      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00768-CV



                  Tau Kappa Epsilon and Adam Wilson Fomby, Appellants

                                                 v.

                                USA Bus Charter, Inc., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
        NO. D-1-GN-10-002807, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                              MEMORANDUM OPINION


               Complaining of numerous problems related to buses chartered for their transport to

and from the annual “Texas-OU weekend” festivities in Dallas, appellants—Tau Kappa Epsilon

(TKE), a fraternal social organization alleged to be affiliated with the University of Texas, and

Adam Wilson Fomby, a fraternity member who had secured the buses—sued the bus company,

appellee USA Bus Charter, Inc. (USA Bus), and ultimately obtained a no-answer default judgment

awarding them damages. Subsequently, the district court granted USA Bus’s motion for new trial

and set aside the default judgment, then granted the company’s motion to compel arbitration and

dismissed the suit. Appellants contend that the district court abused its discretion with respect to

both rulings. We disagree, and will affirm the district court’s judgment.
                                         BACKGROUND

               It is undisputed that in July 2008, appellant Fomby,1 as “special events coordinator”

for TKE, executed a “charter contract and service agreement” with USA Bus whereby the bus

company was to provide transportation services that included driving a large group to and from

Dallas on October 10-12, 2008—the weekend of the annual Texas-OU football game—in two 112-

passenger “deluxe motorcoaches.” The contract specified a total price of $5,880.00 for the services,

with a deposit of $500.00 required to confirm the reservation and the remaining balance due in

September. Although appellants later alleged that these contract prices exceeded a $4,900 total that

USA Bus had previously quoted them, Fomby paid the deposit on his credit card and subsequently

wrote a personal check in September for the balance remaining due. However, during the week

immediately before the scheduled trip, USA Bus, invoking a contract provision purporting

to authorize it to increase confirmed prices to reflect “order discrepancies” or changes in market

or regulatory conditions, requested that appellants sign a contract amendment requiring payment

of an additional $1,020.00 by October 9 and pay that amount. On October 8, Fomby signed the

amendment “under protest” and arranged for the additional payment.2

               Although the game itself would be a success— with the ’Horns defeating the Sooners

in a thrilling 45-35 shootout between the two undefeated, top-five nationally ranked teams, a win

       1
           Fomby’s counsel of record also has the surname of Fomby (the record does not indicate
whether or how the two are related). Lest there be any confusion, we use “Fomby” solely to refer
to appellant Fomby. Although some of these references concern actions by counsel Fomby during
this litigation as agent and legal representative for appellant Fomby, our references are not intended
to refer to counsel individually.
       2
           It appears that this additional payment was charged to another fraternity member’s
credit card.

                                                  2
that catapulted the ’Horns to a #1 ranking for a few weeks3—appellants’ chartered transportation

to and from the game, they would later allege, was a debacle. In August 2010, they sued USA Bus,

asserting claims under the Texas Deceptive Trade Practices Act. Appellants alleged “false,

misleading, and deceptive acts or practices” and “unconscionable actions” by USA Bus that included

misleading them and taking unfair advantage in regard to pricing increases; providing buses “that

were hours late . . . preventing the fraternity members and their guests from arriving in Dallas in

time to fully enjoy the traditional pre-game activities”; providing buses that contained less than

the 112 seats specified in the contract, necessitating that the fraternity make expenditures to rent “a

last-minute van” to transport passengers who could not fit on the buses (and, even worse for Fomby,

necessitating that he drive that van, “forcing [him] to forego full enjoyment of the trip in order to

drive and be responsible for the passengers”); and providing “drivers that did not speak English,”

had not been instructed regarding directions to the destinations in their itinerary, “and did not even

know that the route from Austin to Dallas is via Interstate Highway 35,” “forcing members of the

fraternity to serve as translators and navigators instead of enjoying the various activities on the

bus with their friends and dates.” Appellants further alleged that following their return to Austin,

USA Bus attempted to impose additional charges based on false accusations that they had damaged

a bus bathroom, then changed its story to falsely allege a damaged seat when confronted with

contrary evidence. Appellants prayed for actual damages, additional damages, and attorney’s fees.




       3
         MackBrown-TexasFootball.com, No. 5 Texas stops No. 1 Oklahoma in Dallas, 45-
35, Oct. 11, 2008, http://www.texassports.com/sports/m-footbl/recaps/101108aab.html; see
MackBrown-TexasFootball.com, Texas takes top spot in AP poll, Oct. 12, 2008,
http://www.texassports.com/sports/m-footbl/spec-rel/101208aaa.html.

                                                  3
               USA Bus is a foreign corporation with a principal place of business in Arizona,

and there is no dispute that appellants properly served the company through the Secretary of State,

which received the citation on August 16 and forwarded it to USA Bus. The citation was eventually

received on September 3 by the company’s corporate counsel, Russell Wenk, who is licensed to

practice law in Arizona but not in Texas. Appellants assert, and USA Bus does not dispute, that

USA Bus’s answer was due on September 6. After USA Bus did not answer by that deadline, or

during the week afterward, appellants proceeded to take a default judgment as to liability on

September 15. On the following day, appellants obtained a final default judgment awarding them

$14,900 in economic damages and $59,900 for mental anguish, which were trebled, plus $32,000

in attorney’s fees, for a total of $256,000 exclusive of court costs and interest.

               After receiving notice of the default judgment, USA Bus, through newly retained

Texas counsel, moved to abate the action for referral to arbitration pursuant to provisions in

its contract with appellants and to dismiss the suit. Contemporaneously with this motion, and

subject to it, USA Bus filed a verified answer and plea in abatement. Thereafter, USA Bus timely

filed a motion for new trial that purported to establish the three Craddock elements. See Craddock

v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). USA Bus attached evidence that

included an affidavit from Wenk, who testified concerning the circumstances of the company’s

failure to timely answer the suit. It subsequently filed a supplemental affidavit from Wenk.

Appellants did not file any evidence in response. A hearing on both sets of motions was held on

October 18, at which neither side presented additional evidence. The district court granted




                                                  4
USA Bus’s motion for new trial and set aside the default judgment. It then proceeded to address the

arbitration motion, granted it, and dismissed the suit.

               This appeal ensued.


                                            ANALYSIS

Motion for new trial

               In their first of three issues on appeal, appellants contend that the district court

abused its discretion in granting USA Bus’s motion for new trial. In general, trial courts have broad

discretion in ruling on motions for new trial. Limestone Constr., Inc. v. Summit Commercial Indus.

Props., Inc., 143 S.W.3d 538, 542 (Tex. App.—Austin 2004, no pet.). However, a trial court abuses

its discretion if it denies a motion for new trial to set aside a no-answer default judgment where the

movant has satisfied the three-element test of Craddock. Director, State Employees Workers’ Comp.

Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Old Republic Ins. Co. v. Scott, 873 S.W.2d 381,

382 (Tex. 1994) (per curiam). That is, the default judgment must be set aside and a new trial ordered

when it is shown that: (1) the defendant’s failure to answer before judgment was not intentional or

the result of conscious indifference on his part, but was due to a mistake or an accident; (2) the

defendant sets up a meritorious defense; and (3) the defendant’s motion for new trial is filed at a

time when the granting thereof will not result in delay or otherwise injure the plaintiff. See Evans,

889 S.W.2d at 268; Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984); Craddock, 133 S.W.2d

at 126. Appellants do not claim an abuse of discretion in regard to whether USA Bus met the

third Craddock element, but contest the first two.




                                                  5
                As to the first Craddock element, “intentional or the result of conscious indifference”

denotes “that the defendant knew it was sued but did not care.” Fidelity & Guar. Ins. Co.

v. Drewery Constr. Co., 186 S.W.3d 571, 575-76 (Tex. 2006) (per curiam) (emphasis added). This

is more than mere negligence. Levine v. Shackelford, Melton & McKinley, L.L.P., 248 S.W.3d 166,

168 (Tex. 2008) (per curiam). “An excuse need not be a good one to suffice.” Fidelity & Guar. Ins.

Co., 186 S.W.3d at 76.

                As proof that its failure to answer was not intentional or the result of conscious

indifference, USA Bus relied in part on affidavit testimony of Wenk, its Arizona-based corporate

counsel, that Arizona procedural rules required ten days’ advance notice prior to taking a default

judgment,4 and that he did not receive any advance notice of appellants’ intent to take a default.

Wenk further averred that after receiving the pleadings on September 3, he had discussed them with

his client and, on September 14, had faxed appellants a letter responding to the pleading allegations.

The letter, a copy of which was attached to Wenk’s first affidavit, stated the company’s legal

position in opposition to the suit, but also communicated a settlement offer. In concluding the letter,

Wenk requested, “If you are not willing to dismiss this lawsuit, please advise me immediately so

that a Motion to Dismiss can be immediately filed.” Under all of these circumstances, Wenk further

averred, “it was my belief that after Plaintiffs’ counsel was notified of representation by Defendants,

Plaintiffs’ counsel would at least contact me PRIOR to filing any default as requested.” As it turned

out, appellants moved for default judgment on the day after Wenk faxed the September 14 letter.




       4
           See Ariz. R. Civ. P. 55(a).

                                                  6
               Appellants, as previously noted, did not present any evidence to controvert these

facts.5 Instead, they argue, in substance, that the facts presented, taken as true, did not establish

an absence of conscious indifference as a matter of law. They first downplay the significance

of Wenk’s September 14 letter, observing that he did not transmit it until eight days after

what they assert was USA Bus’s answer date. As for Wenk’s confusion about Arizona versus

Texas procedural requirements related to default judgments, appellants insist that Wenk’s affidavits

fall short because they do not explain the basis for his belief that Texas law was the same as

Arizona’s or identify any legal research that he performed to determine when the answer was

due under Texas law. Therefore, appellants conclude, Wenk has failed to negate that he acted with

conscious indifference to the requirements of Texas law. See Butler v. Dal Tex Mach. & Tool Co.,




       5
            On the other hand, appellants do complain that the district court violated their rights
under the Fourteenth Amendment to the federal constitution by “preventing” them from presenting
evidence and argument in opposition to USA Bus’s motion for new trial. In support, appellants
reference an exchange during the hearing that occurred while their counsel was presenting argument
regarding Wenk’s affidavits. During this presentation, counsel requested to approach the bench,
and the court declined the request. The record does not further reveal the circumstances of the
request beyond the fact that the evidence then under discussion—Wenk’s affidavits—was already
before the district court. See Director, State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d
266, 268 (Tex. 1994) (affidavits attached to a motion for new trial do not have to be offered
into evidence). Appellants further complain that the district court “arbitrarily and without warning
interrupted [their] arguments within just three minutes” with an inquiry regarding the amount
of attorney’s fees they had incurred in obtaining their default judgment. After appellants’ counsel
responded to that question, the district court asked, “Anything else you want me to know?”
Appellants’ counsel then resumed his argument. Even if appellants have correctly characterized the
record, at no point did appellants object or otherwise preserve any complaints regarding the claimed
exclusion of evidence or curtailment of argument—rooted in constitutional rights or otherwise—nor
can we ascertain from the record that appellants even voiced a desire to present additional evidence
or argument. We hold that appellants have waived these complaints. See Tex. R. Civ. P. 33.1(a);
Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (constitutional claim must have been asserted
in the trial court to be raised on appeal).

                                                 7
Inc., 627 S.W.2d 258, 260 (Tex. App.—Fort Worth 1982, no writ) (holding that trial court did not

abuse its discretion in refusing to grant new trial to a defendant who received citation, did not

understand it, and did nothing until after default judgment was taken). Moreover, appellants note,

Arizona’s rule 55, by its own terms, applies “only to a default sought and entered pursuant to this

rule.” Ariz. R. Civ. P. 55(a)(4). Appellants urge that a trained and licensed attorney who assumes

that an Arizona rule applies to a Texas suit or that the Texas rules function similarly to Arizona’s

“is guilty of either laziness, incompetence, or malpractice,” particularly where the rule states that its

application is limited to defaults taken under the Arizona rule.

                USA Bus, on the other hand, argues that Wenk’s mistake of law—believing that

Arizona rule of procedure 55 applied to the Texas suit—constitutes legally sufficient evidence that

USA Bus did not intentionally disregard the lawsuit or act with conscious indifference. A mistake

of law may negate intentional or consciously indifferent conduct. Bank One Texas, N.A. v. Moody,

830 S.W.2d 81, 84 (Tex. 1992). However, the Texas Supreme Court has held that not every

mistake of law is a sufficient excuse. Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003) (citing

Bank One Tex., N.A., 830 S.W.2d at 84); see Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83

(Tex. 1992) (defendant did not answer because it did not believe it could possibly be liable); Carey

Crutcher, Inc. v. Mid-Coast Diesel Servs., Inc., 725 S.W.2d 500, 502 (Tex. App.—Corpus Christi

1987, no writ) (defendant’s attorney believed bankruptcy stay that applied to an entity that was

not his client meant that his client was protected from having to answer by the bankruptcy stay);

First Nat’l Bank of Bryan v. Peterson, 709 S.W.2d 276, 279 (Tex. App.—Houston [14th Dist.] 1986,

writ ref’d n.r.e.) (in response to writ of garnishment, bank froze accounts but did not submit funds



                                                   8
to the court or file an answer); Butler, 627 S.W.2d at 260 (party did not understand citation; did

nothing). But when a defendant presents evidence that it performed actions that it believed sufficient

to properly respond to the suit, courts have usually held that the mistake of law suffices to negate

conscious indifference. See In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (per curiam) (defendant

did not act with conscious indifference when, based on prior involvement with child protective

services, she did not answer suit because she mistakenly believed that an attorney would be

appointed to respond to termination suit automatically); Bank One Tex., N.A., 830 S.W.2d at 84

(defendant bank did not act with intent or conscious indifference where it believed that freezing

accounts and tendering the balance of the accounts to the clerk issuing the writ was a sufficient

response); Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 97 (Tex. 1986) (belief that paying

the underlying claim was a sufficient answer negated intent or conscious indifference); Texas State

Bd. of Pharmacy v. Martinez, 658 S.W.2d 277, 280-81 (Tex. App.—Corpus Christi 1983, writ ref’d

n.r.e.) (mistaken belief that exclusive venue rested in county other than county of suit negated intent

or conscious indifference).

               In determining whether USA Bus acted with intentional disregard or conscious

indifference, “we must look to the knowledge and acts of the defendant.” Strackbein, 671 S.W.2d

at 39. Within eleven days of receiving the citation from the Secretary of State, Wenk faxed an

offer of settlement to appellants.6 Wenk indicated in his settlement letter that the parties’ contract

contained a choice-of-law clause specifying that Arizona law would apply. He testified in his


       6
         Appellants’ counsel asserts that he did not receive the settlement offer because it was
faxed to an office that he did not visit in the interim between the time the letter was faxed on
September 14 and when he obtained the final default judgment for appellants on September 16.

                                                  9
affidavits that the settlement offer and the fact that Arizona rule of civil procedure 55 provides

defendants with a right to notice before a default judgment led him to believe that appellants would

not obtain a default without first contacting USA Bus in some manner. Because appellants, again,

did not present evidence to controvert Wenk’s affidavits, and because no other evidence in the record

controverts Wenk’s affidavits, the district court could properly grant the motion for new trial if

the affidavits “set forth facts which, if true, would negate intentional or consciously indifferent

conduct.” Strackbein, 671 S.W.2d at 38-39. The facts asserted in Wenk’s affidavits would establish

that, rather than being consciously indifferent to the consequences of the lawsuit filed against

his client, he responded in a manner that he believed would not result in a default judgment. Levine,

248 S.W.3d at 160 (conscious indifference amounts to more than mere negligence). Under the

circumstances, we cannot conclude that the district court abused its discretion in determining that

USA Bus demonstrated that its failure to answer was not the result of intentional disregard or

conscious indifference.

               A defendant satisfies the second Craddock element if it presents evidence that

“sets up” a meritorious defense. Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). The defendant

need not prove its defense, but its motion for new trial must allege facts that in law would constitute

a defense to the plaintiff’s cause of action, and the motion must be supported by evidence

proving prima facie that the defendant has such a meritorious defense. Id. A meritorious defense

is one which, “if true and unexplained, would change the result on a subsequent trial.” Morris

v. Morris, 717 S.W.2d 189, 190 (Tex. App.—Austin 1986, no writ) (quoting Holliday v. Holliday,

10 S.W. 690, 692 (1889)) (internal quotation marks omitted). Once a meritorious defense is set up,



                                                  10
“controverting evidence offered by the nonmovant should not be considered.” Dolgencorp v. Lerma,

288 S.W.3d 922, 928 (Tex. 2009).

               To satisfy the meritorious defense element, USA Bus presented a copy of its contract

with appellants and its October 2008 amendment whereby Fomby, “under protest,” agreed to

additional charges. USA Bus argues that the contract suffices as prima facie proof of a meritorious

defense in at least two ways. First, its asserts that a comparison of appellants’ pleading allegations

and the contract reveals that all of appellants’ complaints sound in the contract. See Crawford v. Ace

Sign, Inc., 917 S.W.2d 12, 12-14 (Tex. 1996) (per curiam) (mere nonperformance of a contract not

actionable under the DTPA). Second, USA Bus points out that the contract itself contains provisions

that facially appear to authorize some of the very conduct of which appellants complain (e.g., the

provision allowing price increases in light of changes in market conditions, as well as an indemnity

clause). We agree that district court did not abuse its discretion in determining that USA Bus had

set up a meritorious defense. We overrule appellants’ first issue.


Arbitration

               Appellants do not dispute that their contract with USA Bus contained forum-selection

provisions that included an arbitration clause governed by the Federal Arbitration Act:


       18. Governing Law
       The Agreement and its performance shall be governed by the laws of the state
       of Arizona, United States of America without giving effect to applicable conflict of
       law provisions[.] The Chartering Party (for itself and on behalf of the Passengers)
       consents to the exclusive jurisdiction of the state and federal courts and arbitration
       panels located in Maricopa County, the state of Arizona, United States of America,
       to resolve all questions, controversies or claims arising out of this Agreement or the
       service provided hereunder[.]

                                                 11
       19. Arbitration
       In the event a dispute shall arise between the parties to this Agreement, it is hereby
       agreed that the dispute shall be referred to the American Arbitration Association for
       three-person arbitration in Maricopa County, Arizona, in accordance with its
       applicable Rules of Arbitration[.] The arbitrators’ decisions shall be final and legally
       binding and judgment may be entered thereon[.] Each party shall be responsible for
       its share of the arbitration fees. In the event a party fails to proceed with arbitration,
       unsuccessfully challenges the arbitrators’ award or fails to comply with the
       arbitrators’ award, the other party is entitled to costs of suit, including reasonable
       attorney’s fee for having to compel arbitration or defend or enforce the award[.]


However, in their second issue, appellants contend that the district court abused its discretion in

compelling arbitration because their contract with USA Bus was illusory or unconscionable and,

therefore, unenforceable.

               Whether a valid arbitration agreement exists—a threshold question of contract

formation—is a legal question that we review de novo. In re D. Wilson Constr. Co., 196 S.W.3d

774, 781 (Tex. 2006). Although common-law contract defenses may be relevant to this inquiry,

defenses that pertain to the underlying contract, but do not relate specifically to the arbitration

agreement, must be arbitrated. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 647-48 (Tex. 2009);

In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001) (citing Prima Paint Corp. v. Flood &

Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967)).

               A promise is illusory if it does not bind the promisor, such as when the promisor

retains the option to discontinue performance. In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2009).

An arbitration clause is not illusory unless one party can avoid its promise to arbitrate by amending

or terminating the arbitration provision. Id. Appellants assert that their contract with USA Bus was

illusory because the October contract amendment demonstrated that USA Bus did not feel obligated



                                                  12
to perform under the terms of the contract, such that there was no mutual consideration. Even if so,

appellants’ assertions are a broad “challenge to the entire contract, either on a ground that directly

affects the entire agreement, or on the ground that one of the contract’s provisions is illegal

and renders the whole contract invalid,” and thus are for the arbitrator. In re Labatt Food Serv., L.P.,

279 S.W.3d at 647-48.

                Appellants’ argument that the contract is unconscionable is also based on USA Bus’s

demand for additional payment through the contract amendment, which they cast as an attempt

to “extort an additional thousand dollars from TKE at the very last minute, when TKE had no

choice but to comply.” Although unconscionable agreements are unenforceable, In re Olshan

Found. Repair Co., LLC, 328 S.W.3d 883, 892 (Tex. 2010), the determination of whether a contract

as a whole—rather than its arbitration clause specifically—is unconscionable is a broad challenge

to the contract that must be arbitrated, In re Labatt Food Serv., L.P., 279 S.W.3d at 647-48.

Consequently, appellants’ unconscionability arguments, like their other complaints, are for the

arbitrator. We overrule appellants’ second issue.


. . . in Arizona

                In addition to its contract-formation arguments in opposition to arbitration generally,

appellants bring a third issue in which they complain specifically that the district court abused

its discretion in enforcing the contractual requirements that the arbitration be conducted in

Maricopa County, Arizona, under Arizona law. They assert in part that these requirements cannot be

enforced because they were fraudulently induced into their contract with USA Bus. These arguments

fail for the same reasons as their unconscionability and illusory-contract complaints. In re Lyon Fin.

                                                  13
Servs., 257 S.W.3d at 232 (“fraudulent inducement to sign an agreement containing a . . . forum-

selection clause will not bar enforcement of the clause unless the specific clause was the product

of fraud or coercion”). Moreover, appellants have presented no evidence—or even pleaded any

facts—that could be construed to support a claim for fraudulent inducement.

               Appellants further urge that their DTPA claims should be heard in Texas by a court

because it would be unjust and against public policy to force them to proceed in Arizona

under Arizona law, which has very different consumer protection laws. See Ariz. Rev. Stat. Ann.

§§ 44.1521-.1534 (2011). The Texas Supreme Court has rejected the argument that DTPA claims

should not be subject to arbitration. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992)

(where claims arose out of contract, the arguments that DTPA claims were outside the scope of

an arbitration clause or that the DTPA’s nonwaiver provision applied were “without merit”). The

supreme court has also held that the inability to assert a claim recognized by Texas law in another

state “does not create a public policy reason to deny enforcement of the forum-selection clause.”

In re Lyon Fin. Servs., 257 S.W.3d at 234 (contract specified Pennsylvania law and Pennsylvania

as the forum); see In re International Profit Assocs., Inc., 286 S.W.3d 921, 924 (Tex. 2009)

(conditionally granting mandamus relief to enforce choice of Illinois as the forum and Illinois law

as the governing law). We also note that although appellants complain of the Arizona choice-of-law

provision, that provision is not part of the arbitration agreement. Therefore, a determination of

whether that provision is enforceable is, like the enforceability of the rest of the contract, a matter

that must be submitted to arbitration.




                                                  14
                In a related complaint, appellants argue that the district court should have stayed the

suit rather than dismissing it. A stay is “generally the only appropriate order for a state court with

jurisdiction of all the issues.” In re Gulf Exploration, LLC, 289 S.W.3d 836, 841 (Tex. 2009)

(noting that a party may not appeal an order compelling arbitration if the suit is stayed, but

may appeal if the suit is dismissed). But when all of the issues raised in the district court must

be submitted to arbitration, it is appropriate for the district court to dismiss the suit. Alford v. Dean

Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992). That is the case here, as the text of the

arbitration agreement plainly encompasses all of appellants’ claims. We overrule appellants’

third issue.


                                           CONCLUSION

                Having overruled each of appellants’ issues, we affirm the district court’s judgment.




                                                __________________________________________

                                                Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: July 28, 2011




                                                   15
