ROHRMOOS VENTURE, ERIC LANGFORD, DAN BASSO AND TOBIN GROVE, Appellants v. UTSW DVA HEALTHCARE, LLP, Appellee
No. 05-14-00774-CV
Court of Appeals Fifth District of Texas at Dallas
October 5, 2015
On Appeal from the 192nd Judicial District Court, Dallas County, Texas. Trial Court Cause No. DC-10-15959. Affirmed and Opinion Filed October 5, 2015. Before Justices Francis, Lang-Miers, and Whitehill.
Opinion by Justice Whitehill
Rohrmoos Venture’s motion for reconsideration is denied. On the Court’s own motion, we withdraw our opinion dated August 3, 2015 and vacate the judgment of that date. This is now the Court’s opinion.
This case involves claims for breach of the implied warranty of suitability and breach of contract arising out of a commercial lease. The jury found that both parties breached the lease, but the landlord breached first, and that the landlord breached the implied warranty of suitability. The trial court entered judgment for the tenant, UTSW DVA Healthcare, LLP (“UT”), against the landlord Rohrmoos, Eric Langford, Dan Basso, and Tobin Grove (collectively “Rohrmoos”). Rohrmoos appealed.
(1) The parties contracted for an exclusive remedy that superseded the implied warranty of suitability.
(2) – (3) The trial court erred in admitting certain expert testimony and documents, without which there is no evidence or insufficient evidence that Rohrmoos breached the implied warranty of suitability.
(4) There is no evidence or insufficient evidence to support the jury’s finding that Rohrmoos breached the implied warranty of suitability because there must be evidence of (a) defect at the lease’s inception; (b) the defect must be latent and vital; and (c) the defect must exist at the lease termination.
(5) UT waived any breach of the implied warranty by remaining on the property for three years after discovering the alleged breach.2
(6) The trial court erred in awarding UT attorney’s fees because (a) the lease allegedly does not provide for attorneys’ fees to UT; (b) UT cannot recover its attorneys’ fees under the declaratory judgment statute because UT allegedly abandoned its declaratory judgment claim; and (c) there is no evidence supporting the fee amounts the jury found.
(7) The trial court erroneously refused to disregard the jury’s answers to questions 1– 6 in the charge because those answers are either unsupported by the evidence, or they are matters of law which the court is solely responsible for determining; and
For the reasons discussed below, we affirm the trial court’s judgment.
I. Background
The facts are detailed, and the record is extensive. But we discuss the facts generally because we decide this case on settled legal principles that do not need a detailed factual discussion.
Water Problems
This case revolved around water problems in a commercial building UT leased from Rohrmoos to operate as a dialysis clinic. There were extensive efforts to determine what was causing those problems. When Rohrmoos did not solve the problem, UT moved out before the lease term expired.
The Trial
After moving out, UT sued Rohrmoos and Langford for breach of the implied warranty of suitability and breach of contract.3 UT also requested a declaratory judgment that: (i) a casualty occurred in accordance with the lease, (ii) Rohrmoos failed to remedy the casualty and (iii) UT had the right to terminate the lease.
Rohrmoos answered the lawsuit and counterclaimed for negligence and breach of contract. Rohrmoos also asserted several affirmative defenses, including waiver and prior material breach.
UT asserted the following affirmative defenses in response to Rohrmoos’s counterclaim: (i) contributory negligence, (ii) failure to mitigate damages, (iii) termination of the contract was
Before trial, Rohrmoos moved to exclude the testimony from an engineer UT retained, Mike Stenstrom, and letters he wrote regarding the property. After two hearings, the trial court allowed some of Stenstrom’s testimony and all but one section of one of his letters.
Other UT witnesses included the property engineer Boyce Farrar, the property administrator, a state inspector, the facility maintenance man, and other UT personnel involved in operating the facility. UT’s witnesses testified about the water and flooring problems and the unsuccessful efforts to resolve these problems. Because the issues were not resolved, and UT was concerned about patient health and safety, it terminated the lease and moved the facility to another location.
Rohrmoos’s witnesses included engineer Tom Witherspoon, a plumber, an architect, two architectural engineers, two real estate service professionals, two ceramic tile experts, two of the facility’s medical directors, and others. In short, Rohrmoos elicited testimony that (i) the floor tile buckled because it was installed incorrectly and (ii) the water issues were not caused by a structural defect and did not render the facility unsuitable for a dialysis clinic.
The case was submitted to the jury after nine trial days and with over nine hundred exhibits. UT did not seek to recover damages on its breach of implied warranty or breach of contract claims. Instead, in questions 1–3, the jury was asked whether Rohrmoos failed to comply with the lease (and whether UT waived such breach), whether UT failed to comply with the lease, and if appropriate, which party failed to comply first. Question 4 asked whether Rohrmoos breached the implied warranty of suitability and whether UT waived any such breach. The charge also asked questions concerning attorney’s fees for both parties that were not predicated on any affirmative liability findings.
Based on the jury’s answers, the trial court entered final judgment against Rohrmoos for the amount of attorney’s fees that the jury found.
Rohrmoos subsequently moved to reform the judgment, or alternatively, for a new trial. The trial court denied the motion, and Rohrmoos appealed.
The Appeal
Rohrmoos’s appellate arguments largely center on the jury’s finding that Rohrmoos breached the implied warranty of suitability. But, because we uphold the judgment on the prior material breach findings favoring UT, we need not (and do not) address in detail those issues premised on the breach of implied warranty finding.
II. Analysis
A. Rohrmoos’s Second through Fifth Issues: Is the evidence sufficient to support the breach of implied warranty finding?
Rohrmoos’s issues two and three argue that without Stenstrom’s and Farrar’s allegedly improper testimony and the complained-of exhibits, the evidence would be insufficient to support the jury’s finding that Rohrmoos breached the implied warranty of suitability. Likewise, Rohrmoos’s fourth issue argues that the evidence is insufficient to support certain elements of the implied warranty claim. Similarly, Rohrmoos’s fifth issue posits that UT waived its implied warranty claim by remaining on the property for three years after allegedly discovering the breach.
In addition, Rohrmoos has not demonstrated that the jury’s affirmative findings on breach of implied warranty and waiver caused it any harm. See
B. Issue One: Did Article XIII provide UT’s exclusive remedy?
In an effort to negate the jury’s finding that Rohrmoos breached the implied warranty of suitability, Rohrmoos argues that article XIII of the lease, which addresses “casualty” events, provides an exclusive repair remedy that superseded the implied warranty of suitability.6 Rohrmoos states that UT “initially sued under Article XIII,” but then “opted to invoke the [implied warranty] remedy rather than the nearly-identical remedy it agreed to accept in the lease.” According to Rohrmoos, “[b]ecause UT abandoned its exclusive legal remedy at trial, any judgment holding [UT] had the right to terminate the lease . . . is wrong and should be reversed.” We reject Rohrmoos’s first issue for several reasons.
One, although Rohrmoos correctly observes that the article XIII “casualty” theory was not tried or submitted to the jury, Rohrmoos did not object to the charge on the basis that Article XIII was UT’s exclusive remedy. Nor did Rohrmoos assert that argument in its motion for new trial or otherwise identify any other portion of the record where it raised that argument. Thus, the argument was not preserved for our review. See
Two, without a proper objection, our review is based on the charge submitted to the jury, even if it was defective. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).
Three, implicit in Rohrmoos’s argument, had it been preserved, is the premise that there is no part of the Lease beyond Article XIII that could support a finding that Rohrmoos breached the Lease. But Article VIII of the lease, captioned “LANDLORD’S MAINTENANCE
Landlord shall maintain the roof, foundations, floor slabs, columns, exterior walls, imbedded plumbing, imbedded electrical lines (specifically keeping the roof free of leaks) gutters, downspouts and subfloors and all other structural elements of the Premises, together with the common areas of the Building including landscaping and parking areas, in good order and repair throughout the term of the Lease….
Rohrmoos does not explain why a material breach of this provision would not support a finding that Rohrmoos materially breached the Lease.
We decide Rohrmoos’s first issue against it.
C. Rohrmoos’s Seventh Issue: Did the trial court erroneously refuse to disregard the jury’s answers to questions one through six because those answers are either unsupported by the evidence, or they are matters of law which the court is solely responsible for determining?
1. Introduction.
Rohrmoos’s seventh issue complains that the trial court “erred by not ignoring the answers to jury questions 1, 2, 3, 4, 5, and 6 when it entered judgment” and globally asserts, by reference to a nonexistent volume of the clerk’s record, that these issues have all been preserved for our review.7 Rohrmoos’s ensuing one paragraph arguments regarding questions one through four and six essentially state that the questions were “unnecessary,” “irrelevant,” or “should not have been asked.”
Rohrmoos’s argument concerning question 5 is that the jury instruction on the implied warranty of suitability was “legally improper.”
For the following reasons, we disagree with Rohrmoos’s seventh issue.
Questions one through three addressed the following matters:
Question One: “Did Rohrmoos fail to comply with the Lease Agreement”? The accompanying instructions stated, among other things, that any such failure had to be material. The instructions also stated that “Failure to comply by Rohrmoos is excused if compliance is waived by UTSW,” and further instructed as to what constitutes waiver.
Question Two: “Did UTSW fail to comply with the Lease Agreement”?
Question Three: After conditioning the question on “yes” answers to “Question 1 and 2,” Question Three asked “Who failed to comply with the Lease Agreement first”?
Rohrmoos’s trial objections to these questions and related instructions were:
Question Number 1, defendants feel the issue should be presented as a separate question from breach.8 Defendants also suggest that there should be an estoppel question, or an instruction and definition on this question of breach.
Question Number 2, this question is improper as the Plaintiff [UT] has stipulated that they breached the contract, hence this question is unnecessary. The question will confuse the Jury. There is no evidence in opposition that would allow for the no answer to this question, or there is sufficient [sic] evidence in the record to support a no answer to the question.
Question Number 3 is improper in this case, and should not be given at all. There is no evidence that the Plaintiff [UT] did not breach the lease. The question is not relevant and the word “first” is ambiguous or vague.
Rohrmoos’s total briefing as to Questions One through Three under this issue is as follows:
A. Jury question no. 1 (SuppCR7) asked whether Rohrmoos failed to comply with the Lease. However, this is not relevant to the case because UTSW abandoned any claim for damages for such breach. The trial court should thus never have given the question, or should have ignored it when entering judgment. 10RR108[.] In addition, there should have been an estoppel instruction given separately or accompanying this question, but the trial court refused to give one. 10RR108 See Oliver v. Oliver, 889 S.W.2d 271, 273-74 (Tex. 1994).
B. Jury question no. 2 (SuppCR8) asked whether UTSW failed to comply with the Lease. This question was unnecessary because UTSW stipulated it breached the Lease, and thus should not have been asked because it was not in dispute. 10RR108 See Oliver, supra.
C. Jury question no. 3 (SuppCR9) asked who failed to comply with the Lease “first.” Regardless of whether or when Rohrmoos breached, since UTSW abandoned any claim for breach of contract, the question of Rohrmoos’s breach is irrelevant and should not have been asked. 10RR108-109 See Oliver, supra. Further, the “first to breach” doctrine does not excuse the second party from its own breach when the second party continues to enjoy the benefits of the contract following the first breach. See Castle Texas Prod. L.P. v. Long Trusts, 134 S.W.3d 267, 279, 80 (Tex. App. - Tyler 2003), rev’d og, 426 S.W.3d 73 (Tex. 2014).
We reject Rohrmoos’s arguments regarding Questions One through Three for these reasons:
One, Rohrmoos did not adequately brief its arguments. The Texas Rules of Appellate Procedure require that a brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”
Here, Rohrmoos’s briefing regarding these questions is too general to meet the above standards because it does not contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Thus this issue has not been adequately briefed and is overruled as it concerns questions one through three.
Two, to the extent that Rohrmoos intended for its appellate challenge to these questions to be that UT abandoned Article XIII as its exclusive remedy, those arguments would raise the same argument that we previously rejected in part II(B) above.
Three, Rohrmoos’s motion for reconsideration improperly now argues that we should ignore the answers to Questions One through Three because the right to terminate a commercial lease for failure to make repairs exists only with respect to a breach of the implied warranty of suitability that the supreme court established in Davidow v. Inwood North Professional Group-Phase 1, 747 S.W.2d 373, 376-77 (Tex. 1988) and does not exist for a prior material breach of an express duty repair contained in the lease. But Rohrmoos did not assert that objection to Questions One through Three in the trial court, or otherwise preserve the point in the trial court. See
Specifically, Rule 274’s purpose is to afford trial courts an opportunity to correct errors in the charge, by requiring objections both to clearly designate the error and to explain the grounds for complaint, an objection that does not meet both requirements is properly overruled and does not preserve error on appeal. Castleberry v. Branscum, 721 S.W.2d 270, 276 (Tex. 1986).
Question Four, conditioned on affirmative findings for Questions Two and Three, asked to the jury to find whether Rohrmoos suffered damages proximately caused by UT’s breach. Question Six asked the jury to find Rohrmoos’s reasonable and necessary attorneys’ fees. We reject Rohrmoos’s complaints about these issues because they were not adequately briefed.
Moreover, we disagree with Rohrmoos’s arguments regarding Question Four, because the jury was instructed to ignore Question Four if they found against Rohrmoos in response to Questions Two and Three, which they did. In addition, we have previously rejected Rohrmoos’s challenges to the jury’s answers to those questions.
We likewise reject Rohrmoos’s arguments regarding Question Six because Rohrmoos was not a prevailing party in this case under any measure. Accordingly, it is not entitled to recover any of its attorneys’ fees under the Lease Agreement’s attorneys’ fees provisions. See part II(F)(2) below.
4. Rohrmoos’s Challenge to Question Five.
Because, as discussed in part A above, the answer to question five does not affect the outcome, we need not and do not address Rohrmoos’s seventh issue arguments regarding that question.
F. Rohrmoos’s Sixth Issue: Did the trial court err in its attorney’s fees judgment favoring UT?
1. Introduction.
The jury was asked to find the reasonable amount of UT’s attorney’s fees for representing UT in the trial court, “through appeal to the Court of Appeals,” and “for oral argument and through the completion of proceedings in the Supreme Court of Texas.”9 To this
Rohrmoos’s sixth issue posits that the trial court erred in awarding UT attorney’s fees because (a) the lease allegedly does not provide for attorneys’ fees to UT; (b) UT cannot recover its attorneys’ fees under the declaratory judgment statute because UT allegedly abandoned its declaratory judgment claim; and (c) there is no evidence supporting the fee amounts the jury found. As discussed below, we conclude that UT was a prevailing a party within the lease’s clause that permits a prevailing party in any dispute to enforce the terms of the lease and that there is legally sufficient evidence supporting the fee amounts the jury found in UT’s favor. Accordingly, we need not discuss whether UT’s fee award would be proper under the attorney’s fees statute or the declaratory judgment act.
Attorney’s fees may be recovered only if permitted by statute or contract. See 1/2 Price Checks Cashed v. United Auto. Ins. Co., 344 S.W.3d 378, 382 (Tex. 2011). A trial court’s decision to award attorney’s fees at all is reviewed under an abuse of discretion standard. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles—in other words, whether the act was arbitrary or unreasonable. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
The lease provides that the “prevailing party” in an action to enforce the lease’s terms is entitled to recover its reasonable attorney’s fees:
In any action to enforce the terms of this lease, the prevailing party shall be entitled to an award for its reasonable attorney’s fees.
Rohrmoos does not dispute that this case involved an action to enforce the lease’s terms but instead challenges whether UT was a “prevailing party. To that end, Rohrmoos cites International Group Partnership v. KB Home Lone Star, L.P., 295 S.W.3d 650, 655 (Tex. 2009), for the premise that we should look to the civil practice and remedies code chapter 38 “prevailing party” concept, which requires that a party recover damages to be entitled to recover its attorney’s fees in a breach of contract case. See Green Int’l Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Based on that premise and the fact that UT did not recover any damages on UT’s breach of contract claim, Rohrmoos argues that UT was not a prevailing party in this case because it did not recover any damages on its breach of contract claim against Rohrmoos:
Because UTSW did not recover affirmative relief or money damages, attorneys’ fees may not be awarded under the contract or under Texas Civil Practice & Remedies Code, Chapter 38.
We disagree with Rohrmoos’s argument because that argument misapplies the supreme court’s holding in KB Home.
KB Home was applying a contract provision similar to that in the lease, authorizing recovery of attorney’s fees by the “prevailing party.” As in this case, the contract did not define the term “prevailing party.” Id. at 653.
Despite that similarity, however, we cannot conclude that KB Home controls the issue in this case. There, KB Home was the plaintiff and sought over $1 million in damages. Id. at 655. The jury, however, awarded no damages. Id. As a result, the supreme court held that KB
UT, by contrast, was not just the plaintiff, but also defended against Rohrmoos’s breach of contract counterclaim. UT did not seek any damages. Instead, UT asked the jury to find that Rohrmoos breached the lease first, thereby relieving it of the obligation for future performance and to avoid Rohrmoos’s undisputed damages on its breach of contract claim. Rohrmoos’s counterclaim damages were conditioned on an affirmative finding that UT was the first to breach. But the jury found that Rohrmoos breached the lease first and was therefore not entitled to recover damages. Unlike what happened in KB Home, these findings and the resulting judgment favoring UT “materially altered” the legal relationship between Rohrmoos and UT.
For the above reasons, and because a prevailing party includes one who is vindicated by the court’s judgment, Johnson v. Smith, No. 07-10-00017-CV, 2012 WL 140654, at *3 (Tex. App.—Amarillo 2012, no pet.) (mem. op.), we conclude that UT was the prevailing party and that the trial court did not err in awarding reasonable attorney’s fees under the contract.11 Having determined that UT was entitled to recover its reasonable fees, we next address whether there is legally sufficient evidence supporting the jury’s findings as to those amounts.
3. Sufficiency of the Trial Fees Evidence.
Rohrmoos also asserts that there is no evidence or insufficient evidence to support the fee award amounts because UT’s attorney’s fees expert offered no evidence of the Arthur Andersen factors and because UT’s counsel did not submit his billing records. While we review the decision to award attorney’s fees under the abuse of discretion standard, the fee amount, if
(a). “Ridiculously High” Fees.
UT’s lawyer, Wade Howard, testified about UT’s attorney’s fees. He said that he has a very broad variety of litigation practice and that is all he has done for twenty years. His standard rate is $430 an hour and he has handled cases similar to this one.
On cross-examination, Howard clarified that the $800,000 fees were necessary for his client because they were caused by the actions of opposing counsel. But he also said had this case been handled by both sides in a professional manner, the “attorney’s fees should have been in the 3-$400,000 range.”12
Rohrmoos relies on Howard’s testimony that his fees were “ridiculously high” to argue that there is no evidence of UT’s reasonable fees. This argument, however, ignores the testimony’s context. Howard said that the fees were $800,000, and though he considered the amount “ridiculously high,” the fees were necessary because the activity in the case exceeded the norm. Examples of what he considered excessive activity included the designating of numerous experts, a high volume of depositions, document production, and motion practice. Testifying that the fees in a normal case should have been lower does not mean that the actual amount was not reasonable under the circumstances.
(b). Billing Records.
Additionally, Rohrmoos relies on El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) and its progeny to argue that attorney’s fees awards must be supported by some evidence of the
El Apple was an employment discrimination and retaliation case brought under the Texas Commission on Human Rights Act. Id. at 760. In that case, the Court observed that Texas courts have used the lodestar method in awarding fees under the TCHRA because federal courts use the lodestar method in awarding fees under Title VII cases. Id.14 Under the lodestar method, a claimant must produce evidence of who performed the legal services, when the services were performed, and the amount of time spent on various parts of the case. Id. at 763. The Texas Supreme Court, however, distinguished the lodestar method from a traditional attorney’s fees award, stating, “[w]hile Texas courts have not routinely required billing records or other documentary evidence to substantiate a claim for attorney’s fees, the requirement has merit in contested cases under the lodestar approach.” Id. at 762.
Moreover, in a subsequent opinion, the Texas Supreme Court further clarified that even under the lodestar approach, El Apple does not hold that time records or billing statements are the only method of proof. See City of Laredo v. Montano, 414 S.W.3d 731, 735–37 (Tex. 2013).
Likewise, we also recognize that El Apple does not require the admission of hourly time records in all cases, nor does it hold that all attorney’s fees recoveries in Texas are governed by the lodestar method. See Metroplex Mailing Servs. LLC v. Donnelly & Sons Co., 410 S.W.3d 889, 900 (Tex. App.—Dallas 2013, no pet.); see also Powell v. Penhollow, Inc., No. 05-13-01653-CV, 2015 WL 3454496, at *15 (Tex. App.—Dallas June 1, 2015, no pet. h.) (lodestar required only in certain cases).
Here, Rohrmoos does not assert, and the record does not show, that the lodestar method was statutorily required or that UT “chose to prove up attorney’s fees using this method.” See El Apple, 370 S.W.3d at 736; see also Long v. Griffin, 442 S.W.3d 253, 253 (Tex. 2014) (per curiam) (referring to party “choosing” the lodestar method of proving attorney’s fees).15 The jury was not instructed to apply the lodestar method in determining a reasonable fee. We conclude that the absence of billing records does not render the evidence insufficient to support the fee award.
(c). Arthur Andersen Factors.
We also reject Rohrmoos’s argument that the fees are not recoverable because Howard did not specifically testify about the Arthur Andersen factors. It is not accurate to state that there was no testimony as to any of these factors. Courts are not required to receive evidence on each factor before awarding attorney’s fees. Sandles v. Howerton, 163 S.W.3d 829, 838 (Tex. App.—Dallas 2005, no pet.); Brockie v. Webb, 244 S.W.3d 905, 909–10 (Tex. App.—Dallas 2008, pet. denied). Here, Howard testified about the factors relevant to this case. Howard’s testimony
4. Sufficiency of the Appellate Fees Evidence
It is well-settled that, where attorney’s fees are recoverable, the award may include appellate attorney’s fees. Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 147–49 (Tex. App.—Dallas 2011, no pet.). Rohrmoos says there is no evidence to support the award of appellate attorney’s fees to UT because Howard offered no testimony on this aspect of the fees award. UT responds that Rohrmoos’s counsel offered generic testimony about appellate fees, and this evidence is sufficient to support the award.
Charles Bundren, Rohrmoos’s counsel testified as follows:
Q. Are you familiar with the reasonable and customary fees in Dallas County for appellate work in commercial litigation cases?
A. I am.
Q. Do you have an opinion on what would be necessary fees for an appeal of this case to the Dallas County Court of Appeals?
A. If necessary?
Q. How much?
A. $150,000.
Q. Do you have an opinion on how much would be considered necessary attorney’s fees for an appeal to Texas Supreme Court, if necessary?
A. $75,000.
In addition to Bundren, Rohrmoos also called Alvin Badger to testify about fees. Badger testified that “reasonable appellate fees” for an appeal of the case to the court of appeals would be $150,000 and a “reasonable fee in a case of this nature for an appeal to the Texas Supreme Court” would be $75,000.
Thereafter, the jury awarded both parties the exact amount of appellate fees identified by these witnesses. We thus conclude there is some evidence to support the award of appellate attorney’s fees and we decide Rohrmoos’s sixth issue against it.
F. Rohrmoos‘s Eighth Issue: Did the trial court erroneously refuse to grant judgment for Rohrmoos?
Because we conclude the trial court did not err in granting judgment for UT, do not reach Rohrmoos’s remaining issue. See
III. Conclusion
Having resolved all of Rohrmoos’s issues against it, we affirm the trial court’s judgment.
140774F.P05
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
ROHRMOOS VENTURE, ERIC LANGFORD, DAN BASSO AND TOBIN GROVE, Appellants v. UTSW DVA HEALTHCARE, LLP, Appellee
No. 05-14-00774-CV
Court of Appeals Fifth District of Texas at Dallas
October 5, 2015
On Appeal from the 192nd Judicial District Court, Dallas County, Texas. Trial Court Cause No. DC-10-15959. Opinion delivered by Justice Whitehill. Justices Francis and Lang-Miers participating.
On the Court’s own motion, we WITHDRAW the opinion and vacate the judgment of August 3, 2015.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee UTSW DVA HEALTHCARE, LLP recover its costs of this appeal from appellant ROHRMOOS VENTURE, ERIC LANGFORD, DAN BASSO AND TOBIN GROVE.
Judgment entered October 5, 2015.