R. Scott Phelan v. H. Scott Norville

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-13-00040-CV
________________________

R. SCOTT PHELAN, APPELLANT

V.

H. SCOTT NORVILLE, APPELLEE

On Appeal from the 237th District Court
Lubbock County, Texas
Trial Court No. 2005-532-489-CV; Honorable Les Hatch, Presiding

September 22, 2014

MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Appellant and Cross-Appellee, R. Scott Phelan, and Appellee and Cross-

Appellant, H. Scott Norville, both appeal a judgment rendered in Phelan’s favor

following a jury trial on Phelan’s assault and libel claims against Norville. The jury

awarded Phelan a total monetary award of $590,000, consisting of $15,000 for physical

pain/mental anguish as a result of the assault claim, $325,000 for past and future injury

to his reputation and $250,000 for mental anguish damages resulting from his libel
action. Based on a post-verdict motion for judgment non obsante veridicto, the trial

court disallowed recovery of the libel mental anguish damages and entered a judgment

in favor of Phelan for $340,000.

On appeal, Phelan asserts the trial court erred by (1) setting aside the jury’s

$250,000 mental anguish award on his libel claim, (2) finding there was not clear and

convincing evidence to support the jury’s finding that Norville acted maliciously when he

made the libelous statement and (3) denying Phelan’s motion to deny Norville

representation by the Office of the Attorney General.

Conversely, Norville asserts (1) no evidence supports the jury’s finding of libel or

its award of damages and (2) all Phelan’s claims are subject to dismissal under section

101.106 of the Texas Civil Practice and Remedies Code1 because Phelan’s claims

involve actions taken by Norville within the general course and scope of his employment

which could have been brought against his employer, Texas Tech University.

We reverse the trial court’s award of $325,000 for past and future injury to

Phelan’s reputation, render judgment accordingly, and affirm the remainder of the

judgment.

BACKGROUND

The dispute underlying this appeal has had a complicated and lengthy evolution,

consuming more than its fair share of judicial resources. Phelan first filed suit against

1
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (West 2011). Throughout the remainder of
this memorandum opinion, provisions of the Code will be referred to simply as “section ___” and “§ ___.”

2
Texas Tech in the 200th District Court of Travis County, alleging his non-reappointment2

as a professor of engineering at Texas Tech violated both the Texas Whistleblower Act

and his rights of due process. Phelan asserted Texas Tech’s decision to non-reappoint

him was made in retaliation against him for reporting an assault by Norville and

Norville’s misuse of university personnel and property for personal gain.3 The state

district court granted Texas Tech’s motion for summary judgment on all Phelan’s claims

and this Court affirmed that decision. See Phelan v. Tex. Tech Univ., No. 07-07-0171-

CV, 2008 Tex. App. LEXIS 500 (Tex. App.—Amarillo Jan. 23, 2008, pet. denied) (mem.

op.). Phelan’s petition to the Texas Supreme Court for review was denied. Phelan v.

Tex. Tech Univ., No. 08-112, 2008 Tex. LEXIS 472 (Tex. May 16, 2008).

Proceeding simultaneously, in the 237th District Court of Lubbock County,

Phelan sued Norville, individually, Texas Tech’s Dean of Engineering—Pamela Eibeck,

its Assistant Provost—Elizabeth Hall, and its General Counsel—Victor Mellinger, under

various theories including assault, libel/slander, invasion of privacy, tortious interference

with contract and denial of due process and/or conspiracy to deny his due process

rights. The defendants moved for summary judgment asserting sovereign immunity

which was denied as to all defendants except Mellinger. The remaining defendants filed

an interlocutory appeal on all claims.4 This Court reversed as to all defendants and

claims, save and except Phelan’s libel claim against Norville. See Norville v. Phelan,

No. 07-07-0035-CV, 2008 Tex. App. LEXIS 499 (Tex. App.—Amarillo Jan. 23, 2008,

2
Texas Tech did not reappoint Phelan to his tenure track position.
3
Norville was Phelan’s immediate supervisor and the Department Chair for Texas Tech’s
Department of Engineering.
4
The only denial of summary judgment not appealed was Phelan’s assault claim against Norville.

3
pet. denied) (mem. op.). Phelan’s petition to the Texas Supreme Court for review was

denied. Phelan v. Norville, No. 08-0181, 2008 Tex. LEXIS 468 (Tex. May 16, 2008). At

that time, the only surviving claims were Phelan’s assault and libel claims against

Norville, individually.

Phelan then amended his petition in the 237th District Court to assert a claim

against the defendants under the Racketeer Influenced and Corrupt Organizations Act,

18 U.S.C. §§ 1961-1962 (“RICO”), for obstructing justice by allegedly filing false

affidavits and suppressing crucial evidence in the state court proceedings. At that point,

the defendants successfully removed the case to the United States Court for the

Northern District of Texas where Phelan added a claim under 42 U.S.C. § 1983,

claiming the defendants violated his Seventh Amendment right to trial by jury and his

Fourteenth Amendment right to due process of law. The federal district court dismissed

Phelan’s federal claims finding he had failed to plead facts giving rise to a cause of

action under RICO, sovereign immunity barred suit against Texas Tech and the

individual defendants and any deprivation which Phelan may have suffered was

preceded by procedural due process. The federal district court remanded Phelan’s

remaining state law claims against Norville to the state district court, and Phelan

subsequently appealed the dismissal of his § 1983 claim against the individual

defendants to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit

affirmed the federal district court’s rulings, and the United States Supreme Court denied

certiorari. See Phelan v. Norville, No. 10-11198, 460 Fed. Appx. 376, 2012 U.S. App.

LEXIS 2730 (5th Cir. Feb. 10, 2012), cert. denied, ___ U.S. ___, 132 S.Ct. 2417, 182

L.Ed.2d 1024 (2012).

4
 On remand from federal district court, Phelan’s remaining claims were again his

claims against Norville, individually, for assault and libel. These torts allegedly occurred

when Norville twice slapped Phelan, and, months later after Phelan’s non-

reappointment, Norville sent an email in response to a third party’s query about Phelan

leaving Texas Tech stating, in pertinent part, the following:

There were several reasons beginning with the fact that after 5 years, Dr.
Phelan had no journal publications. When I tried to get him to publish, his
response was nasty at best. Following that, I found out that Dr. Phelan
was not even writing reports to his research sponsor, TxDOT, and, hence
hurt TechMRT’s chances of getting funded research.

(Emphasis added.)

In November 2012, a jury trial resulted in a verdict for Phelan on the libel and

assault claims. The jury found Norville was not acting within the general scope of his

employment at the time he assaulted Phelan, but that Norville did act with malice when

he libeled him. The jury awarded Phelan $250,000 for past injury to his reputation,

$75,000 for future injury to his reputation, $250,000 for mental anguish and $15,000 for

physical pain/mental anguish due to the assault, for a total monetary award of

$590,000.

Following a hearing on Norville’s motion for a judgment non obstante veredicto,

pursuant to Rule 301 of the Texas Rules of Civil Procedure, the trial court issued a

judgment conforming to the jury’s verdict with the exceptions that the court held there

was not clear and convincing evidence to support the jury’s finding of malice, thereby

5
striking Phelan’s mental anguish damages.5 The judgment awarded Phelan $340,000

in total damages, $15,000 for the assault and $325,000 for past and future injury to his

reputation for libel. This appeal followed.

DISCUSSION

For purposes of this appeal, we need only decide four issues. That is, (1)

whether Phelan correctly asserts Norville’s email constitutes defamation/libel per se, (2)

whether Norville correctly maintains Phelan did not prove he was damaged by Norville’s

email, (3) whether Norville was “acting within the scope of his employment” when he

assaulted Phelan and (4) whether the trial court erred by denying Phelan’s motion to

deny Norville representation by the Office of the Attorney General. Our findings on

these four issues pretermit any remaining issues raised by the parties. See TEX. R.

APP. P. 47.1.

(1) DEFAMATION/LIBEL PER SE

Phelan asserts for the first time on appeal that his general damages are

presumed because Norville’s statement constituted defamation/libel per se. We find

Phelan waived this argument on appeal because he did not raise this contention in his

pleadings, ask the trial court to rule as a matter of law that Norville’s statement

constituted defamation/libel per se, object to the jury instructions which omitted an

instruction on defamation/libel per se or, otherwise, ask the jury to determine whether

Norville’s statement constituted defamation/libel per se.

5
On Norville’s Rule 301 motion, the trial court also denied Norville’s assertion that Phelan’s
assault and libel claims should have been dismissed from the suit under section 101.106(f) finding that
Norville did not act within the scope of his employment at Texas Tech when he committed the torts.

6
 To preserve an issue for appeal, a party must make a timely, specific objection or

motion in the trial court that states the grounds for the desired ruling with sufficient

specificity to make the trial court aware of the complaint. TEX. R. APP. P. 33.1(a). See,

e.g., Wells Fargo Bank, N.A. v. Leath, 425 S.W.3d 525, 540 (Tex. App.—Dallas Jan. 6,

2014, pet. filed); Alphonso v. Deshotel, 417 S.W.3d 194, 199 (Tex. App.—Dallas 2013,

no pet.); Crump v. Frenk, 404 S.W.3d 146, 155 n.12 (Tex. App.—Texarkana 2013, no

pet.); Schell v. Schell, No. 03-11-00833-CV, 2014 Tex. App. LEXIS 1712, at *3-4 (Tex.

App.—Austin Feb. 14, 2014, no pet.) (mem. op.). Because Phelan raises this

contention for the first time on appeal, we conclude he waived this issue and find in

Norville’s favor.

(2) DEFAMATION/LIBEL—INJURY TO REPUTATION

Having concluded Phelan waived any issue regarding defamation per se, we

need not decide whether Norville’s statement was defamatory because—even if it were

as a matter of law—there is no evidence of actual damages. Norville correctly asserts

Phelan failed to offer any evidence at trial that his reputation was damaged or that he

experienced a substantial disruption in his daily routine or a high degree of mental pain

and distress due to the email. See Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex.

2013).

To establish a cause of action for defamation, Phelan was required to prove,

among other things, that the defamatory statement caused him to suffer actual

damages. See Braden v. Swett & Crawford of Texas, Inc., 178 S.W.3d 373, 382 (Tex.

App.—Houston [1st Dist.] 2005, no pet.) (citing WFAA-TV, Inc. v. McLemore, 978

7
S.W.2d 568, 571 (Tex. 1998)). Causation has two elements: cause in fact and

foreseeability. Doe v. Boys Club, 907 S.W.2d 472, 477 (Tex. 1995). The test for cause

in fact is whether the act or omission was a substantial factor in causing the injury

without which the harm would not have occurred. Marathon Corp. v. Pitzner, 106

S.W.3d 724, 727 (Tex. 2003). If the defendant’s tortious conduct merely furnished a

condition that made the injuries possible, there can be no cause in fact. Western

Investments, Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2004) (citing IHS Cedars

Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004)).

Although Phelan presented evidence that Norville’s statement was the equivalent

of saying he was totally incompetent as an assistant professor and, if known, would hurt

his chances for employment in academia, he presented no evidence the recipient of the

email had any role in Phelan’s attempt to regain employment in academia or that either

Norville or the third party forwarded the email to anyone. Phelan testified he was

unaware whether the email was sent or forwarded to anyone other than Norville or the

third party. Norville testified the email was sent only to the third party and he did not

forward it to anyone.

Although Phelan testified to a single example where he was on the short list for

employment at an out-of-state university but, ultimately, did not get the position, he

failed to offer any evidence indicating the university was aware of Norville’s email or he

was not hired because of any influence exerted by Norville or his email.6 Accordingly,

6
The record reflects Norville was not Phelan’s only critic at Texas Tech. Dean Pamela Eibeck of
the College of Engineering, who was also in favor of Phelan’s non-reappointment testified, on deposition,
that she felt Phelan created a “hostile environment” in the department, his en masse email to the
department indicating he was going to sue Norville negatively affected morale and Phelan created an
accusatory atmosphere claiming it was the fault of everyone around him that he was not being successful

8
we find Phelan offered no evidence establishing Norville’s email caused him any injury

or damages, either reputational or mental anguish, and decide this issue in Norville’s

favor as well. See Boys Club, 907 S.W.2d at 477 (“[Causation] cannot be established

by mere conjecture, guess, or speculation.”). See also Burbage v. Burbage, No. 12-

0563, 2014 Tex. LEXIS 753, at *27-31 (Tex. Aug. 29, 2014).

(3) IMMUNITY UNDER SECTION 101.106(f) OF THE TEXAS TORT CLAIMS ACT

Norville asserts the trial court erred when it denied his motions for directed

verdict and for judgment non obstante veredicto asserting all of Phelan’s tort claims

should have been dismissed pursuant to section 101.106 of the Texas Tort Claims Act

(TTCA). Specifically, Norville contends there was no evidence upon which the jury

could find he was not engaging in conduct within the general scope of his employment

when he slapped Phelan.7 We disagree with Norville’s contention.

A. STANDARD OF REVIEW

A trial court may disregard a jury’s findings and render a directed verdict or

judgment non obstante veredicto if no evidence supports one or more of the jury’s

findings on issues necessary to liability. See Tiller v. McClure, 121 S.W.3d 709, 713

(Tex. 2003). To determine whether such relief is appropriate, we apply the standards

that govern a “no evidence,” i.e., legal-sufficiency review. See City of Keller v. Wilson,

as a faculty member. Professor Ernst Keisling testified that one ramification of Phelan filing suit against
Texas Tech and its employees was that, “personally to [Phelan], [it would be] very damaging to his future
in academia to be a plaintiff in a lawsuit.”
7
We need not address whether Norville was acting within the scope of his employment when he
sent the allegedly defamatory email having already determined Phelan failed to establish any damages
as a result thereof.

9
168 S.W.3d 802, 823 (Tex. 2005). In doing so, we view the evidence in the light most

favorable to the verdict under the well-established standards that govern legal

sufficiency review. See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.

2003). We credit evidence favoring the jury verdict if reasonable jurors could and

disregard contrary evidence unless reasonable jurors could not. Cent. Ready Mix

Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007). A challenge to the legal

sufficiency of the evidence will be sustained when, among other things, the evidence

offered to establish a vital fact does not exceed a scintilla. Kroger Tex. Ltd. P’ship v.

Suberu, 216 S.W.3d 788, 793 (Tex. 2006).8

B. SECTION 101.106(f) OF THE TTCA

Section 101.106(f) of the TTCA, entitled “Election of Remedies,” provides, in

pertinent part, as follows:

(e) If a suit is filed under this chapter against both a governmental unit and
any of its employees, the employees shall immediately be dismissed on
the filing of a motion by the governmental unit.

(f) If a suit is filed against an employee of a governmental unit on conduct
within the general scope of that employee’s employment and if it could
have been brought under this chapter against the governmental unit, the
suit is considered to be against the employee in the employee’s official
capacity only. On the employee’s motion, the suit against the employee
shall be dismissed unless the plaintiff files amended pleadings dismissing
the employee and naming the governmental unit as defendant on or
before the 30th day after the date the motion is filed.[9]

8
More than a scintilla of evidence exists when the evidence enables reasonable minds to differ in
their conclusions. See Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004).
However, evidence that creates only a mere surmise or suspicion is not more than a scintilla and, thus no
evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
9
The phrase “could have been brought” in § 101.106(f) applies to claims raised under the TTCA
“regardless of whether the [TTCA] waives immunity from suit.” Franka v. Velasquez, 332 S.W.3d 367,

10
 The applicability of subsection (e) to the underlying suit turns on whether the

assault claim was brought against Norville in his individual or official capacity.

Alexander v. Walker, No. 11-606, 2014 Tex. LEXIS 451, at *7 (Tex. June 6, 2014).

Section 101.106(f) “extends governmental immunity to acts of individual government

employees acting within the scope of their employment,” Lund v. Giauque, 416 S.W.3d

122, 125 (Tex. App.—Fort Worth 2013, no pet.) (citing LTTS Charter Sch. Inc. v. C2

Constr., Inc., 342 S.W.3d 73, 89-90 (Tex. 2011)), if the plaintiff’s claim could have been

brought under the TTCA against the governmental unit. Whether an employee is acting

within the scope of his employment is a question for the trier of fact. Molina v. Alvarado,

No. 08-13-00157-CV, 2014 Tex. App. LEXIS 4396, at *23 (Tex. App.—Texarkana Apr.

23, 2014, pet. filed July 10, 2014) (mem. op.).

In order to determine whether the suit is against the employee in his individual or

official capacity,10 we must decide whether (1) the alleged conduct was within or without

the scope of the officer’s employment,11 and (2) Phelan’s suit could have been brought

against the officer’s governmental employer under the TTCA. See § 101.106(f). Our

first consideration, then, is whether, considering the evidence in the light most favorable

to the jury’s verdict, Phelan presented more than a scintilla of evidence at trial

establishing Norville acted outside the scope of his employment when he slapped

385 (Tex. 2011). See § 101.021. The TTCA waives sovereign immunity for some torts, but not for claims
“arising out of assault and battery, false imprisonment, or any other intentional tort.” Texas Dep’t of
Public Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001).
10
Neither party contests whether Norville was a Texas Tech employee at the time of the assault.
11
“Scope of employment” is defined by the TTCA as “the performance for a governmental unit of
the duties of an employee’s office or employment and includes being in or about the performance of a
task lawfully assigned to an employee by competent authority.” Section 101.001(5) (emphasis added).

11
Phelan. If there is sufficient evidence supporting the jury’s finding that Norville was

acting outside the scope of his employment when he struck Phelan, we need not decide

whether Phelan’s assault claim could have been asserted against Texas Tech.

Phelan’s trial testimony indicates he casually entered into an informal

conversation with Norville and Phil Nash, a fellow professor, in Nash’s office at Texas

Tech after working hours. Nash described the meeting as “incidental” and “unofficial.”

Prior to the assault, Phelan and Norville were discussing what university was associated

with the author of a prominent engineering book when Norville became excited upon

learning he was mistaken about the university associated with the author. Norville then

slapped Phelan hard across the face saying “that is a static load.” Norville slapped

Phelan again even harder saying “that is a dynamic load, do you understand the

difference?” Phelan left Nash’s office believing he was in danger and Norville was

completely out of control.12 Subsequently, Phelan’s face reddened, he experienced

pain in his face, neck and shoulder areas, and the pain continued intermittently through

trial.

The jury specifically found Norville assaulted Phelan and, at the time of the

assault, was not acting within the scope of his employment. A person commits civil

assault if he “intentionally, knowingly, or recklessly causes bodily injury to another.”

Appell v. Muguerza, 329 S.W.3d 104, 110 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied). A person commits a criminal assault if he “intentionally or knowingly causes
12
Whether the parties engaged in a general discussion regarding static or dynamic blast loads
prior to the assault is of no consequence. The interaction between Phelan and Norville regarding the
author of the engineering text led to the dispute that triggered Norville’s impassioned assault according to
Phelan’s testimony. See Wal-Mart Stores, 102 S.W.3d at 709 (evidence must be viewed in the light most
favorable to the verdict).

12
physical contact with another when the person knows or should reasonably believe that

the other will regard the contact as offensive or provocative.” TEX. PENAL CODE

22.01(a)(3) (West Supp. 2014). See Johnson v. Davis, 178 S.W.3d 230, 240 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied) (“To establish a prima facie claim for civil

assault, the plaintiff must establish the same elements required for criminal assault.”). 13

We find there is more than a scintilla of evidence in support of the jury’s finding

that Norville was acting outside the scope of his employment when he assaulted

Phelan. In addition, the record contains no evidence to support a finding that Norville’s

general scope of employment included assaulting a faculty member. To the contrary,

Eibeck testified that, during a meeting with Norville after the incident, she advised him

against touching Phelan in any manner and told Norville that informal touching of

anybody was inadvisable.

Accordingly, we find there was sufficient evidence to support the jury’s verdict

that Norville was not acting within the scope of his employment when he assaulted

Phelan, see Kelemen v. Elliot, 260 S.W.3d 518, 524 (Tex. App.—Houston [1st Dist.]

2008, no pet.) (finding no evidence that officer was acting in scope of his employment

when he kissed fellow officer without consent while on duty),14 and thus decide this

issue in Phelan’s favor.

13
The jury’s charge specifically stated:

A person commits an assault if he (1) intentionally, knowingly, or recklessly causes bodily
injury to another; (2) intentionally or knowingly threatens another with imminent bodily
injury; or (3) intentionally or knowingly causes physical contact with another when he or
she knows or should reasonably believe that the other will regard the contact as offensive
or provocative.

13
 (4) STATE’S AUTHORITY TO REPRESENT NORVILLE

Phelan next asserts the trial court erred in denying his motion to remove counsel

for the Office of the Attorney General as Norville’s attorney because Norville was not

acting in his official capacity when he assaulted and libeled Phelan. He further

contends the Attorney General wrongfully provided Norville with representation since

2005.

Provisions of the Texas Civil Practice and Remedies Code govern the

circumstances under which the State is liable for indemnification of its employees and

their reasonable attorney fees. See §§ 104.001-.007. In addition to identifying the

types of actions where indemnification is permitted, the Code provides that

indemnification is appropriate when the attorney general or his designee determine

indemnification is in the interest of the state. See § 104.002(a)(3). Section 104.0035

also provides for a determination whether a person is entitled to indemnification by the

state by a district court in Travis County if the Attorney General denies indemnification

or the person is not entitled to an initial determination whether indemnification is

appropriate by the Attorney General. Section 104.0035(d), (e), (f). If the appeal or suit

for an initial determination is successful, the Travis County district court can issue an

order directing the attorney general’s office to indemnify the person for reasonable

attorney fees. Id. at (f).

14
Compare Hamilton v. Pechacek, No. 02-12-00383-CV, 2014 Tex. App. LEXIS 3096, at * 11-13
(Tex. App.—Fort Worth Mar. 20, 2014, no pet.) (mem. op.) (state employee who accidently spilled a cup
of coffee on another employee while removing his jacket from the top of a trash can acting within scope of
his employment); Harris County v. Gibbons, 150 S.W.3d 877, 883 (Tex. App.—Houston [14th Dist.] 2004,
no pet.) (holding that off-duty police officer, who rear-ended another car, acted in scope of employment
within meaning of TTCA because officer was checking license number of different vehicle to determine if
it was stolen when accident occurred).

14
 Chapter 104 does not provide for any private right of action or statutory

procedure whereby a third party may challenge an Attorney General’s determination

that a state employee is entitled to representation. See Montana v. Patterson, 894

S.W.2d 812, 815 (Tex. App.—Tyler 1994, no writ) (Chapter 104 is limited to

indemnification of employees and creates no private cause of action by third parties).

See also Rao v. Rodriguez, 923 S.W.2d 176, 180 (Tex. App.—Beaumont 1996, no writ).

Neither does Phelan cite to any legal authority for the proposition that he has a

cognizable claim against the Attorney General for exercising his discretion to extend

state representation to Norville. Accordingly, the trial court did not abuse its discretion

by denying Phelan’s motion and this issue is decided in Norville’s favor.

CONCLUSION

Having determined that Norville’s email does not constitute defamation/libel per

se and that Phelan has failed to prove any actual damages caused by that email, we

reverse, in part, the trial court’s judgment to the extent it awards $325,000 for past and

future injury to Phelan’s reputation. Furthermore, we render judgment that Phelan take

nothing on his libel claim.

Having determined that Norville was not acting within the course and scope of his

employment when he assaulted Phelan, we reject Norville’s claim that the election of

remedies provisions of the Texas Civil Practice and Remedies Code bars Phelan from

recovery of damages resulting from Norville’s assault and we affirm the remainder of the

judgment. Finally, we conclude the trial court did not err in denying Phelan’s motion to

15
dismiss the Texas Attorney General’s Office as counsel for Norville. Accordingly, we

reverse and render in part and we affirm in part.

Patrick A. Pirtle
Justice

16