                                     NO. 07-01-0004-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                   SEPTEMBER 20, 2001

                           ______________________________


                                 TY ROBBINS, APPELLANT

                                               V.

                THOMAS K. PAYNE AND THE DOOR, INC., APPELLEES


                         _________________________________

              FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 98-502,439; HONORABLE MACKEY HANCOCK, JUDGE

                          _______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.


       This appeal arises from a dispute between the founders of a business who

dissolved their relationship less than a year after establishing the business. Both parties

filed suit against each other, alleging breach of agreements and other duties arising from

their relationship. At the conclusion of a jury trial, the court directed a verdict for appellees
on each of the causes of action, thus prompting this appeal. Finding no error in the

judgment below, we affirm.


       Proper consideration of the issues raised in this appeal necessitates a brief review

of the factual and procedural history of the parties’ dispute. In 1996, appellant Robbins

was a student at Texas Tech University. He performed computer support and related

services for appellee, Thomas K. Payne (Payne). The parties discussed establishing a

business to provide internet access services to the public in the Lubbock area. These

discussions culminated in a short written agreement signed on October 18, 1996.1 As

described in the agreement, the business name was “the Door,” sometimes referred to as

“the Door to the Internet.”


       Shortly after the agreement was signed the business began operating, with Robbins

handling the technical aspects and some other daily operational decisions and Payne

participating in financial, advertising and other business development activities. The


       1
           Thomas K. Payne . . . and Timothy Robbins . . . agree as follows:

       1) Payne will fund the start-up costs for an internet related business to be
       called “THE DOOR”;

       2) Robbins agrees to devote full-time to this business;

       3) 100% ownership of the business will be retained by Payne until such time
       as Payne has achieved “payout” as defined below;

       4) Operating profits will be distributed 75% to Payne and 25% to Robbins
       until Payne achieves payout;



                                              2
record shows the business was successful in obtaining customers and providing service

to those customers. However, even after several months of operation, the business was

not producing a profit. Consequently, Robbins did not receive any financial benefit from

the business during this time. Disagreements developed between Payne and Robbins

about certain aspects of the business and, in the summer of 1997, Robbins explored the

possibility of obtaining financing to “buy-out” Payne or establishing another business to

compete in the same markets. Robbins ceased participating in the business about August

1, 1997.


____________________
      5) Operating profits will be offset by any operating losses prior to any profits
      being distributed;

      6) All tax benefits associated with start-up and operations of THE DOOR will
      accrue 100% to Payne until Payne has achieved payout;

      7) “Payout” is defined as the time at which Payne has received cash
      distributions from this business equal to the sum of Payne’s original
      investment plus any additional cash contributions made by Payne
      subsequent to start-up and prior to payout, plus 10% simple interest on
      outstanding balances;

      8) This business will occupy office space in a building owned by Payne.
      Payne will supply one office, a common storage area and office equipment
      for use by The Door. These services will be charged to The Door at the rate
      of $600 per month. In the event The Door occupies additional office space
      in the future such space will be charged to The Door at the rate of $12.00
      per square foot. Full service. Payne will retain ownership of all office
      equipment, unless same is later purchased by The Door;

      9) When “payout” is achieved, profits will be distributed 50% to Payne and
      50% to Robbins. Furthermore, at payout 50% equity ownership in this
      business will be vested in Robbins, who will at that time receive 50% of the
      stock in the corporation;

                                             3
       10) In regard to decisions which must be made in the future, prior to payout
       all final decisions will be made by Payne. Subsequent to payout, all final
       decisions which are financially related will be made by Payne, and all final
       decisions which are systems related will be made by Robbins.

       Appellees Payne and the Door sued Robbins on June 15, 1998, for breach of

contract and for a declaration that Robbins did not have an equity interest in The Door.

The following day, Robbins filed suit against appellees Payne and the Door, asserting

causes of action for breach of partnership agreement, breach of a duty of good faith,

breach of agreement to form partnership, promissory estoppel, fraud, negligent

misrepresentation, breach of fiduciary duty, and constructive trust.


       After the denial of a motion for summary judgment filed by appellees, the case was

tried to a jury on two days in October 2000. After both parties closed, appellees moved

for a directed verdict as to each of Robbins’s causes of action on the ground that the

evidence was legally insufficient to support those claims. It also sought a directed verdict

on appellees’ request for a declaration that Robbins did not have an ownership interest in

the Door. The trial court granted the motion, stating that it found the evidence conclusively

established an enforceable contract and all prior negotiations merged into that contract.

It rendered judgment for appellees, declaring that appellant had no ownership interest in

the Door and that he take nothing on his claims. After filing a motion for new trial,

appellant timely perfected appeal and now presents three issues for our review. They are

that the trial court erred in: 1) granting a trial amendment to add a denial of the existence

of a partnership, 2) granting an instructed verdict when there was evidence of a



                                             4
meritorious theory of recovery, and 3) granting an instructed verdict when there was some

evidence of a meritorious defense.




                                      Trial Amendment


       Robbins’s first challenge is to the trial court’s decision to permit appellees to file a

trial amendment denying the existence of a partnership.              During the preliminary

proceedings on the day of trial, Robbins pointed to the allegation in his petition alleging

a fiduciary relationship between the parties and argued this implied the existence of a

partnership.   He also argued that appellees had failed to file a verified denial of

partnership as required by Rule of Civil Procedure 93. In response, appellees sought

leave to amend their answer to add a verified denial of partnership. After considering the

request during voir dire, the trial court permitted the amendment finding that the

amendment would not operate as a surprise because the issue was raised in the

pleadings, even though there was no verified denial. The court offered Robbins the

opportunity to present evidence of surprise but, he only sought a continuance, which was

denied.


       Amendments to pleadings filed less than seven days before the date of trial may

only be filed with leave of the trial court. Tex. R. Civ. P. 63. The rule provides that leave

shall be granted unless there is a showing the filing will operate as a surprise to the



                                              5
opposite party. Id. See also Tex. R. Civ. P. 66 (authorizing trial amendments unless the

non-movant shows prejudice). The standard of review applicable to a trial court’s decision

to permit amendment is whether the court abused its discretion. Miller v. Wal-Mart Stores,

Inc., 918 S.W.2d 658, 666 (Tex.App.--Amarillo 1996, writ denied). The test for abuse of

discretion is whether the trial court’s action was arbitrary and unreasonable or whether the

trial court acted without reference to guiding rules or principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert denied, 476 U.S. 1159, 106

S.Ct. 2279, 90 L.Ed.2d 721 (1986).


       At trial, appellees relied on Kirby Forest Industries, Inc. v. Dobbs, 743 S.W.2d 348

(Tex.App.–Beaumont 1987, writ denied), as supporting an amendment. In Kirby, the court

permitted a trial amendment denying a partnership allegation after both parties rested.

The court of appeals found no error in permitting the amendment. Id. at 353. Robbins

seeks to distinguish Kirby on the basis that there, the case presented by both parties

focused largely on the existence of a partnership and the issue was tried by consent.


       Trial of an issue by consent is relevant to the requirement of Rule 301 that the

judgment rendered must conform to the pleadings. Under Rule 63, however, the relevant

issue is whether the amendment was a surprise and, under Rule 66, whether the

amendment will prejudice the non-movant. The fact that the parties fully litigated the issue

without objection in Kirby is relevant to that court’s finding that there was no surprise to the

party alleging a partnership.



                                               6
       Robbins cites cases such as Washburn v. Krenek, 684 S.W.2d 187

(Tex.App.–Houston [14th Dist.] 1984, writ ref’d n.r.e.), and this court’s opinion in Garver v.

First National Bank of Canadian, 432 S.W.2d 745, 748 (Tex.Civ.App.–Amarillo 1968, writ

ref’d n.r.e.), for the proposition that the failure to file a verified denial of partnership is

deemed admitted. While those cases support that proposition, it is not relevant to the

issue of surprise.


       The record does not support Robbins’s claim of surprise. Appellees’ motion for

summary judgment, filed some ten months before trial, specifically challenged Robbins’s

partnership claim.    Robbins’s response to the motion devoted three pages to the

partnership issue, but failed to challenge the lack of a verified denial of that partnership.


       Robbins next cites Smith Detective Agency v. Stanley Smith Security, Inc., 938

S.W.2d 743 (Tex.App.–Dallas 1996, writ denied), to support his contention that a party

seeking leave to file a trial amendment must tender the written amendment for filing. Id.

at 745. An examination of Smith reveals that the court made the statement cited by

Robbins in the context of delineating conditions necessary to give a trial court discretion

to deny a trial amendment. Id. Additionally, Smith relied on Century Rental Equipment,

Inc. v. Neo-Flasher Mfg. Co., 378 S.W.2d 957 (Tex.Civ.App.--Houston 1964, no writ),

which held that presenting a proposed amendment in writing would be “the better practice”

because the party opposing the amendment would “not [be] in a position to show prejudice

until he was acquainted with the contents of the amendment.” Id. at 959. The substance



                                              7
of the amendment sought by appellees here was clearly set out in the oral motion before

the trial court. The failure to tender a written amendment did not undermine Robbins’s

ability to make a meaningful response.


       Robbins has failed to meet his burden to show the amendment was a surprise or

prejudiced his claims or defenses. Therefore, we cannot say that the trial court abused

its discretion in permitting the trial amendment and we overrule Robbins’s first issue.




                                     Directed Verdict


       We next consider Robbins’s challenges to the directed verdict. A directed verdict

for a defendant may be proper when a plaintiff fails to present evidence raising a fact issue

essential to the plaintiff's right of recovery or if the plaintiff admits, or the evidence

conclusively establishes, a defense to the plaintiff's cause of action. Prudential Ins. Co.

of America v. Financial Review Services, Inc., 29 S.W.3d 74, 77 (Tex. 2000). The

evidence must be considered in the light most favorable to the non-movant. White v.

Southwestern Bell, 651 S.W.2d 260, 262 (Tex. 1983). If there is conflicting probative

evidence, the issue is one for determination by the jury. Id. The granting of an instructed

verdict on a claim can be affirmed even if the reason given by the trial court is erroneous,

if another ground exists to support the directed verdict. Kelly v. Diocese of Corpus Christi,

832 S.W.2d 88, 90 (Tex.App.–Corpus Christi 1992, writ dism’d w.o.j.).



                                             8
      Robbins initially asserts that there was legally sufficient evidence to support his

claims for quantum meruit, partnership, fraud, breach of fiduciary duty, promissory

estoppel, negligent misrepresentation, constructive trust, and exemplary damages.

Consideration of this issue is simplified by noting that some of these claims are not

recognized causes of action in Texas.


      Promissory estoppel is a defensive doctrine which permits one who has relied on

a promise to prevent an attack on the enforceability of the promise. Wheeler v. White, 398

S.W.2d 93, 97 (Tex. 1965). The doctrine does not establish a cause of action or, in the

words of our supreme court, does “not operate to create liability where it does not

otherwise exist.” Hruska v. First State Bank, 747 S.W.2d 783, 785 (Tex. 1988). Similarly,

there is no independent cause of action for exemplary damages. They are simply an

element of damages recoverable under a cause of action. See Tex. Civ. Prac. & Rem.

Code Ann. § 41.002(a) (Vernon Supp. 2001).


Quantum Meruit


      Quantum meruit is an equitable remedy which is based on an implied agreement

to pay for benefits received. Iron Mountain Bison Ranch v. Easley Trailer Mfg. Inc., 42

S.W.3d 149, 159 (Tex.App.–Amarillo 2000, no pet.). Significantly, a party may recover

under quantum meruit only when there is no express contract covering the services or

materials furnished. Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944

(Tex. 1990).


                                            9
       Robbins sought recovery under quantum meruit for the labor he expended in

establishing the Door and for which he was not paid. He cites Truly v. Austin, 744 S.W.2d

934 (Tex. 1988), as an exception to the general rule stated in Vortt Exploration. Robbins

contends Truly supports his contention that he can recover under quantum meruit for

partial performance of a contract, even if he was in breach of the contract. Id. at 937. The

holding in Truly does not support this contention.


       In Truly, the plaintiff sought to recover the value of services he provided to a joint

venture. The services were provided under a contract which would have been paid $2,000

per month for supervision of a construction project. Id. at 936. The project fell apart when

Truly breached a portion of the contract concerning his acceptance of personal liability.

The court recognized some circumstances in which a party could obtain quantum meruit

damages for services performed under a contract, but it held that because quantum meruit

is an equitable remedy, the plaintiff’s breach of the contract precluded his recovery. Id.

at 938.


       It is undisputed that Payne and Robbins had a contract governing the services

provided by Robbins and that it was Robbins who ceased participating in the business

after eight months. In spite of these undisputed facts, Robbins contends the trial court

erred in finding he breached the contract because it erroneously construed the agreement

in favor of Payne after finding it ambiguous. The record citation provided does not support




                                             10
Robbins’s statement that the trial court found the contract ambiguous. Nor do we find any

support in the record for a finding that the contract was ambiguous.


       Robbins does not directly dispute the fact that he breached the contract, but argues

that the jury should have been given the opportunity to decide if the breach was “legally

excused.” Robbins fails to point to authority or evidence on which the jury could have

found his breach “legally excused.” Moreover, Payne correctly notes that an allegation

that a breach was excused is an affirmative defense. See Bracton Corp. v. Evans Const.

Co., 784 S.W.2d 708, 710 (Tex.App.--Houston [14th Dist.] 1990, no writ). Robbins did not

plead any such defense.


       Because the services at issue were governed by an express contract and Robbins

failed to establish the applicability of an exception to the general rule, the trial court did not

err in granting a directed verdict on this claim.


Partnership


       The exact nature of Robbins’s claim for “partnership” is unclear. Applying a liberal

construction to his brief, we will construe his claim as one for a judicial declaration that the

parties were partners. In support, he first argues that Payne “failed to verify a denial

specific to the allegation of a partnership between Robbins and Payne.” Examination of

the amended answer shows this claim is without merit. The amended answer specifically

provides, “Plaintiffs/Counter-defendants [Payne and the Door] specifically deny the



                                               11
allegation [that] Thomas K. Payne and Ty Robbins were partners.” The denial is clear and

unequivocal.


        Robbins next argues that the undisputed facts establish a partnership between

himself and Payne. As support, he cites a portion of the Texas Revised Partnership Act,

which defines a partnership as “an association of two or more persons to carry on a

business for profit as owners.” Tex. Rev. Civ. Stat. Ann. art. 6132b-2.02 (Vernon Supp.

2001). Robbins omitted the beginning of that sentence which provides, “Except as

provided by Subsections (b) and (c), an association of two or more persons . . . .”

Subsection (b) specifically provides that an “association or entity created under a law other

than the laws described under Subsection (a) is not a partnership.” Id. The parties’ written

agreement did not give Robbins an ownership interest. Rather, it evidences an intent to

form a corporation, and the record shows that a corporation was formed. The record does

not support a finding of partnership and the trial court did not err in directing a verdict on

this issue.


Fraud


        The elements of a claim for fraud are: 1) a material representation that was false;

2) the person who made the representation knew it was false or made it recklessly as a

positive assertion without any knowledge of its truth; 3) it intended to induce another to act

upon the representation; and 4) that person actually and justifiably relied upon the

representation and thereby suffered injury. See Trenholm v. Ratcliff, 646 S.W.2d 927, 930


                                             12
(Tex. 1983). The representation on which Robbins bases his claim is that Payne “could

expect a salary, or ‘draw’, as part of the operating expenses included in determining

‘operating profits.’” Robbins does not dispute that the parties’ written agreement does not

provide for any payment to him unless the business made a profit. He cites two items of

testimony in support of his position that Payne made a fraudulent representation. The first

is Payne’s testimony that profits made before payout would be distributed 25% to Robbins

and 75% to Payne. The second is testimony by Robbins that after the business had not

earned any profit in several months, Robbins asked Payne to “activate a concept of a draw

that we had discussed earlier.”


       This evidence does not support even an inference that Payne made any

representation that the agreement provided Robbins would receive any payments before

the business earned a profit or that payments to Robbins would be treated as operating

expenses in determining whether the business earned a profit.          Although Robbins

suggests that Payne’s right to make all of the business decisions before payout gave him

control over whether the business made a profit, he makes no claim of any decision which

delayed or prevented the business from earning a profit and the record shows that

Robbins maintained the records of the business.


       Robbins argues the trial court prevented him from effectively developing evidence

necessary to establish his fraud claim when it sustained objections made by Payne.

However, Robbins failed to request an opportunity to create a bill of exceptions on this



                                            13
point, so there is nothing for us to review and any complaint on this issue has been

waived.


       Because there is nothing in the record to support a finding that Payne

misrepresented the terms of the agreement, there was no evidence to support a finding of

fraud and the trial court did not err in directing a verdict on this cause of action.


Breach of Fiduciary Duty


       In support of his claim for breach of fiduciary duty, Robbins cites Crim Truck &

Tractor Co. v. Navistar International, Corp., 823 S.W.2d 591 (Tex. 1992), for the

proposition that a confidential relationship duty may arise from moral, social, domestic, or

personal relationships and the existence of such a duty is a question of fact. Id. at 594.

He argues the evidence of the party’s prior business relationship raised a question of fact

for the jury. We disagree.


       The court in Crim Truck stated the existence of a confidential relationship is

ordinarily a question of fact but recognized that when the issue is one of no evidence, the

question is one of law. Id. (citing Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962)).

The court held the placement of some trust and reliance by one party to a contract on the

other party does not create a confidential relationship.        823 S.W.2d at 594.      The

“subjective trust” of one party in the other does not create a confidential relationship. Id.

at 595.



                                             14
       As in Crim Truck, there is no evidence that the relationship between Robbins and

Payne went beyond that ordinarily existing between parties to a contract of this type. The

relationship was not longstanding. Although Payne had significantly greater business

knowledge and experience than Robbins, Robbins had much more knowledge of the

technology and internet service provider industry.


       Robbins next argues that Payne admitted owing a fiduciary duty to Robbins. When

questioned about the nature of the relationship, Payne was very clear that he was not

expressing an opinion on the legal status of the relationship because, in his words, “from

a legal standpoint, I don’t think that I understood, and I’m not sure I understand the term.

I know what it meant to me and I know what it means to me.” This testimony is not

evidence that Payne owed Robbins a fiduciary duty.


          Even if there was some evidence of a fiduciary relationship, Robbins presented no

evidence of breach. The only evidence cited in support is his testimony that when he

reported to Payne that working at the Door was causing problems in his marriage and that

he was concerned about his father’s health, Payne reportedly responded that he should

be prepared to “divorce my wife and bury my father to stay in [the] business.” Accepting

this statement as true, it could not support a claim for breach of fiduciary duty because

nothing about the relationship of the parties related to Robbins’s reliance on Payne for

personal advice. The trial court did not err in granting a directed verdict on this cause of

action.



                                             15
Negligent Misrepresentation


       The only argument in Robbins’s brief in challenge of the directed verdict on his

fraud claim is that Payne’s motion failed to specifically address that cause of action. We

disagree. Payne’s motion alleged there was no evidence of a false representation. This

was relevant to both Robbins’s fraud claim and his negligent misrepresentation claim.

Without evidence of a misrepresentation, Robbins cannot establish his claim for negligent

misrepresentation. Zipp Industries, Inc. v. Ranger Ins. Co., 39 S.W.3d 658, 667 (Tex.App.

--Amarillo 2001, no pet.).


Constructive Trust


       Constructive trust is a remedy imposed when a person holding title to property

would be unjustly enriched if permitted to keep the property. Crowder v. Tri-C Resources,

Inc., 821 S.W.2d 393, 399 (Tex.App.–Houston [1st Dist.] 1991, no writ). Although some

cases appear to have treated it as a cause of action, see Weaver v. Stewart, 825 S.W.2d

183, 185 (Tex.App.--Houston [14th Dist.] 1992, writ denied), in his brief, Robbins concedes

that he raised constructive trust “as additional remedies related to other causes of action.”

Because we hold the trial court did not err in granting a directed verdict on each of

Robbins’s causes of action, we need not address issues related to the remedies he

sought.




                                             16
       Robbins also contends that Payne’s motion should have been denied because it

failed to state the specific grounds on which it was sought as required by Rule of Civil

Procedure 268. We need not express any opinion on whether the motion contained the

requisite specificity as to each cause of action because Robbins’s failure to present the

trial court with an objection on that basis waived any error. See Tex. R. App. P. 33.1. We

overrule Robbins’s second issue.


       In his third issue, Robbins assigns error to the directed verdict because he

presented some evidence of meritorious defenses.           He initially argues the record

establishes a question of fact existed on whether the written contract represented the

entire agreement of the parties. Specifically, he argues the parties had differing intent on

whether payment to Robbins would be included in determining operating expenses. In

support, he cites his testimony at trial where he sought to introduce a document listing

“concerns” he had before the written contract was executed. Payne argued that any prior

negotiations or agreements had merged into the written agreement, which covered the

subject of payments to both parties. See Carr v. Weiss, 984 S.W.2d 753, 764 (Tex.App.

--Amarillo 1999, pet. denied) (noting merger occurs when the same parties to an earlier

agreement later enter into a written agreement covering the same subject matter). The

trial court examined the document and found the matters were covered by the written

agreement. The document Robbins sought to introduce is not contained in this record.

Consequently, there is nothing to show the trial court erred in its determination that the

agreement encompassed those issues and the doctrine of merger was applicable.


                                            17
       Robbins next argues there was evidence supporting a finding that any breach of the

contract by him was legally excused. He contends the contractual requirement that the

business make a profit before Robbins was paid, and that Payne recoup his investment

before Robbins had an ownership interest, were conditions precedent and the giving effect

to them was “contrary to guiding principles of law” (citing Criswell v. European Crossroads

Shopping Center, Ltd., 792 S.W.2d 945 (Tex. 1990)). We disagree.


       In Criswell, the issue was whether a contractual provision that an engineer would

be paid when real property was sold as a “condominium project” precluded his payment

when the property was sold before it was remodeled into condominiums. Id. at 947. The

court noted that in construing a contract, forfeiture by finding a condition precedent is to

be avoided when another reasonable reading of the contract is possible, Schwarz-Jordan,

Inc. v. Delisle Construction Co., 569 S.W.2d 878 (Tex. 1978), and “because of their

harshness in operation, conditions are not favorites of the law.” Sirtex Oil Industries, Inc.

v. Erigan, 403 S.W.2d 784, 787 (Tex. 1966). It found the quoted language did not create

a condition precedent which would preclude the engineer’s payment. Criswell, 792 S.W.2d

at 948.


       Accepting Robbins’s premise that a profit and payout were conditions precedent,

he offers no authority supporting the conclusion that such conditions would excuse his

breach. Unlike Criswell, the contractual requirements at issue here would not work a

forfeiture. The structure of the contract divided the risk of establishing the business. The



                                             18
risk Robbins accepted of working without pay if the business was not successful, is no

more onerous than the risk Payne accepted in financing the business without any

guarantee his investment would be repaid. The public policy considerations relevant in

Sirtex Oil, supra, are not applicable here. Also, as noted above, an allegation that a

breach of contract is legally excused is in the nature of an affirmative defense, but

Robbins’s pleadings contained no such defense.


       Robbins claims the evidence presents a fact question on whether the agreement

was supported by consideration and mutuality. He argues that the agreement lacks

consideration because Payne “gave up nothing[, he] surrendered no contractual rights and

was required to do nothing.” This ignores the plain language of the agreement and the

evidence presented at trial. The first paragraph of the agreement imposed on Payne the

obligation to fund the start-up costs of the business and the evidence showed he invested

over $100,000 in satisfaction of that obligation. The obligation was valid consideration and

made the parties’ promises mutual. Northern Nat. Gas Co. v. Conoco, Inc., 986 S.W.2d

603 (Tex. 1998); Texas Gas Utilities Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970).


       Finally, Robbins argues that there was evidence establishing a fact question on

whether the business had reached “payout” under the contract. It cites a profit and loss

statement as support for his claim that the business had $2,398,504.21 in gross profit.

Examination of the document shows this figure excluded all of the expenses of operating

the business other than cost of goods sold. After deducting those expenses from the gross



                                            19
profit, the document shows the business had a net loss of $272,479.79. None of the

financial records presented into evidence could support a finding that the business had

reached payout under the agreement. We overrule appellant’s third issue.


       In summary, all of appellant’s issues are overruled and the judgment of the trial

court is affirmed.



                                                John T. Boyd
                                                 Chief Justice

Publish.




                                           20
