McAllen Independent School District v. Vega Roofing Co., Juan Vega and Commercial Indemnity Insurance Co.

NUMBER 13-98-342-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

________________________________________________________________________

MCALLEN INDEPENDENT SCHOOL DISTRICT

, Appellant,

v.

VEGA ROOFING CO., JUAN VEGA,

AND COMMERCIAL INDEMNITY

INSURANCE COMPANY

, Appellees.

________________________________________________________________________

On appeal from the 139th District Court of Hidalgo County, Texas.

________________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Hinojosa and Rodriguez Opinion by Chief Justice Seerden

McAllen Independent School District appeals a judgment rendered against it in a breach of contract case. We affirm.

Factual and Procedural Background

In June of 1994, McAllen Independent School District ("McAllen") entered into a contract with Vega Roofing Company, Inc. ("Vega Roofing") for roofing repair work at McAllen High School. The roof consisted of a metal deck layered with concrete, tar impregnated felt, gravel, foam, and a final acrylic coating applied on top. Under the contract, Vega Roofing was to remove and replace areas of wet foam as identified by infra-red scan, clean and dry the roof, and apply a new acrylic coating to the roof. McAllen failed to complete payments to Vega Roofing under the contract, and Juan Vega and Vega Roofing filed the underlying action alleging breach of contract against McAllen. McAllen counterclaimed for breach of contract, breach of express and implied warranties, and negligence. McAllen also filed a third party petition against Commercial Indemnity Insurance Company ("Commercial Indemnity"), the bonding company for Vega Roofing, seeking enforcement of the payment and performance bonds and alleging fraud.

At trial, the court granted a directed verdict against Juan Vega regarding his individual claims, a directed verdict for Commercial Indemnity regarding the fraud claim against it, and a directed verdict against McAllen on its negligence cause of action against Vega Roofing.

According to the jury's findings, McAllen failed to comply with the contract and its failure to comply was not excused. Vega Roofing did not breach the contract, it substantially performed its obligations under the contract, and it did not breach its warranty to repair the roof in a good and workmanlike manner. The jury found that Commercial Indemnity did not breach its performance bond.

The trial court entered judgment for Vega Roofing for actual and consequential damages of $100,171.40, and $92,000.00 in attorney's fees, plus attorney's fees on appeal. Neither Juan Vega nor Commercial Indemnity are parties to this appeal.

McAllen appeals the judgment against it by seven issues.

Substantial Performance

By its first issue, McAllen asserts that Vega Roofing cannot recover on a theory of substantial performance because it failed to prove the appropriate credit due McAllen under the contract. Vega Roofing responds that it performed its part of the contract completely and McAllen was not entitled to a credit on the contract price.

The doctrine of substantial performance allows a party to a contract, who is himself in breach but who nevertheless substantially completed performance, to recover damages for that performance. Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990). A party that has substantially performed a building contract is entitled to recover the full contract price less the cost of remedying those defects which are remediable. Id.; Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 481 (Tex. 1984); Sheldon L. Pollack Corp. v. Falcon Ind., 794 S.W.2d 380, 382 (Tex.App.­Corpus Christi 1990, writ denied). In such cases, the party seeking to recover on the contract has the burden of proving that he substantially performed under the contract, the consideration due to him under the contract, and the cost of remedying the defects due to his errors or omissions. Vance, 677 S.W.2d at 483; Sheldon L. Pollack Corp., 794 S.W.2d at 380. The doctrine of substantial performance is inapplicable to non-breaching parties. Tacon Mechanical Contractors v. Grant Sheet, 889 S.W.2d 666, 670 (Tex. App.­Houston [14^th Dist.] 1994, writ denied)(refusing to apply substantial performance doctrine to bar recovery by non-breaching party); see Dobbins, 785 S.W.2d at 377-78 (substantial performance allows defaulting party to recover on contract).

McAllen argues that Vega Roofing's recovery was predicated on substantial performance because Vega Roofing failed to submit an issue on full performance and the jury was asked about substantial performance rather than full performance. McAllen further argues that because Vega Roofing failed to present evidence regarding the reasonable and necessary cost of repairing, correcting, or completing the work to achieve final completion, Vega Roofing failed to carry its burden to establish any credit due to McAllen, thus barring recovery under substantial performance. Ultimately, McAllen contends that the deficiency under the substantial performance standard is fatal to Vega Roofing's recovery because McAllen assumes that the jury's negative answer to the question of whether Vega Roofing breached the contract does not satisfy Vega Roofing's burden to prove complete performance.

We disagree with McAllen's assumption that Vega Roofing's recovery was based on substantial performance. Vega Roofing's pleadings do not invoke the substantial performance doctrine, but rather allege breach of contract. At trial, Juan Vega testified that all the work required by the contract documents was performed; that he believed that the proper insurance was provided and accepted; that none of the reported leaks were related to the roof; and that all defective materials or workmanship was corrected. Vega Roofing further objected to the submission of the substantial performance issue.

The jury found that McAllen failed to comply with the contract; that McAllen's breach of contract was unexcused; that Vega Roofing did not breach the contract; that Vega Roofing did not breach its warranty to repair the roofs in a good and workmanlike manner; and that Vega Roofing substantially performed its obligations under the contract. These fact findings necessarily imply that Vega Roofing performed its obligations under the contract. This conclusion is essentially acknowledged by McAllen in its second point of error, which states: "the jury found that Vega Roofing did not breach the subcontract." Moreover, "substantial performance" means that the essential elements of a contract have been performed and is the legal equivalent to full performance. Anderson v. Vinson Exploration, Inc., 832 S.W.2d 657, 666 (Tex.App.­El Paso 1992, writ denied).

Vega Roofing was a non-breaching party, and the doctrine of substantial performance is inapplicable to non-breaching parties. Tacon Mechanical Contractors, 889 S.W.2d at 670; see Dobbins, 785 S.W.2d at 377-78. Accordingly, we overrule McAllen's first point of error.

Conflict in Jury's Answers

In its second point of error, McAllen alleges that a fatal conflict exists between the jury's answer to question four finding that Vega Roofing substantially completed the work on December 15, 1994, and the jury's answer to question five finding that Vega Roofing did not breach the contract. McAllen argues that these findings are in conflict because the contract provided that time was of the essence, and Vega Roofing did not perform the contract in a timely manner.

In order to preserve error when jury answers are alleged to be in fatal conflict, an appellant must object to the conflict before the jury is discharged. City of Port Isabel v. Shiba, 976 S.W.2d 856, 860 (Tex.App.­Corpus Christi 1998, writ denied); Durkay v. Madco Oil Co., 862 S.W.2d 14, 23 (Tex.App.­Corpus Christi 1993, writ denied); see Tex. R. Civ. P. 295. McAllen failed to object to the jury's allegedly conflicting answers before the jury was discharged, therefore, the complaint that the jury's answers are in fatal conflict has been waived. Shiba, 976 S.W.2d at 860. McAllen's second issue is overruled.

Factual Sufficiency

By its third issue, McAllen argues that the jury's finding that Vega Roofing did not breach the contract is supported by factually insufficient evidence.

In conducting a factual sufficiency review, an appellate court must consider and weigh all of the evidence, not just that evidence which supports the judgment. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998), cert. denied, 119 S. Ct. 541 (1998). The judgment can be set aside only if it is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. See id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In conducting our review, we are mindful that it is for the trier of fact, not this court, to judge the credibility of the evidence, assign the weight to be given to testimony, and resolve conflicts or inconsistencies. Perseus, Inc. v. Canody, 995 S.W.2d 202, 205 (Tex.App.­San Antonio 1999, no pet.).

McAllen argues that Vega Roofing breached the contract in three separate instances by (1) failing to achieve substantial completion within seventy days after commencement of work as required by the contract and the notice to proceed; (2) failing to provide insurance as required by the subcontract; and (3) failing to perform its work in accordance with the plans and specifications for work and in a good and workmanlike manner.

McAllen argues that Vega Roofing breached the contractual "time is of the essence" clause requiring that all new work be substantially completed seventy days after commencement of the project. The jury found that Vega Roofing reached substantial completion on December 15, 1994, more than seventy days after it commenced work.

The contract at issue includes the following language in a liquidated damages provision:

OWNER and CONTRACTOR recognize that time is of the essence in this Agreement and that OWNER will suffer financial loss if the Work is not completed within the time specified in Paragraph 3.1 above, plus any extensions thereof allowed in accordance with Article 8 of the General Conditions.

Both Article 8 and the "notice to proceed" under the contract authorized the completion date to be extended for causes beyond the control and without fault or negligence of the contractor.

At trial, Vega Roofing presented several reasons for extension of the completion date. Although disputed, Vega presented some testimony that he was unable to begin work in a timely manner due to delay in receipt of an infra-red survey of the roof. Vega further testified that McAllen diverted Vega Roofing from the roofing project at issue in order to perform emergency repairs on other buildings not relating to the contract itself. Testimony in the record also indicated that McAllen on occasion ordered Vega Roofing not to work on the roofs because of an election and because of the noise level created by the roofing repairs. Finally, Vega testified that there were some occasions on which Vega Roofing was unable to work due to weather. According to Vega, the contract was completed in late October of 1994. While the jury found that the project was not substantially completed until December 15, 1994, the jury could have determined that the delays were for unforeseeable causes beyond the control and without fault or negligence of Vega Roofing.

Pointing to discrepancies within the insurance documents, McAllen also contended that Vega Roofing breached the contract by failing to provide insurance as specified by the contract. The contract required that Vega Roofing procure $2,000,000 in insurance listing McAllen as an insured. The jury had before it a certificate of insurance with the required $2,000,000 coverage which listed McAllen as an insured. At trial, Vega testified that he complied with the contract, and that McAllen did not complain about the provided insurance. Given this testimony, the jury could have found that Vega Roofing did not breach the contract by failing to provide the requisite insurance. Moreover, even if the jury had found that Vega failed to provide the specified insurance, we do not see how any such breach could be a proximate cause of McAllen's alleged damages in the instant case.

Finally, McAllen contends that Vega Roofing breached the contract by failing to perform its work in accordance with the plans and specifications for work and in a good and workmanlike manner. Specifically, McAllen alleged that Vega Roofing failed to properly prepare the roof before laying a new coating by failing to clean the roof and by failing to grind the old foam smooth, thus preventing adequate adhesion of the coating to the underlying foam; that Vega Roofing coated over gas lines and conduits, causing poor drainage; that Vega Roofing had failed to locate and remove all of the wet or saturated urethane foam insulation; that Vega Roofing sealed the weep holes retarding drainage; that Vega Roofing failed to slope the roof, causing poor drainage; that Vega Roofing had applied too much primer and too little coating; and that the roof leaked.

McAllen's expert, Edis Oliver, presented testimonial and documentary evidence regarding the foregoing instances. Oliver testified that Vega Roofing applied coating over gas lines and conduit that ran across the roof, which caused dams preventing drainage from the roof. Oliver testified that Vega Roofing had full responsibility for examining the conditions affecting his ability to perform the work, and that Vega Roofing had failed to locate and remove all of the wet or saturated polyurethane foam insulation. Further, Oliver found evidence of dirt between the layers of coating, indicating that the roof surface had not been properly cleaned.

In so testifying, however, Oliver admitted that he did not compare the pre-repair and post-repair infra-red scans of the roof to determine the amount of polyurethane insulation to be replaced, as provided by the contract. Oliver further agreed that the dirt found between the layers of coating could have resulted from water drifting into the area rather than the result of coating over dirt.

Oliver testified that his only experience in connection with polyurethane foam roofs was approximately twenty years earlier when he spent around two hours watching two separate roof installations. Oliver had never installed a polyurethane roof, and had not seen a polyurethane roof in the last decade. Oliver performed no testing on the roof. Oliver was unable to say whether the coating that Vega applied was acrylic or urethane. Further, Oliver disagreed with another of McAllen's experts regarding whether a sample of the roof showed signs of delamination or reversion. Significantly, Oliver admitted that the Vega Roofing personnel who were at the job site at the time of the performance were in a better position to know whether the job was done correctly than someone else reviewing the work four years after completion.

Michael Hamilton, a registered roof consultant who provided expert testimony for McAllen, testified that the flow to the existing roof drains had been blocked by the application of foam and subsequent blistering, that weep holes had been sealed in the rise walls, and that Vega Roofing failed to slope the roof to the drains. However, Hamilton conceded that he could not tell whether Vega Roofing had replaced any foam in the location of the weep holes. Hamilton also testified that while he believed that moisture in the roof might cause blisters, he admitted that there could be other causes.

Hamilton admitted that he had never sprayed polyurethane foam and that he was not an expert in polyurethane foam. Hamilton admitted that whether the roof in question was applied properly was outside his area of expertise. Further, Hamilton admitted that he stood to gain financially if the roof were determined to be defective.

Lamoine "Buzz" Lackey, another of McAllen's experts, testified that a "glaze" existed between the old coating and the new coating which made it difficult for adhesion to occur, and that the glazing was caused by Vega Roofing applying too much primer. Lackey further found that Vega Roofing had applied an insufficient amount of coating.

On cross-examination, Lackey admitted that he had not done any testing to determine whether Vega Roofing had used a primer. Moreover, Lackey testified that he believed the coating had been on the roof for just two years when he inspected it, although the roof was actually four years old at that time. Lackey admitted that in order to calculate the thickness of the coating at the time it was applied, he should have taken into account four years of degradation. Lackey only inspected the roof on one occasion, and he testified that he did not have enough time to adequately inspect the roof.

Daniel Vela, a maintenance employee for McAllen, testified that he observed Vega Roofing applying coating to the roof without cleaning it first, and showed photographs of the roof illustrating the dirt. Vela further identified areas along the walls where weep holes should have been found, but were not because of the application of coating. The photographs depicting dirt were taken in 1995, after completion of the roofing project; none were taken during the roofing project. Vela admitted that he did not personally observe anyone spray any weep holes, and that he could not remember whether the weep holes had been sprayed prior to Vega Roofing's work under the contract. While Vela was a lead maintenance foreman for McAllen at the time of trial, Vela served as a plumbing supervisor at the time that the roofing repair work was performed.

Richard Martell, Jr., a contractor who performed the infra-red scans of the roof, testified regarding the pre-repair and post-repair infra-red scans. Martell testified that infra-red scanning locates focal hot spots, which are areas of suspected moisture. Martell identified the same focal hot spot on both the pre-repair and post-repair infra-red scans of the roof. Martell admitted that he did not know whether that area in fact had any moisture in it. Martell testified that the existence of moisture in such areas should be confirmed by cutting into the foam. The contract required the removal of moisture saturated areas, not removal of spots identified as focal hot spots. Martell's testimony was not that Vega Roofing had failed to remove a moisture saturated area, but rather that an area that had been identified by the first infra-red scan was also subsequently identified by the second scan.

Lionel Frederick, a McAllen employee, prepared a report showing leak locations, and documenting multiple leaks over an extended period of time. However, McAllen only performed one test to determine the source of the leaks, and that test showed that the leaks were coming from a side wall rather than the roof.

Juan Vega testified that Vega Roofing had been in existence for thirty years, and that it had performed hundreds of foam roof applications. Vega testified that Vega Roofing performed all work required by the contract, and that he provided proper insurance under the contract. He testified that none of the reported leaks were roof related, and that Vega Roofing had corrected all defective materials and workmanship under the contract.

We note that the evidence in this case was sharply conflicting regarding whether Vega Roofing did the work it contracted to do in a good and workmanlike manner, or whether, as McAllen claimed, the work was defective. Simply put, the jury resolved these issues in favor of Vega Roofing and against McAllen. Although McAllen presented evidence of defects in Vega Roofing's performance, Vega Roofing's evidence is sufficient to support the jury's verdict. Certainly, the jury's findings are not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain, 709 S.W.2d at 175. McAllen's third issue is overruled.

Consequential Damages

In its fourth issue, McAllen argues that there is no evidence of consequential damages, and therefore the trial court erred in awarding a judgment that included actual and consequential damages. The trial court submitted a broad form damage question, instructing the jury to consider both actual and consequential damages, but asking for just one total amount. The jury received the following instructions:

You are instructed that the measure of damages for breach of contract is the actual amount of the complaining party's monetary losses suffered as a direct consequence of the contract breach. In other words, it is the amount that places the complaining party as nearly as possible in the position it would have occupied had the defaulting party performed the contract.

You are further instructed that, in addition to direct damages, the complaining party may also recover consequential damages that it proves to be the natural, probable and foreseeable consequence of the other party's breach. A complaining party's proof of consequential damages cannot be merely speculative.

McAllen objected to the failure to segregate damage findings.

The jury awarded Vega Roofing the sum of $100,171.40 in actual and consequential damages. According to the evidence adduced at trial, the balance remaining on the contract was $40,130.40. Vega Roofing testified to an additional $40,000 for extra work and extra contractual unit price work. McAllen thus argues that for purposes of this appeal, it is therefore "assumed" that the jury awarded $80,132.40 in actual damages, and that the remaining sum, or $20,039.00, "had to have been" awarded as consequential damages.

McAllen's argument requires this Court to speculate about the components of the jury's award. It is improper for a reviewing court to engage in conjecture about the composition of a damage award. Duggan v. Marshall, 7 S.W.3d 888, 894 (Tex.App.­Houston [1^st Dist.] 1999, no pet.); Transit Management Co. of Laredo v. Sanchez, 886 S.W.2d 823, 826 (Tex.App.­San Antonio 1994, no writ). The jury may or may not have awarded the full balance remaining on the contract, and may or may not have awarded the full amount for extra-contractual work. We cannot merely assume that the jury awarded these full amounts, however, because the jury had before it additional evidence concerning lost actual damages. We do not know, for example, whether the jury's award included any amount for contractual interest on payments due and unpaid. It would be improper for us to speculate on how the jury divided its award of $100,171.40 among the various elements of damages. See Hernandez v. American Appliance Mfg. Corp., 827 S.W.2d 383, 389 (Tex.App.­Corpus Christi 1992, writ denied).

The only way that an appellant can successfully challenge a multi-element damages award is to address all of the elements and show that the evidence is insufficient to support the damages award considering all of the elements. Price v. Short, 931 S.W.2d 677, 688 (Tex.App.­Dallas 1996, no writ); Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 589 (Tex.App.­Corpus Christi 1993, writ denied). The failure to address an element of damages results in waiver of the sufficiency challenge. Greater Houston Transp. Co., 850 S.W.2d at 579.

McAllen does not argue that the evidence favorable to this verdict, considered as a whole, is legally insufficient to support it. McAllen fails to address the legal sufficiency of the actual damages. We therefore reject McAllen's no evidence challenge regarding Vega Roofing's damages. See Thomas v. Oldham, 895 S.W.2d 352, 359-60 (Tex. 1995).

However, even if McAllen had not waived the issue, its challenge to the sufficiency of the evidence of consequential damages would lack merit. Vega Roofing presented uncontradicted evidence at trial regarding its entitlement to contractual interest on amounts due and unpaid. Vega Roofing further presented evidence that it incurred substantial insufficient fund charges as a result of McAllen's failure to make payment under the contract. As a result of the dispute at issue, Vega Roofing lost its ability to obtain bonding, and thus was unable to bid for large jobs. Therefore, if McAllen had preserved its right to challenge the sufficiency of the evidence, we would hold that the jury's damages award is supported by sufficient evidence. We overrule McAllen's fourth issue.

Attorney's Fees

In its fifth issue, McAllen argues that the trial court erred in awarding attorney's fees to Vega Roofing because attorney's fees are not recoverable against a school district as a matter of law. Because McAllen failed to object to Vega Roofing's request for attorney's fees, McAllen has waived this issue on appeal. City of Port Isabel, 976 S.W.2d at 860-61. In fact, in pleadings filed with the trial court, McAllen essentially conceded that attorney's fees might be recovered against it ("Both MISD and Vega Roofing have made claims for recovery of their attorney's fees in this case. Neither party's entitlement to such fees, of course, can be determined until liability is first determined by the jury...."). We overrule McAllen's fifth issue.

Directed Verdict

In its sixth issue, McAllen contends that the trial court erred in granting a directed verdict for Vega Roofing on McAllen's claim for negligent performance.

McAllen had requested an issue regarding whether or not Vega Roofing was negligent in performing its work. The trial court granted a directed verdict on this issue on grounds that only "contractual" damages were involved in McAllen's claim against Vega Roofing. McAllen argues that it presented evidence of damage to the school separate and apart from the roof contract in question; therefore, its negligence cause of action should have been presented to the jury. In making this argument, McAllen refers this Court to evidence concerning reports of roof leaks.

If the defendant's conduct would give rise to liability independent of the fact that a contract exists between the parties, the plaintiff's claim may sound in tort. Conversely, if the defendant's conduct would give rise to liability only because it breaches the parties' agreement, the plaintiff's claim ordinarily sounds only in contract. See DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 105 (Tex. 1999). Thus, as a general rule, if an express or implied contractual duty is negligently performed, causing only economic loss, only a breach of contract action may be maintained and a tort action for negligence is precluded. See, e.g., Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 45-46 (Tex. 1998).

In Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 493-95 (Tex. 1991), the Texas Supreme Court reviewed a plaintiff's action against a telephone company for its failure to publish an advertisement in accordance with the contract between the parties. The supreme court held that the claim arose solely from the contract and the plaintiff's alleged damages were only for economic loss, therefore, the action sounded in contract and not in tort. Southwestern Bell Tel. Co., 809 S.W.2d at 495.

Similarly, in the instant case, McAllen's claim for negligent performance arose from the contract, and the damages sought were only for economic loss. See Parks, 1 S.W.3d at 105; Southwestern Bell Tel. Co., 809 S.W.2d at 495. Therefore, we overrule McAllen's sixth issue.

Attorney's Fees on Appeal

In its seventh issue, McAllen argues that the trial court erred by awarding unconditional attorney's fees on appeal. In so arguing, McAllen directs the Court's attention to the "applicable" part of the judgment as follows:

ORDERED, ADJUDGED AND DECREED that Plaintiff VEGA ROOFING COMPANY recover an additional ELEVEN THOUSAND AND NO/100THS DOLLARS ($11,000.00) as attorney's fees, should MCALLEN INDEPENDENT SCHOOL DISTRICT file a notice of appeal or otherwise attempt to perfect an appeal to the Court of Appeals; that Plaintiff VEGA ROOFING COMPANY recover an additional FIVE THOUSAND NO/100THS DOLLARS ($5,000.00) as attorney's fees should MCALLEN INDEPENDENT SCHOOL DISTRICT file a Petition for Review with the Texas Supreme Court; and that Plaintiff VEGA ROOFING COMPANY recover an additional THREE THOUSAND AND NO/100THS DOLLARS ($3,000.00) as attorney's fees, should a Petition for Review be granted by the Texas Supreme Court.

We agree that any award of attorney's fees on appeal must be conditioned on the receiving parties' success. Southwestern Bell Tel. Co. v. Vollmer, 805 S.W.2d 825, 834 (Tex.App.­Corpus Christi 1991) (holding that an award of appellate attorney's fees must be conditioned on the outcome of the appeal), rev'd on other grounds, 995 S.W.2d 668 (Tex. 1998); Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 557 (Tex.App.-Austin 1999, pet. denied). However, the charge of the court expressly provides such a condition in the paragraph immediately preceding the award.

ORDERED, ADJUDGED AND DECREED, should MCALLEN INDEPENDENT SCHOOL DISTRICT appeal this case and should Plaintiff VEGA ROOFING COMPANY eventually prevail on appeal, that Plaintiff VEGA ROOFING COMPANY recover its appellate attorney's fees as found by the jury. Accordingly, it is further. . . .

Inexplicably, McAllen fails to reference this language in its brief or argument. We find that the plain language of the judgment provides that the award of additional attorney's fees to Vega Roofing is conditioned upon Vega Roofing's success on appeal. McAllen's seventh issue lacks merit, and we overrule it accordingly.

Having overruled each of McAllen's issues, we affirm the judgment of the trial court.

ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 10th day of August, 2000.