ACCEPTED
07-14-00346-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
12/29/2014 1:52:35 PM
Vivian Long, Clerk
No. 07-14-00346-CV
FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
In the Court of Appeals 12/29/2014 1:52:35 PM for the Seventh District of Texas at Amarillo VIVIAN LONG CLERK
JANE T. DURHAM
Appellant
V.
MARGARET L. DUNHAM, et. al.
Appellees
On Appeal from the 237th District Court, Lubbock County, Texas
Cause No. 2013-509,100
APPELLANT’S BRIEF
IDENTITIES OF THE PARTIES AND COUNSEL APPELANT Jane T. Durham Represented on appeal by:
Michael Sales Texas Bar No. 17532060 1601 Broadway Lubbock, TX 79401 Tel. (806) 763-9493 Fax. (806) 744-5411 Sales5ralls@aol.com
APPELLEE Margaret L. Durham, Nancy C. Stewart, David Durham, and Barbara Flourney. Represented on appeal by:
Aubrey J. Fouts Texas Bar No. 07315000 P.O. Box 5187 Lubbock, TX 79408 Tel. (806) 741-0373 Fax. (806) 741-1491 ajfpat@nts-online.net
Page | i of Appellant’s Brief No. 07-14-00346-CV
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL………….............................................i TABLE OF CONTENTS…………………………………………………………..ii INDEX OF AUTHORITIES…………………………………………………...iii-iv APPELLANT’S STATEMENT OF THE CASE………………………………...1-2 ISSUE PRESENTED………………………………………………………………2 BRIEF ANSWER…………………………………………………………………..2 STATEMENT OF FACTS……………………………………………………….3-6 SUMMARY OF ARGUMENT…………………………………………………….6 ARGUMENTS………………………………………………………………….7-16 CONCLUSION…………………………………………………………………...16 PRAYER………………………………………………………………………16-17 SUBMITTAL……………………………………………………………………..17 CERTIFICATE OF SERVICE……………………………………………………18 CERTIFICATE OF COMPLIANCE……………………………………………..18
APPENDIX……………………………………………………………….TAB A-E 1. Clanin v. Clanin, 918 S.W.2d 673 (Tex. App. – Fort Worth 2013, no pet)
Page | ii of Appellant’s Brief No. 07-14-00346-CV
INDEX OF AUTHORITIES
CASES
Aland v. Martin, 271 S.W.3d 424 (Tex. App. – Dallas 2013)…………………………….…..7
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002)………………………………………………..7-8
Burnaman v. Heaton, 240 S.W.2d 288 (Tex. 1951)…………………………………………….…14
Buxani v. Nussbam, 940 S.W.2d 350, 352 (Tex. App. – San Antonio 1997, no writ)……………9
City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005)…………………………………………..8
Clanin v. Clanin, 918 S.W.2d 673 (Tex. App. – Fort Worth 2013, no pet.)………………14-15
Ford Motor Co. v. Castillo, 279 S.W. 656 (Tex. 2009)………………………………………………….14
General Metal Fabricating Corp. v. Stergiou, No. 01-11-00460-CV, 2013 WL 522849 (Tex. App. Houston [1st Dist] 2013, no pet.)………………………………………………………………………9
Marathon Corp. v. Pitzner, 106 S.W. 3d 724 (Tex. 2003)…………………………………………….….8
McCalla v Baker’s Campground Inc., 416 S.W.3d 416 (Tex. 2013)………………………………………………...9
Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995)……………………………………………..9,14
Page | iii of Appellant’s Brief No. 07-14-00346-CV
Pulley v. Milberger, 198 S.W.3d 418 (Tex. App. – Dallas 2006, pet. denied)……………………7
Roberson v. Robinson, 768 S.W.2d 280 (Tex. 1989)………………………………………………...8
Samples Exterminators v. Samples, 640 S.W.2d 873 (Tex. 1982)……………………………………………….14
Six RMA Partners v. Sibley, 111 3.W.3d 46 (Tex. 2003)………………………………………………..7-8
T.O Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992)………………………………………………...9
Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990)………………………………………………7-8
RULES OF PROCEDURE TEX. R. APP. P. 11……………………………………………...1-2, 4-6, 9-10, 14-16
Page | iv of Appellant’s Brief No. 07-14-00346-CV
TO THE HONORABLE COURT OF APPEALS:
I.
APPELLANT’S STATEMENT OF THE CASE This case involves a family dispute over the rights to moneys and to real property. The Appellant was the original plaintiff and counter defendant. The Appellee was the original defendant and counter plaintiff. Plaintiff’s Original Petition alleged breach of fiduciary duty, fraud and conspiracy, conversion, and theft liability; and requested the trial court establish a constructive trust and issue a temporary restraining order; all in regards to Appellee’s withdrawal of the Appellant’s life savings totaling around $103,000.00. TAB D. The trial court then ordered a Temporary Injunction Hearing on November 8th, 2013. CR 7-10. Defendant’s Original Answer generally denied the plaintiff’s original petition. CR 11-13. Defendant’s Original Counter Claim sought declaratory relief regarding the Appellant’s capacity and Eileen Aiken’s influence on the Appellant. TAB E.
At the November 8th, 2013, hearing, the parties agreed to settle their disputes pursuant to Tex. R. Civ. Proc. R. 11 before Eileen Aiken expressly disagreed with the terms expressed at the hearing (hereinafter referred to as “Agreement”) (Tex. R. Civ. P. 11 hereinafter referred to as “Rule 11”). On November 15th, 2013, the Appellant, Jane Durham, withdrew her consent to the
Agreement. After back-and-forth disputes adherence to the Agreement, on April 16th, 2014, the trial court held a bench trial. RR. Vol.004. On June 27, 2014, the trial court issued a final judgment, finding that the Agreement was an enforceable judgment, made pursuant to Rule 11, of the trial court. CR 241-45.
II.
ISSUES PRESENTED
Issue 1. Was there legally sufficient evidence for the trial court to find that the Agreement was a valid Rule 11 agreement and an enforceable judgment of the trial court?
III.
BRIEF ANSWER
No, there was not legally sufficient evidence for the trial court to find the Agreement was an enforceable judgment of the court because (1) Eileen Aiken expressly did not consent to the terms of the Agreement, and therefore, no binding agreement existed between the parties, and (2) the trial court had clear notice of the Appellant’s withdrawal of her consent to the Agreement prior to the Agreement being reduced to a judgment of the trial court.
IV.
STATEMENT OF FACTS
1. The Appellant, Jane Durham, is a 93 year old woman. CR 27.
2. The Appellant lives with and is cared for full time by her adult daughter, Eileen Aiken, since January, 2013. R. Vol.003 at 22-23.
3. The Appellee’s are also the Appellant’s adult children, Margaret Durham, Nancy Stewart, David Durham, and Barbara Flourney.
4. Sometime during October, 2013, the Appellant, Jane Durham, purchased a Nissan Murano, in her name, and for her own benefit. The vehicle is titled in Jane Durham’s name to this day. R. Vol.003 at 98.
5. During the time of and after the Appellant’s purchase of the Nissan Murano, Nancy Stewart and Margret Durham had power of attorney over Jane Durham. R. Vol.004 at 70-74.
6. In response to the moneys spent on the Nissan Murano, Nancy Stewart and Margret Durham, together, withdrew virtually all of the Appellant’s life savings totaling around $103,000.00 because they erroneously suspected that Eileen Aiken purchased the vehicle for herself and her benefit. R. Vol.004 at 70- 75.
7. On October 15th, 2013, without the Appellant’s knowledge or permission, Margret Durham signed and took possession of a cashier’s check, made payable to Jane Durham, drawn on Jane Durham’s account at Prosperity Bank in Lubbock, Texas, dated October 15th, 2013, in the amount of $100,230.40. Margret Durham kept possession of this check until, at some point, she gave the check to Nancy Stewart. CR 103-104.
8. Also, on October 15th, 2013, without Jane Durham’s knowledge or permission, Margret Durham signed, and took possession of a check, made payable to Jane Durham, drawn on Jane Durham’s account at American State Bank, in the amount of $2,000.00, and deposited those moneys in a newly created account at Wells Fargo Bank in Lubbock, Texas, in Margret Durham’s name. CR 107.
9. On October 17th, 2013, without the Appellant’s knowledge or permission, Margret Durham signed, and took possession of a check made payable to Jane Durham, dated October 17th, 2013, drawn on Jane Durham’s account at Prosperity Bank in Lubbock, Texas, in the amount of $1,173.57. CR 105-106.
10. On October 22nd, 2013, Jane Durham revoked Margret Durham’s and Nancy Stewart’s power of attorney. CR 108-111.
12. The moneys composing the Appellant’s life savings continued to change hands in ways that are not relevant to this appeal.
13. On October 28th, 2013, the Appellant initiated a temporary injunction hearing through the trial court, in order to cease any further takings of moneys by Nancy Stewart or Margret Durham. CR 7-10.
14. On November 8th, 2013, the parties met for a Rule 11 Agreement to possible settle the case. The Appellant expressed reluctance but finally agreed to the proposed Rule 11 Agreement, as did the Appellees. R. Vol.002.
15. The terms of the proposed November 8th, 2013 Rule 11 Agreement stipulated that (1) the Appellant’s assets would be placed in trust for her care and benefit, (2) the Appellant would continue to live with Eileen Aiken, (3) Eileen Aiken would act as the Appellant’s full time caretaker, (4) the other adult children would have the right to visit the Appellant, (6) Eileen Aiken would not interfere with the Appellant’s other adult children’s visitations, and (7) Eileen Aiken would receive $3,600.00 per month in compensation for and to facilitate the full time caretaking of the Appellant. R. Vol.002.
16. On November 8th, 2013, at the hearing where the proposed settlement was offered and after the Appellant and Appellees agreed to the terms, the trial court asked Eileen Aiken if she agreed to the terms of the Agreement. R. Vol.002 at 25. Eileen Aiken expressly stated that she did not agree, “I don’t, but I don’t know if that makes any difference, but I don’t know.” Id. No further negotiations occurred between the parties.
17. On November 15th, 2013, the Appellant dictated and signed a notarized letter withdrawing her consent to the Agreement. This letter was received and filed by the trial court on the November 15th, 2013. TAB B.
18. On April 16th, 2014, the trial court held a bench trial. R. Vol. 004.
19. On June 27, 2014, the trial court issued a final judgment, finding that the Agreement was an enforceable judgment, made pursuant to Rule 11, of the trial court. CR 241-45 and TAB A. As a result, nearly all of the Appellant’s assets, including all the moneys previously mentioned and several tracts of land, were placed in trust where they remain presently. Id.
V.
SUMMARY OF ARGUMENTS
The record establishes the exact opposite of the trial court’s finding, that a binding agreement existed between the parties that could become the final judgment of the trial court, because (1) Eileen Aiken expressly did not agree to the terms of the Agreement and (2) the trial court had clear notice of the Appellant’s withdrawal of the her consent prior to the agreement.
VI.
ARGUMENTS
The Appellant argues that the record establishes the exact opposite of the trial court’s findings that a binding agreement existed between the parties that could be enforced as a final judgment of the trial court. Primarily, because Eileen Aiken expressly did not agree to the terms of the Agreement and the trial court had clear notice that the Appellant withdrew her consent to the Agreement. In addition, the Appellant argues that no reasonable factfinder could find the Agreement could enforced as a final judgment of the trial court. 1. Standard of Review “Findings of fact in a case tried to the court have the same force and effect as a jury finding.” Aland v. Martin, 271 S.W.3d 424, 428-29 (Tex. App. – Dallas 2013) (citing Pulley v. Milberger, 198 S.W.3d 418, 426 (Tex.App. – Dallas 2006, pet. denied)). “An appellate court reviews a trial court’s fact findings by the same standard it uses to review the sufficiency of the evidence to support a jury’s findings.” Aland, 271 at 428. Where, as in this appeal, no findings of facts are requested or filed, the trial court’s judgment implies all findings of fact necessary to support it. See Six RMA Partners v. Sibley, 111 3.W.3d 46, 52 (Tex. 2003); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); and
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Where, as in this appeal, a reporter’s record is filed, the implied findings are not conclusive, and an appellant may challenge them for both legal and factually sufficiency. See Sibley, 111 S.W.3d at 52; BMC Software, 83 S.W.3d at 795; Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).
In a legal sufficiency review, the evidence is viewed in the light most favorable to the finding of the of the trial court, crediting favorable evidence and disregarding contrary evidence unless a reasonable factfinder could not. Aland, 271 at 429 (citing City of Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005)). However, this Court does not disregard contrary evidence if there is no favorable evidence. Wilson, 186 at 811. If no favorable evidence for the challenged finding exists, then the appellant must have provided conclusive evidence showing the opposite of the challenged finding is true. Id. at 814.
“This Court will sustain a no evidence point of error when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.” Marathon Corp. v. Pitzner, 106 S.W. 3d 724, 727 (Tex. 2003). 2. No Binding Agreement Exists to Be Enforced as a Judgment of the Trial Court
“Contract law governs the settlement of agreements made in open court pursuant to rule 11.” General Metal Fabricating Corp. v. Stergiou, No. 01-11- 00460-CV, 2013 WL 522849 (Tex. App. Houston [1st Dist] 2013, no pet.). In order for a Rule 11 agreement to be enforced as a judgment of the trial court, the agreement must meet the essential elements of a contract, but also allows for oral agreements read into the court’s record to be enforced. See Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995).
“Parties form a binding contract when the following elements are present:
(1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent to be mutual and binding.” Buxani v. Nussbam, 940 S.W.2d 350, 352 (Tex.App. – San Antoio 1997, no writ) (emphasis added). “The material terms of the contract must be agreed upon before a court can enforce the contract. T.O Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992). “When an essential or material term of an agreement is left open for future negotiation, there is no binding contract.” Id. “The material terms of a contract are determined by a case-by-case basis.” McCalla v Baker’s Campground Inc., 416 S.W.3d 416, 418 (Tex. 2013) (citing Stanley Boot, 847 at 221).
a. Eileen Aiken Expressly Did Not Agree to the Terms of The Agreement
Under no jurisdiction of the Common Law could there said to be a binding, legal contract formed between Appellant and Appellee on November 8th, 2013. To put it simply, there is no binding, legal contract agreement because Eileen Aiken expressly did not agree to the terms of the Agreement. Regardless, the trial court entered the Agreement as binding agreement and judgment of the trial court pursuant to Rule 11. Although not an official party to the suit, Eileen Aiken was alleged to engage in possible wrongdoing by the Appellees, was included in the terms of the Agreement, and offered compensation, or consideration, for her performance pursuant to the Agreement. In addition, Eileen Aiken was expressly asked by the trial court whether she agreed to the terms of the Agreement. Given these factors, Eileen Aiken was clearly a party to the Agreement.
As a party to the Agreement, Eileen Aiken must have expressly accepted the Agreement in strict compliance with terms of the offer in order for a binding contract to exist. Eileen Aiken clearly did the exact opposite and rejected the Agreement. When asked by the trial court if she accepted the terms of the Agreement, Eileen Aikeen expressly stated that “I don’t, but I don’t know if that makes any difference, but I don’t no.” RR Vol.002 at 25. No other evidence to the contrary exists in the record that Eileen Aiken ever accepted the terms of the Agreement.
Eileen Aiken’s rejection of the Agreement destroys one of the most basic and essential elements of any contract under the Common Law, acceptance. However, this does not end how completely Eileen Aiken’s rejection destroys the possibility of a binding contract.
b. Terms Including Eileen Aiken Were Material Terms The terms of the Agreement first stipulated that funds taken by the Appellee would be returned to the Appellant and placed in trust for the benefit of the Appellant, along with the rest of the Appellant’s assets. However, the remainder of the Agreement concerned the living arrangements and wellbeing of the Appellant. Those terms included that (1) the Appellant would continue to live with Eileen Aikeen, (2) Eileen Aiken would receive $3,600.00 per month from the trust established by the Agreement for compensation and to facilitate the care of the Appellant, (3) Eileen Aikeen, as the caretaker of the Appellant, would be responsible for spending funds distributed by the agreed trust for the benefit of the Appellant, and (4) Eileen Aiken would not interfere with the visitation of the Appellant’s other adult children.
Given the Appellee’s allegations of wrongdoing on the part of Eileen Aiken and questioning of whether the Appellant had the capacity to handle her own personal and financial affairs, the terms of the Agreement that included Eileen
Aiken could only be called material terms of an Agreement to settle a dispute over the very same issues.
c. Material Terms Were Left Open – No Meeting of the Minds Occurred Regardless of whether this Court holds that Eileen Aiken is a party to the Agreement, the Agreement is still not a binding agreement that could be rendered a final judgment of the trial court. Before Eileen Aiken expressly did not agree to the terms of the Agreement, the Appellant and Appellees had agreed to the terms the Agreement. Once Eileen Aiken expressly did not agree to the terms of the Agreement, no further negotiations between the parties occurred. If this Court were to hold that the terms including Eileen Aiken were material terms of the Agreement, then material terms of the contract were left open and no binding contract was formed because the parties did not contemplate the terms of the Agreement without Eileen Aiken’s inclusion.
To state the same concept differently, but to also tie in other essential elements of a contract, no meeting of the minds occurred in which the parties contemplated the terms of the contract without Eileen Aiken’s inclusion. The Appellant and Appellees negotiated and agreed to terms that would all be facilitated in one way or another by Eileen Aiken. Even the terms of what assets were to be placed in trust included Eileen Aiken because as caretaker to the Appellant, Eileen Aiken would be the one to facilitate the distributions of those assets. Once Eileen Aiken expressly did not agree to the terms of the Agreement, this essentially put the parties back into negotiations. The record clearly shows that the parties never contemplated or agreed to the terms of the Agreement without the inclusion of Eileen Aiken and her performance. Given that the terms including Eileen Aiken were material terms, this Court should hold that the Appellant conclusively establishes that no binding contract was ever formed between the Appellant and Appellee that could be rendered a final judgment of the trial court.
d. Conclusions The record clearly demonstrates that the Appellant, the Appellee, and Eileen Aiken all did not accept the terms of the Agreement in strict compliance with the offer because Eileen Aiken expressly did not consent and the Appellant and Appellee never agreed to the terms of the Agreement without Eileen Aiken’s inclusion. Given the incapacity of the Appellant to care for her own personal and financial affairs and the possible wrongdoing of Eileen Aiken were alleged by the Appellee’s, the terms including Eileen Aiken must be considered material for the purposes of an agreement to settle the dispute between the parties. In addition, there was no meeting of the minds and mutual assent to terms of the Agreement that did not include Eileen Aiken on the part of the Appellant and Appellee. For the aforementioned arguments, this Court should hold there was no legally sufficient evidence for the trial court to find that the Agreement was a sufficient
Rule 11 agreement and the trial court could not render the Agreement as a final judgment of the trial court. 2. The Appellant’s Withdrawal of Consent to the Agreement Where a party no longer consents, after notice and a hearing complying with Rule 11, any judgment is no longer an agreed judgment, but rather a judgment enforcing a binding contract. Padilla, 907 at 461. “When consent is withdrawn…the agreed judgment that was part of the settlement may not be entered.” Ford Motor Co. v. Castillo, 279 S.W. 656, 663 (Tex. 2009) (citing Padilla, 907 at 462). Instead, “[t]he party seeking enforcement of the settlement agreement must pursue a separate claim for breach of contract.” Id.
“When a trial court has knowledge that one of the parties to a suit does not consent to a judgment, agreed to by [her] attorney, the trial court should refuse to give the agreement the sanction of the court so as to make it a judgment of the court.” Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951) (stating in context of a Rule 11 agreement, all parties must agree) (emphasis added). “A party may revoke [her] consent to settle a case any time before the judgment is rendered.” Clanin v. Clanin, 918 S.W.2d 673, 677 (Tex. App. – Fort Worth 2013, no pet.) (citing Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex. 1982)).
In Clanin, the Appellant attempted to argue that he had withdrawn consent to an agreed divorce settlement made pursuant to Rule 11 by objecting to a motion for judgment. Clanin, 918 at 677. The court in Clanin observed the appellant had not made in known and to the trial court that he had withdrawn consent to the agreement by objecting to the motion for judgment. Id. In addition, the court in Clanin held that the Appellant was too late by raising his dissatisfaction with the agreed judgment in a motion for new trial. Id. In Clanin, the court held there “was sufficient evidence to support the existence of a valid Rule 11 agreement and the appellant had not revoked his consent to the agreement prior to the rendition of court’s judgment.” Id.
In clear contrast to Clanin, the Appellant wrote an express statement to the trial court that she was withdrawing her consent to the Agreement. TAB B. The Appellant’s express statement was signed, notarized, and received and filed stamped by the trial court before rendition of the judgment. TAB B. Unlike Clanin, the trial court had clear notice that the Appellant had withdrawn her consent to the Agreement before the agreement was rendered a final judgment of the trial court. Because the record demonstrates clear and conclusive evidence that the Appellant had withdrawn her consent to the Agreement, this Court should hold that there was legally insufficient evidence to find that a valid Rule 11 agreement existed that could be rendered the final judgment of the trial court.
Just as with whether an agreement existed at all between the parties, there conclusive evidence found in the record demonstrates the exact opposite of the trial court’s finding. The only evidence in the record conclusively demonstrates that the Appellant had withdrawn her consent to the Agreement prior to the rendition of a the trial court’s judgment. Therefore, this Court should hold that the trial court had legally insufficient evidence to find that it could render the Agreement as a final judgment of the trial court.
VII.
CONCLUSION
Given that Eileen Aiken expressly disagreed with the terms of the Agreement and that the trial court received clear notice of the Appellant’s withdrawal of consent to the Agreement, this Court should hold that there legally insufficient evidence to find that there was a valid Agreement pursuant to Rule 11 which could rendered a final judgment of the trial court.
VIII.
PRAYER
Appellant prays that this Court find that the trial court did not have legally sufficient evidence to find that the Agreement was a valid Rule 11 agreement or that the Agreement could be rendered as a judgment of the trial court. Moreover, the Appellant prays that this Court reverse and remand the trial court’s judgment, releasing all of the Appellants funds to the Appellant from the trust established by the Agreement and the trial court’s final judgment. Furthermore, the Appellant prays for the recovery of all her costs and for such other and further declarations as may be necessary and appropriate to resolve the issues raised in this appeal Appellant asks this court for such other and further relief to which the Appellant may prove herself entitled in law or in equity.
Respectfully submitted,
Michael Sales
Texas Bar No. 17532060
1601 Broadway
Lubbock, TX 79401
Tel. (806) 763-9493
Fax. (806) 744-5411
/s/ Michael Sales
ATTORNEY FOR APPELLANT
Sales5Ralls@aol.com
CERTIFICATE OF SERVICE
I herby certify that a true and correct copy of the foregoing Appellant’s Brief has been served via e-service and or by email on this the 29th day of December, 2014 on Aubrey Fouts, attorney for the Appellee.
/s/ Michael Sales
Michael Sales
CERTIFICATE OF COMPLIANCE I certify that this document complies with the typeface requirements of Tex.
R. App. P 9.4(e) because it has been prepared in conventional typeface no smaller than 14-point for text. This document also complies with word count limitations of Tex. R. App P. 9.4(i), if applicable because it contains less than 15,000 words, excluding any parts exempted by Tex. R. App P 94(i)(1).
/s/ Michael Sales_______________ Michael Sales