The appellate court found that legally sufficient evidence supported the jury's findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint.
Apache Corp. v. Davis
Appellate: Civil, Civil Rights, Damages, Employment, Procedure, Torts
Texas 14th Court of Appeals
April 23, 2019
14-17-00306-CV
Ken Wise
Published
The employer appealed the judgment of the trial court which ruled in favor of its former employee on her retaliation claim under Chapter 21 of the Texas Labor Code, finding that the employee filed a complaint of age or gender discrimination and was discharged the employee because she filed the complaint. On appeal, the employer challenged the trial court's judgment, arguing there was legally insufficient evidence that the employee engaged in protected activity, but-for causation was lacking, the jury charge was erroneous, and the attorneys' fees awarded by the trial court are unreasonable and unsupported by sufficient evidence. The appellate court found that legally sufficient evidence supported the jury's findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint. The appellate court concluded that there was no Casteel error and there was sufficient evidence to support the award of attorney fees with the exception of a portion of the fees awarded for time. Accordingly, the judgment of the trial court was affirmed and modified in part.
The appellate court concluded that a person, whose conduct violated sections 42.07(a)(1) and (b)(3), was not engaging in a legitimate communication of ideas, opinions, or information, but had only the intent to inflict emotional distress for its own sake.
Ex parte Nuncio
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 10, 2019
04-18-00127-CR
Beth Watkins
Published
The defendant appealed the judgment of the trial court, seeking a pretrial application for writ of habeas corpus in which he contended sections 42.07(a)(1) and (b)(3) of the harassment statute were unconstitutionally overbroad and vague. On appeal, the defendant contended that the trial court erred in denying his application. Specifically, the defendant challenged the facial constitutionality of sections 42.07(a)(1) and (b)(3) of the Texas Penal Code. The appellate court noted that section 42.07(a) provided that a person committed the offense of harassment if with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person initiated communication and in the course of the communication made a comment, request, suggestion, or proposal that was obscene. The defendant further alleged that the provisions were overbroad because they invaded the area of protected speech and were vague in that they deprived a person of adequate notice of the prohibited activity. The appellate court concluded that a person, whose conduct violated sections 42.07(a)(1) and (b)(3), was not engaging in a legitimate communication of ideas, opinions, or information, but had only the intent to inflict emotional distress for its own sake. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the mother received ineffective assistance of counsel during the motion for new trial stage.
In re I.L.
Constitution, Family, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
April 10, 2019
04-18-00742-CV
Luz Elena D Chapa
Published
The mother appealed the judgment of the trial court which terminated her parent’s rights in a suit affecting the parent-child relationship filed by the Department of Family and Protective Services (the Department). On appeal, the mother argued that her counsel rendered ineffective assistance. The appellate court noted that to sustain the mother’s ineffective assistance of counsel claim, it must find that she had a right to effective assistance of counsel, counsel performed deficiently, and counsel's deficient performance was prejudicial. The appellate court found that the mother had the right to effective assistance of counsel. The mother further alleged that her counsel performed deficiently after trial. The appellate court concluded that the mother received ineffective assistance of counsel during the motion for new trial stage. Accordingly, the judgment of the trial court was reversed and remanded in part and affirmed in part.
Since the only difference between continuous trafficking of persons and trafficking of persons was the time period of more than thirty days, the defendant was entitled to an instruction on the lesser-included offense of trafficking of persons.
Williams v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 10, 2019
04-17-00815-CR
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted him of continuous trafficking of persons and sentenced him to fifty years of imprisonment. On appeal, the defendant argued that there was affirmative evidence from which a rational jury could find him guilty of only trafficking of persons. The State counterargued that the fact that the defendant’s name only appeared on some of the ads did not negate other evidence establishing that he encouraged the victim to engage in prostitution. The appellate court noted that there was more than a scintilla of evidence from which a rational jury could find the defendant was guilty of only trafficking of persons and not continuous trafficking of persons. The appellate court found that since the only difference between continuous trafficking of persons and trafficking of persons was the time period of more than thirty days, the defendant was entitled to an instruction on the lesser-included offense of trafficking of persons. The appellate court concluded that the trial court erred in denying his request for a lesser-included instruction on human trafficking of persons. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.
The evidence was legally and factually sufficient to support the predicate termination finding under subsection E of the Texas Family Code.
In re L.M.
Family, Gov't/Administrative, Juvenile, Procedure
Texas 14th Court of Appeals
April 09, 2019
14-18-01047-CV
Kevin Jewell
Published
The father appealed the judgment of the trial court which terminated the parental rights to his child and appointed the Department of Family and Protective Services (the Department) as the child's sole managing conservator. On appeal, the father challenged the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds and that termination was in the child's best interest. The appellate court noted that due to the severity and permanency of terminating the parental relationship, Texas required clear and convincing evidence to support such an order. The father further asserted that the trial court should not have admitted the removal affidavit over his hearsay objection. The appellate court found that the evidence contained within the police report was otherwise admitted through witness testimony and thus any error in admitting the report was harmless. The appellate court concluded that the evidence was legally and factually sufficient to support the predicate termination finding under subsection E of the Texas Family Code. Accordingly, the judgment of the trial court was affirmed.
Since the defendant did not object or otherwise bring his complaint to the attention of the trial court, the defendant’s appellate issue was not preserved for review.
Fenner v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
March 13, 2019
10-18-00229-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which convicted him of indecency with a child by contact and deferred an adjudication of guilt and placed him on community supervision for 10 years. On appeal, the defendant contended that the trial court abused its discretion in finding the defendant violated the conditions of his community supervision as alleged in the State's motion to proceed to an adjudication of guilt. The appellate court noted that one of the conditions upon which the State sought to revoke the defendant’s community supervision required him to work faithfully and satisfactorily participate in Community Service Projects by completing 320 hours of Community Service. The defendant further alleged that the trial court erred in assessing only 694 days as credit toward his 20-year sentence. The appellate court found that because the trial court erred in its assessment of attorney's fees, the trial court's judgment must be modified to delete those fees from the court costs assessed. The appellate court concluded that since the defendant did not object or otherwise bring his complaint to the attention of the trial court, the defendant’s appellate issue was not preserved for review. Accordingly, the judgment of the trial court was affirmed.
Because a constitutional challenge to section 12.42(c)(2) and (g)(1) was not cognizable in a pretrial writ of habeas corpus, and the defendant did not establish his plea was involuntary.
Ex parte Powell
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
February 20, 2019
10-18-00142-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assault and placed him on deferred adjudication community supervision for seven years. Thereafter, the defendant filed a writ of habeas corpus contending that section 12.42(c)(2) and (g)(1) was unconstitutional on its face and as applied and that his plea of guilty was involuntary, which the trial court denied. On appeal, the defendant alleged that his plea was involuntary because he was not admonished that a sentence of deferred adjudication would constitute a final conviction under certain circumstances. The defendant further complained that he should have been admonished of the collateral consequences of his plea if he committed another sexual assault. The appellate court noted that the defendant provided no statutory or case authority that would suggest the trial court was required to admonish him beyond what was required in article 26.13 of the Texas Code of Criminal Procedure. The appellate court found that the defendant’s challenge to the constitutionality of section 12.42(c)(2) and (g)(1) was not cognizable by way of a pretrial writ of habeas corpus. The appellate court concluded that because a constitutional challenge to section 12.42(c)(2) and (g)(1) was not cognizable in a pretrial writ of habeas corpus, and the defendant did not establish his plea was involuntary. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that it must dismiss the defendant’s appeal of the recommitment order for lack of jurisdiction because those cases that were moot were normally not justiciable.
Truong v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
February 28, 2019
01-16-00390-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which found him not guilty by reason of insanity of second-degree felony offense of manslaughter, but which renewed the order for inpatient commitment for each of the followed six years. On appeal, the defendant argued that the State failed to prove by clear and convincing evidence that further inpatient treatment was necessary. The appellate court noted that an appeal from a recommitment order presenting only the issue of insufficiency of the evidence to support recommitment did not fall within the capable of repetition, yet evading review exception to the mootness doctrine. The appellate court found that under the circumstances of this case, considering the merits of the defendant’s sufficiency challenge to the recommitment order would have no practical effect. The appellate court concluded that it must dismiss the defendant’s appeal of the recommitment order for lack of jurisdiction because those cases that were moot were normally not justiciable. Accordingly, the judgment of the trial court was affirmed.
The State adduced sufficient evidence to show beyond a reasonable doubt that the defendant, knowing that an investigation was in progress, tampered with the evidence.
Tolliver v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
February 20, 2019
10-18-00070-CR
Thomas W. Gray
Published
The defendant appealed the judgment of the trial court which convicted him of tampering with physical evidence and two revocations of his community supervision. On appeal, the defendant complained that the evidence was insufficient and that he was egregiously harmed by the omission of an instruction on legal impossibility in the jury charge during the guilt-innocence phase of the trial. The defendant further contended that the evidence was insufficient to support the orders for him to pay his court-appointed attorney's fees in each of the two proceedings. The appellate court noted that three elements defined the offense of tampering with physical evidence: (1) knowing that an investigation or official proceeding was pending or in progress, (2) a person altered, destroyed, or concealed any record, document, or thing, (3) with the intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding. The appellate court found that there was no reversible error in the conviction for tampering with physical evidence, and the award of attorney's fees was erroneously included in those judgments in part. The appellate court concluded that the State adduced sufficient evidence to show beyond a reasonable doubt that the defendant, knowing that an investigation was in progress, tampered with the evidence. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the trial court properly granted the appellee’s petition for expunction but erred in failing to modify the order's scope.
Tex. Educ. Agency v. H.C.V.
Criminal, Evidence, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
February 28, 2019
01-17-00210-CV
Richard Hightower
Published
The Texas Education Agency (the Agency) appealed the judgment of the trial court which granted the expunction order and its scope of all records of the appellee’s arrest. On appeal, the Agency contended that the trial court erred in granting the petition for expunction because the appellee was placed on community supervision, which negated her entitlement to expunction. The Agency further maintained that, even if the appellee were entitled to expunction, the trial court's order was overly broad because it included information that was not subject to being expunged. The appellate court found that the portions of the proposal for decision that described the appellee’s underlying conduct were not subject to expunction because they were not records and files relating to the arrest. The appellate court concluded that the trial court properly granted the appellee’s petition for expunction but erred in failing to modify the order's scope. Accordingly, the judgment of the trial court was affirmed in part and modified in part.
The trial court properly instructed the jury that it could find the defendant guilty of a class A misdemeanor if it found his blood alcohol concentration was .15 or more.
Taylor v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 09, 2019
14-17-00303-CR
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated (DWI). On appeal, the defendant challenged the sufficiency of the evidence to support his conviction under the corpus delecti rule, the trial court's admission of evidence involving a fatality accident at the scene, and the enhancement of his conviction to a class A misdemeanor without a prior DWI conviction. The appellate court noted that the jury found that the defendant drove with an alcohol concentration of more than .15. The appellate court found that the defendant’s conviction was supported by legally sufficient evidence, and the defendant did not preserve error on his evidentiary challenge. The appellate court concluded that the trial court properly instructed the jury that it could find the defendant guilty of a class A misdemeanor if it found his blood alcohol concentration was .15 or more. Accordingly, the judgment of the trial court was affirmed.
The trial court could have formed a firm belief or conviction that an adequate regimen of outpatient or community-based treatment was not available to the defendant and, therefore, that inpatient treatment or residential care was necessary to protect the safety of others.
Truong v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
February 28, 2019
01-18-00454-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which found him guilty by reason of insanity for the second-degree felony offense of manslaughter and committed him for inpatient treatment. On appeal, the defendant challenged the trial court's recommitment order, contending that the State presented insufficient evidence to support the order renewing appellant's commitment for inpatient treatment. Specifically, the defendant maintained that the State failed to prove that treatment and supervision for his mental illness could not be safely and effectively provided as outpatient treatment and that, as a result, inpatient treatment was necessary to protect the safety of others. The appellate court noted that the State presented evidence that the defendant had been diagnosed with schizoaffective disorder-bipolar type, as well as alcohol and cocaine abuse. The appellate court found that although there was evidence that the defendant would, if released from inpatient treatment, be under the care of a psychiatrist, there was no evidence presented that he would reside in an appropriate assisted living facility that would provide supervision and monitoring of his medication. The appellate court concluded that the trial court could have formed a firm belief or conviction that an adequate regimen of outpatient or community-based treatment was not available to the defendant and, therefore, that inpatient treatment or residential care was necessary to protect the safety of others. Accordingly, the judgment of the trial court was affirmed.
Because the relator adduced some evidence that the designated responsible third party was potentially responsible for the alleged injuries, the trial court clearly abused its discretion by striking the designation.
In re Molina
Appellate: Civil, Employment, Litigation: Personal Injury, Procedure, Torts
Texas 5th Court of Appeals
March 29, 2019
05-19-00147-CV
Bill Whitehill
Published
The relator appealed the judgment of the trial court, seeking a petition for writ of mandamus asserting that the trial court abused its discretion by striking the designation. This appeal stemmed from the plaintiff’s allegations that he was injured in a multi-vehicle collision. On appeal, the relator argued that the motion to strike argued only that there was no evidence that a breach of duty of care had occurred and thus did not attack proximate cause. The appellate court noted that to obtain mandamus relief, a relator must show that the trial court clearly abused its discretion and that relator had no adequate appellate remedy. The appellate court found that if there was more than a scintilla of evidence of causation, the trial court erred and abused its discretion. The appellate court concluded that because the relator adduced some evidence that the designated responsible third party was potentially responsible for the alleged injuries, the trial court clearly abused its discretion by striking the designation. Accordingly, the relator’s writ was granted.
The parol evidence rule did not preclude enforcement of the agreement through which the plaintiff claimed to have satisfied his debt to the defendant, and thus, the plaintiff met his current burden to establish a prima facie case for the falsity of the defendant’s liens.
West v. Quintanilla
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Real Property, Tax
The Supreme Court of Texas
April 05, 2019
17-0454
Jeffrey S. Boyd
Published
The plaintiff appealed the judgment of the appellate court which ruled that the parol evidence rule barred evidence and enforcement of the agreement through which to have satisfied the debt. On appeal, the Supreme Court was asked to consider whether the defendant’s assertion that the plaintiff still owed the defendant under the Trading Agreement was false. The Supreme Court noted that to avoid dismissal under the TCPA, the plaintiff bore the burden to establish by clear and specific evidence a prima facie case for each essential element of his slander-of-title and fraudulent-lien claims. The Supreme Court found that under the parol evidence rule, the written, integrated Purchase Agreement precluded enforcement of any prior or contemporaneous agreement that addressed the same subject matter and was inconsistent with its terms. The Supreme Court concluded that the parol evidence rule did not preclude enforcement of the agreement through which the plaintiff claimed to have satisfied his debt to the defendant, and thus, the plaintiff met his current burden to establish a prima facie case for the falsity of the defendant’s liens. Accordingly, the judgment of the appellate court was reversed and remanded.
The appellate court concluded that the trial court abused its discretion in awarding the paternal grandmother possession of and access to the younger child.
In re Nelke
Family, Juvenile, Procedure
Texas 5th Court of Appeals
April 05, 2019
05-19-00050-CV
David Schenck
Published
The relator appealed the judgment of the trial court, seeking relief from the trial court's temporary orders in this suit affecting the parent-child relationship. On appeal, the relator challenged the paternal grandmother's standing to file a petition to intervene in the relator’s pending original SAPCR regarding the younger child. The relator further alleged that the trial court abused its discretion in awarding the paternal grandmother possession of and access to the younger child. The appellate court found that the trial court did not err in concluding that the paternal grandmother had standing to intervene, although that standing to be supported under section 102.004(b). The appellate court concluded that the trial court abused its discretion in awarding the paternal grandmother possession of and access to the younger child. Accordingly, the relator’s writ was conditionally granted in part and denied in part.
The Texas Citizens Participation Act applied to the Commission's disciplinary proceeding against the respondent, however the Commission met its burden of establishing by clear and specific evidence a prima facie case for each element of its claim against the respondent.
Comm’n for Lawyer Discipline v. Rosales
Appellate: Civil, Civil Rights, Constitution, Ethics, Gov't/Administrative, Procedure, Professional Responsibility
Texas 3rd Court of Appeals
April 03, 2019
03-18-00147-CV
Jeff Rose
Published
The Commission for Lawyer Discipline (the Commission) appealed the judgment of the trial court which dismissed the Commission's disciplinary action against the respondent (attorney) under the Texas Citizens Participation Act (TCPA). On appeal, the Commission contended that the TCPA did not apply to its lawyer-discipline actions because those proceedings were exempt under the TCPA's exemption for government enforcement actions, because the Commission was protected by immunity, and because of its decision in Sullivan v. Texas Ethics Commission. The appellate court found that the plain language of the exemption did not encompass Commission disciplinary proceedings brought by the State Bar's Chief Disciplinary Counsel. The appellate court concluded that the TCPA applied to the Commission's disciplinary proceeding against the respondent, however the Commission met its burden of establishing by clear and specific evidence a prima facie case for each element of its claim against the respondent. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.
The appellee’s expert report provided a fair summary of the expert's opinions regarding the applicable standards of care, and a statement identifying the manner in which the care rendered failed to meet the standards.
Naderi v. Ratnarajah
Appellate: Civil, Damages, Evidence, Health Care, Litigation: Personal Injury, Procedure
Texas 14th Court of Appeals
April 02, 2019
14-18-00480-CV
Ken Wise
Published
The appellants appealed the judgment of the trial court which denied their Chapter 74 motion to dismiss based on alleged deficiencies in the appellee’s expert report. On appeal, the appellants contended that the appellee’s expert report failed to provide a sufficient opinion of the applicable standard of care and breach of that standard. The appellants further asserted that the appellee’s expert report failed to adequately set forth a causal chain linking any alleged harm actually suffered to a specific breach of an applicable standard of care. The appellate court noted that the Texas Medical Liability Act required that plaintiffs alleging a health care liability claim must serve each defendant with an adequate expert report or face dismissal of their claim. The appellate court found that the appellee’s expert report was sufficient as to the standards of care identified and the breaches of those standards. The appellate court concluded that since the appellee’s expert report provided a fair summary of the expert's opinions regarding the applicable standards of care, a statement identifying the manner in which the care rendered failed to meet the standards, the trial court did not abuse its discretion in denying the appellants' motion to dismiss. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that because the defendants did not show any injury that this Court could redress, the defendants lacked standing to bring this appeal.
Nephrology Leaders & Assoc. v. Am. Renal Assoc. LLC
Appellate: Civil, Discovery, Procedure
Texas 1st Court of Appeals
April 02, 2019
01-18-00242-CV
Laura Carter Higley
Published
The defendants appealed the judgment of the trial court which temporarily sealed certain documents that the third party sought to protect from the defendants’ subpoena. On appeal, the defendants argued that the trial court abused its discretion by setting the motion for a hearing sua sponte and that the evidence was insufficient to support the order. The third party counterargued that the defendant lacked standing to bring this appeal. The appellate court noted that in determining whether an appellant had standing, a party’s status in the trial court was not controlling. The defendants further alleged that whether it suffered an injury was immaterial, because it had statutory standing to appeal without showing it was injured under Texas Rule of Civil Procedure 76a(8). The appellate court concluded that because the defendants did not show any injury that this Court could redress, the defendants lacked standing to bring this appeal. Accordingly, the judgment of the trial court was affirmed.
Based on the totality of the circumstances, a reasonable person in the defendant’s position would have believed that the seizure was sufficiently intrusive as to be an arrest.
Scott v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 02, 2019
14-17-00493-CR
Kem Frost
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated (DWI). On appeal, the defendant asserted that the officers lacked probable cause to support a warrantless arrest and unduly prolonged his detention, making it illegal. The State counterargued that the officer had probable cause to arrest the defendant after witnessing him commit two traffic offenses for which an officer may properly make an arrest. The appellate court found that based on the totality of the circumstances, a reasonable person in the defendant’s position would have believed that the seizure was sufficiently intrusive as to be an arrest. The defendant further alleged that the police unduly prolonged his detention, making it illegal. The appellate court concluded that if, at the moment the officer made an arrest, the facts and circumstances within the officer's knowledge and of which the officer had reasonably trustworthy information suffice to warrant a prudent person in believing that the person arrested had committed or was committing a traffic violation for which a person properly may be arrested, a court was to deem the arrest valid and legal. Accordingly, the judgment of the trial court was affirmed.
A presentence report could not be inspected by the judge nor could its contents be disclosed unless the defendant pled guilty or nolo contendere or was convicted of the offense, or the defendant authorized in writing the judge to inspect the report.
Townes v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 02, 2019
14-18-00233-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which imposed two sentences for felony robbery and aggravated robbery with a deadly weapon. On appeal, the defendant asserted that the presentence investigation report was biased, and that the lack of objection did not preclude the appellate court’s review because his asserted right to an unbiased presentence report was a "category-two" Marin right. The defendant further alleged that his trial counsel was ineffective by failing to object. The appellate court noted that the record did not support the violation alleged even assuming preservation of the defendant’s issues. The appellate court found that a presentence report could not be inspected by the judge nor could its contents be disclosed unless the defendant pled guilty or nolo contendere or was convicted of the offense, or the defendant authorized in writing the judge to inspect the report. The appellate court concluded that a presentence report was as likely to contain information adverse to the punishment position of the state as of the defense, and this one did. Accordingly, the judgment of the trial court was affirmed.
The trial court's implied finding that the parties agreed that the plaintiff would repay the loans in installments over a period of up to seven years was supported by legally sufficient evidence.
Smith v. Barnhart
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 1st Court of Appeals
April 02, 2019
01-18-00111-CV
Laura Carter Higley
Published
The defendant appealed the judgment of the trial court which rendered judgment for the plaintiff, finding that the plaintiff made a series of zero-interest loans to the defendant, and the defendant breached the agreement by refusing to continue making payments. On appeal, the defendant contended that there was legally insufficient evidence that the contract had clear and definite terms and was supported by adequate consideration. The appellate court noted that to prevail on a claim for breach of contract, a plaintiff must show the existence of a valid contract, performance or tendered performance by the plaintiff, breach of the contract by the defendant, and damages sustained as a result of the breach. The appellate court found that viewing the evidence in the light most favorable to the trial court's implied finding that the parties agreed that the plaintiff would repay the loans in installments over a period of up to seven years, and indulging every reasonable inference that supported that finding, the finding was supported by legally sufficient evidence. Accordingly, the judgment of the trial court was affirmed.