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 Affirmed and Opinion filed June 24, = 2008.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-06-00978-CV

____________

 

SPRING CREEK=20 VILLAGE APARTMENTS PHASE V, INC., = Appellant

 

V.

 

GENERAL STAR=20 INDEMNITY COMPANY, = Appellee

 

 

On Appeal from the = 334th District Court

Harris County, = Texas

Trial Court Cause = No. 98-28666

 

 

O P I N I=20 O N

This=20 dispute concerning payments allegedly due under an excess = insurance policy=20 is before a court of appeals for the third time.  In the = instant=20 suit, after a jury found covered damages in an amount less than = the limits=20 of the primary coverage, the trial court rendered a take-nothing = judgment=20 in favor of the excess insurer.  On appeal, the insured = argues that=20 the amount of covered damages found by the jury is so small as to = be=20 against the overwhelming weight of the evidence.  Because the = jury=3Ds finding=20 is within the range of the evidence presented relevant to the = issue of=20 covered damages and is not against the great weight of the = evidence, we=20 affirm the trial court=3Ds=20 judgment.

I. =20 Factual and Procedural Background

At the=20 time of the events discussed below, Spring Creek Village = Apartments Phase=20 V, Inc. (ASpring=20 Creek@) had=20 primary insurance coverage with Reliance Insurance Company of = Illinois=20 (AReliance@) for=20 property damage and loss of business income up to $1 = million.  In the=20 event of covered property damage, the terms of the policy required = Spring=20 Creek to send repair estimates to the insurer and receive actual = cash=20 value for the damaged property in return.  After repairs were = complete, Spring Creek could submit a waiver and lien release from = the=20 contractor, and in return, would receive the difference between = actual=20 cash value and replacement cost.  Spring Creek also had = excess=20 coverage exceeding the $1 million primary policy limit through = General=20 Star Indemnity Company (AGeneral=20 Star@). =20 By its terms, the General Star policy only applied after the = coverage=20 provided by Reliance was exhausted.  Otherwise, the General = Star=20 policy followed the terms, conditions, and definitions of coverage = and=20 recovery stated in the Reliance policy.

A.     =20 Immediate Response to the Tornado

On=20 February 10, 1998, a category F-1[1] = tornado=20 caused=20 damage to the Spring Creek Village Apartments.[2] =20 The next day, owner Archie Tracy contracted with public adjusters = Jansen=20 & Co. to adjust the loss.  A day later, = Reliance=3Ds=20 adjustor, Don McLain, together with Greg Herring of Jansen & = Co. and=20 Deborah Frazier of Cavalry Construction,[3]=20 began to evaluate the scope of the damage from the tornado.  = At that=20 time, blue tarpaulins had been fastened or nailed to the damaged = roofs of=20 the buildings.  Tracy wrote to McLain and stated that damage = would=20 increase with rain.  McLain responded, AIt appears=20 that you have taken steps [to] protect the exposed structure by = fastening=20 sheet plastic over the affected areas.  To this end, you are = taking=20 the necessary steps to mitigate the potential for future damage in = the=20 event the apartments are exposed to additional rainfall.  = However, we=20 agree that temporary covers will not withstand any moderate to = severe=20 storm activity.@

Approximately=20 one week  later, on February 18, 1998, General Star personnel = wrote=20 to Tracy and purported to summarize an earlier conversation, = stating,=20 AAs per our=20 telephone conversations it has been determined that the damage = from this=20 incident will not approach $1,000,000.00.@  The=20 next day, Southwest Services, Inc. (ASouthwest@), a=20 company owned by Chris Purcell and George Farmer, approached Tracy = with a=20 repair proposal.  Southwest offered to apply white epoxy to = the roofs=20 at a cost of $349,455.00.[4] =20 Tracy then completed a sworn statement in proof of loss on = February 26,=20 1998 in exchange for a $50,000 advance payment.  During the = remainder=20 of the month, AC Roofing & Construction (AAC=20 Roofing@) replaced=20 the blue tarpaulins on the damaged roofs with temporary repairs to = prevent=20 further damage.

B.     =20 The Calvary and Jansen Estimates

On March=20 11, 1998, Deborah Frazier estimated that interior repairs would = cost=20 $226,988.54.  The following day, Calvary estimated that roof = repairs=20 would cost $149,740.55.   According to Spring Creek, = Greg=20 Herring also completed his estimate (the AJansen=20 estimate@) on or=20 about March 12, 1998.  The property damages listed in the = Jansen=20 estimate totaled $444,492.30.

C.     =20 Global Steel Builders

Tracy was=20 unhappy with these estimates, and on March 18, 1998, he contracted = with=20 Global Steel Builders Afor the=20 service of managing, adjusting and reconstructing certain portions = of this=20 apartment complex at the discretion of Archie Tracy.@  The=20 contract provided:

Spring Creek = Village=20 Apartments, Phase V, Inc. agrees to pay Global Steel Builders ten = percent=20 of the twenty percent overhead and profits final amount.  = Global=20 Steel Builders will also receive a twenty percent bonus for = raising the=20 claim above it=3Ds [sic] original=20 amount.  When the final (partial agreement settlement) is = signed by=20 Archie Tracy from Jansen & Company, Global Steel Builders also = agrees=20 to reimburse Spring Creek Village Apartments, Phase V, Inc., five = percent=20 of the bonus monies owed to Jansen & Company from their=20 profits.

Global=20 Steel listed the same address and fax number as Southwest = Services, and=20 the contract was signed on Global Steel=3Ds behalf=20 by Christopher R. Purcell, the co-owner of Southwest = Services.

The=20 following day, Tracy executed a AConsignment=20 of Interest@ = appointing Global Steel as Spring Creek=3Ds=20 agent.  He also wrote McLain that he would Abring in=20 additional construction experts to evaluate the damage so that a = fair=20 settlement can be made.@ =

In the=20 meantime, Tracy continued to receive other repair offers.  On = March=20 21, 1998,  AC Roofing offered to complete roof repairs for=20 $140,973.85, with payment due ten days after completion of = work.  AC=20 Roofing also offered to replace all mansard roof systems with = fiberglass=20 self-seal asphalt shingles at a cost of $63,000.00.  = According to=20 Alton Christian, AC Roofing=3Ds owner,=20 the work could have been completed within three=20 weeks.

Two days=20 after AC Roofing made this offer, Global Steel estimated it would = cost=20 $3,054,248.80 to repair the exteriors of the apartments.  = Global=20 Steel then covered the roofs of the apartment complex with sheets = of clear=20 visquine.  The visquine  was attached with Anailers,@ = consisting of 1@ = x=20 4@ = boards=20 with nails driven through the board and into the roof.[5]=20

D.     =20 Leaking Roofs and Reinspections =

On April=20 8, 1998, Tracy wrote to McLain as follows:

Until we=20 fix the roofs - which are all leaking from the windstorm I = can=3Dt fix the=20 sheetrock and carpet etc. . . I have been telling you for weeks . = . . most=20 of my roofs are leaking from the windstorm.  I would love to = work=20 with you, but you have not been interested in funding the project = and we=20 continue to leak.  I could place more traps [sic] over all = the leaks=20 until we can agree on a scope of damages - What do you = think?

McLain=20 immediately responded, AIf your=20 roofs have been leaking since the temporary repairs were = installed, you=20 certainly haven=3Dt=20 disclosed this fact to us.  If you advised Jansen & Co. = of this=20 problem, they haven=3Dt=20 disclosed this to us either.@ =20 McLain advised Tracy of the need to schedule a visit and asked = that=20 Aall other=20 individuals acting on your behalf@ = attend.  He also asked for estimates from restoration=20 contractors.  One week later, Tracy wrote to McLain that, = effective=20 April 16, 1998, Chris Purcell, rather than Jansen & Co., would = be=20 representing Spring Creek.

McLain=20 reinspected the roofs on April 22, 1998, but Tracy did not = attend. =20 At that time, McLain saw that the blue tarpaulins had been = replaced with=20 visquine nailed through roofs, and that visquine also covered = buildings=20 that had not previously been covered with tarpaulins. According to = McLain,=20 this caused additional water damage by puncturing roof membranes = and=20 allowing water to pool.  Later that day, McLain wrote to = Tracy,=20 stating that McLain had brought checks for $286,302.32 for the = actual cash=20 value of the damages[6]=20 to the meeting but Tracy had not attended, and Tracy=3Ds son=20 Scott could not sign the Proof of Loss.  McLain stated that=20 negligently-installed plastic punctured the roof membrane, trapped = water,=20 and caused wet sheetrock.  Tracy then wrote to General Star = and=20 stated that the loss would exceed $1 million.

In=20 response to inquiries from McLain, Alton Christian, owner of AC = Roofing,=20 wrote that his company worked from February 20 through the end of = that=20 month performing temporary patching authorized by Greg = Herring.  He=20 further stated that he had been back on several occasions for = patching,=20 and ATo date=20 everything is fine to the best of my knowledge.  I have = received no=20 calls.@ =

E.     =20 City Wide Construction

On May 11,=20 1998, an AAppraisal=20 Agreement@ = was=20 executed between Global Steel, Spring Creek, and City Wide = Construction,=20 owned by Steve Edwards.  Under the terms of this agreement, = Spring=20 Creek agreed to Acompensate=20 City Wide for its time and costs incurred in this process, for an = amount=20 not to exceed [five] (5%) percent of the gross settlement=20 amount.@ =20 This agreement also provided City Wide with a larger percentage = share of=20 any gross settlement amount if Spring Creek=3Ds loss=20 exceeded $2,000,000.  Three days after this agreement was = executed,=20 Tracy sent a certified letter to Reliance in which he invoked the=20 appraisal procedure described in the Reliance insurance = policy.

F.      =20 The Appraisal Process

Under the=20 terms of the Reliance policy, if the parties disagreed as to the = amount of=20 a loss, either party could demand an appraisal.  Both parties = were=20 required to Aselect a=20 competent and impartial appraiser,@ = and the=20 two appraisers would select an umpire.  An agreement between = any two=20 of these three individuals regarding the amount of the loss would = be=20 binding.  Because General Star owed no obligation to Spring = Creek=20 until the loss exceeded $1 million, General Star did not = participate in=20 the appraisal process.

Spring=20 Creek named Edwards as its appraiser.  Reliance hired John = Lochridge,=20 Jr., of Unified Building Sciences, Inc., and Leonard Taylor was = selected=20 as the umpire.  Both Edwards and Taylor engaged Greg = Presswood to=20 evaluate the amount of damage to the interior of the = apartments. =20 Edwards then estimated the amount of loss to Spring Creek at = $5,286,000,=20 but Lochridge estimated the amount of loss at $293,120.01.  = Taylor=20 found replacement cost value of the loss to be $2,105,790.98, with = an=20 actual cash value of $1,566,673.51.  Both Taylor and Edwards = signed=20 the award.

G.     =20 Suit is Filed

Reliance=20 filed a declaratory judgment action seeking to have the appraisal = award=20 declared invalid on the grounds that (1) it contained items = not=20 covered under the policy, and (2) the umpire exceeded his = authority=20 in making causation and coverage determinations.  A Reliance=20 officer[7]=20 cited Lochridge=3Ds=20 expressions of concern regarding Athe fact=20 that the insured=3Ds=20 appraiser and the umpire were unwilling to segregate those damages = which=20 were caused by the windstorm from those damages which were not = caused by=20 the windstorm.@ = Spring=20 Creek filed a counterclaim seeking enforcement of the award.  = On=20 September 14, 1999, Spring Creek=3Ds counsel=20 wrote to Anthony R. Colucci, a claims examiner for General Star = Management=20 Company, and asked General Star to Apay the=20 $1,105,790.98 due in excess of the $1,000,000 primary=20 coverage.@ =20 General Star did not pay, and Spring Creek filed a third-party = action=20 against General Star. 

H.     =20 Summary Judgments

In=20 November 2000, the trial court granted partial summary judgment in = favor=20 of Spring Creek and held that the appraisal award was binding.[8] =20 The trial court=3Ds ruling=20 left undecided the question of whether Spring Creek had failed to = mitigate=20 its damages.[9] =20 In December 2000, the trial court granted summary judgment in = favor of=20 General Star, holding that Spring Creek had no cause of action = against=20 General Star for breach of the duty of good faith and fair = dealing.[10]

I.       =20 First Jury Trial

         =20 In 2001, the first trial of the contractual claims resulted in a = jury=20 verdict in favor of Spring Creek, and damages were assessed based = on the=20 appraisal award.[11] =20 Reliance was severed from the case, and General=20 Star appealed the interlocutory judgment on Spring = Creek=3Ds=20 contractual claims.  The appeal was dismissed and the case=20 remanded.[12]=20

J.      =20 Second Jury Trial

The second=20 trial addressed Spring Creek=3Ds=20 extracontractual claims, and ended in a judgment that General Star = violated provisions of the Texas Insurance Code and the Deceptive = Trade=20 Practices Act (ADTPA@). =20 The trial court entered final judgment awarding Spring Creek = damages=20 pursuant to the appraisal award, penalties under the Insurance = Code and=20 the DTPA, and attorneys=3D = fees.[13] =20 General Star appealed.  This court affirmed the trial=20 court=3Ds judgment=20 that General Star did not owe Spring Creek a duty of good faith = and fair=20 dealing, but reversed summary judgment in favor of Spring Creek on = its=20 attempt to enforce Taylor=3Ds award.[14]  =20 We explained that because Edwards had a financial interest in = returning an=20 estimate above $2 million, there was a fact issue concerning his=20 impartiality.[15] =20 Moreover, Taylor submitted an affidavit in which he stated that he = relied=20 in part on the appraisers=3D = determinations of loss.[16] =20 The case was therefore remanded a second time.

K.     =20 Third Jury Trial

On remand,=20 the trial court granted Spring Creek partial summary judgment on = the=20 ground that there was no evidence it failed to mitigate its = damages. =20 Spring Creek subsequently abandoned its claim that General Star = was bound=20 by Taylor=3Ds=20 appraisal award.

The jury=20 found that General Star did not fail to comply with its insurance = policy,=20 and that Spring Creek=3Ds=20 appraiser, Steve Edwards, was not impartial.[17] =20 As a result of this finding, which is not challenged on appeal, = the=20 appraisal award is no longer binding.[18] =20 The jury further found that the total amount of tornado-related = property=20 damages sustained by Spring Creek had a replacement cost value of=20 $444,492.00 and an actual cash value of $377,818.20.  Because = the=20 damages found by the jury did not reach General Star=3Ds layer of=20 coverage, the trial court signed a take-nothing judgment in = General=20 Star=3Ds favor.[19] =20

After the=20 trial court denied Spring Creek=3Ds motion=20 for new trial, Spring Creek brought this appeal challenging the = factual=20 sufficiency of the property damage evidence and the trial=20 court=3Ds denial=20 of its motion for new trial.  Because we are required to = review all=20 the evidence to determine factual sufficiency, the key property = damage=20 testimony is summarized below.

L.      =20 Key Property Damage Testimony

1.      =20 Alton Christian, AC Roofing & Construction

Christian=20 testified that between February 25 and March 1, 1998, AC Roofing = replaced=20 the blue tarpaulins over the damaged roofs with temporary = repairs. =20 He stated that Athis would=20 prevent further damage caused by the tornado,@ = and=20 guaranteed it would prevent 90% of additional rain from = entering. =20 Christian further testified that the buildings showed signs of = preexisting=20 leaks.

2.      =20 Scott Tracy, Archie Tracy=3Ds=20 Son

Scott=20 Tracy (AScott@)=20 testified that Spring Creek=3Ds=20 maintenance personnel put sheets of blue tarpaulins over the = damaged roofs=20 immediately after the tornado.  According to Scott, these = were not=20 installed on every roof, but on some buildings, the tarpaulins = were nailed=20 to the mansards and through the roof.  He testified that Dan = McLain=20 came to the site the day after the storm and did not object to the = way the=20 plastic was nailed to the roofs.[20]=20

Scott=20 stated that Global Steel personnel nailed visquine to the roof = mansards=20 between April 10 and April 18, 1998.  He also described the = meeting=20 between himself, McLain, Frazier, Frank Jones from Jansen & = Co.,=20 Tracy=3Ds other=20 son William Buzzell, and Chris Purcell of Global Steel.  = According to=20 Scott, the group entered only one apartment and went onto one = roof[21]=20 before the other attendees became upset by some of = Scott=3Ds remarks=20 and left.  Scott testified that McLain wrote to Spring Creek = on April=20 22, 1998 complaining of the visquine nailed to the roofs, so the = material=20 was removed and the resultant nail holes were patched with the = same type=20 of epoxy referred to in the Southwest Service bid.

According=20 to Scott, Chris Purcell of Global Steel introduced him to Steve = Edwards of=20 City Wide Construction, and Edwards proposed Taylor as an = umpire. =20 Finally, Scott agreed that General Star had no obligation to pay = Spring=20 Creek before the appraisal award, and that there was currently no = binding=20 appraisal award.

3.      =20 Deborah Frazier, Calvary Construction Co.

Frazier=20 testified that she inspected apartments on six occasions between = February=20 12 and March 4, 1998.  According to Frazier, she and Greg = Herring=20 inspected every unit for which they were given a key.  She = testified=20 that all work, from scope to final inspections, could have been = performed=20 in 18 weeks, and Calvary could have performed the repairs at the = prices=20 quoted in its estimate.  Frazier also testified that only a = minimal=20 amount of water could possibly get in through temporary repairs, = but=20 nailing visquine to the roof through 1@ = x=20 4@ = nailers=20 could have caused new damage.

4.      =20 Greg Herring, Jansen & Co.

Herring=20 testified that he walked over all of the roofs more than once, and = his=20 estimate was his independent opinion regarding the scope of the=20 damage.  He also indicated that damage could increase in the = time=20 between an estimate and the repairs.

5.      =20 Anthony Colucci, Claims Adjuster for General = Star

According=20 to Colucci, both McLain and Scott Tracy told him immediately after = the=20 loss that the damage would not approach a million dollars.=20

6.      =20 Art Jansen, Jansen & Co.

Jansen=20 testified that he Aspot-checked=20 Greg [Herring]=3Ds=20 work.@  He=20 stated that he was comfortable with Herring=3Ds=20 assessment.  Jansen further stated, AI=20 didn=3Dt think it=20 was a million-dollar loss when we were involved.@

7.      =20 Greg Presswood

Greg=20 Presswood inspected Spring Creek and provided the Ascope@ = used in=20 the estimates prepared by Steve Edwards of City Wide Construction = and=20 umpire Leonard Taylor.  According to Presswood, Taylor began = with=20 Edwards=3Ds estimate=20 and removed items from it or reduced the pricing until the total = amounted=20 to $2.1 million.  Presswood described Edwards=3Ds=20 instructions to him as follows:

Q:     =20 Tell the jury what Mr. Edwards instructed you to include in your=20 scope?

A:     =20 Mr. Edwards indicated that it wasn=3Dt my job to = determine where=20 the damage came from, that it was only my job to note that there = was=20 damage in the unit.  So, whatever kind of damage I found, I = was=20 supposed to make a note of that then turn those notes into [sic]=20 him.

Q:     =20 Did he instruct you to include any blemish in any apartment unit, = no=20 matter what the cost [sic]?[[22]]

A:     =20 Yes.

Q:     =20 So that if you walked into an apartment unit and found stained = carpet, no=20 matter what the cause, you were to include replacement or repair = or=20 something in your estimate on that carpet?

A:     =20 Actually, I would make the note that there was damage in that = unit. =20 Then Mr. Edwards reviewed the scope notes and then ultimately told = me what=20 to put in.  But in the largest of the three estimates that I = wrote,=20 that one did include just about everything that we had in the = scope=20 notes.  I can=3Dt tell you with = absolute=20 certainty that everything was included, but just about everything = that was=20 on my notes wound up in Mr. Edwards=3D[s]=20 estimate.

Q:     =20 And that would include things that, based on your observations, = were=20 obviously not caused by the storm?

A:     =20 Some of them, yes.

. .=20 .

Q:     =20 Did Mr. Edwards instruct you to include in the estimate damage = caused from=20 any and every source?

A:     =20 Yes.

Q:     =20 Did that include stains in ceiling and carpet and wall damage from = any=20 source?

A:     =20 Yes.

Q:     =20 Did he instruct you to prepare an estimate of damages in the = apartment=20 complex regardless of the source of the damage?

A:     =20 Yes.

Q:     =20 Did he instruct you to help him prepare an estimate that included = every=20 blemish out there?

A:     =20 Yes.

Presswood=20 further testified that Edwards introduced him to Taylor and = invited=20 Presswood to an off-shore fishing trip with Taylor and another = umpire=20 nominee suggested by Edwards.  Presswood stated, A[T]hey had=20 asked me not to say anything about going on the fishing trip = because they=20 thought I wouldn=3Dt=20 B = might not=20 be appropriate for Mr. Taylor and Mr. Edwards to be on the same=20 boat.@ =20 According to Presswood, Edwards and Taylor had known one another = for=20 years, and AMr.=20 Edwards told me I should not repeat it to anyone.@ =

8.      =20 Leonard Harvey Taylor, Umpire

Taylor=20 agreed that his estimate included damages that may have resulted = from=20 leaking roofs that were not damaged by the tornado.  On the = other=20 hand, he also denied that he included interior damage that he did = not=20 believe was caused by the tornado.  He agreed that the = Calvary and=20 Jansen estimates may have been accurate at the time they were=20 written.  He further testified:

Q:     =20 In fact, you have attempted in your estimate to only include=20 weather-related damage that you  observed, = correct?

A:     =20 Yes, that=3Ds = correct.

Q:     =20 And you don=3Dt know if it was=20 weather-related from before the February >98 storm or during = that storm=20 or after that storm.  Fair to say?

A:     =20 That=3Ds = correct.

Q:     =20 So what you have got in your estimate may well be damage that was = caused=20 prior to the storm, correct?

A:     =20 Yes, sir.

. .=20 .

Q:     =20 You haven=3Dt tried to make any = calculation as to how much damage is in that estimate which leaked = though=20 a flat roof, not as a result of an opening caused by the = storm?

A:     =20 No, sir.

Taylor=20 stated that he might have met Presswood on the date Presswood = identified,=20 but testified that he had not been on a fishing trip with=20 Edwards.

9.      =20 Cipriano Sanchez

Sanchez=20 testified that he replaced the roofs on 16 buildings after the = tornado,=20 and in the year before the tornado, he patched the roofs on 20 of = the 29=20 buildings in the complex.

10.    =20 John Lochridge, Jr., Unified Building Sciences, = Inc.

Lochridge=20 estimated the covered property damage at $293,120.01.

11.    =20 William Buzzell, Maintenance, Spring Creek

Buzzell,=20 one of Archie Tracy=3Ds sons,=20 testified that he supervised repairs and thought they could have = been=20 performed in a month. 

12.    =20 Archie Tracy, Owner, Spring Creek

Tracy=20 testified that his maintenance personnel immediately nailed blue=20 tarpaulins to the damaged roofs with 2@ x 4@s. =20 He had also applied Aone-ply=20 hot tar with felt@ = to the=20 damaged roofs.[23]  =20

Tracy=20 testified that Chris Purcell of Global Steel told him to invoke = the=20 appraisal provision and suggested that Edwards be named as Spring=20 Creek=3Ds=20 appraiser.  Tracy explained that he did not understand at = that time=20 that he was required to use a competent and impartial = appraiser.  He=20 agreed that Global Steel covered more roofs than had previously = been=20 covered with blue tarpaulins, but stated that this was because the = roofs=20 were leaking.  He further testified that the visquine was = removed=20 after McLain complained:

Q:     =20 Well, if you thought you needed to put these covers on to slow = down the=20 leaks, so to say, why did you take them off?

A:     =20 Well, just B I was just doing = what I=20 B you know, good=20 question.

Q:     =20 Well, you got this complaint from McLain B

A:     =20 I know.  That=3Ds why I took them = off. =20 Now, in 20/20 hindsight, you know, I was trying to B I was just trying = to do the=20 right things here.

Q:     =20 Well, why hadn=3Dt you already = started by this=20 time, mid-April, the permanent roof repair replacement?

A:     =20 I didn=3Dt have the=20 money at that time.

It is=20 undisputed that the $50,000 check for temporary repairs was dated = February=20 27, 1998, and Tracy subsequently testified that he received it on = March=20 11, 1998.  In addition, Tracy testified regarding prior roof = leaks=20 and repairs.  Tracy agreed that he replaced two roofs in 1996 = and was=20 invoiced $5,280 for one and $6,525 for the other.  A third = roof was=20 replaced for $7,200.  

Tracy=20 stated that he thought he could not perform repairs until the = appraisers=20 were finished.  He also explained that he hired David=20 Booth=3Ds=20 construction company in October 1998 to perform repairs because = Booth was=20 willing to start work without an advance payment.[24] =20 According to Tracy, the prices for the roof replacements were = higher than=20 those Tracy had previously paid for roofing because A[w]hen you=20 don=3Dt have the=20 money, you usually pay more.  Like if you don=3Dt have=20 money to buy a car, you get 18 percent interest.@ =

13.    =20 Donald Laurent

Laurent=20 was hired by subsequent owners of the apartment complex in 2001 to = replace=20 11 roofs.  He testified that $600,000B800,000 of=20 tornado damage still remained at that time.

II. =20 Issues Presented

Spring=20 Creek first challenges the factual sufficiency of the damages = evidence,=20 contending the award is manifestly too small and against the = overwhelming=20 weight of the evidence.  For this reason, Spring Creek = asserts in its=20 second issue that the trial court abused its discretion in denying = Spring=20 Creek=3Ds motion=20 for new trial.

III.  =20 Preservation of Error

As a=20 threshold issue, we must first address General Star=3Ds=20 contention that Spring Creek has waived its complaints on appeal = by=20 failing to argue that harmful error was committed, a subject = discussed=20 infra.  Specifically, General Star contends that = Spring Creek=20 failed to argue on appeal that the jury was required to find = damages in=20 excess of $1 million.

We=20 disagree, however, with General Star=3Ds=20 statement that Spring Creek failed to allege harmful = error.  =20 Although Spring Creek does not  use the term Aharmful=20 error@ = or cite=20 to the rule governing reversible error in civil cases, it states = in its=20 brief, ABecause=20 the jury=3Ds damage=20 award was less than the amount of the $1 million primary insurance = policy=20 issued by Reliance, the trial court entered a take-nothing = judgment in=20 General Star=3Ds=20 favor.@[25]  In=20 support of its argument that the jury=3Ds award=20 was manifestly too small, Spring Creek relies  in part on = repair=20 estimates exceeding $1 million.  We therefore interpret  = Spring=20 Creek=3Ds=20 arguments to include that the jury erred in its calculation of = damages,=20 and that the error was harmful because it Aprobably=20 caused the rendition of an improper judgment.@ =20 See Tex. R. App. = P.=20 44.1(a)(1).

IV. =20 Analysis

A. =20 Standard of Review

When=20 considering a factual sufficiency challenge to a jury=3Ds verdict,=20 we must review and weigh all the evidence, not just the evidence = that=20 supports the verdict.  See Mar. Overseas Corp. v. = Ellis, 971=20 S.W.2d 402, 406B07 (Tex.=20 1998); Nip v. Checkpoint Sys., Inc., 154 S.W.3d 767,=20 768B69 (Tex.=20 App.CHouston=20 [14th Dist.] 2004, no pet.).  To successfully challenge the = factual=20 sufficiency of the evidence supporting an adverse finding on an = issue on=20 which the appellant had the burden of proof, the appellant must=20 demonstrate that the adverse finding is against the great weight = and=20 preponderance of the evidence.  Dow Chem. Co. v. = Francis, 46=20 S.W.3d 237, 242 (Tex. 2001) (per curiam).  We may set aside = the=20 verdict only if it is so contrary to the overwhelming weight of = the=20 evidence that the verdict is clearly wrong and unjust.  = Id.=20 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. = 1986));=20 Mar. Overseas Corp., 971 S.W.2d at 407; Nip, 154 = S.W.3d at=20 769.  We will not reverse unless the error about which the = appellant=20 complains probably caused the rendition of an improper = judgment. =20 Tex. R. App. P.=20 44.1(a)(1).  Moreover, we are not permitted to = Afocus only=20 on the weakest evidence supporting the judgment and then choose to = believe=20 witnesses that the fact-finder below found = unpersuasive.@ =20 Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per = curiam);=20 see also Farr v. Bell, 460 S.W.2d 431, 434B35 (Tex.=20 Civ. App.CDallas=20 1970, writ ref=3Dd n.r.e.)=20 (AEven=20 though the findings of fact are not conclusive on appeal, we have = no=20 authority under the facts of this case to hold that the trial = court should=20 have believed the witnesses whose testimony it saw fit not to=20 believe.@). =20 We may not simply substitute our judgment for that of the = jury. =20 Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 = (Tex.=20 2003).

B.     =20 Range of Evidence

The=20 factfinder faced with conflicting evidence may choose which = witnesses to=20 believe and may resolve inconsistencies in any witness=3Ds=20 testimony.  McGalliard v. Kuhlmann, 722 S.W.2d 694, = 697 (Tex.=20 1986) (citing Ford v. Panhandle & Santa Fe Ry. Co., 151 = Tex.=20 538, 543, 252 S.W.2d 561, 563 (1952) and Benoit v. Wilson, = 150 Tex.=20 273, 282, 239 S.W.2d 792, 797 (1951)).  In particular, the = trier of=20 fact Ais=20 afforded considerable discretion in evaluating opinion testimony = on the=20 issue of damages.@ =20 Id.  Thus, it is well-established that the jury has = discretion=20 to award damages within the range of evidence presented at = trial.[26]=20          

Here, the=20 jury heard evidence of several estimates for the total amount of = property=20 damage.  Lochridge estimated the damage at $293,120.01.  = Calvary=20 Construction=3Ds estimate=20 totaled $376,729.09.  The Jansen estimate included total = covered=20 property damages in the amount of  $444,492.30. =20 Taylor=3Ds estimate=20 of replacement costs totaled $2,105,790.98 with an actual cash = value of=20 $1,566,673.51, and Edwards produced an estimate of=20 $5,286,005.56.

The jury=20 found that Spring Creek suffered covered property damage with a=20 replacement cost of $444,492.00 and an actual cash value of=20 $377,818.20.  These figures are within the range of the = evidence:=20 they are greater than the amount of damages estimated by Lochridge = and=20 Calvary, and are exceeded only by the estimates of Edwards and=20 Taylor.  On appeal, however, Spring Creek denies that the = amount of=20 covered property damage found by the jury is supported by the = record,=20 arguing instead that these damages are too low.

C.     =20 Sufficiency of Supporting Testimony

Spring=20 Creek argues that General Star offered no competent expert = testimony=20 supporting the jury=3Ds=20 award.  In support of this argument, Spring Creek relies on=20 Prescott v. Kroger Co.  877 S.W.2d 373, = 374B76 (Tex.=20 App.CHouston=20 [1st Dist.] 1994, writ denied).  In that case, the First = Court of=20 Appeals held that because the jury found that the = plaintiff=3Ds surgery=20 and medical treatment for a herniated disk were the result of the = incident=20 made the subject of the suit, the verdict awarding zero damages = for past=20 pain and suffering was manifestly unjust.  Id.=20  

In=20 Prescott, causation was established, and the evidence of = pain was=20 uncontroverted.  Id.  Here, however, the jury = heard=20 conflicting evidence regarding causation, the scope of damages, = and the=20 costs of repair or replacement, and resolved the conflict within = the range=20 of the evidence. Without repeating the previously-summarized = testimony,=20 the jury=3Ds=20 determination of damages is supported by the testimony of Frazier, = McLain,=20 Christian, Lochridge, and Herring, each of whom calculated covered = property damage at an amount approximately equal to or less than = the=20 damages found by the jury.  The finding is also supported by=20 documentary evidence such as itemized estimates and invoices for = past=20 repairs.  The take-nothing judgment, which is based on the=20 jury=3Ds finding=20 of damages in an amount less than $1 million, is further supported = by the=20 previously-summarized testimony of Colluci, Sanchez, and=20 Jansen.

D.     =20 Damages After March 12, 1998

Spring=20 Creek also contends that roof repairs were delayed until late = 1998 =20 due to slow insurance payments and the need for repeated property=20 inspections.  Spring Creek further asserts that the jury = awarded=20 damages only through March 12, 1998 despite uncontroverted = testimony from=20 Christian, Frazier, Sanchez, Laurent, and Taylor regarding = subsequent=20 damage to apartment interiors.  Thus,  Spring Creek = reasons, the=20 damage award is manifestly too small and against the overwhelming = weight=20 of the evidence presented at trial.

We must=20 reject this argument for several reasons.  First, it is = predicated=20 on  assumptions that cannot be inferred from the findings, = but=20 instead are contrary to the presumptions we are required to = apply. =20 Moreover, the evidence is not uncontroverted as Spring Creek=20 suggests.  And finally, even if we could accept all of these=20 contentions, they are insufficient to demonstrate reversible = error. =20 As discussed below, each of these reasons is independently = sufficient to=20 overrule Spring Creek=3Ds first=20 issue.

1.      =20 Inapplicable Assumptions

Spring=20 Creek=3Ds argument=20 is based on its assumptions that (a) the jury adopted the = Jansen=20 estimate prepared on or about March 12, 1998; (b) additional=20 tornado-related damages that arose after March 12, 1998 were not = included=20 in the Jansen estimate; and thus, (c) the jury failed to = consider=20 covered damages that arose after March 12, 1998.[27] =20

It is true=20 that the jury=3Ds finding=20 regarding the replacement cost of damaged property differed from = the=20 Jansen estimate by only $0.30.  But however plausible Spring=20 Creek=3Ds theory=20 of the jury=3Ds analysis=20 might be, the jury=3Ds reasons=20 for reaching a particular damage award are irrelevant in the = absence of=20 jury misconduct.  See First Nat=3Dl Bank in=20 Dallas v. Zimmerman, 442=20 S.W.2d 674, 678 (Tex. 1969) (jury=3Ds=20 reasoning process is irrelevant absent jury misconduct); = Vela, 203=20 S.W.3d at 48 (the jury=3Ds mental=20 processes in determining the amount of damages are not ordinarily=20 cognizable by an appellate court).[28] =20 And Spring Creek offers no authority for this court Ato go=20 behind the jury=3Ds=20 consideration, determination, and weighing of the = evidence@ = in=20 evaluating the damage award.  See Mo. Pac. R.R. Co. v.=20 Roberson, 25 S.W.3d 251, 259 (Tex. App.CBeaumont=20 2000, no pet.) (evaluating allegedly excessive damage award and = refusing=20 to consider jury=3Ds=20 reasoning in arriving at its finding).

To the=20 contrary, in reviewing a damage award for factual sufficiency, we=20 generally begin with the jury charge and instructions.  = Golden=20 Eagle Archery, 116 S.W.3d at 762.  Here, the jury was = asked to=20 determine the total amount of Spring Creek=3Ds covered=20 property damages Athat were=20 caused by or that resulted from the February 10, 1998 = tornado.@  The=20 jury was instructed to include damage caused by water that entered = structures through Aany=20 damage or=20 opening caused by@ = the=20 tornado.[29] =20 This instruction contained no time limitation.  Because we = presume=20 the jury followed the trial court=3Ds=20 instructions,[30]=20 we cannot infer that the jury restricted its consideration to = those=20 damages that arose by March 12, 1998.  Instead, we presume = that the=20 jury considered all interior damage caused by tornado = damage.

2.      =20 Controverted Testimony

We must=20 also reject Spring Creek=3Ds=20 contention that the testimony of various witnesses is = uncontroverted on=20 the subject of tornado-related damages that arose after March 12,=20 1998.

a.      =20 Alton Christian=3Ds=20 Testimony

Spring=20 Creek relies on Christian=3Ds=20 agreement with the statement that Ait=20 doesn=3Dt make a=20 whole lot of sense to try to estimate the scope of interior = damages until=20 the roofs have been = replaced . . . .@  But=20 Christian also testified that he patched the roofs to Aprevent=20 further damage@ = and=20 completed that work on March 1, 1998.  All of the estimates = of=20 interior damage are dated after he concluded those repairs. =

b.      =20 Deborah Frazier=3Ds=20 Testimony

Spring=20 Creek also relies on Frazier=3Ds=20 testimony, such as the following:

Q:     =20 You have already told us you would expect to have damages enhanced = by=20 reason of roof replacement after rain and the same thing would be = true=20 with respect to the time period after March 4, your last scoping, = until=20 you were there in April, i.e., you would expect the damage to be = enhanced=20 by reason of the rains that fell in the interim, isn=3Dt that = true?

A:     =20 A certain amount of rain could have gotten into those units, yes,=20 sir.

But=20 Frazier also testified that any additional damage would be = A[v]ery=20 minimal@ = and she=20 Awouldn=3Dt think=20 that rain would come in if roofs were tarped.@  As=20 previously indicated, Spring Creek covered damaged roofs with = tarpaulins=20 immediately after the tornado, and AC Roofing performed temporary = repairs=20 by the end of that month.

Moreover,=20 Frazier agreed that rain damage arising after March 4, 1998 could = have=20 been caused from Global Steel=3Ds actions=20 in driving nails through the roofs to attach plastic = coverings. =20 Finally, the jury=3Ds damage=20 finding exceeds the estimate Frazier prepared; thus, the jury = could have=20 considered rain damage in arriving at the total amount of covered=20 damage.

c.      =20 Cipriano Sanchez=3Ds=20 Testimony

Sanchez=3Ds cited=20 testimony is similarly unhelpful.  Spring Creek emphasizes = that=20 Sanchez was unaware of any leaking roofs at the time of the = tornado. =20 But Sanchez was aware of preexisting leaks and the general = tendency of the=20 flat roofs at Spring Creek to leak:

Q:     =20 At the time of the tornado, as far as you know, were there any = roofs out=20 there leaking at Spring Creek Village = Apartments?

A:     =20 At the time of the tornado - - not that I knew because the ones = that=20 were leaking, I would fix them right away so - -

Q:     =20 Okay.

A:     =20 - - at that moment, probably not.

(emphasis=20 added).  Sanchez further testified that in the year before = the=20 tornado, he repaired leaks in 20 buildings of the apartment = complex.[31] =20 Sanchez did not attribute these leaks to storm damage, but instead = explained that they were related to metal flashing:

A:     =20 [O]n the roofs, especially on flat roofs, the metal expands and = contracts=20 depending on the heat, if it is cold or hot, so most of the leaks = on a=20 flat roof are on the perimeter of the roof, on the edge, and=20 that=3Ds why when=20 two flashings meet together, something, one was raised, probably, = 1=20 inch.

d.      =20 David Laurent=3Ds=20 Testimony

David=20 Laurent testified that in 2001, he replaced 11 roofs for the = subsequent=20 owners of the apartment complex.  According to Laurent, he = determined=20 there was latent, tornado-related damage to the roofs that was not = detected by any of the prior appraisers.  This testimony = conflicts=20 with evidence provided by several other appraisers.[32]=20

e.      =20 Leonard Taylor=3Ds=20 Testimony

Spring=20 Creek additionally relies on Taylor=3Ds=20 testimony.  As previously noted, Taylor relied in part on the = work of=20 Edwards.  Taylor further agreed that the Calvary and Jansen = estimates=20 may have been correct at the time they were written.  = Moreover, he=20 admitted he included weather-related damages regardless of whether = the=20 damages were the result of the tornado.  Taylor=3Ds=20 testimony is not inconsistent with an inference that some of the = observed=20 damage was caused by preexisting leaks, by leaks due to the = expansion and=20 contraction of metal flashing as described by Sanchez, or by holes = caused=20 when Global Steel drove nails through the roofs.

3.      =20 No Harmful Error

For each=20 of the foregoing reasons, we conclude the evidence is factually = sufficient=20 to support the jury=3Ds=20 finding.  But even if we concluded that error had occurred, = only=20 harmful errors are reversible.  See Tex. R. App. P. = 44.1(a). =20 And even if the jury failed to consider an additional half million = dollars=20 of damages, the total damages would still be less than = $1 million;=20 thus, General Star=3Ds excess=20 coverage would not be reached.  See G.R.A.V.I.T.Y. = Enters., Inc.=20 v. Reece Supply Co., 177 S.W.3d 537, 546 (Tex. = App.CDallas=20 2005, no pet.) (concluding that appellant waived complaint = regarding trial=20 court=3Ds failure=20 to submit an instruction on good faith where the party=3Ds=20 appellate briefing included Ano=20 argument of why the instruction was necessary to support its cause = of=20 action for breach of the agreement, nor any argument of how the=20 instruction=3Ds absence=20 harmed@ = the=20 appellant); Hernandez v. Am. Appliance Mfg. Co., 827 S.W.2d = 383,=20 385 (Tex. App.CCorpus=20 Christi 1992, writ denied) (where the deceased=3Ds=20 beneficiaries needed findings of damages exceeding $3 million to = recover=20 anything, Athere was=20 a >cushion=3D = of=20 $1,345,000 which the jury could have found in pain and suffering, = and=20 still a take-nothing judgment would have been proper@). =20 Spring Creek did not establish that the jury failed to consider = damages in=20 an amount that would have reached General Star=3Ds layer of=20 coverage.  For this additional reason, we overrule Spring=20 Creek=3Ds first=20 issue.

E.     =20 Motion for New Trial

When the=20 party with the burden of proof moves for a new trial on the ground = that=20 the evidence is factually insufficient to support the verdict, we = review=20 the trial court=3Ds denial=20 of the motion for abuse of discretion.  Champion=20 Int=3Dl Corp. v.=20 Twelfth Court of Appeals, 762=20 S.W.2d 898, 899 (Tex. 1988) (per curiam).  Because the = evidence is=20 factually sufficient to support the verdict, the trial court did = not abuse=20 its discretion by denying Spring Creek=3Ds motion=20 for new trial.  We therefore overrule Spring = Creek=3Ds second=20 issue.

V. =20 Conclusion

We=20 conclude that the jury=3Ds finding=20 regarding the amount of covered property damage is not against the = great=20 weight and preponderance of the evidence.  Thus, the trial = court=20 properly signed a take-nothing judgment and denied Spring=20 Creek=3Ds motion=20 for new trial.  We therefore affirm the trial = court=3Ds=20 judgment.  

 

 

 

/s/     =20 Eva M. Guzman

Justice

 

Judgment rendered = and Opinion=20 filed June 24, 2008.

Panel consists of = Justices=20 Yates, Guzman, and Price.*


[1]  According to the testimony of = meteorologist=20 Ron Stagno, an F-1 tornado produces winds of 73B112 mph.

[2]  On the same day, the fire = department=20 responded to smoke from an item left near a stove when the power = was=20 off.  When power was restored, the object caught fire, = sending smoke=20 into several apartments.

[3]  Calvary Construction was hired by = McLain to=20 estimate the interior damage to the apartments and process=20 McLain=3Ds exterior and roof = estimates.

[4]  The estimate was signed by George = Farmer.

[5]  Global Steel sent Tracy an = invoice for=20 $45,403.87 for this work.

[6]  This included payment for = fire-damaged=20 apartments as well.

[7]  Sheldon McCaman, Assistant Vice = President,=20 Boiler & Machinery Property Claims for Reliance=20 National.

[8]  Gen. Star Indem. Co. v. Spring = Creek=20 Vill. Apartments Phase V, Inc., 152 S.W.3d 733, = 736B37 (Tex. App.CHouston [14th Dist.] 2004, no pet.) = (AGen. Star II@) (reversing summary judgment in favor = of Spring=20 Creek on its attempt to enforce Taylor=3Ds award because Spring Creek=3Ds appraiser, Steve Edwards, had a = financial=20 interest in returning an estimate above $2 million, thereby = raising a fact=20 issue as to his impartiality; Taylor admitted that the award was = based in=20 part on Edwards=3Ds estimate).

[9] Id. at 736.

[10]  Id.  The ruling on = this=20 extracontractual claim was not appealed.

[11]  Spring Creek=3Ds claim that Reliance and General Star = had=20 breached their contracts was tried separately from Spring=20 Creek=3Ds claim that the insurance companies had = violated=20 provisions of the Insurance Code and the DTPA.

[12]  Gen. Star Indem. = Co. v.=20 Spring Creek Vill. Apartments Phase V, Inc., No. = 01-01-01181-CV, 2002 WL=20 243300 (Tex. App.CHouston [1st Dist.] = Feb. 21,=20 2002, no pet.) (per curiam, not designated for publication) = (AGen. Star = I@) (dismissing = appeal of=20 non-final judgment).

[13]  Gen Star II, 152 S.W.3d at = 736.

[14]  Id.

[15]  Id. = at 737. =

[16]  Id. at = 738.

[17]  Spring Creek does not challenge = this=20 finding on appeal.  The jury did not find that General=20 Star=3Ds appraiser, John Lochridge, lacked = impartiality.=20

[18]  See Gen. Star=20 II, 152=20 S.W.3d at 737 (AIf the jury finds = the=20 appraiser is [not] impartial, it follows that the appraisal award = was not=20 in compliance with the insurance policy and is not = binding.@).  =

[19]  The jury also found that Spring = Creek had=20 an actual loss of business income of $16,000 Adue to the necessary suspension of = Spring=20 Creek=3Ds operations during the period of=20 restoration@ following the tornado.  Because = Spring Creek=20 provided no briefing regarding the jury=3Ds finding of lost business income, any = challenge=20 to that finding is waived.  Tex. R. App. P.=20 38.1.

[20]  At that time, = 250B260 units were = rented out of=20 a total of 314 units.

[21]  Frazier, however, did not go onto = the=20 roof.

[22]  Based on the following question, = the word=20 Acause@ rather than Acost@ may have been = intended.

[23]  These were the temporary repairs = performed=20 by AC Roofing.

[24]  Tracy further = testified that,=20 in 1996, he refinanced Spring Creek and used to the money to = invest in=20 building mini-storage units with David Booth.

[25]  Appellant=3Ds Brief, at 2.

[26]  See, = e.g., Gulf States = Utils. Co.=20 v. Low, 79 S.W.3d 561, 566 (Tex. 2002); Vela v. Wagner = & Brown,=20 Ltd., 203 S.W.3d 37, 49B50 (Tex. = App.CSan Antonio 2006, = no pet.);=20 KW Constr. v. Stephens & Sons Concrete Contractors, = Inc., 165=20 S.W.3d 874, 887 (Tex. App.CTexarkana 2005, = pet. denied);=20 Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d = 341, 352=20 (Tex. App.CHouston [14th = Dist.] 2001,=20 pet. denied); Knox v. Taylor, 992 S.W.2d 40, 50, 62 (Tex.=20 App.CHouston [14th = Dist.] 1999, no=20 pet.); Duggan v. Marshall, 7 S.W.3d 888, 893 (Tex. = App.CHouston [1st Dist.] = 1999, no=20 pet.); Howell Crude Oil Co. v. Donna Crude Refinery Partners, = Ltd.,=20 928 S.W.2d 100, 108 (Tex. App.CHouston [14th = Dist.] 1996,=20 writ denied); City of Houston v. Harris County Outdoor Adver.=20 Ass=3Dn, 879 S.W.2d 322, = 334 (Tex.=20 App.CHouston [14th = Dist.] 1994,=20 writ denied).

[27]  The Jansen estimate is = undated.  Scott=20 Tracy testified that he fired Greg Herring, the Jansen appraiser, = in=20 mid-March, and Herring testified that he no longer worked for = Jansen after=20 March or April of 1998.

[28]  No jury misconduct is alleged in = this=20 case.

[29]  Emphasis added.

[30]  Vela, 203 S.W.3d at 48. =

[31]  At various places in the record, = the total=20 number of buildings is stated as 29, 30, or 33.

[32]  Moreover, Laurent = agreed his=20 opinion was based in part on the assumption that there were only = two prior=20 storms that could have caused the damage, and that all damage from = the May=20 1999 windstorm had been repaired, leaving only the 1998 tornado=20 damage.

*  Sr. Justice Frank C. Price = sitting by=20 = assignment.

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COLOR: red; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .ErrorSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Arial Narrow } .SystemMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: = navy } .SystemErrorMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0012_01C8D5EB.A02DDC10--