. 4 Also, the trial court’s ultimate interpretation of the Agreement, that



      4
         Bateman testified he understood that if Evangel Temple lost its exempt
status, the church had a choice to “remove [it]self from [the] property” or
“continue to make the payments and hope something comes along,” and Sykes
testified he understood the tax-exemption termination clause meant Evangel
Temple could terminate the Agreement without liability if the tax-exemption
was not initially granted or subsequently sustained.

                                        10
Evangel Temple could terminate the Agreement without a ten-percent penalty

if the facility was no longer tax-exempt, was correct.      Therefore, the trial

court’s erroneous consideration of parol evidence does not constitute reversible

error. See Sadoskas v. Sadoskas, No. 13-02-216-CV, 2003 WL 21666115,

at *2 (Tex. App.—Corpus Christi July 17, 2003, no pet.) (mem. op.) (finding

no reversible error in admitting a party’s subjective intent testimony where “the

trial court’s final ruling regarding the contract was correct”); see also Orix

Credit Alliance, Inc. v. Omnibank, N.A., 858 S.W.2d 586, 594 (Tex.

App.—Houston [14th Dist.] 1993, no writ) (holding admission of parol evidence

of intent of parties was irrelevant because the agreement alone showed

defendant was entitled to judgment as a matter of law). We therefore overrule

this portion of Wood Care’s first issue.

      C.    The Tax-Exemption Termination Clause

      In the remainder of its first issue, Wood Care contends the trial court

incorrectly interpreted the tax-exemption termination clause. Specifically, Wood

Care argues the trial court erred by (1) considering parol evidence to interpret

the tax-exemption termination clause and (2) interpreting the tax-exemption

termination clause in a manner that permitted Evangel Temple to cause the

facility to lose its tax exemption and then terminate the Agreement without

liability because the facility was no longer tax-exempt.

                                       11
      We do not agree the trial court improperly considered parol evidence to

interpret the tax-exemption termination clause. As discussed above, the trial

court admitted parol evidence of the parties’ intentions, but the parol evidence

all concerned the conflict between the ten-percent termination clause and the

tax-exemption termination clause, not the meaning of the tax-exemption

termination clause itself. Thus, the trial court did not consider parol evidence

when it interpreted the tax-exemption termination clause. We overrule this

portion of Wood Care’s first issue.

      Wood Care also argues the trial court incorrectly interpreted the tax-

exemption termination clause to permit Evangel Temple, through its own

conduct, to cause the facility to lose its tax exemption and then use the loss

of tax-exempt status to terminate the Agreement without liability. To support

its contention, Wood Care cites several cases for the proposition that Texas law

generally prevents a party from invoking a termination clause if that party brings

about the circumstances giving rise to the right to terminate. See Sanderson

v. Sanderson, 109 S.W.2d 744, 749 (Tex. Comm’n App. 1937, opinion

adopted); II Deerfield Ltd. P’ship v. Henry Bldg., Inc., 41 S.W.3d 259, 265–66

(Tex. App.—San Antonio 2001, pet. denied); Heritage Life Ins. Co. v. Heritage

Group Holding Corp., 751 S.W.2d 229, 234 (Tex. App.—Dallas 1988, writ

denied); Rich v. McMullan, 506 S.W.2d 745, 747 (Tex. Civ. App.—San Antonio

                                       12
1974, writ ref’d n.r.e.); Sargent v. Highlite Broadcasting Co., 466 S.W.2d 866,

867 (Tex. Civ. App.–Austin 1971, no writ). These cases are distinguishable,

however, because they each involved circumstances where the breaching party

either wilfully refused to perform its own obligations under the contract or made

performance by the other party impossible. See Sanderson, 109 S.W.2d at

749; II Deerfield Ltd. P’ship, 41 S.W.3d at 265–66; Heritage Life Ins. Co., 751

S.W.2d at 234; Rich, 506 S.W.2d at 747; Sargent, 466 S.W.2d at 867. In this

case, the trial court heard evidence that Evangel Temple took steps to find

other uses for the property before it terminated the Agreement. Further, the

sufficiency of Evangel Temple’s effort to maintain the tax exemption presents

an evidentiary issue rather than an issue of contract construction. See, e.g.,

Sargent, 466 S.W.2d at 867 (holding a fact question is present where the

evidence showed the seller’s president refused to execute the documents

necessary to obtain FCC approval for the sale). We overrule the remainder of

Wood Care’s first issue. 5




      5
       We will address whether Evangel Temple’s inability to implement a
subsequent tax-exempt use for the facility constitutes a breach of contract in
our analysis of Wood Care’s second issue.

                                       13
IV.   Legal and Factual Sufficiency

      In its second issue, Wood Care challenges the legal and factual

sufficiency of the trial court’s findings that Evangel Temple did not breach the

Agreement. Wood Care argues the evidence at trial conclusively established

that Evangel Temple breached the Agreement and that the trial court’s finding

to the contrary is against the great weight and preponderance of the evidence.

      Wood Care specifically challenges the sufficiency of the evidence

supporting the following findings of fact:

      (16) After considering all the evidence presented at trial, on
      [Wood Care’s] claims of Breach of Contract and other related
      allegations concerning the Agreement, [Wood Care] failed to prove
      by a preponderance of the evidence that [Evangel Temple] breached
      the Agreement.

      (18) [Evangel Temple] made reasonable and good faith efforts to
      find another use for the premises that would satisfy the legal
      requirement that the property was being used for a tax exempt
      purpose.

      Wood Care also challenges the following conclusions of law:

      (6)   Under the facts of this case, termination of the Agreement by
      [Evangel Temple] without further liability is allowed for the loss of
      the tax exempt status of the Property;

      (7)  Termination by [Evangel Temple] under the facts of this case
      does not trigger the 10% termination clause in the Agreement;

      (10) [Evangel Temple] did not breach the Agreement by
      terminating said Agreement due to loss of tax exempt status;



                                       14
      (11) All relief requested by [Wood Care] should be denied.

      A. Standard of Review

      Findings of fact entered in a case tried to the court have the same force

and dignity as a jury’s answers to jury questions. Anderson v. City of Seven

Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court’s findings of fact are

reviewable for legal and factual sufficiency of the evidence to support them by

the same standards that are applied in reviewing evidence supporting a jury’s

answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994). Conclusions of law may not be challenged

for factual sufficiency, but they may be reviewed to determine their correctness

based upon the facts. AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d

506, 519 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g); Dominey v.

Unknown Heirs & Legal Representatives of Lokomski, 172 S.W.3d 67, 71 (Tex.

App.—Fort Worth 2005, no pet.).

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact; (3) the evidence offered to prove a vital fact is no more

than a mere scintilla; or (4) the evidence establishes conclusively the opposite

of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334

                                       15
(Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No

Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361,

362–63 (1960). In determining whether there is legally sufficient evidence to

support the finding under review, we must consider evidence favorable to the

finding if a reasonable factfinder could and disregard evidence contrary to the

finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co.

v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168

S.W.3d 802, 807, 827 (Tex. 2005).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and

weighing all of the evidence in the record pertinent to that finding, we

determine that the evidence supporting the finding is so weak, or so contrary

to the overwhelming weight of all the evidence, that the answer should be set

aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635

(Tex. 1986) (op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965);

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

      B. Analysis

      To prevail on a breach of contract claim, a party must establish the

following elements: (1) the existence of a valid contract; (2) the plaintiff

performed or tendered performance; (3) the defendant breached the contract;

                                      16
and (4) the plaintiff sustained damages as a result of the defendant’s breach.

Harris v. Am. Prot. Ins. Co., 158 S.W.3d 614, 622–23 (Tex. App.—Fort Worth

2005, no pet.).

          Wood Care correctly asserts that the essential question in this case is

whether Evangel Temple breached the provision of the Agreement that states:

“Both parties agree to cooperate with each other to achieve any available

property tax exemption.”        Wood Care argues the evidence conclusively

established Evangel Temple’s breach of this provision because Bateman

“admitted” that it would have been “possible” to have the Master’s Commission

education program, 6 worship services, or a bible study moved to the facility.

      Wood Care contends Bateman’s “admission” is the type the trial court

could not disregard. However, Bateman’s alleged “admission” is contradicted

by his other testimony that the Master’s Commission and its leadership moved

to the Houston area in January 2006 before the evacuees left the facility in

May 2006.        Bateman’s testimony is also contradicted by Bateman’s and

Sykes’s testimony that the church did not have a bible study group it could

send to the facility, that any use of the facility for worship services would be




      6
        Bateman confirmed it was “hypothetically” possible to run the Masters
Commission program at the building, but he testified it was not reasonable to
do so.

                                        17
“very limited,” and that Evangel Temple did not have any programs that needed

additional space. On balance, we do not believe that Bateman’s “admission”

was the type that prevents reasonable people from differing in their

conclusions. See City of Keller, 168 S.W.3d at 815–16. 7 Thus, we do not

believe Bateman’s testimony conclusively established that Evangel Temple

breached the Agreement.

      Other evidence supports the trial court’s findings. Sykes described the

facility’s limited uses and how its layout prevented Evangel Temple from using

the facility for just any purpose. When asked about Wood Care’s suggestion

of a bible study group at the facility, Sykes explained that a bible study would

not be suitable there because the facility’s primary use was a “residential-type

ministry.” Sykes stated that the facility was “not a gathering place, . . . or

something that you could just throw something in[;] it had a special purpose.”

Sykes testified that the facility was not suitable for Evangel Temple’s other

charitable project, “Angel Food ministry,” because it involved receiving and

storing large food pallets that were delivered by a semi-trailer truck.



      7
         Reviewing courts “cannot disregard undisputed evidence that allows
of only one logical inference” because “reasonable jurors can reach only one
conclusion from it.” City of Keller, 168 S.W.3d at 814 (citations omitted).
However, ”[e]vidence is conclusive only if reasonable people could not differ in
their conclusions, a matter that depends on the facts of each case.” Id. at 816
(citations omitted).

                                       18
      Although Bateman agreed Evangel Temple “could have” submitted

another exemption application for the facility after the evacuees left, he also

testified about Evangel Temple’s many efforts to find another use and its

resulting inability to finalize an agreement with any of the potential

organizations for any of the potential tax-exempt uses.         Evangel Temple’s

efforts to find other tax-exempt uses for the facility included meeting with CPS

about an interim facility for children, speaking with the county’s veteran’s office

about a veteran’s home, communicating with Dallas representatives about a

Sudanese refugee facility, speaking with a representative about an annex for

women, consulting with a director of the Dallas Dream Center about a place for

at-risk teenagers, and providing a tour of the building for a prison-aftercare

expert. Concerning Evangel Temple’s cooperation with Wood Care to achieve

an exemption, Sykes testified that Wood Care suggested a youth bible study

group be placed at the vacant building. Sykes stated that Wood Care did not

suggest any other uses and did not make any further attempt to cooperate after

the evacuees left the facility. Bateman stated that he did not personally have

any conversations with Wood Care about a continued use of the property.

      The evidence at trial supported the trial court’s findings of fact that

Evangel Temple did not breach the Agreement and that it “made reasonable and

good faith efforts” to find another use for the facility. The trial court’s findings

                                        19
are not negated by the evidence; the evidence at trial established that Evangel

Temple tried to cooperate by pursuing other tax-exempt uses but could not find

a tax-exempt use that fit the facility’s layout and size. Furthermore, the trial

court drew the correct legal conclusions from the facts that Evangel Temple

could terminate the Agreement without further liability under the facts of this

case, that Evangel Temple’s termination did not trigger the ten-percent

termination clause, that Evangel Temple did not breach the Agreement, and that

Wood Care’s requested relief should be denied.

      Based on the foregoing, after reviewing all of the evidence in the light

most favorable to the trial court’s findings, crediting favorable evidence if a

reasonable factfinder could, and disregarding contrary evidence unless a

reasonable factfinder could not, we hold that there is legally sufficient evidence

to support the trial court’s findings that Evangel Temple did not breach the

Agreement.    Likewise, after considering and weighing all of the evidence

pertinent to the trial court’s findings, we cannot say that the evidence

supporting the trial court’s findings is so weak or contrary to the overwhelming

weight of all the evidence that it should be set aside and a new trial ordered.

We overrule Wood Care’s second issue.




                                       20
V.   Conclusion

     Having overruled both of Wood Care’s issues, we affirm the trial court’s

judgment.




                                         ANNE GARDNER
                                         JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DELIVERED: February 18, 2010




                                    21
