Banner Sign & Barricade, Inc. v. Berry Gp, Inc.

NUMBER 13-07-00596-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BANNER SIGN & BARRICADE, INC., Appellant,

v.

BERRY GP, INC., Appellee.

On appeal from the 267th District Court of Victoria County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion by Justice Garza
Appellant, Banner Sign & Barricade, Inc. (“Banner”), appeals from the trial court’s

summary judgment in favor of appellee Berry GP, Inc. (“Berry”). Berry brought a third-party

action against Banner, seeking indemnification for amounts paid by Berry in the settlement

of a wrongful death suit arising from an accident in a highway construction zone. By three

issues, Banner contends that the trial court erred in granting Berry’s motion for summary

judgment and denying Banner’s traditional and no-evidence motions for summary

judgment. We affirm.

I. BACKGROUND

On the night of April 4, 2002, Dezarae Crow was driving northbound on United

States Highway 87 between Placedo and Victoria, Texas. Crow was driving on the left
lane, which was under construction, when she drifted onto an unmarked left turn lane. She

ran off the left side of the roadway, steered back onto the northbound lanes, then skidded

and entered the center median, causing her car to roll over twice. Crow was ejected from

the vehicle onto the southbound lane and was killed. On February 21, 2003, Crow’s

parents brought suit against general contractor Berry under the wrongful death and survival

statutes, see TEX . CIV. PRAC . & REM . CODE ANN . §§ 71.002, 71.021 (Vernon 2008),

asserting claims of negligence, gross negligence, and negligence per se. Specifically, the

Crows alleged that Berry failed: (1) to mark the left turn lane with temporary flexible-

reflective roadway marker tape; (2) to place permanent lane edge lines on the newly paved

highway; (3) to place barrels, barricades, or cones; and (4) to properly warn drivers of the

unsafe road conditions.

On March 11, 2004, Berry brought a third-party action against Banner, asserting that

Banner was responsible for the failures alleged by the Crows. On March 11, 2004, the

Crows filed an amended petition, adding a fifth allegation that Berry created an unsafe and

hazardous road condition and a sixth allegation that Banner failed to provide proper

pavement striping and signage. The Crows again amended their petition on March 29,

2004, adding the Texas Department of Transportation (“TxDOT”) as a defendant, and

asserting all six alleged breaches against Berry, Banner, and TxDOT.

Berry also claimed that it was entitled to contractual indemnification from Banner

under a 1996 Master Service Agreement between Banner and Bay, Ltd. (“Bay”). Bay, a

subsidiary of Berry, entered into a contract with the State of Texas in 1999 to construct

approximately 9.6 miles of United States Highway 87 between Placedo and Victoria; the

accident that claimed Crow’s life took place on this stretch of road. The Master Service

Agreement pertained to subcontracting work done by Banner on this and other projects for

which Bay was the general contractor.

Paragraph 8 of the Master Service Agreement, entitled “Indemnification and

Insurance” (the “Indemnification Clause”), provided as follows:

The SUBCONTRACTOR [Banner] agrees to protect, defend, indemnify and

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 hold harmless BAY, the OWNER of the project for which work under this
agreement is performed, each contracting party between OWNER and BAY
on the project, their co-lessees, partners, joint ventures, agents, officers,
directors, employees, representatives, insurers, contractors, subcontractors,
and parent, subsidiary and affiliated companies and their employees,
officers, directors, and shareholders (hereinafter referred to collectively as
“Indemnified Parties”) from and against all claims, demands, liabilities and
causes of action, including attorney’s fees, of every type and character,
without limit and without regard to the cause or causes thereof, which may
arise out of, in connection with, or incidental to the performance by
SUBCONTRACTOR of any work under these terms and conditions, or to the
presence of SUBCONTRACTOR on any premises owned by or in which BAY
has any interest and which:

(1) are asserted for damage to, or destruction of, tools, equipment
or other materials of the SUBCONTRACTOR, its affiliates,
customers, subcontractors, agents, employees and
representatives; or,

(2) are asserted by or arise in favor of any person, due to bodily
injury, personal injury, death or loss or damage of property;

whether or not caused by the sole, joint or concurrent negligence of the
Indemnified Parties, arising under any claim of strict liability, for the
unseaworthiness of any vessel, or from any other unstated cause even if
predating the execution of this Agreement, with the sole exception that any
Indemnified Party guilty of intentionally tortious conduct shall not be entitled
to indemnity.

Banner answered by pleading an affirmative defense of immunity and denying that

Berry was entitled to contractual indemnification under the Master Service Agreement.

Banner additionally filed a counterclaim against Bay based on a sworn account, contending

that Bay owed Banner approximately $36,000 for the rental of traffic control devices. On

June 6, 2005, the trial court severed the indemnification dispute between Berry and

Banner. The Crows subsequently non-suited Banner and then settled their suit against

Berry and TxDOT at mediation on June 30, 2005. Pursuant to the settlement, Berry

agreed to pay $800,000 in damages to the Crows, but Berry and TxDOT continued to

expressly deny any liability.

The dispute between Berry and Banner remained pending. Berry filed a motion for

partial summary judgment on May 16, 2005, contending that the accident was covered by

the Master Service Agreement and that Berry, “as an affiliated company of Bay . . . and as

the parent company of Bay,” was entitled to indemnification from Banner. Berry provided

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summary judgment evidence in the form of an affidavit executed by Charles Vanaman,

Bay’s general counsel, stating that the Indemnification Clause was in effect for the work

undertaken by Bay at the time of the accident. Vanaman’s affidavit also stated that the

Indemnification Clause was applicable to Berry as a subsidiary of Bay.1

Banner filed a response as well as its own traditional and no-evidence motions for

summary judgment as to Berry’s claims on June 6, 2005. In its motions for summary

judgment, Banner contended that there was no evidence that any act or omission on its

part caused any injury to Crow. Banner also asserted that it was entitled to judgment as

a matter of law because it did not breach any duty. In support of its response and its

motions, Banner provided deposition excerpts which purported to show that Banner was

not responsible for undertaking the four safety precautions enumerated by the Crows in

their suit.

On June 21, 2005, Berry filed a response to Banner’s motions for summary

judgment, arguing that sufficient time had not elapsed to permit discovery relating to

Banner’s obligations as Berry’s subcontractor. On August 23, 2006, Berry filed an

amended response to Banner’s motions for summary judgment, as well as a “Motion for

Summary Judgment for Contractual Indemnity,” which repeated, in large part, the

assertions of Berry’s original motion for partial summary judgment filed on May 16, 2005.

As summary judgment evidence, Berry included, among other things, the Master Service

Agreement, the Vanaman affidavit, and the settlement agreement executed by Berry and

the Crows.

On June 25, 2007, the trial court entered its judgment granting Berry’s motion for

summary judgment on indemnity and denying Banner’s motions for summary judgment,

without specifying the grounds relied upon for the ruling. The trial court also overruled

Banner’s objections to Berry’s summary judgment evidence, and severed Banner’s sworn

account counterclaim. Banner filed a motion for new trial on July 23, 2007, which was

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Berry later offered am ended affidavits by Vanam an on August 22, 2006 and Novem ber 2, 2006.
Banner objected to each of the affidavits in turn.

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overruled by operation of law. See TEX . R. CIV. P. 329b(c). This appeal followed.

II. STANDARD OF REVIEW

We review a trial court’s grant or denial of a traditional motion for summary judgment

under a de novo standard of review. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816

n.7 (Tex. 2005) (citing Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n.137

(Tex. 2004)); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.–Corpus Christi 2003, no

pet.). The function of summary judgment is to eliminate patently unmeritorious claims and

defenses, not to deprive litigants of the right to a trial by jury. Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Alaniz, 105 S.W.3d at 345.

To obtain relief via a traditional motion for summary judgment, the movant must

establish that no material fact issue exists and that it is entitled to judgment as a matter of

law. TEX . R. CIV . P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002); Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex. App.–Corpus Christi 2002, pet.

denied). After the movant produces evidence sufficient to show it is entitled to summary

judgment, the non-movant must then present evidence raising a fact issue. See Walker

v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In deciding whether there is a disputed fact

issue that precludes summary judgment, evidence favorable to the non-movant will be

taken as true. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon

v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)). Evidence favorable to

the movant, however, will not be considered unless it is uncontroverted. Great Am.

Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).

Moreover, every reasonable inference must be indulged in favor of the non-movant and

any doubts resolved in its favor. Grinnell, 951 S.W.2d at 425 (citing Nixon, 690 S.W.2d at

549).

For a no-evidence summary judgment motion to be successful, the party seeking

the judgment must assert that no evidence exists as to one or more of the essential

elements of the non-movant’s claims upon which he would have the burden of proof at trial.

See TEX . R. CIV. P. 166a(i); Holstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.–Austin 2000,

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no pet.). When responding to a no-evidence motion, the non-movant is only required to

present evidence that raises a genuine issue of material fact on the challenged elements.

See AMS Constr. Co., Inc. v. Warm Springs Rehab. Found., Inc., 94 S.W.3d 152, 159

(Tex. App.–Corpus Christi 2002, no pet.) (citing McCombs v. Children’s Med. Ctr., 1

S.W.3d 256, 258 (Tex. App.–Texarkana 1999, pet. denied)). The non-movant must

produce more than a scintilla of probative evidence to raise an issue of material fact.

Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 252 (Tex. App.–Corpus Christi 2001, pet.

denied). More than a scintilla of evidence exists when the evidence rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

When both parties move for summary judgment and the trial court grants one

motion and denies the other, the appellate court should review both parties’ summary

judgment evidence and determine all questions presented. See FM Props. Operating Co.

v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Warrantech Corp. v. Steadfast Ins. Co.,

210 S.W.3d 760, 765 (Tex. App.–Fort Worth 2006, no pet.). The reviewing court should

render the judgment that the trial court should have rendered. See FM Props., 22 S.W.3d

at 872; Warrantech, 210 S.W.3d at 765.

If the trial court’s order granting summary judgment does not specify the ground or

grounds relied upon for the ruling, we will affirm the judgment on appeal if any of the

theories advanced by the movant are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d

237, 242 (Tex. 2001) (quoting Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)).

III. DISCUSSION

By its first issue, Banner contends that the trial court erred in granting Berry’s motion

for summary judgment on contractual indemnity because Berry failed to provide any

competent summary judgment evidence establishing that it was entitled to judgment as a

matter of law. See TEX . R. CIV. P. 166a(c); Walker, 924 S.W.2d at 377. By its third issue,

Banner contends that the trial court erred by denying its no-evidence motion for summary

judgment. Because both issues turn on whether Berry provided sufficient evidence to allow

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the trial court to grant summary judgment in its favor, we consider the issues together.2

A. Vanaman Affidavit

The summary judgment evidence provided by Berry included the Vanaman affidavit,

which was accompanied by the Master Service Agreement and the purchase order

pertaining to the stretch of highway where the accident occurred. The affidavit stated, in

relevant part:

As Vice President/General Counsel of Berry GP, Inc. I have knowledge of
the relationship between Berry GP, Inc. and its affiliated companies, Bay Ltd.
and Bay, Inc. and of their relationships specifically on September 22, 1999,
the day the contract was signed between Bay Ltd. and the Texas
Department of Transportation on behalf of the State of Texas for
construction of 15.517 kilometers of U.S. Highway 87 in Victoria County and
on April 4, 2004, the day Dezarae Crow received fatal injuries on that same
stretch of highway. On those dates and at all intervening times, Bay, Inc.
and Bay Ltd. were subsidiaries of Berry GP, Inc., their parent company.

Banner contends that this statement did not constitute competent evidence because

Vanaman did not recite that he “is an attorney, licensed to practice, or has legal training

to support, or recite factual bases for, his conclusory opinions regarding relationships of

the entities, Bay, Inc., Bay, Ltd., Berry GP, Inc., and Berry Consulting, Inc. as being those

of ‘affiliates’ or ‘subsidiaries’ or ‘parent’ or ‘ultimate parent’ . . . .” However, Banner does

not direct us to any authority indicating that such a statement was necessary for the trial

court to have considered Vanaman’s affidavit. See TEX . R. APP. P. 38.1(h). In the absence

of any such authority, we conclude that the Vanaman affidavit constituted competent

summary judgment evidence.

B. Applicability of Indemnification Clause

Banner also claims that Berry’s summary judgment evidence was insufficient to

establish that the accident “ar[o]se out of, in connection with, or incidental to the

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As noted, a m ovant for traditional sum m ary judgm ent m ust produce evidence sufficient to show it
is entitled to judgm ent as a m atter of law. See W alker v. Harris, 924 S.W .2d 375, 377 (Tex. 1996). To avoid
sum m ary judgm ent, the non-m ovant m ust then present evidence raising a genuine fact issue. Id.

However, Banner does not contend in its first issue that it raised a genuine fact issue as to Berry’s
claim s. Rather, it asserts that Berry failed to clear the first hurdle in obtaining a traditional m otion for sum m ary
judgm ent— that is, it failed to show any com petent evidence showing it is entitled to judgm ent as a m atter of
law. Therefore, this issue m erges with Banner’s third issue, which contends explicitly that Berry produced no
evidence establishing its entitlem ent to judgm ent in its favor.

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performance by [Banner] of any work under [the] terms and conditions [in the Agreement],

or to the presence of [Banner] on any premises owned by or in which BAY has any

interest,” as required by the Indemnification Agreement. We disagree.

In Banner Sign & Barricade, Inc. v. Price Construction, Inc., 94 S.W.3d 692 (Tex.

App.–San Antonio 2002, pet. denied), the San Antonio Court of Appeals applied an

indemnification clause substantially similar to the one involved here. In that case, Banner

provided barricades, signs, and traffic devices to Price pursuant to a subcontract. Id. at

697. After a two-vehicle construction site accident, the plaintiffs sued Price. Id. at 694.

Price then joined Banner in the action as a responsible third party, alleging that it was

entitled to indemnification. Id. The trial court severed the indemnification and negligence

cases. Id. A jury subsequently found Price 80% responsible for the accident, the other

driver 20% responsible, and Banner 0% responsible. Id. The trial court then granted

summary judgment to Price on the indemnification claim against Banner. Id.

Affirming the trial court’s judgment, our sister court held that Banner had not raised

a genuine fact issue as to whether the indemnification clause covered the accident at

issue. Id. at 697. The indemnification clause at issue there “cover[ed] all claims and

injuries of any nature whatsoever ‘arising in any manner, directly or indirectly, out of or in

connection with or in the course of or incidental to, any of [Banner]’s work or operations

hereunder or in connection herewith.’” Id. Price had contracted with Banner to provide

barricades, signs, and traffic devices, and crucially, the plaintiffs’ petition in that case

“included a claim for ‘the supplying of inadequate and inappropriate materials to be used

as warning devices.’” Id. Therefore, the court held, the claims asserted by the plaintiffs

were subject to the indemnification provision. Id.

Banner’s subcontract with Berry is substantially similar to the one considered in

Price, covering any cause of action “which may arise out of, in connection with, or

incidental to the performance by [Banner] of any work under [the subcontract], or to the

presence of [Banner] on any premises owned by or in which BAY has any interest.” We

have previously held, in the context of an indemnity clause, that the terms “arise out of” and

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“in connection with” do not mean that the indemnitee must show direct or proximate

causation. See Coastal Mart, Inc. v. Sw. Bell Tel. Co., 154 S.W.3d 839, 845 (Tex.

App.–Corpus Christi 2005, pet. granted, judgm’t vacated w.r.m.) (citing Utica Nat’l Ins. Co.

v. Am. Indem. Co., 141 S.W.3d 198, 203 (Tex. 2003) (“‘Arising out of’ are words of much

broader significance than ‘caused by.’”)). Rather, such terms require only that a “general

nexus” be established between the subcontractor’s obligations and the detriment for which

indemnity is sought. Id. (“‘[A]rise out of’ simply means that there is ‘a casual connection

or relation.’”). Here, the Master Service Agreement provided that Banner was responsible

for providing traffic control devices, while the Crows alleged in their petition that the

defendants, among other things, “fail[ed] to provide proper pavement striping and signage.”

This summary judgment evidence was sufficient to establish the “general nexus” required

to bring the accident under the purview of the Indemnification Clause.

Banner argues that Price can be distinguished from the instant case, because

whereas the plaintiffs in Price won a jury verdict of damages against the contractor, Berry

voluntarily settled their case here. However, the Indemnification Clause does not limit itself

to liabilities incurred as a result of an adverse verdict. Instead, it expressly covers “all

claims, demands, liabilities and causes of action . . . of every type and character, without

limit and without regard to the cause or causes thereof . . . which may arise out of, in

connection with, or incidental to the performance by [Banner] . . . .” Given the sweeping

nature of the Indemnification Clause, we conclude that the claims asserted by the Crows

were subject to the provisions of the clause. See Coastal Mart, Inc., 154 S.W.3d at 845;

Price, 94 S.W.3d at 697.

C. Reasonableness of Settlement Agreement

Banner further argues that Berry failed to show that it was entitled to indemnity as

a matter of law because it did not present a scintilla of evidence showing that its settlement

with the Crows was reasonable and made in good faith.

“For a settling indemnitee to recover an amount of the settlement from its

indemnitor, the indemnitee must show its potential liability to a claimant and that the

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settlement was reasonable, prudent, and made in good faith under the circumstances.”

H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 879 (Tex. App.–Corpus Christi 1996,

pet. denied) (citing Fireman’s Fund Ins. Co. v. Commercial Standard Ins. Co., 490 S.W.2d

818, 824 (Tex. 1972); Getty Oil Corp. v. Duncan, 721 S.W.2d 475, 477 (Tex. App.–Corpus

Christi 1986, writ ref’d n.r.e.)). Without this requirement, the settling indemnitee would

have no incentive to bargain with the claimant for a reasonable settlement amount because

the indemnitee would in any case be assured of full recovery from the indemnitor, even if

the settlement amount was exorbitant.

Berry’s summary judgment evidence did not establish that the terms of the

settlement agreement executed by Berry and the Crows bore any relationship to the

damages suffered by the Crows as a result of the accident. However, Banner did not raise

the issue of the reasonableness of the settlement agreement in its response to Berry’s

motion for summary judgment or in its own no-evidence motion for summary judgment.

Issues that were not expressly presented to the trial court in the motion for summary

judgment cannot be considered by an appellate court as grounds for reversal. TEX . R. CIV.

P. 166a(c); Progressive County Mut. Ins. Co. v. Boyd, 1778 S.W.3d 919, 921 (Tex. 2005);

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002).

Because Berry produced competent evidence to establish its entitlement to

judgment as a matter of law, we conclude that the trial court did not err in granting Berry’s

traditional motion for summary judgment. See TEX . R. CIV. P. 166a(c); Walker, 924 S.W.2d

at 377. Moreover, we conclude that the trial court did not err in denying Banner’s no-

evidence motion for summary judgment. See TEX . R. CIV. P. 166a(i); Holstrom, 26 S.W.3d

at 530. Accordingly, Banner’s first and third issues are overruled.

D. Banner’s Traditional Motion for Summary Judgment

By its second issue, Banner argues that it was entitled to judgment as a matter of

law because indemnification was unavailable to Berry. We disagree.

Banner first contends that it was not required to comply with the Indemnification

Clause because Berry failed to pay Banner in accordance with the Master Service

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Agreement. In its traditional motion for summary judgment, Banner asserted that “Bay, Inc.

and/or Bay, Ltd. have breached the Master Service Agreement . . . by failing and refusing

to pay . . . for traffic control device rentals . . . and owes in excess of $18,000.00” and

therefore that “neither Berry nor the Bay entities are entitled to any defenses or

indemnifications claimed.” On appeal, Banner notes the general rule that reciprocal

promises in a contract, absent intentions to the contrary, are presumed to be mutually

dependent and the breach of one will excuse the performance of the other. D.E.W., Inc.

v. Depco Forms, Inc., 827 S.W.2d 379, 382 (Tex. App.–San Antonio 1992, no pet.).

Banner claims that it was absolved of its obligation to indemnify Berry because of this rule.

However, an indemnity agreement “is an original obligation between the contracting parties

and independent of other agreements.” Tesoro Petroleum Corp. v. Nabors Drilling U.S.,

106 S.W.3d 118, 127 (Tex. App.–Houston [1st Dist.] 2002, pet. denied) (citing Joseph

Thomas, Inc. v. Graham, 842 S.W.2d 343, 346 (Tex. App.–Tyler 1992, no writ)). Moreover,

Banner’s sworn account counterclaim was severed by the trial court, and so the remedy

of damages remains available to Banner to redress any breach of the Master Service

Agreement committed by Berry. See Hanks v. GAB Bus. Servs., 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.”). Because the

Indemnification Clause is an independent covenant, Banner is not excused from its

obligations under the contract based on allegations that Berry breached the contract. See

Tesoro, 106 S.W.3d at 127.

Banner further argues that indemnification was unavailable to Berry because Berry

failed to establish that the terms of their agreement with the Crows were reasonable and

made in good faith.3 However, Banner did not raise this issue in its traditional motion for

3
Banner additionally claim s that it was entitled to judgm ent as a m atter of law because: (1) Berry
showed a lack of good faith in its pleadings; (2) Berry’s claim for indem nification was based on a voluntary
settlem ent; and (3) Berry failed to establish their potential liability in the underlying lawsuit. However, Banner
has not provided any authority supporting the contention that it would be entitled to judgm ent as a m atter of

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summary judgment. Accordingly, we may not reverse the trial court’s judgment on these

grounds. TEX . R. CIV. P. 166a(c); Boyd, 1778 S.W.3d at 921; Johnson, 73 S.W.3d at 204.

Banner’s second issue is overruled.

IV. CONCLUSION

Having overruled Banner’s three issues, we affirm the judgment of the trial court.

________________________
DORI CONTRERAS GARZA,
Justice

Memorandum Opinion delivered and
filed this the 25th day of September, 2008.

law on these grounds. See T EX . R. A PP . P. 38.1(h).

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