                           NUMBER 13-09-00637-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

MICHAEL B. WANSEY, INDIVIDUALLY AND D/B/A
RIO GRANDE DEFENSIVE DRIVING SCHOOL,                                   Appellant,

                                         v.

CHERYL D. HOLE,                                                        Appellee.


              On appeal from the County Court at Law No. 2
                       of Hidalgo County, Texas.


                       MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez
      In this breach of contract and negligent hiring, training, and retention case,

appellant Michael B. Wansey, individually and d/b/a Rio Grande Defensive Driving

School, challenges the jury's verdict in favor of appellee Cheryl D. Hole.   By eight
issues,1 Wansey argues that: the evidence at trial was legally and factually insufficient

to support the jury's finding that (1) Wansey negligently hired, trained, and retained a

certain driving instructor, (2) any act or omission by Wansey or the driving instructor

proximately caused Hole's injury, (3) Hole suffered any damages as a result of the

negligent hiring, training, and retention, (4) Wansey breached the contract to provide

driver instruction training to Hole's daughter, (5) Hole suffered damages as a result of that

breach of contract, and (6) Wansey acted with malice or gross negligence such that Hole

was entitled to exemplary damages; (7) because there was no breach of contract, Hole

was not entitled to attorneys' fees; and (8) the exemplary damages award violates the

Due Process Clause of the United States Constitution because it was sixty-six times the

actual damages award. We affirm, in part, and reverse and render, in part.

                                           I. BACKGROUND

       Hole's daughter was a student at the driving school owned by Wansey. One

night, when Hole's husband arrived to pick up their daughter from class, he found her in

the back of the school with her driving instructor in what Hole's husband alleged was a

suspicious and compromising situation. The Holes withdrew their daughter from the

driving school, demanded a full refund of the fee they paid for the driving class, and asked

for an explanation of the driving instructor's conduct. Wansey sent the Holes a partial

refund based on the number of hours of instruction that their daughter had already

received at the school. Wansey also sent the Holes a letter attempting to explain the

circumstances in which they found their daughter with the driving instructor.



       1
           For purposes of our analysis, we have re-organized and re-numbered Wansey's appellate issues.
                                                   2
        Hole filed suit against Wansey alleging claims of breach of contract, negligence in

the hiring, supervision, training, or retention of his employees, and gross negligence. 2

Hole prayed for contract damages and actual and exemplary damages for her negligence

claim. The case was tried to a jury, which returned a favorable verdict to Hole on both

the breach of contract claim and the negligence claim. The jury awarded Hole $225.00

in contract damages and $5,000.00 in attorneys' fees related to that claim. For her

negligence claim, the jury awarded Hole $225.00 in actual damages, found by clear and

convincing evidence that the harm to Hole was the result of malice or gross negligence,

and awarded Hole $15,000.00 in exemplary damages. Wansey filed a motion for new

trial, which was overruled by operation of law. See TEX. R. CIV. P. 329b(c). This appeal

followed.

                                 II. SUFFICIENCY OF THE EVIDENCE

        By five issues, Wansey challenges the legal and factual sufficiency of the evidence

supporting the jury's findings as to negligence, breach of contract, and actual and

exemplary damages.

                                      A. Standard of Review

        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. King Ranch, Inc. v. Chapman, 118


        2
           Hole also sued Southern Cross Investments, Inc., Wansey's holding company, but it is not a party
to this appeal.
                                                    3
S.W.3d 742, 751 (Tex. 2003). 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 fact finder could and disregard evidence contrary to the finding unless a

reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

       In reviewing an appellant's factual sufficiency challenge to an adverse jury finding

on which the other party had the burden of proof, as is the case here, we will consider,

weigh, and examine all of the evidence in the record, both in support of and contrary to the

finding. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We will set

aside the district court's finding only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175,

176 (Tex. 1986).

       In the context of a jury trial, the sufficiency of the evidence is reviewed in light of the

charge submitted if no objection is made to the charge. Romero v. KPH Consolidation,

Inc., 166 S.W.3d 212, 221 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711,

715 (Tex. 2001).     Here, although Wansey expressed some concerns with the jury

charge, it appears from the record that they were resolved in his favor in the charge given

to the jury, and the trial court therefore never ruled on his objections, if any. Thus, we

review the evidence under the law as set out in the jury charge. See Romero, 166

S.W.3d at 221.

                                       B. Negligence

       By his first, second, and third issues, Wansey challenges the sufficiency of the

evidence supporting the jury's findings on Hole's cause of action for negligent hiring,
                                                4
training, supervision, and retention.

1. Jury Questions

       The jury was questioned as follows regarding Wansey's liability for negligence:

"Did the negligence if any of [Wansey] proximately cause the occurrence in question?"

The charge also included the following definitions:

       "NEGLIGENCE" when used with respect to the conduct of [Wansey],
       means failure to use ordinary care, that is, failing to do what a driving school
       of ordinary prudence would have done under the same or similar
       circumstances or doing that which a driving school of ordinary prudence
       would not have done under the same or similar circumstances.

       "ORDINARY CARE" when used with respect to the conduct of [Wansey],
       means that degree of care that a driving school of ordinary prudence would
       use under the same or similar circumstances.

       "PROXIMATE CAUSE," when used with respect to the conduct of
       [Wansey] means that cause which, in a natural and continuous sequence,
       produces an event, and without which cause such event would not have
       occurred. In order to be a proximate cause, the act or omission
       complained of must be such that a driving school using ordinary care would
       have foreseen that the event, or some similar event, might reasonably result
       therefrom. There may be more than one proximate cause of an event.

The jury was questioned as follows regarding negligence damages:              "What sum of

money, if any, if paid now in cash, would fairly and reasonably compensate Cheryl Hole

for her damages, if any, that resulted from [the] occurrence in question."

2. The Evidence

       At trial, Hole's husband testified in detail about the occurrence. He testified that

when he arrived to pick up his daughter and she did not exit the driving school with the

other students, he became suspicious. He went into the school, and a person inside the

classroom pointed to a back exit door and indicated that he should look out there for his

daughter. Hole's husband testified that when he tried to open the exit door, someone
                                              5
was holding it shut, and when he managed to get outside, he found his daughter in a dark

area in back of the driving school with her instructor. His daughter's books were on the

ground, and she stepped quickly away from the instructor when Hole's husband came

through the door. Hole's husband testified that they decided to withdraw their daughter

from the class because they did not trust the safety of the situation at Wansey's driving

school. He also testified that they enrolled their daughter in another, more expensive

driving course and that she had to start the course from the beginning even though she

was only four hours short of completing the course at Wansey's school.

       Hole admitted into evidence two letters written to Wansey by her husband

informing Wansey that they would be withdrawing their daughter, requesting an

explanation of the incident, and demanding a full refund of the fee for the driving course;

both letters stated that the Holes would possibly take legal action if Wansey did not

comply. Hole also admitted into evidence two letters from Wansey to the Holes. The

first letter, sent in response to the Holes' first letter, contained a one sentence reply:

"Your letter of January 18 has been received and the contents noted." In his second

letter to the Holes, in response to their second letter, Wansey informed the Holes that he

would not be refunding their fee in full, would send a "pro-rata" refund for the portion of the

course not taken, and would be cancelling their daughter's learner permit because she

was withdrawn before making up her missed classes. Wansey then described the

incident in question based on "information[] from persons who were there at the time":

             [O]ur instructor, having concluded his work, went outside for a
       welcome smoke.

               He held the door open because it has a strong hydraulic closer and if
       let go, will close itself, locking the individual out.
                                              6
              [Hole's daughter], at this point wandered out and started to ask the
       instructor about the Junior R.O.T.C., a subject in which [the instructor] has
       considerable knowledge.

            She stood alone, a few feet away from him, and as he smoked, he
       answered her questions.

             That's called exercising her 1st Amendment rights. Our instructor
       was politely answering her questions.

              That's the scene you saw when you nearly knocked our instructor off
       his feet as he was holding the door open.

Wansey's second letter concluded, "Your threats are rejected . . . . Until you march up to

our door with a writ in your hand, you don't give us orders." Wansey's "pro-rata" refund

check to the Holes for $18.00 was admitted into evidence.

       Hole presented evidence at trial that Wansey had employed two instructors in the

past whose teaching licenses were revoked for inappropriate sexual conduct with

students. Hole also introduced a memo written by Wansey's wife to the driving school's

employees noting that two students had complained that an in-car instructor had made

inappropriate sexual advances toward them. In the memo, Wansey's wife stated, "We

are going on record with this memo to tell you not [to] say or do anything that might be

deemed inappropriate in the slightest way. In other words, think before you open your

mouth." Wansey admitted in the litigation, however, that his driving school has no

written policies regarding student-teacher relations and that he does not perform

background checks on his employees. Finally, Hole produced evidence that Wansey

had repeatedly refused to take responsibility for the behavior of his instructors and

students, stating, in particular, that "[we] are NOT responsible for what students do after

classes, in particular if they take action under their own volition."
                                              7
3. Liability

       By his first issue, Wansey argues the evidence was legally and factually

insufficient to support the jury's finding that Wansey negligently hired, trained, and

retained the driving instructor involved in the incident with the Holes' daughter. We

disagree. Hole presented evidence that the driving instructor engaged in inappropriate

behavior with Hole's daughter and that Wansey had no policies or procedures in place to

prohibit or govern such a situation. Hole also presented evidence that Wansey does not

perform background checks on his employees.            Although there was evidence that

Wansey had informally warned employees against engaging students in an inappropriate

way, Hole's evidence that Wansey had no official policies and procedures in place was

sufficient to support the jury's verdict under the facts of this case. In other words, there

was sufficient evidence that Wansey failed to act in a way that a driving school owner of

ordinary prudence should act when operating a school for young students.               Thus,

viewing the evidence in the light most favorable to the verdict, we conclude there was

more than a scintilla of evidence that Wansey failed to exercise ordinary care in the hiring,

training, and retention of his driving instructors. See Chapman, 118 S.W.3d at 751.

Further, considering evidence both favorable and contrary to the verdict, we cannot

conclude that the jury's finding was so contrary to the overwhelming weight of the

evidence as to be clearly wrong and manifestly unjust. See Francis, 46 S.W.3d at 242;

Cain, 709 S.W.2d at 176. Wansey's first issue is overruled.

       By his second issue, Wansey argues that the evidence was legally and factually

insufficient to prove that his negligence was the proximate cause of any injury to Hole.

Again, we disagree. The evidence at trial showed that Wansey's failure to create a safe
                                             8
learning environment through the proper screening and control of his employees caused

the Holes to withdraw their daughter from Wansey's driving school. The Holes were

subsequently required to enroll their daughter in another school at additional cost to them

and at which their daughter was required to restart her driver's education from the

beginning.   This result should have been foreseeable to Wansey because he had

employed instructors in the past whose inappropriate behavior prompted student

complaints and had even resulted in the revocation of instructors' licenses. The Holes'

withdrawal of their daughter from Wansey's school was a natural and continuous

consequence of Wansey's lax screening procedures and absent employment policies,

which resulted in the employment of an instructor who engaged in inappropriate behavior

with the Holes' daughter.    Therefore, again viewing the evidence in the light most

favorable to the verdict, we conclude there was more than a scintilla of evidence that

Wansey's negligence was the proximate cause of the Hole's injury, i.e., the withdrawal of

the Holes' daughter from Wansey's school and subsequent costs incurred by enrolling her

in a different program. See Chapman, 118 S.W.3d at 751. And, again, we cannot

conclude that the jury's finding on proximate cause was so contrary to the overwhelming

weight of the evidence as to be clearly wrong and manifestly unjust. See Francis, 46

S.W.3d at 242; Cain, 709 S.W.2d at 176. Wansey's second issue is overruled.

4. Damages

       By his third issue, Wansey argues that the evidence was legally and factually

insufficient to show that Hole suffered any damages as a result of the incident. As

previously discussed, Hole presented evidence that she and her husband decided to

withdraw their daughter from Wansey's school because of the incident in question. As a
                                            9
result, they had to pay for an additional driver's education course.                       The evidence

therefore supported the jury's negligence award of $225.00. It represented the amount

of the fee paid by the Holes to Wansey's school—in other words, the sum of money the

Holes would not have lost but for Wansey's negligence. Viewing the evidence in the light

most favorable to the verdict, we conclude there was more than a scintilla of evidence

supporting the jury's negligence damage award. See Chapman, 118 S.W.3d at 751.

And, after reviewing all of the evidence both in support of and contrary to the verdict, we

cannot conclude that the jury's award was so contrary to the overwhelming weight of the

evidence as to be clearly wrong and manifestly unjust. See Francis, 46 S.W.3d at 242;

Cain, 709 S.W.2d at 176. Wansey's third issue is overruled.

                                       C. Breach of Contract

       By his fourth issue, Wansey argues that the evidence was legally and factually

insufficient to support the jury's breach of contract finding. We agree.

       The jury was questioned as follows:                    "Did [Wansey] breach the Student

Enrollment Contract entered into between Rio Grande Defensive Driving School and

Cheryl Hole?"3 The contract provided that the Holes' daughter would receive thirty-two

hours of classroom instruction and twenty-one "behind-the-wheel" lessons. The contract

price was $186 for the course fees and $39 in administrative expenses, for a total of $225,

which the Holes paid in full. The contract included an attendance policy, a grading and

progress policy, and rules of conduct for students. The contract also included a notice

from the Texas Education Agency, enumerating for parents the minimum requirements

for teen driver education courses under the law. Finally, the contract contained a refund
       3
           The jury charge contained no further instructions on the breach of contract issue.
                                                     10
policy, which provided, in relevant part, as follows:

       1.     Refund computations will be based on actual instruction received
              through the last date of attendance.

       2.     The effective date of the termination for refund purposes will be the
              earliest of the following: (a) the last day of attendance, if the student
              is terminated by the school; or (b) the date of receipt of written notice
              from the student.

              ....

       5.     A full refund of all tuition and fees is due and refundable in each of
              the following cases: (a) when an enrollee is not accepted by the
              school; (b) if the course of instruction is discontinued by the school at
              this location; or (c) if the student's enrollment was procured as a
              result of any misrepresentation in advertising, promotional materials
              of the school, or misrepresentation by the owner or representation of
              the school.

       6.     Refunds shall be completed within 30 days after the effective date of
              termination.

       Hole's theory at trial was that, because the Holes were forced to withdraw their

daughter from Wansey's school "for cause," Wansey breached the contract by not

providing the entire course of instruction. In her petition, Hole alleged that Wansey

breached the contract by "fail[ing] to properly supervise [his] employees and fail[ing] to

provide a safe and proper environment for their students . . . ." Hole also prayed to be

"reimbursed in full" for the contract price. But the contract here contained no provisions

governing particular reasons for a student's withdrawal or covenanting or promising

anything related to the driving school's employees. Further, Hole alleged no facts and

produced no evidence at trial that would have qualified her for a full refund under the

contract.   Rather, the evidence at trial established that Wansey complied with the

contract by sending the Holes a partial refund based on the instruction already received

                                             11
by the Holes' daughter. This is all evidence no reasonable juror could have ignored.

See City of Keller, 168 S.W.3d at 807, 827. We conclude the trial record is devoid of any

evidence of a breach by Wansey of the student enrollment contract, and in light of this

complete absence of evidence of a vital fact, the jury's verdict was not supported by

legally sufficient evidence. See Chapman, 118 S.W.3d at 751. Wansey's fourth issue

is sustained.4

       By his fifth and seventh issues, respectively, Wansey argues that: the evidence

was insufficient to show that Hole suffered damages as a result of the breach of contract;

and if we were to determine that the evidence was insufficient to support the breach of

contract finding, we must also reverse the attorneys' fees awarded to Hole on the basis of

breach of contract. Having already determined that the evidence was legally insufficient

to support the jury's breach of contract liability finding, we further conclude that Hole was

not entitled to contract damages or attorneys' fees based on a breach of contract.

Wansey's fifth and seventh issues are likewise sustained.

                             III. MALICE OR GROSS NEGLIGENCE

       By his sixth issue, Wansey argues that the evidence was legally and factually

insufficient to prove that Wansey acted with malice or gross negligence. However,

because there was no objection, we are guided in our analysis of Wansey's evidentiary

issue by the standard and applicable law set out in the jury charge:

              Do you find by clear and convincing evidence that the harm to Cheryl
       Hole resulted from malice or gross negligence?



       4
         Having concluded that the evidence was legally insufficient, we need not reach Wansey's
argument that it is factually insufficient. See TEX. R. APP. P. 47.1.
                                              12
             "Clear and convincing evidence" means the measure or degree of
      proof that produces a firm belief or conviction of the truth of the allegations
      sought to be established.

              "Malice" means specific intent by [Wansey] to cause substantial
      injury or harm to Cheryl Hole.

             "Gross negligence" means more than momentary thoughtlessness,
      inadvertence, or error of judgment. It means such an entire want of care as
      to establish that the act or omission in question was the result of actual
      conscious indifference to the rights, welfare, or safety of the persons
      affected by it.

We will therefore determine whether Hole produced clear and convincing evidence that

Wansey's conduct rose to the level of malice or gross negligence. See Romero, 166

S.W.3d at 221.

      As noted above, Hole produced evidence that, even though Wansey had

employed instructors in the past who were known to have inappropriate sexual conduct

with young female students, he had no formal policy regarding instructor-student relations

and did not perform background checks on his employees. Further, Hole produced

evidence that Wansey did not believe it was his responsibility to prohibit or prevent the

sort of incident that occurred between the Holes' daughter and her driving instructor. In

fact, the evidence showed that Wansey repeatedly and adamantly refused to take such

responsibility or admit that his employment practices were problematic. In particular,

Wansey's letter to the Holes was hostile in tone and indicated an almost stubborn

ignorance to the circumstances at his school. In short, there was ample evidence from

which the jury could have found that Wansey's conduct was "more than momentary

thoughtlessness, inadvertence, or error of judgment" and, instead, exhibited "an entire

want of care" and "actual conscious indifference to the rights, welfare, or safety of the

                                            13
persons affected" by Wansey's conduct. We thus conclude that there was sufficient

evidence to produce in the minds of the jurors a firm belief that Wansey's conduct

amounted to gross negligence. Wansey's sixth issue is overruled.

                      IV. EXEMPLARY DAMAGES AND DUE PROCESS

      By his eighth issue, Wansey argues that the jury's $15,000.00 exemplary damages

award was unconstitutionally excessive and violated the Due Process Clause of the

United States Constitution because it was sixty-six times the actual damages award.

See U.S. CONST. amend. XIV. We disagree.

      "The Due Process Clause 'prohibits a [s]tate from imposing a grossly excessive

punishment on a tortfeasor.'" Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d

35, 45 (Tex. 1998) (quoting BMW of N. Am. v. Gore, 517 U.S. 559, 562 (1996)). In

reviewing exemplary damages, we are instructed to consider three guideposts: "(1) the

degree of reprehensibility of the defendant's misconduct; (2) the disparity between the

actual or potential harm suffered by the plaintiff and the punitive damages award; and (3)

the difference between the punitive damages awarded by the jury and the civil penalties

authorized or imposed in comparable cases."         State Farm Mut. Auto. Ins. Co. v.

Campbell, 538 U.S. 408, 418 (2003); see Tony Gullo Motors I, Inc. v. Chapa, 212 S.W.3d

299, 308-09 (Tex. 2006). The reprehensibility of the defendant's conduct is the "most

important indicium of the reasonableness of a punitive damages award . . . ." Campbell,

538 U.S. at 419. In assessing reprehensibility, we determine whether: the plaintiff's

health or safety was endangered, as opposed to his economic well-being; the tortious

conduct evidenced a reckless disregard for or indifference to the health or safety of

others; the plaintiff was financially vulnerable; the conduct was repeated; and the injury
                                           14
was the result of malice, trickery, or deceit. Id. Further, "a reprehensibility analysis

can . . . consider, to some extent, surrounding circumstances beyond the underlying tort."

Bennett v. Reynolds, 315 S.W.3d 867, 875 (Tex. 2010).

       With regard to the reprehensibility of Wansey's conduct, the evidence at trial, as

discussed above, showed a conscious disregard by Wansey for the safety of his

students.    Despite having multiple past experiences with driving instructors who

engaged in inappropriate conduct with students, Wansey still did not perform background

checks on employees and had no official policy in place to govern the relationship

between instructors and students. This same evidence demonstrates that Wansey's

disregard produced repeated incidents of inappropriate contact between instructors and

students. Wansey's flippant response to the Holes' inquiries is but further evidence of

his indifference to the situation. The evidence at trial therefore showed that Wansey's

conduct evidenced a reckless disregard for his students' safety and was repeated. See

Campbell, 538 U.S. at 418; see also Bennett, 315 S.W.3d at 875 (allowing the reviewing

court to consider circumstances occurring before the commission of the particular tort

giving rise to the plaintiff's cause of action). Our analysis of the first guidepost weighs in

favor of the punitive damages awarded to Hole.

       As to the second guidepost, we note that courts have held that a single-digit ratio

between the exemplary and actual damages would "more likely" comport with due

process and that the exemplary damages award in this case was roughly sixty-six times

the actual damages award. See Campbell, 538 U.S. at 425; see, e.g., Malone, 972

S.W.2d at 46-47 (affirming an exemplary damages award of "slightly more than" two

times the compensatory damages); Borden, Inc. v. Guerra, 860 S.W.2d 515, 528 (Tex.
                                             15
App–Corpus Christi 1993, writ dism'd by agr.) (approving an exemplary award that was

five times the amount of actual damages). However, we also recognize that there is no

"bright-line ratio" between the actual damages suffered and punitive damages awarded

that will mandate the affirming or reversal of an award. See Campbell, 538 U.S. at

424-25. Importantly, where "a particularly egregious act has resulted in only a small

amount of economic damages," as is the case here, ratios greater than single digits will

be considered constitutional. Id. at 425. Exemplary damages are intended to punish

the wrongdoer and act as a deterrence to others. Bennett, 315 S.W.3d at 874. With

that precept guiding our analysis, we cannot conclude, under the facts of this case, that

the exemplary damages award was unreasonable and impermissibly disproportionate to

the amount of harm suffered by Hole. See Campbell, 538 U.S. at 425-26.

       The third and final guidepost requires the Court to examine the civil penalties

authorized or imposed in comparable cases. Id. at 428. We note that, in a case like this

involving a common law tort that does not readily compare to statutory causes of action,

we are also guided by judicial decisions at the time of the misconduct. See Malone, 972

S.W.2d at 47. In particular, we look to whether the defendant had notice that substantial

punitive damages were a potential consequence of its misconduct.             See id.    We

conclude that Wansey had such notice. At trial, Hole admitted into evidence a letter

written by Wansey to the State Bar of Texas, after the filing of Hole's lawsuit, complaining

about Hole's husband, a local attorney. In his letter to the bar, Wansey implied that Hole

filed her lawsuit in Hidalgo County, Texas, because it is known for "[s]ympathetic juries."

From this, we conclude that Wansey was aware of the possibility of a significant damages

award were a jury to find him liable for his conduct. This final guidepost therefore weighs
                                            16
against excessiveness.

      The jury's award of exemplary damages comported with federal due process

requirements.   Wansey's conduct was reprehensible; the amount of the exemplary

damages was reasonably proportionate to the actual harm suffered by Hole; and Wansey

had adequate notice of his vulnerability to such an award. See Campbell, 538 U.S. at

418. Wansey's eighth issue is overruled.

                                    V. CONCLUSION

      We affirm the judgment of the trial court regarding the jury's findings of negligence,

negligence damages, gross negligence, and exemplary damages.              We reverse the

judgment of the trial court regarding the jury's findings of breach of contract, contract

damages, and attorneys' fees and render judgment dismissing Hole's breach of contract

claim with prejudice.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Delivered and filed the
7th day of April, 2011.




                                            17
