Brady W. Chambers and Evelyn B. Chambers v. Hunt Petroleum Corporation ( 2010 )

NO. 12-09-00225-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BRADY W. CHAMBERS AND § APPEAL FROM THE 188TH
EVELYN B. CHAMBERS,
APPELLANTS
V. § JUDICIAL DISTRICT COURT
HUNT PETROLEUM CORPORATION,
APPELLEE § GREGG COUNTY, TEXAS
OPINION
This is an appeal from a judgment granting specific performance to Hunt Petroleum
Corporation of an option to purchase, and awarding damages and attorney’s fees. In three issues,
Brady W. Chambers and Evelyn Chambers contend that (1) the option had expired because Hunt
failed to timely tender the $100.00 purchase money, (2) Hunt was not entitled to enforce the
option because it was in default on the contract’s provisions, and (3) there was insufficient
evidence to support the award of damages. We affirm the trial court’s order for specific
performance, reverse and render the award of damages, render judgment awarding taxes paid by
the Chamberses, and remand the cause for a redetermination of attorney’s fees.
BACKGROUND
The parties’ predecessors in interest, Sonat Exploration Company and First Church of the
Nazarene, on August 7, 1992, entered into a lease with an option to purchase involving 3.94
acres of a 7.94 acre tract in Longview, Gregg County, Texas. The term of the lease was fifteen
years. Sonat paid $39,300.00 at the execution of the lease “as rent for the entire lease term.”
The lease required Sonat to pay all ad valorem taxes and other costs during the term “as if it were
the fee simple owner,” and provided that the church would have no ownership responsibilities.
The lease granted Sonat the exclusive option to purchase the 3.94 acre tract “at any time prior to
the end of the lease term.” The lease and the option were assignable. The option agreement
contained the following provision:
The option shall be exercisable by giving written notice to the Lessor prior to the end of
the lease and the purchase shall be completed by conveyance of the property by General Warranty
Deed and payment of the purchase price within sixty (60) days from the delivery of the notice of
the intent to exercise the option. The purchase price shall be one hundred dollars ($100) to be paid
in cash at closing.
On November 22, 2004, the Chamberses bought the 7.94 acre tract that was subject to the
lease for $50,000.00. Shortly thereafter, the Chamberses received notice from the City of
Longview that excessive overgrowth on the tract was a violation of the municipal code. Brady
Chambers contacted Hunt Petroleum Corporation, the successor in interest to Sonat, to notify it
of the problem and its responsibility under the lease to clear the 3.94 acre tract to correct the
code violations.
In May 2005, Hunt hired a contractor to clear and mow the 3.94 acres. The contractor
“began clearing the approximately 8 acres, our half and as a favor to Mr. Chambers, his half
also.” The cost for clearing and mowing the 7.94 acres was $17,353.00. The foreman’s memo
noted that “there was a brush and dirt pile on Mr. Chambers[’s] half of the property that was
buried in a pit that we dug. We put the excess dirt in a low area on his side to help it from
collecting water.” The foreman’s memo also stated that “[w]e thought it would be in our best
interest to help out Mr. Chambers by cleaning up his side.” Hunt mowed the entire tract in 2006
and 2007. Only the $4,625.00 cost of the 2007 mowing was charged to this tract.
The Chamberses paid $1,698.00 in taxes attributable to Hunt’s 3.94 acres.
On July 16, 2007, Brad Russell, district landman for Hunt, sent the Chamberses formal
notice of Hunt’s exercise of its option to purchase. Russell stated in the letter that Hunt would
prepare a plat and general warranty deed for the Chamberses’ review. The Chamberses did not
respond. Russell sent another letter to the Chamberses on September 8, 2007, once again
informing them that Hunt was exercising the option in the lease and enclosing a general warranty
deed. Russell asked the Chamberses to review the deed and sign it. In his letter, Russell stated
that he would call the Chamberses and fix a time to meet with them to pay the $100.00 purchase
price, pursuant to the lease terms. The Chamberses did not respond to this letter. On
September 20, 2007, Russell sent a third letter to the Chamberses referring to the numerous
occasions that Hunt had attempted without success to communicate with them by telephone
despite Hunt’s leaving several messages for them on their voice mail. Another warranty deed
was enclosed for the Chamberses to execute. The letter concluded by asking the Chamberses to
call one of two numbers to schedule a time to close. The Chamberses did not respond to the
third letter.
On October 8, 2007, Hunt received a letter from the Chamberses’ lawyer advising Hunt it
was in default under the lease, and, as a result, was now holding over.
On November 5, 2007, the Chamberses filed a suit to quiet title to the 3.94 acre tract.
They sought a declaration that the option to purchase was invalid on various grounds, and
judgment awarding them the back taxes they had paid on the property.
Hunt counterclaimed seeking a declaration that the option was valid and a decree
ordering its specific performance. It also sought an award of 50.6% of the land clearing and
mowing costs under the theory of quantum meruit, and attorney’s fees.
The trial court found that Hunt had properly and timely exercised its option. The trial
court ordered the Chamberses to execute a warranty deed, and, upon its delivery, that Hunt
tender $100.00 to the Chamberses. The court also awarded Hunt $11,132.00 in damages (50.6%
of the total clearing and mowing charges), and $29,289.91 in attorney’s fees.
DID THE OPTION EXPIRE BECAUSE OF HUNT’S FAILURE TO TENDER
THE $100.00 PURCHASE MONEY?
In their first issue, the Chamberses contend that the option to purchase expired because
Hunt failed to meet its contractual obligation to tender the $100.00 purchase price within the
sixty day period allowed for closing after its notice of exercise of the option. They maintain that
there are no special circumstances that serve to excuse Hunt from strict compliance with the
contract’s terms. The Chamberses argue that there is no evidence, or at least insufficient
evidence, or findings to support the trial court’s conclusion that they were solely to blame for the
failure to close.
Standard of Review
In an appeal from a bench trial, the trial court’s findings of fact have the same force and
effect as a jury verdict and are reviewable for legal and factual sufficiency under the same
standards that are applied to the review of a jury verdict. Anderson v. City of Seven Points, 806
S.W.2d 791, 794 (Tex. 1991).
When reviewing a finding for legal sufficiency, we must credit evidence favorable to the
judgment if a reasonable fact finder could, disregard contrary evidence unless a reasonable fact
finder could not, and reverse the fact finder’s determination only if the evidence presented in the
trial court would not enable a reasonable and fair minded fact finder to reach the judgment under
review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The court should sustain an
appellant’s legal sufficiency challenges if the record reveals (1) there is a complete absence of
evidence of a vital fact; (2) the court is barred by rules of law or 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) that the evidence conclusively establishes the opposite of a vital
fact. Id. More than a scintilla of evidence exists if the evidence rises to a level that would
enable reasonable and fair minded people to differ in their conclusions. Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
When considering a factual sufficiency challenge, we consider all of the evidence and set
aside the judgment only if it so contrary to the overwhelming weight of the evidence that it is
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
We review the trial court’s conclusions of law de novo. State v. Heal, 917 S.W.2d 6, 9
(Tex. 1996).
Applicable Law
Strict compliance with the provisions of an option contract is required. See Jones v.
Gibbs, 133 Tex. 627, 639-40, 130 S.W.2d 265, 271 (Tex. Comm’n App. 1939, opinion adopted).
Exercise of an option must be unqualified and strictly in accordance with the terms of the
agreement, unless equity requires otherwise. City of Brownsville v. Golden Spread Electric
Coop., 192 S.W.3d 876, 880 (Tex. App.–Dallas 2006, pet. denied).
However, the failure of the optionee to comply strictly with the terms or conditions of the
option will be excused when the failure is brought about by the conduct of the optionor. Jones,
133 Tex. at 640, 130 S.W.2d at 272. “It is thoroughly settled that where a defendant has openly
and avowedly refused to perform his part of the contract or declared his intention not to perform
it, the plaintiff need not make tender of payment of the consideration before bringing suit.”
Burford v. Pounders, 145 Tex. 460, 466, 199 S.W.2d 141, 144 (Tex. 1947); Rus-Ann. Dev.,
Inc. v. ECGC, Inc., 222 S.W.3d 921, 927 (Tex. App.–Tyler 2007, no pet.). Formal tender is
excused when tender “would be a useless and idle ceremony.” Burford, 145 Tex. at 467, 199
S.W.2d at 145. A tender of consideration is excused where the optionor intentionally avoids
giving the purchaser an opportunity of making it. 81 C.J.S. Specific Performance § 116 (1977).
Discussion
The trial court made the following findings of fact germane to this issue.
10. On July 16, 2007, prior to the expiration of the Lease with Option, Defendant gave Plaintiffs
written notice of its election to exercise the option to purchase the 3.94 acres. Plaintiffs received
this notice on or about July 25, 2007, but made no response to it.
11. Subsequent to July 25, 2007, Defendant made several attempts to contact Plaintiffs, both in
writing and by telephone, in order to arrange a closing of the purchase of the 3.94 acres in
accordance with the terms of the Lease with Option, but Plaintiffs ignored all of [Defendant’s]
attempts to do so.
12. Defendant was at all material times ready, willing and able to close the purchase of the 3.94
acres pursuant to the terms of the Lease with Option.
Based on these findings, the trial court concluded that “the failure to close was solely the fault of
the [Chamberses].”
The Chamberses acknowledge that “[i]t is thoroughly settled that where a defendant has
openly and avowedly refused to perform his part of the contract or declared his intention not to
perform it, the plaintiff need not make tender of payment of the consideration before bringing
suit.” See Burford, 145 Tex. at 466, 199 S.W.2d at 144; Rus-Ann Dev., 222 S.W.3d at 927.
However, the Chamberses insist that their silence in response to Hunt’s attempts to communicate
with them did not amount to an open refusal to perform the contract that might serve to excuse
Hunt’s tender of the $100.00 consideration. The lease agreement required payment of the
$100.00 consideration within sixty days of the notice of the exercise of the option. The
Chamberses argue that because Hunt did not timely pay the consideration, its attempt to exercise
the option was not “strictly in accordance with the terms of the agreement” and therefore
ineffective. See Besteman v. Pitcock, 272 S.W.3d 777, 784 (Tex. App.–Texarkana 2008, no
pet.).
We disagree. The trial court was justified in inferring that the Chamberses’ refusal to
respond to Hunt’s repeated attempts to communicate with them during the critical sixty day
period for closing was calculated to defeat Hunt’s exercise of its option. Almost immediately
after the expiration of the lease and the sixty days provided for closing of Hunt’s exercise of its
option, the Chamberses did communicate with Hunt giving it formal notice to vacate the
premises. In our view, the Chamberses’ conduct was tantamount to a refusal to perform their
part of the contract. A tender of consideration is excused where the optionor intentionally avoids
giving the purchaser an opportunity of making it. See 81 C.J.S Specific Performance § 116. A
tender of the nominal $100.00 consideration under these circumstances “would have been a vain
and useless thing.” See Burford, 145 Tex. at 466, 199 S.W.2d at 144.
Ample evidence supports the trial court’s findings. The findings support its conclusion
that the failure to close within sixty days following Hunt’s notice was solely the fault of the
Chamberses. The Chamberses’ first issue is overruled.
IS A PARTY IN DEFAULT ON OTHER CONTRACT PROVISIONS
ENTITLED TO ENFORCE AN OPTION IN THAT CONTRACT?
Article III of the lease required the lessee, Hunt, to pay “all ad valorem taxes during the
term of the lease” and to pay “all other costs associated with the property as if it were the fee
simple owner.” In their second issue, the Chamberses maintain that Hunt is not entitled to the
equitable remedy of specific performance of the option provided by Article V of the lease
because it had breached the agreement by failing to pay the taxes on the 3.94 acres, and by
allowing the tract to become overgrown in violation of the contract and the Longview municipal
code. The question presented is whether Hunt’s breach of the covenant to pay the taxes and
other costs associated with the property excuses the Chamberses’ performance of the contract’s
option provision.
Applicable Law
“A prerequisite to the remedy of excuse of performance is that the covenants in a contract
must be mutually dependent promises.” Hanks v. GAB Bus. Servs., Inc., 644 S.W.2d 707, 708
(Tex. 1982). “[W]hen a covenant goes only to part of the consideration on both sides and a
breach may be compensated for in damages, it is to be regarded as an independent covenant,
unless this is contrary to the expressed intent of the parties.” Id. A “condition precedent” in a
contract is an event that must occur or an act that must be performed before a right can accrue to
enforce an obligation.” Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992). Such terms
as “if,” “provided that,” “on condition that,” or some similar phrase of conditional language are
normally required to create a condition precedent. Criswell v. European Crossroads Shopping
Ctr., 792 S.W.2d 945, 948 (Tex. 1990). Courts will not construe a contract provision as a
condition precedent unless they are compelled to do so by language that may be construed in no
other way. See Reilly v. Ranger Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987). “If a contract
contains a condition precedent, it must either have been met or excused before the other party’s
obligation can be enforced.” Cal-Tex Lumber Co. v. Owens Handle Co., 989 S.W.2d 802, 809
(Tex. App.–Tyler 1999, no pet.).
“A court may refuse to grant equitable relief [specific performance] to a [party] who has
been guilty of unlawful or inequitable conduct regarding the issue in dispute.” Lazy M Ranch,
Ltd. v. TXI Operations, LP, 978 S.W.2d 678, 683 (Tex. App.–Austin 1998, pet. denied).
Discussion
We conclude that the requirement found in Article III of the lease that the lessee pay
taxes and other ownership costs associated with the 3.94 acre tract is a covenant independent of
the option agreement found in Article V. It is not a dependent covenant or condition precedent
whose nonperformance would render the option agreement unenforceable by Hunt.
A breach by Hunt of its obligations under Article III is readily compensable by damages.
The lease contains no language from which it may be even inferred that the parties intended to
condition the lessee’s enforcement of the option agreement upon its payment of taxes and other
costs associated with the property. An examination of the entire agreement reveals no
relationship between the taxes and other costs provision and the option provision. There is no
conditional language indicating that the enforceability of the option is dependent upon Hunt’s
performance of its obligations under Article III.
In Cook v. Young, 269 S.W.2d 457 (Tex. Civ. App.–Fort Worth 1954, no writ), the lessee
sought specific performance of an option to purchase clause in the lease agreement. Id. at 458.
The lessor argued that the grant of summary judgment in the lessee’s favor was improper,
because there was a fact issue regarding whether the lessee had complied with a term of the lease
requiring that it pay all the utility bills for the leased property. Id. at 460. The court of appeals
held that compliance with the terms of the lease was not a condition precedent to the lessee’s
exercise of the option. Id. The court stated that “[w]hile we find such a provision in the lease
contract, we do not find it in that part of the instrument containing the option to purchase. The
option is unconditionally granted and there is no requirement creating any condition precedent or
otherwise limiting the right to exercise the option.” Id.
In Giblin v. Sudduth, 300 S.W.2d 330 (Tex. Civ. App.–Austin 1957, writ ref’d n.r.e.), a
contract for the sale of land also gave the buyer an option to buy an adjoining tract. The option
provided as follows:
The seller agrees to give the purchaser an option on the acre tract joining the property they are
buying from the seller on the east; this option will be for 5 years and the purchasers can take up
their option at any time within 5 years from date by paying the seller $1500.00 in cash. The
purchaser agrees to pay a yearly rental of $10.00.
Id. at 332. The court of appeals held that the purchaser’s failure to pay the rent did not bar the
purchaser’s exercise of the option. “The option was not conditioned upon the payment of the
annual rental, the option was for five years[,] and the purchasers were allowed to take up their
option at any time within five years by paying the seller $1500.00 in cash.” Id.
In a case cited by the Chamberses, Lazy M Ranch, Ltd. v. TXI Operations, LP, the
contract required TXI to pay Lazy M $2,000.00 for the right to conduct subsurface tests for
gravel on part of the Lazy M land – 1,669 acres specifically described by metes and bounds.
Lazy M Ranch, 978 S.W.2d at 680. For the same consideration, the contract gave TXI the
option to lease 300 acres out of the 1,669 acres to mine subsurface materials. To exercise the
option, the contract required TXI (1) to give Lazy M written notice of its decision to exercise the
option within six months of the execution of the contract and (2) tender $98,000.00 to Lazy M.
TXI attempted to exercise the option by delivering written notice accompanied by a $98,000.00
bank check. Lazy M returned the check with a letter explaining that it would not lease the land,
because TXI had breached the contract by entering on and testing Lazy M’s land outside the
1,669 acres specified in the contract. Id. The uncontradicted summary judgment evidence
showed that, despite Lazy M’s repeated objections, TXI intentionally persisted in coring and
testing outside of the area subject to the agreement. In conducting these tests, TXI stole valuable
information about the subsurface potential of the ranch. Id. at 681.
The Austin Court of Appeals held that TXI’s conduct constituted a material breach of an
implied covenant not to explore outside the area agreed upon. Id. Consistent with the other
opinions cited, the court of appeals acknowledged that having decided that TXI’s conduct was a
material breach of an implied covenant, it must determine whether the implied covenant was
independent or dependent. Id. A breach of an independent covenant would give the
nonbreaching party only a cause of action for damages resulting from the breach. Id. The
breach of a dependent covenant gives the nonbreaching party the election to terminate the
contract. Id. In that event TXI would have forfeited its option. “Forfeitures will be avoided
unless [the] contract language admits of no other construction or results in a construction that is
unreasonable, inequitable, or oppressive.” Id. (citing Reilly, 727 S.W.2d at 530). The court
considered several factors in determining whether it would be inequitable and oppressive to
characterize a party’s nonperformance as merely a breach of an independent covenant: (1) the
extent to which the nonbreaching party will be deprived of the benefit it reasonably could have
anticipated had the breach not occurred, (2) the extent to which the injured party can be
adequately compensated for the part of the benefit lost, (3) the likelihood that the defaulting
party will cure its failure, and (4) the extent to which the conduct of the party failing to perform
comports with standards of good faith and fair dealing. Id. at 681-82 (citing RESTATEMENT OF
CONTRACTS (SECOND) § 241(a) (1981)); Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 693
(Tex. 1994)).
The Chamberses stress that Hunt was unaware of the option to purchase until they
informed Hunt that the 3.94 acres was overgrown and that the lease required Hunt to maintain
the tract in compliance with the municipal code. The Chamberses speculate that but for their
notice, Hunt would have remained ignorant of their option to purchase and probably would have
failed to exercise it. The Chamberses paid the taxes on the entire tract. They claim they bought
the entire tract without knowledge of the easement. The equities, the Chamberses contend, favor
them and make it inequitable and oppressive to reward Hunt by enforcing the option.
We, on the contrary, believe the equities weigh in Hunt’s favor. The $100.00 to be paid
at closing was nominal in that it bore no relationship to the value of property exchanged. The
real price paid for the tract upon the option’s exercise was embraced within the $39,600.00
consideration already paid by the lessee at the execution of the lease in 1992. The lease was of
record when the Chamberses bought the property. The Chamberses secured a title policy when
they bought the property in 2004. The lease with option to purchase was pointed out in the
policy as an exception to coverage. The Chamberses knew or should have known of the option
to purchase when they bought the property.
Once informed that the 3.94 acres was overgrown, Hunt responded immediately by
clearing the tract to cure the problem and comply with the contract and the municipal code. The
Chamberses complain of Hunt’s failure to pay the ad valorem taxes on the 3.94 acres from
November of 2004 when they bought the 7.96 acres until the time of trial. The Chamberses, as
record owners, received the tax notices for the entire tract. They concede they never informed
Hunt regarding the taxes or asked it to pay its pro rata share. Even if Hunt had neglected to pay
the taxes after being told what was due, the injured party could have been adequately and easily
compensated by damages. Hunt’s conduct deprived the Chamberses of no benefit it reasonably
could have anticipated. Hunt’s conduct was fully consistent with standards of good faith and fair
dealing.
We have weighed the equities using the criteria set out in Lazy M. Fairness does not
require that we regard the covenants breached by Hunt as constructively dependent in order to
avoid an inequitable or oppressive result. The covenants breached by Hunt were independent
covenants whose nonperformance will not excuse the nonbreaching party’s performance. Hunt’s
predecessor had already paid all but $100.00 of the actual consideration for the property. Hunt
was never informed of the amount of taxes due nor was it asked to pay them. A forfeiture of
Hunt’s option because of its breach of an independent covenant to pay those taxes would be
genuinely inequitable and oppressive. The Chamberses’ second issue is overruled.
IS THE EVIDENCE SUFFICIENT TO SUPPORT THE AWARD OF DAMAGES FOR CLEARING AND
MOWING?
In their third issue, the Chamberses contend that the evidence is legally and factually
insufficient to support the award to Hunt of $11,132.00 representing 50.6% of the clearing and
mowing charges Hunt incurred on the entire tract. The Chamberses’ share of the 7.96 acres
equals 50.6%.
The foreman’s memo showing the cost for clearing and mowing the entire tract stated “on
5-04-2005, M & J Construction began clearing approximately 8 acres (our half and as a favor to
Mr. Chambers, his half also. . . .” The memo detailed how Mr. Chambers had met with him and
stated, “We thought it would be in our best interest to help out Mr. Chambers by cleaning up his
side.”
Brady Chambers testified that he walked around the tract with the foreman and the
contractor. Chambers recalled that they told him that he was being so nice that they would clean
up the brush piles he had on his side. He testified that he had never asked Hunt to mow his
property. Chambers stated that, in fact, he had already had his part of the tract mowed for
$200.00. In 2005, Hunt spent $17,353.28 on the property, but it charged only $4,625.00 to this
property in 2007. Hunt never asked for payment for this work, the bulk of which was performed
in May 2005, almost four years before trial in April 2009. Hunt sought to recover under the
doctrine of quantum meruit.
Applicable Law
“To recover under the doctrine of quantum meruit, a plaintiff must establish that: (1)
valuable services and/or materials were furnished, (2) to the party sought to be charged, (3)
which were accepted by the party sought to be charged, and (4) under such circumstances as
reasonably notified the recipient that the plaintiff, in performing, expected to be paid by the
recipient.” Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992).
The measure of damages for a claim in quantum meruit is the reasonable value of the work
performed and the materials furnished. M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731
S.W.2d 620, 625 (Tex. App.–Houston [1st Dist.] 1987, no writ).
Discussion
Hunt proved the expense it incurred in clearing and mowing the 7.96 acres by the memos
and invoices. Hunt’s own evidence shows that the work on the Chamberses’ half was done “as a
favor to Mr. Chambers.” The same memo states, “We thought it would be in our best interest to
help out Mr. Chambers by cleaning up his side.”
This is consistent with Chambers’s testimony that he was led to believe that Hunt buried
the brush piles on his part of the tract as a favor for his cooperation. Brad Russell, Hunt’s
landman who testified to the clearing and mowing costs, conceded that he had no reason to
disbelieve Chambers’s testimony. Hunt, he told the court, had never previously asked the
Chamberses to pay any part of the clearing and mowing costs, although most of the work had
been done four years before.
The party seeking to recover in quantum meruit must establish that the work done was
accepted by the party to be charged “under such circumstances as reasonably notified the
recipient that the plaintiff in performing expected to be paid by the recipient.” See Heldenfels
Bros., Inc., 832 S.W.2d at 41.
There is an absolute absence of any evidence in this record indicating that Hunt expected
to be paid for the work done on the Chamberses’ part of the tract. The evidence, in fact,
conclusively establishes the contrary. The Chamberses’ third issue is sustained.
CONCLUSION
That part of the judgment granting specific performance of the option to purchase the
3.94 acres is affirmed. The award of damages to Hunt in the amount of $9,433.61 ($11,132.00
clearing and mowing costs less $1,698.39 taxes paid by Chambers attributable to the 3.94 acres)
is reversed and judgment rendered that Hunt take nothing on its claim for clearing and mowing
costs. Judgment is rendered awarding the Chambers $1,698.39 for taxes they paid on the 3.94
acres. The award of attorney’s fees to Hunt is reversed, and the cause is remanded to the trial
court for reconsideration of the amount of attorney’s fees.
BILL BASS__
Justice
Opinion delivered August 25, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, sitting by
assignment.
(PUBLISH)