Sinue and Sandra Miranda, Individually and A/N/F Jesse Miranda v. TriStar Convenience Stores, Inc.

Opinion issued August 1, 2013

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-01073-CV

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SINUE AND SANDRA MIRANDA, INDIVIDUALLY AND AS NEXT

FRIEND OF JESSE MIRANDA, Appellants

V.

TRISTAR CONVENIENCE STORES, INC., Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Case No. 2008-00151

MEMORANDUM OPINION

Appellants, Sinue and Sandra Miranda, individually and as the next friend of

Jesse Miranda (“Miranda”), sued appellee, TriStar Convenience Stores, Inc.

(“TriStar”), and other entities for injuries Sinue sustained during an armed robbery

at the convenience store where he worked. 1 The trial court granted summary

judgment in favor of TriStar, dismissing Miranda’s claims. In three issues,

Miranda argues that the trial court erred in granting TriStar’s motion for summary

judgment because: (1) the evidence showed illegal gambling was taking place at

the convenience store; (2) TriStar had control of the premises, both actually and

contractually; and (3) the evidence most favorable to Miranda indicates that TriStar

was negligent in failing to exercise its right to control the premises.

We affirm.

Background

On April 27, 2007, an unidentified gunman robbed the Handi Plus #17, a

Shell convenience store and gas station, and shot Sinue Miranda, a clerk at the

store, in the process. Miranda was behind the bulletproof glass surrounding the

clerk’s station, but he had left the customer window open. The gunman ran into

the store, sprayed Miranda with pepper spray, shot him through the open customer

window, and stole cash from behind the counter. Miranda was left paralyzed from

the waist down.

1

Miranda also sued Bhanu, LLC, Motiva Enterprises, LLC, and Gulshan

Enterprises. Prior to the trial court’s summary judgment, these companies settled

the Mirandas’ claims against them and were dismissed from the suit.

2

The Handi Plus #17 is owned by Global New Millennium Partners

(“Global”),2 which leased the Property to TriStar. TriStar is a subsidiary of

Gulshan Enterprises, Inc. (“Gulshan”), a wholesale distributor of gas and diesel

fuel. Gulshan, but not TriStar, had a contract with Motiva Enterprises, LLC

(“Motiva”), a gasoline supplier, which provided that Gulshan could use the “Shell”

brand name as long as it complied with the terms of the agreement. Gulshan’s

Marketer Agreement with Motiva provided that the “[Gulshan’s] Outlets may not

be used for any unlawful, offensive, hazardous, unsightly, or other objectionable

purpose”; it required Gulshan and its operators to comply with “all Laws”; it

further required that the outlets be operated in a “secure manner” so that criminal

activity is deterred and people are “adequately protected from injury, harm or

loss”; and it provided that Motiva had the right to inspect the outlets to ensure

compliance with the terms of the Marketer Agreement.

TriStar subleased the Handi Plus to Bhanu, LLC “for the purposes of

operating a convenience store business involving the sale of motor fuel.” TriStar

purchased wholesale fuel from Gulshan and, in turn, consigned the fuel products to

Bhanu. Bhanu retained a commission on the sales of the fuel and paid the net

proceeds to TriStar.

2

Global New Millennium Partners, the property owner, was never a party to the

lawsuit below. Global’s CEO is Shoukat Dhanani, the president of Gulshan and

TriStar.

3

TriStar and Bhanu entered into a Sublease Agreement that gave Bhanu the

right to possession of the premises. TriStar had the contractual right “to enter the

Premises, to make inspections, provide necessary services, or show the unit to

prospective buyers, mortgagees, Sublessees or workmen.” Bhanu was required to

“conduct [its] business in a professional and in a business-like manner and not

engage in any dishonest, unethical, or fraudulent practice” and to “conduct all

operations lawfully and in strict compliance with all statutes and all ordinances,

regulations, and other requirements of governmental authorities.” Bhanu was also

forbidden “to install, or cause to be installed, any vending equipment, coin

operated or otherwise, or any type of revenue generating machine or equipment on

the premises.” TriStar retained the right to terminate the Sublease Agreement if

Bhanu failed to abide by these provisions.

Sinue Miranda testified in his deposition that the Handi Plus #17 had

gambling machines, also known as “eight-liners,” and that he had been instructed

by a person named Raj to pay customers who won with money kept under the

register for that purpose. He stated that Raj left money every week to pay winners

on the gambling machines and that the robber took the money that Raj had left for

that purpose. Somaiah Kurre, a manager for Bhanu, also testified that the Handi

Plus #17 had approximately seven gambling machines, or “eight-liners,” that were

owned by a third party, HNC Amusements, Inc.

4

Another Bhanu manager, William Nores, averred that a Gulshan employee,

Zafer Tahir, conducted inspections of the store premises and had to have seen the

gambling machines because they were open and obvious. Nores also stated that,

on the day of the shooting, Raj Kothakonda had just arrived to make sure there was

enough cash to pay the winners of the gambling machines when the robbery

occurred.

Kothakonda was the prior operator of the Handi Plus #17 who sold his

inventory to Bhanu before Bhanu entered into the Sublease Agreement with

TriStar. Kothakonda still participated in managing stores for Bhanu in some

capacity. He stated that the gambling machines were added by a vendor he

identified as “HNC.” He testified that he was not involved with the gambling

machines in any way, but he did make deposits for the store. The manager would

ready the cash to be deposited and leave it for him wrapped in a brown paper bag

with a deposit amount written on it. On the day of the shooting, Kothakonda had

arrived at the store to pick up the cash deposit “[n]ot even a minute” before the

gunman entered the store. The shooter took the cash from under the counter, but

did not attempt to open the cash register.

Zafer Tahir, a Gulshan employee, inspected the Handi Plus. He admitted

that he had inspected the store prior to the shooting and knew the gambling

machines were present. He stated that he never inquired into how the winners on

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the machines were paid because he only inspected the stores for certain items on

his instruction sheet. He stated that he was aware that it would have been illegal

for the winners to be paid in cash and that, if he had been aware of any cash

payments or other criminal activity, he would have reported it to the store operator

or to Shoukat Dhanani, the president of both Gulshan and TriStar.

Dhanani provided affidavit testimony that “TriStar does not exercise control

over the operation of the store or its security.” He also averred that “TriStar does

not own, operate, possess, use, or control the Property,” that it “has no employees

working or performing operations on the Property,” and that it “is not involved in

the day-to-day operations of the Property.” Dhanani stated that he had no personal

knowledge of any other criminal acts that might have occurred on or near the

Property. He also averred that he was not aware of the existence of the gambling

machines and that he would have terminated the Sublease Agreement with Bhanu

if he had known that gambling was taking place in the convenience store.

Somaiah Kurre, a Bhanu employee and the store manager, testified that

TriStar provided gas to the store and periodically conducted a walk-through of the

store. Kurre stated that there were approximately six or seven video gambling

machines that “people come and play. And in return, they have to redeem for

some merchandise.”

6

Regarding previous crime at Bhanu stores, he stated that none of the stores

had ever been robbed during the time that he worked for Bhanu. He explained that

there had been “several incidents like taking beer, run out, those kinds of things,

but never got robbed.” The robbery of the Handi Plus #17 was the first robbery

that he could remember.

Miranda also presented the testimony of a security expert, Harold Warren,

who opined that TriStar retained the right to regulate all types of machines that

generated income at the Handi Plus; TriStar had a duty to ensure that the Handi

Plus was not used for illegal purposes and to maintain security on the premises;

TriStar inspected the Handi Plus and either knew or should have known that illegal

gambling was taking place; the presence of the gambling machines increased the

likelihood of violent crime by attracting criminals to the premises and made the

shooting foreseeable; the timing of the shooting—occurring right after Kothakonda

arrived to replenish the cash used to pay the winners—shows a relationship

between the gambling and the criminal activity; and TriStar acted unreasonably in

permitting illegal gambling.

Miranda sued Bhanu, Motiva, Gulshan, and TriStar for negligence and other

causes of action relating to the shooting. Bhanu, Motiva, and Gulshan all settled

their claims and were dismissed from the suit prior to summary judgment.

Miranda proceeded with three causes of action against TriStar: premises liability,

7

negligent activity, and negligence per se. He argued that, as the sublessor, TriStar

was “contractually obligated through its agreements with Global Millennium

Partners and Gulshan Enterprises, Inc., which was in turn obligated to Motiva, to

make sure that there were no unlawful activities taking place on the premises and

to also look out for the safety of the people lawfully using the premises.” Miranda

argued that TriStar carried out inspections through Gulshan employee Zafer Tahir,

who testified that he was aware of the gambling machines. He also cited the

testimony of William Nores, a manager for Bhanu, who testified about the

presence of the “eight liners” in four of the stores where he worked, including

Handi Plus #17.

TriStar moved for summary judgment on all of Miranda’s claims on both

no-evidence and traditional grounds. It argued that it could not be held liable for

Miranda’s injuries “when the occurrence in question, as well as the damages

complained of, were proximately caused or producingly caused, in whole or in

part, by the acts, omissions, fault, negligence, or other conduct of the assailant over

whom Defendants have no right of control.” TriStar further argued that it “is

nothing more than a consigner-distributor of fuel to the Property and had no

practical or contractual involvement in or responsibility over the substantive

operations or security of the Property.” TriStar “denied the gambling allegations”

8

and asserted that the statutory basis of the gambling claim—Penal Code chapter

47—is not one for which tort liability may be imposed.

The trial court granted summary judgment in favor of TriStar on all of

Miranda’s claims. This appeal followed.

Standard of Review

An appellate court reviews de novo the trial court’s ruling on a summary

judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009); Valence Operating Co. v. Dorsett, 164 S.W.3d 656,

661 (Tex. 2005). When the trial court does not specify the grounds for its grant of

summary judgment, the reviewing court must affirm the summary judgment if any

of the theories presented to the court and preserved for appeal are meritorious. See

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

A proper no-evidence summary judgment must be affirmed when the record

shows one of the following: (1) there is no evidence on the challenged element;

(2) the evidence offered to prove the challenged element is no more than a

scintilla; (3) the evidence establishes the opposite of the challenged element; or

(4) the court is barred by law or the rules of evidence from considering the only

evidence offered to prove the challenged element. City of Keller v. Wilson, 168

S.W.3d 802, 810, 823 (Tex. 2005) (“[T]he test for legal sufficiency should be the

same for summary judgments, directed verdicts, judgments notwithstanding the

9

verdict, and appellate no-evidence review.”). Less than a scintilla of evidence

exists when the evidence is so weak as to do no more than create a mere surmise or

suspicion of a fact. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167,

172 (Tex. 2003). 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).

To prevail on a traditional summary judgment motion, the movant must

establish that “there is no genuine issue as to any material fact” and that it “is

entitled to judgment as a matter of law on the issues expressly set out in the motion

or in an answer or any other response.” TEX. R. CIV. P. 166a(c); see Little v. Tex.

Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). When a defendant

moves for traditional summary judgment, it must either: (1) disprove at least one

essential element of the plaintiff’s cause of action, or (2) plead and conclusively

establish each essential element of its affirmative defense, thereby defeating the

plaintiff’s cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)

(per curiam). If the movant meets its burden, the burden then shifts to the

nonmovant to raise a genuine issue of material fact precluding summary judgment.

See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). We indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor. Sw.

10

Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing Sci. Spectrum,

Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).

Analysis

Miranda alleged causes of action for premises liability and negligent activity

against TriStar, arguing that the illegal gambling occurring on the premises created

a dangerous condition that attracted criminal misconduct and made such conduct

an unreasonable and foreseeable risk of harm to invitees, or, alternatively, that

TriStar’s failure to terminate the lease was negligent conduct that caused

Miranda’s injury by allowing the illegal gambling to continue. Miranda also

alleged a cause of action against TriStar for negligence per se based on Penal Code

section 47.04, 3 addressing illegal gambling, and on Civil Practice and Remedies

3

Penal Code section 47.04, “Keeping a Gambling Place,” provides that:

a person commits an offense if he knowingly uses or permits

another to use as a gambling place any real estate, building,

room, tent, vehicle, boat, or other property whatsoever owned

by him or under his control, or rents or lets any such property

with a view or expectation that it be so used.

TEX. PENAL CODE ANN. § 47.04 (Vernon 2011). Penal Code section 47.01

defines “gambling place” as any property, “one of the uses of which is

the . . . playing of gambling devices.” Id. § 47.01(3) (Vernon 2011).

“Gambling device” means “any electronic, electromechanical, or mechanical

contrivance not excluded under Paragraph (B) that for a consideration

affords the player an opportunity to obtain anything of value, the award of

which is determined solely or partially by chance, even though accompanied

by some skill, whether or not the prize is automatically paid by the

contrivance.” Id. § 47.01(4).

11

Code section 125.004, 4 providing that a person who maintains a place in which

people habitually go to gamble has created a common nuisance. Miranda argues

that, to be entitled to summary judgment dismissing this claim, “TriStar would

need to show that as a matter of law that a violation of Chapter 47 [of the Texas

Penal Code] does not give rise to tort liability.”

TriStar argued, among other things, in its summary judgment motion and on

appeal, that it could not be held liable for Miranda’s injuries when the “occurrence

and damages complained of were proximately caused or producingly caused by the

acts, omissions, fault, negligence, or other conduct of the assailant” over whom it

had no right of control. It also argued that it was only a consignor or distributor of

fuel to the Property and had no involvement in the substantive operation of the

Property. TriStar further argued that tort liability could not be imposed for a

violation of Penal Code chapter 47 and that Miranda could not provide any

admissible evidence to establish that TriStar’s alleged violations of either Penal

4

Civil Practice and Remedies Code section 125.0015, “Common Nuisance,”

provides:

[A] person who maintains a place to which persons habitually

go [for the purpose of gambling, gambling promotion, or

communicating gambling information as prohibited by the

Penal Code] and who knowingly tolerates the activity and

furthermore fails to make reasonable attempts to abate the

activity maintains a common nuisance.

TEX. CIV. PRAC. & REM. CODE ANN. § 125.0015(a)(5) (Vernon Supp. 2012).

12

Code chapter 47 or of Civil Practice and Remedies Code chapter 125 was the

proximate cause of Miranda’s injuries. We address these causes of action together.

Texas courts have recognized both negligent-activity and premises-defect

theories of liability against the owners or controllers of land. Del Lago Partners,

Inc. v. Smith, 307 S.W.3d 762, 775 (Tex. 2010). Generally, a premises owner or

controller is liable for a premises defect if its past negligent conduct created an

unreasonably dangerous condition on the premises that causes the plaintiff’s injury,

and it is liable for negligent activity if its contemporaneous negligent conduct

causes the plaintiff’s injury. See, e.g., id.; Timberwalk Apartments, Partners, Inc.

v. Cain, 972 S.W.2d 749, 753 (Tex. 1998). The Texas Supreme Court has

“repeatedly treated cases involving claims of inadequate security as premises-

liability cases.” Del Lago Partners, 307 S.W.3d at 776; see also Mellon Mortg.

Co. v. Holder, 5 S.W.3d 654, 655 & n.3 (Tex. 1999) (plurality opinion) (discussing

applicability of premises liability cases to allegations of inadequate security);

Timberwalk Apartments, 972 S.W.2d at 753 (holding, in inadequate security case,

that jury was properly charged under premises-liability theory rather than

negligent-activity theory). “In a premises-liability case, the plaintiff must establish

a duty owed to the plaintiff, breach of the duty, and damages proximately caused

by the breach.” Del Lago Partners, 307 S.W.3d at 767.

13

Negligence per se is a common-law doctrine that allows courts to rely on a

penal statute to define a reasonably prudent person’s standard of care. Reeder v.

Daniel, 61 S.W.3d 359, 361–62 (Tex. 2001). To establish negligence per se, a

plaintiff must prove that: (1) the defendant’s act or omission is in violation of a

statute or ordinance; (2) the injured person was within the class of persons which

the ordinance was designed to protect; and (3) the defendant’s act or omission

proximately caused the injury. Ambrosio v. Carter’s Shooting Ctr., Inc., 20

S.W.3d 262, 265 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (citing El

Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex. 1987) and Nixon v. Mr. Prop.

Mgm’t Co., 690 S.W.2d 546, 549 (Tex. 1985)).

Thus, all three causes of action that Miranda alleged against TriStar require

it to establish the existence of a duty that TriStar breached and that the breach

proximately caused Miranda’s injury. See Del Lago Partners, 307 S.W.3d at 767;

see also Taylor v. Louis, 349 S.W.3d 729, 738 (Tex. App.—Houston [14th Dist.]

2011, no pet.) (providing that duty, breach, and proximate cause are elements of

negligent activity claims just as they are elements of premises defect claim);

Ambrosio, 20 S.W.3d at 265 (providing that proximate cause is element of

negligence per se claim).

To establish proximate cause, a plaintiff must prove both (1) foreseeability

and (2) cause in fact. Ambrosio, 20 S.W.3d at 265; see LMB, Ltd. v. Moreno, 201

14

S.W.3d 686, 688 (Tex. 2006) (holding that proximate cause has two components:

cause-in-fact and foreseeability). “These elements cannot be established by mere

conjecture, guess, or speculation.” W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551

(Tex. 2005).

The test for cause-in-fact is whether the negligent act or omission was a

substantial factor in bringing about the injury, without which the harm would not

have occurred. Id.; Ambrosio, 20 S.W.3d at 266 (citing Doe v. Boys Clubs of

Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)). Cause-in-fact is not

shown if the defendant’s negligence did no more than furnish a condition that

made the injury possible. Urena, 162 S.W.3d at 551; Ambrosio, 20 S.W.3d at 266.

In other words, even if the injury would not have occurred but for the defendant’s

negligence, “the conduct of the defendant may be too attenuated from the resulting

injuries to the plaintiff to be a substantial factor in bringing about the harm.” IHS

Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex.

2004); Ambrosio, 20 S.W.3d at 266 (“[T]here is no legal cause if the connection

between the negligence and the injury is too attenuated or remote.”). While the

issue of proximate cause is generally a question of fact, it can be a question of law

when the evidence is without material dispute or when the relationship between the

plaintiff’s injuries and the defendant’s negligence is attenuated or remote.

Ambrosio, 20 S.W.3d at 266.

15

Foreseeability means the actor should anticipate the dangers a person of

ordinary intelligence would anticipate. Nixon, 690 S.W.2d at 549–50. Generally,

third-party criminal conduct is a superseding cause of damages unless the criminal

conduct is a foreseeable consequence of the party’s actions. Id. at 550. With

regard to the criminal acts of third parties, courts consider not only whether the

danger was foreseeable, but also whether it was foreseeable that the danger would

harm a particular plaintiff or one similarly situated. See Taylor, 349 S.W.3d at

734. In determining whether criminal conduct is foreseeable, we must consider

whether any criminal conduct previously occurred on or near the property, how

recently the criminal conduct occurred, how often it occurred, how similar it was to

the conduct at issue, and what publicity was given to the previous conduct to

indicate that the premises owner knew or should have known about it. Timberwalk

Apartments, 972 S.W.2d at 757; Durham v. Zarcades, 270 S.W.3d 708, 719 (Tex.

App.—Fort Worth 2008, no pet.). “These factors—proximity, recency, frequency,

similarity, and publicity—must be considered together in determining whether

criminal conduct was foreseeable. . . . The court must weigh the evidence using all

the factors.” Timberwalk Apartments, 972 S.W.2d at 759; Durham, 270 S.W.3d at

719; see Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 15 (Tex.

2008).

16

Here, even assuming, as Miranda argues, that he was TriStar’s invitee, that

TriStar retained control over the premises, that TriStar owed him a duty not to

maintain a nuisance by allowing gambling machines to remain on the premises,

and that TriStar breached its duty by failing to terminate Bhanu’s lease, Miranda

has not presented evidence raising a genuine issue of material fact on the issues of

foreseeability of Miranda’s injury as a result of TriStar’s failure to terminate

Bhanu’s lease or the failure to terminate the lease as the cause-in-fact of Miranda’s

injury. The relationship between TriStar’s allegedly negligent failure to terminate

the Sublease Agreement and the criminal actions of the third-party shooter is too

attenuated or remote to establish either foreseeability or cause-in-fact. TriStar’s

conduct—failing to terminate the Sublease Agreement based on the alleged illegal

gambling—did nothing more, at most, than create the condition that enabled Bhanu

to maintain the revenue-producing gambling machines in the Handi Plus #17,

which in turn allegedly attracted the third-party shooter to commit an armed

robbery. See Ambrosio, 20 S.W.3d at 266 (holding sporting goods store not liable

under negligence per se theory when gun stolen from store was eventually used by

third party in carjacking and murder because “appellee’s failure to exercise care in

the storage and display of its firearms is too remote and attenuated from the

criminal conduct of the three carjackers to constitute a legal cause of injury to

either [the victim] or his parents”).

17

Furthermore, the record contains no evidence of violent crimes that occurred

at or near the Handi Plus #17 prior to the robbery on April 27, 2007. Many people,

including Miranda himself, testified that they had no knowledge of any previous

robberies or use of weapons in the store. Kurre testified generally that there had

been instances of shoplifting, and Miranda testified that he had been involved in a

previous altercation with a yelling customer, but neither knew of any crimes

similar to the shooting. Even assuming, as Miranda alleged, that TriStar knew or

had reason to know that illegal gambling machines were being used on the

premises, this knowledge alone was not enough to make a violent robbery and

shooting foreseeable. The gambling could not serve to inform TriStar’s knowledge

of “[t]he nature and character of the premises” or the “mode of doing business” in

a way that would make the armed robbery foreseeable to TriStar. See Del Lago

Partners, 307 S.W.3d at 768–69. Nor is illegal gambling conducted on eight-liner

gambling machines sufficiently similar to the April 27, 2007 armed robbery to put

TriStar on notice of the potential for such criminal activity. See Trammell Crow,

267 S.W.3d at 13, 17 (holding that “repeated occurrences of theft, vandalism, and

simple assaults . . . do not suggest the likelihood of murder” and further holding

that even evidence of ten previous violent crimes were not “sufficiently frequent

and similar [to the crime of murder] to give rise to a duty in this case”).

18

In his affidavit, Harold Warren, Miranda’s security expert, made the

conclusory statement that the presence of illegal gambling “greatly increased the

likelihood of violent crime occurring on the premises,” but he did not address any

specific occurrence of crimes in and around the Handi Plus #17 prior to the April

27, 2007 shooting. He did not discuss any evidence that the allegedly illegal

gambling at the Handi Plus #17 had attracted additional crime. Warren admitted

that he had not compared data of criminal activity at illegal gambling

establishments with criminal activity in the general population to determine if the

presence of gambling generally increased the likelihood of violent crimes

occurring, and he did not produce any research or other evidence of a connection

between gambling machines and increased incidents of violent crime.

Thus, Miranda failed to produce more than a scintilla of evidence as to either

prong of the essential element of proximate cause. He failed to show that TriStar’s

alleged negligence was the cause-in-fact of his injuries, and he also failed to

produce more than a scintilla of evidence as to the foreseeability of the third-party

shooter’s criminal conduct. See LMB Ltd., 201 S.W.3d at 688; Urena, 162 S.W.3d

at 551.

We conclude that the trial court did not err in granting summary judgment,

and we overrule Miranda’s issues.

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Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

20