In the Matter of L. T. H, No. 03-06-00433-CV (Tex.App.- Austin, Sep. 6, 2007)(Opinion by Justice Pemberton)(juvenile who violated condition of probation sent to TYC)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-24,907, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The juvenile court committed L.T.H. to the Texas Youth Commission ("TYC") after L.T.H. pleaded true to a probation violation. In two points of error, L.T.H. asserts that the order modifying his disposition failed to specifically state the reasons for the modification and that the district court abused its discretion in committing L.T.H. to TYC. We affirm the order.
BACKGROUND
On April 21, 2005, the juvenile court, after finding that L.T.H. had engaged in delinquent conduct by committing the offense of assault, placed L.T.H. on probation for nine months. On September 7, 2005, the State moved to modify the disposition, alleging that L.T.H. had violated a condition of his probation by failing to report to his probation officer. On October 6, after hearing evidence on the State's motion, the juvenile court modified the disposition, extending the probation until May 2006.
As a term and condition of his probation, L.T.H. was required to be inside the residence of his grandparents between the hours of 9:00 p.m. and 6:00 a.m. On February 28, 2006, the State moved to modify the disposition, alleging that L.T.H. failed to comply with this condition from November 1, 2005 to the date of the motion. At the July 6, 2006 modification hearing, L.T.H. pleaded true to the State's allegation.
Following L.T.H.'s plea, the juvenile court heard evidence from Cathy McClaugherty, a caseworker with the Travis County Juvenile Probation Department. McClaugherty testified that the department's recommendation was commitment to TYC. McClaugherty explained the department's reasoning to the juvenile court. After L.T.H. was placed on probation, L.T.H. had first spent 90 days in the department's "Impact Program," which is a "brief behavior modification program." Upon completion of that program, L.T.H. was allowed to return home. However, according to McClaugherty, L.T.H. "has absconded at least twice for a period of time." Additionally, the "family has a history of moving without notifying the Probation Department." McClaugherty continued,
We've . . . had psychological evaluations completed, attempted to engage the family in services through MHMR. We've also attempted to hook him up, if you will, with Southwest Key tracking to improve his accountability. And we've also tried an electronic monitor to improve his accountability and to get him to stay at home.
All of these efforts, McClaugherty testified, were unsuccessful in keeping L.T.H. at home.
When asked by the juvenile court if there were any other reasonable efforts that might be taken by the department, McClaugherty replied, "None that I'm aware of at this time. We've also attempted to staff him for our Intensive Supervision Probation program. And he was declined based on a history of both him and his family not cooperating and not following through with probation."
McClaugherty also testified that she believed commitment to TYC would be in the child's best interest because L.T.H. "has difficulty functioning in the community. We have not been able to get him to engage in probation." McClaugherty also believed that commitment to TYC was in "the community's best interest" because L.T.H.'s "offenses speak to the fact that he appears to be a danger to other people in the community."
On cross-examination, McClaugherty testified that the offenses to which she was referring were two misdemeanor assaults involving L.T.H.'s "peers at school." L.T.H. had never been accused of a felony offense, and L.T.H.'s last alleged misdemeanor assault occurred prior to his probation, in February 2005. McClaugherty also acknowledged that L.T.H. had been diagnosed as suffering from mild mental retardation and "cannibis abuse."
On redirect, McClaugherty testified that because of L.T.H.'s "absconder status," L.T.H. had been unavailable and out of contact with the department for approximately six months during the previous year. The juvenile court inquired as to the reason the department was unable to find L.T.H., and McClaugherty explained that during the period of time when he absconded, attempts were made to locate the family at their last known address. The department discovered that the family had moved but was unable to obtain a new address.
L.T.H.'s grandmother was present at the hearing but, when given the opportunity by the juvenile court to speak, declined the opportunity. L.T.H.'s uncle, who had been considered as a possible placement, was not present at the hearing.
At the conclusion of the hearing, the juvenile court committed L.T.H. to TYC. This appeal followed.
DISCUSSION
Specificity of the juvenile court's order
In his first point of error, L.T.H. asserts that the juvenile court's order was deficient because it failed to specifically state the reasons for the modification of the prior disposition. Section 54.05(i) of the family code provides, "The court shall specifically state in the order its reasons for modifying the disposition and shall furnish a copy of the order to the child." Tex. Fam. Code Ann. § 54.05(i) (West Supp. 2006). Section 54.05(m) requires that the juvenile court's order committing a child to the TYC include a determination that:
(A) it is in the child's best interests to be placed outside the child's home;
(B) reasonable efforts were made to prevent or eliminate the need for the child's removal from the child's home and to make it possible for the child to return home; and
(C) the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.
Id. § 54.05(m) (West Supp. 2006).
The modifying order must specifically recite the conduct which prompted the trial court to modify its prior order of disposition. K.W.H. v. State, 596 S.W.2d 248 (Tex. Civ. App.--Texarkana 1980, no writ). Providing specific reasons for the disposition provides the child with notice of the court's reasons so that the child can determine the need for an appeal. In re J.R., 907 S.W.2d 107, 110 (Tex. App.--Austin 1995, no writ). Additionally, a record is created for the appellate court to rely on in making its decision about whether sufficient evidence supports the juvenile court's findings and determinations. In re L.R., 67 S.W.3d 332, 336-37 (Tex. App.--El Paso 2001, no pet.). Therefore, merely reciting statutory language will not be sufficient to justify the juvenile court's ruling. In re J.T.H., 779 S.W.2d 954, 959 (Tex. App.--Austin 1989, no writ). However, statutory language supplemented by additional findings is sufficient to meet the requirements of the family code. See In re P.L., 106 S.W.3d 334, 338 (Tex. App.--Dallas 2003, no pet.) (order tracking language of section 54.05 and explaining court's reasons was appropriate). The inclusion of the offense and its surrounding circumstances in an order consisting of mainly statutory language is sufficient. J.T.H., 779 S.W.2d at 959.
In this case, the juvenile court's order specified that L.T.H. violated the condition of probation requiring him to "be inside the residence of [his] grandparents each day between 9:00 p.m. and 6:00 a.m., unless accompanied by [his] parent or guardian." The order further specified that L.T.H. "failed to be inside the residence of his [grandparents] on November 1, 2005 to present." Additionally, the order specified that L.T.H. "will not accept parental supervision and has demonstrated a disregard for all authority." The order then recited the necessary statutory language:
[L.T.H.], in [L.T.H.]'s home, cannot be provided the quality of care and level of support and supervision that [L.T.H.] needs to meet the conditions of probation. All reasonable efforts were made to prevent or eliminate the need for [L.T.H.]'s removal from home and to make it possible for [L.T.H.] to return home. The Court further finds that [L.T.H.] has been removed from his home and the Court approves of the removal. The Court further finds that the local resources of this Court are not adequate to meet such needs or accomplish the necessary protection of the public.
It therefore appears to the Court that the best interest of [L.T.H.] and of society will be served by committing [L.T.H.] to the care, custody, and control of the Texas Youth Commission.
In addition to reciting the necessary statutory language provided for in section 54.05(m), see id., the order complies with section 54.05(i) by specifically stating the reasons for modifying the disposition. L.T.H. "failed to be inside the residence of his [grandparents] on November 1, 2005 to present," which was a direct violation of one of the conditions of his probation. Additionally, the order specified that L.T.H. "will not accept parental supervision and has demonstrated a disregard for all authority." Finally, the juvenile court specified that the best interest "of society" would also be served by committing L.T.H. to TYC. See J.T.H., 779 S.W.2d at 959 (holding that juvenile court's "listing of protection of the public as a factor" in committing juvenile to TYC, when combined with other reasons, satisfied specificity requirement). We hold that the order satisfies the specificity requirement of section 54.05(i). We overrule L.T.H.'s first point of error.
Commitment to TYC
In his second point of error, L.T.H. contends that the juvenile court abused its discretion in committing appellant to the Texas Youth Commission. Section 54.05(j) of the family code provides that:
If, after conducting a hearing to modify disposition without a jury, the court finds by a preponderance of the evidence that a child violated a reasonable and lawful condition of probation ordered under Section 54.04(q), the court may modify the disposition to commit the child to the Texas Youth Commission under Section 54.04(d)(3) for a term that does not exceed the original sentence assessed by the court or jury.
Tex. Fam. Code Ann. § 54.05(j) (West Supp. 2006). L.T.H. concedes that the evidence is legally and factually sufficient to find that he violated a condition of his probation. However, he contends that the juvenile court's decision was "arbitrary and unreasonable" because the violation was "not his fault." L.T.H. argues that because his family has a "history of moving without notice to the probation department" and because he is "mildly mentally retarded," the probation violation was "out of his realm of control." L.T.H. further argues that commitment to TYC is usually "reserved for only serious juvenile offenders." See In re J.P., 136 S.W.3d 629, 634 (Tex. 2004) (Schneider, J., concurring).
We review decisions to commit juveniles to TYC for abuse of discretion. Id. at 632. "Juvenile courts are vested with a great amount of discretion in determining the suitable disposition of children found to have engaged in delinquent conduct, and this is especially so regarding hearings to modify disposition." In re K.B., 106 S.W.3d 913, 915 (Tex. App.--Dallas 2003, no pet.). "Under an abuse of discretion review, we reverse the trial court only if the trial court has acted in an unreasonable or arbitrary manner." Id.
We cannot conclude that the juvenile court abused its discretion in committing L.T.H. to TYC. L.T.H. pleaded true to violating a condition of his probation. This was the second time that the juvenile court had found that L.T.H. violated a condition of his probation. At the modification hearing, the juvenile court heard evidence that the department had attempted several methods to keep L.T.H. at home, but that none of those methods had succeeded. The juvenile court also heard evidence that L.T.H.'s family had a history of not cooperating with the probation department, and the juvenile court could reasonably infer from this evidence that there would be subsequent violations of probation if L.T.H. remained under the supervision of his grandparents. While L.T.H. did argue that his uncle was perhaps a more suitable placement, his uncle did not show up at the hearing.
Although L.T.H. asserts that his "mild mental retardation" and his family's role should excuse his probation violations, he does little to elaborate on these arguments and the juvenile court could have concluded otherwise on this record. As for L.T.H.'s argument that TYC is reserved for "more serious offenders," we note that L.T.H. was originally placed on probation for committing two misdemeanor assaults and we will not second-guess the juvenile court's judgment call. On this record, we hold that the juvenile court did not abuse its discretion in committing L.T.H. to TYC. We overrule L.T.H.'s second point of error.
CONCLUSION
We affirm the order of the juvenile court.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: September 6, 2007
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Friday, September 7, 2007
Friday, August 31, 2007
Inadequate briefing precludes consideration of merits
Adrian Palmer v. Eduardo R. Candelario and Unitrin Insurance, No. 03-07-00189-CV (Tex.App.- Austin, Aug. 31, 2007)(Opinion by Justice Henson)(Before Chief Justice Law, Justices Puryear and Henson)
Appeal from 53rd District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-06-001420, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Adrian Palmer filed a notice of appeal from a jury verdict in his personal injury suit against Eduardo Canedelario and Unitrin Insurance, which arose from an automobile accident. The jury determined that Palmer's negligence was 75% of the proximate cause of the accident, resulting in a judgment that Palmer take nothing.
Palmer's brief to this Court simply includes a summary of the facts of the case and a statement that "Issues presented are the jury charge or verdict." Palmer presents no assignment of error or issues for review. No clear error is discernible, as no reporter's record has been filed for this case.
An appellant's brief must "state concisely all issues or points presented for review." Tex. R. App. P. 38.1(e).
Furthermore, it is well-settled law that "a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure." Strange v. Continental Cas. Co., 126 S.W.3d 676, 677 (Tex. App.--Dallas 2004, pet. denied). Palmer bears the burden of discussing his assertions of error. See Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex. App.--El Paso 2007, pet. dism'd). Where an appellant's brief does not identify errors for review, we cannot "attempt to articulate what Appellant might have intended to raise on appeal." Id. at 845. Because Palmer has presented no issues for review, we affirm the trial court's judgment.
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: August 31, 2007
Appeal from 53rd District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-06-001420, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Adrian Palmer filed a notice of appeal from a jury verdict in his personal injury suit against Eduardo Canedelario and Unitrin Insurance, which arose from an automobile accident. The jury determined that Palmer's negligence was 75% of the proximate cause of the accident, resulting in a judgment that Palmer take nothing.
Palmer's brief to this Court simply includes a summary of the facts of the case and a statement that "Issues presented are the jury charge or verdict." Palmer presents no assignment of error or issues for review. No clear error is discernible, as no reporter's record has been filed for this case.
An appellant's brief must "state concisely all issues or points presented for review." Tex. R. App. P. 38.1(e).
Furthermore, it is well-settled law that "a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure." Strange v. Continental Cas. Co., 126 S.W.3d 676, 677 (Tex. App.--Dallas 2004, pet. denied). Palmer bears the burden of discussing his assertions of error. See Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex. App.--El Paso 2007, pet. dism'd). Where an appellant's brief does not identify errors for review, we cannot "attempt to articulate what Appellant might have intended to raise on appeal." Id. at 845. Because Palmer has presented no issues for review, we affirm the trial court's judgment.
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: August 31, 2007
Thursday, August 30, 2007
Noncompetes: Denial of temporary injunction against former sales rep affirmed on appeal
W. R. Grace & Co. - Conn. v. Willie Posey, No. 03-07-00184-CV (Tex.App.- Austin, Aug. 30, 2007)(Opinion by Justice Pemberton)(denial of temporary injunction affirmed, noncmpete)(Before Justices Puryear, Pemberton and Waldrop)
Appeal from 207th District Court of Hays County
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 06-1919, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an appeal from the denial of a temporary injunction. Willie L. Posey formerly worked as a sales representative for W.R. Grace & Co. - Conn. (WRG). After Posey went to work for a WRG competitor, WRG sued Posey, alleging that Posey had breached his employment agreement by soliciting WRG customers on behalf of his new employer and by disclosing WRG's confidential and proprietary information. WRG sought to enjoin Posey from disclosing or using any of WRG's proprietary or confidential information and from soliciting or contacting WRG customers.
Following an evidentiary hearing, the district court issued an order denying WRG's application for temporary injunction. WRG appeals from this order. (1) We affirm the order.
BACKGROUND
WRG develops and sells chemical additives (a/k/a "admixtures") used by cement and concrete manufacturers. In July 1988, WRG hired Posey as a sales representative assigned to its southwestern United States region. "In consideration of [his] employment," Posey entered into an employment agreement whereby he agreed to certain restrictions and conditions. These included prohibitions against his using or disclosing certain WRG proprietary information (the "nondisclosure provision") and his working for a WRG competitor for a period of one year after leaving WRG's employment (the "noncompetition covenant").
The nondisclosure provision states:
1 (a) Except in the performance of duties as an employee of the company, Employee shall not at any time or in any manner make or cause to be made any copies, pictures, duplicates, facsimiles, or other reproductions or recordings, or any abstracts or summaries of any reports, studies, memoranda, correspondence, manuals, customer lists, records, formulae, plans or other written, printed, or otherwise recorded materials of any kind whatever belonging to or in the possession of the Company. Employee shall have no right, title, or interest in any such material, and Employee agrees that (except in the performance of duties as an employee of the Company) Employee will not remove any such material from any premises of the Company and will surrender all such material to the Company immediately upon the termination of Employee's employment, or any time prior thereto upon the request of the Company.
(b) Without the prior written consent of the Company, Employee shall not at any time or in any manner (whether during or after Employee's employment with the Company) use for the Employee's own benefit or purposes, or for the benefit or purposes of any other person, firm, partnership, association, corporation, or business organization, entity, or enterprise, or disclose (except in the performance of duties as an employee of the Company) in any manner to any person, firm, partnership, association, corporation or business organization, entity, or enterprise, any trade secrets, information, data, know-how, or knowledge (including, but not limited to, trade secrets, information, data, know-how, or knowledge relating to purchasing, suppliers, sales, customers, market development programs, costs, products, apparatus, equipment, processes, or manufacturing methods, compositions, designs, or plans or employees) belong to, or relating to the affairs of, the Company.
Within the employment agreement, Posey agreed that the noncompetition covenant, attached as Schedule B, "is an operative part of this Agreement." The noncompetition covenant provides, in relevant part:
For a period of one (1) year after Employee is no longer employed (for any reason whatever) by the Company, Employee will not, without the prior written consent of the Company, (i) directly or indirectly engage in or (ii) assist or have any active interest in . . . or (iii) enter the employment of or act as an agent, broker or distributor for or adviser or consultant to any person, firm, corporation or business entity which is or is about to become directly or indirectly engaged in the development, manufacture or sale of any product which competes with or is similar to any product manufactured, sold or under development by the Company at any time while Employee is employed by the Company, in any area in the United States in which such product is, at the time the Employee ceases to be employed, manufactured or sold by the Company, provided that this restriction shall apply only with respect to products with whose development, manufacture or sale the Employee shall have been concerned or connected during the one (1) year period immediately prior to Employee's ceasing to be an employee of the Company.
After working for eighteen years as a WRG sales representative, Posey went to work for one of WRG's competitors, Sika Corporation, as a senior sales representative in October 2006. Sika's written offer of employment to Posey, dated October 6, 2006, states in part:
[W]e are not interested in confidential business information or trade secrets from your former employer, W.R. Grace. Rather, we are looking for your sales talent to contribute to the success of our business. We do not want you to use any of the confidential and/or proprietary information while you are working for us. We ask that you not use or divulge any confidential and/or proprietary information obtained during your employment with W.R. Grace and require that you sign an Agreement on Prohibited Disclosures as a condition of this offer.
On October 16, Posey gave notice to WRG that he was retiring (effective that same day) and, on the next day, he accepted Sika's employment offer. Pursuant to the terms of that offer, Posey signed an "Agreement on Prohibited Disclosures" that stated:
Sika Corporation ("Sika") expects you to protect and secure Sika's intellectual property and proprietary information. Likewise, Sika requires you to protect the intellectual property and proprietary information of your former employers. In short, Sika does not want to receive and does not want you to use in your employment with Sika any confidential or proprietary information that you may have developed or to which you were exposed at your previous employer. Accordingly, as a condition of your employment with Sika:
You agree not to use, have in your possession, or refer to any information, data, process, or method which is or was claimed to be confidential or proprietary by any former employer, customer, supplier or consultant.
By way of clarification, and not by limitation, you agree neither to use, have in your possession, nor refer to any of the following items from a former employer . . . if such information is or was claimed to be confidential or proprietary:
•Blue Prints
•Business Plans
•Computer Programs
•Computers
•Confidential Knowledge
•Consultant Lists
•Customer Lists
•Data Bases
•Confidential or Proprietary Data
•Computer Media (e.g., disks CDs)
•Documents
•Employee Lists
•Equipment
•Training Materials
•Files
•Financial Information
•Formulas
•Manuals
•Market Information
•Marketing Materials
•Notebooks
•Notes
•Original Works of Authorship
•Sketches
•Software
•Telephone Directories
•Trade Secrets
•Vendor Lists
On November 21, 2006, approximately one month after Posey left WRG to work for Sika, WRG sued Posey, alleging breach of contract, misappropriation of confidential and proprietary information, and breach of fiduciary duty. WRG sought a temporary restraining order and temporary injunction to enjoin and restrain Posey "from disclosing or using any proprietary or confidential information belonging to WRG" and "from soliciting, contacting, calling upon, communicating with or attempting to communicate with [certain WRG customers] in an attempt to sell or provide any product, equipment or service that is competitive with any product equipment or service offered by WRG." WRG also requested that the district court order Posey to "immediately return any confidential or proprietary information belonging to WRG." The district court issued an order denying WRG's application for a temporary injunction. WRG appeals from this order.
DISCUSSION
Standard of review
A temporary injunction is an extraordinary remedy that does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The purpose of a temporary injunction is to preserve the subject matter of the litigation pending a trial on the merits. Id. To obtain a temporary injunction, the applicant must plead and prove three elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Synergy Ctr., Ltd. v. Lone Star Franchising, Inc., 63 S.W.3d 561, 564 (Tex. App.--Austin 2001, no pet.).
Whether to grant or deny a temporary injunction is within the trial court's sound discretion. Butnaru, 84 S.W.3d at 204. A reviewing court must not substitute its judgment for the trial court's judgment unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. Id. A trial court does not abuse its discretion when it bases its decision on conflicting evidence, as long as some evidence in the record reasonably supports the trial court's decision. Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101, 105-106 (Tex. App.--Austin 2003, no pet.). As a reviewing court, we must view the evidence in the light most favorable to the trial court's order and indulge every reasonable inference in its favor. Id. When, as here, the trial court does not make findings of fact or conclusions of law, we must uphold the court's decision to deny the temporary injunction on any legal theory supported by the record. EMSL Analytical, Inc. v. Younker, 154 S.W.3d 693, 696 (Tex. App.--Houston [14th Dist.] 2004, no pet.).
Noncompetition covenant
In its first issue, WRG asserts that the district court abused its discretion in denying its request for a temporary injunction to enjoin Posey from soliciting WRG customers. WRG devotes much of its argument to establishing the enforceability of the noncompetition covenant--specifically arguing that the employment agreement, which does not recite any explicit reciprocal promises of WRG, is nonetheless an "otherwise enforceable agreement" in light of Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006). See Tex. Bus. & Com. Code Ann. § 15.50(a) (West 2002). (2)
We need not address here whether the noncompetition covenant is enforceable, however. Even if it was enforceable, the district court would not have abused its discretion in denying the temporary injunction on the basis that WRG failed to prove that it would suffer a probable, imminent, and irreparable injury.
An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204. Relying on Graham v. Mary Kay, Inc., 25 S.W.3d 749, 753 (Tex. App.--Houston [14th Dist.] 2000, pet. denied), WRG asserts that a "loss or potential loss of customer goodwill and clientele alone constitutes irreparable harm." However, on this record, the district court would not have abused its discretion in determining that WRG had failed to prove that it has lost or is in danger of losing customers.
At the hearing on its request for a temporary junction, Posey's attorney asked WRG's corporate representative if WRG had lost any business due to Posey's departure to Sika:
Q: It's true, is it not, that you can't name one customer, one contract, one purchase order that Grace has lost because of anything you-all claim Mr. Posey has done?
A In Mr. Posey's former territory, we have not lost any customers. However, we did lose a customer for a period of time in December to Sika, but [that customer] returned back to Grace due to performance issues.
* * *
Q: What happened was is that NAPCO had been a Grace customer for a long time. Right?
A: That's correct.
Q: Then they decided to try the Sika product that Mr. Posey had talked to them about. Right?
A: That's correct.
Q: And they didn't like it, and they have now come back to you, and you're under contract to them and they're still your customer. Right?
A: That's correct.
During oral argument before this Court, WRG's attorney represented that WRG had to make a price concession in order to regain that customer's business and that this price concession constituted proof of irreparable injury. We find nothing in the record regarding WRG's making price concessions in order to regain customer business. Having found no other evidence of irreparable injury, we conclude that the district court did not abuse its discretion in denying WRG's request for a temporary injunction to enforce the noncompetition covenant.
Nondisclosure provision
In its second issue, WRG contends that the district court abused its discretion in denying its request for a temporary injunction to enforce the nondisclosure provision. WRG argues that it furnished Posey with confidential information during his employment and that Posey accessed that information after he began negotiations for employment with Sika.
However, at the hearing on the temporary injunction, Posey testified that he returned or destroyed all physical forms of information relating to his employment with WRG and WRG cites no evidence showing that Posey has actually used or disclosed any of WRG's confidential information while working for Sika. In fact, Posey's employment agreement with Sika explicitly prohibits the use or disclosure of such information.
On this record, we conclude that the district court did not abuse its discretion in concluding that WRG had failed to prove a probable, imminent, and irreparable injury from Posey's disclosing information governed by the nondisclosure provision and in denying a temporary injunction to enforce that provision.
CONCLUSION
We affirm the district court's order denying WRG's application for temporary injunction.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton and Waldrop
Affirmed
Filed: August 30, 2007
1. See Tex. Civ. Prac. & Rem. Code. Ann. § 51.014(a)(4) (West Supp. 2006).
2. See also W. R. Grace & Co.-Conn v. Taylor, No. 14-06-01056-CV, 2007 Tex. App. LEXIS 3779, at *5 (Tex. App.--Houston [14th Dist.] May 17, 2007, no pet. h.) (mem. op.).
Appeal from 207th District Court of Hays County
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 06-1919, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an appeal from the denial of a temporary injunction. Willie L. Posey formerly worked as a sales representative for W.R. Grace & Co. - Conn. (WRG). After Posey went to work for a WRG competitor, WRG sued Posey, alleging that Posey had breached his employment agreement by soliciting WRG customers on behalf of his new employer and by disclosing WRG's confidential and proprietary information. WRG sought to enjoin Posey from disclosing or using any of WRG's proprietary or confidential information and from soliciting or contacting WRG customers.
Following an evidentiary hearing, the district court issued an order denying WRG's application for temporary injunction. WRG appeals from this order. (1) We affirm the order.
BACKGROUND
WRG develops and sells chemical additives (a/k/a "admixtures") used by cement and concrete manufacturers. In July 1988, WRG hired Posey as a sales representative assigned to its southwestern United States region. "In consideration of [his] employment," Posey entered into an employment agreement whereby he agreed to certain restrictions and conditions. These included prohibitions against his using or disclosing certain WRG proprietary information (the "nondisclosure provision") and his working for a WRG competitor for a period of one year after leaving WRG's employment (the "noncompetition covenant").
The nondisclosure provision states:
1 (a) Except in the performance of duties as an employee of the company, Employee shall not at any time or in any manner make or cause to be made any copies, pictures, duplicates, facsimiles, or other reproductions or recordings, or any abstracts or summaries of any reports, studies, memoranda, correspondence, manuals, customer lists, records, formulae, plans or other written, printed, or otherwise recorded materials of any kind whatever belonging to or in the possession of the Company. Employee shall have no right, title, or interest in any such material, and Employee agrees that (except in the performance of duties as an employee of the Company) Employee will not remove any such material from any premises of the Company and will surrender all such material to the Company immediately upon the termination of Employee's employment, or any time prior thereto upon the request of the Company.
(b) Without the prior written consent of the Company, Employee shall not at any time or in any manner (whether during or after Employee's employment with the Company) use for the Employee's own benefit or purposes, or for the benefit or purposes of any other person, firm, partnership, association, corporation, or business organization, entity, or enterprise, or disclose (except in the performance of duties as an employee of the Company) in any manner to any person, firm, partnership, association, corporation or business organization, entity, or enterprise, any trade secrets, information, data, know-how, or knowledge (including, but not limited to, trade secrets, information, data, know-how, or knowledge relating to purchasing, suppliers, sales, customers, market development programs, costs, products, apparatus, equipment, processes, or manufacturing methods, compositions, designs, or plans or employees) belong to, or relating to the affairs of, the Company.
Within the employment agreement, Posey agreed that the noncompetition covenant, attached as Schedule B, "is an operative part of this Agreement." The noncompetition covenant provides, in relevant part:
For a period of one (1) year after Employee is no longer employed (for any reason whatever) by the Company, Employee will not, without the prior written consent of the Company, (i) directly or indirectly engage in or (ii) assist or have any active interest in . . . or (iii) enter the employment of or act as an agent, broker or distributor for or adviser or consultant to any person, firm, corporation or business entity which is or is about to become directly or indirectly engaged in the development, manufacture or sale of any product which competes with or is similar to any product manufactured, sold or under development by the Company at any time while Employee is employed by the Company, in any area in the United States in which such product is, at the time the Employee ceases to be employed, manufactured or sold by the Company, provided that this restriction shall apply only with respect to products with whose development, manufacture or sale the Employee shall have been concerned or connected during the one (1) year period immediately prior to Employee's ceasing to be an employee of the Company.
After working for eighteen years as a WRG sales representative, Posey went to work for one of WRG's competitors, Sika Corporation, as a senior sales representative in October 2006. Sika's written offer of employment to Posey, dated October 6, 2006, states in part:
[W]e are not interested in confidential business information or trade secrets from your former employer, W.R. Grace. Rather, we are looking for your sales talent to contribute to the success of our business. We do not want you to use any of the confidential and/or proprietary information while you are working for us. We ask that you not use or divulge any confidential and/or proprietary information obtained during your employment with W.R. Grace and require that you sign an Agreement on Prohibited Disclosures as a condition of this offer.
On October 16, Posey gave notice to WRG that he was retiring (effective that same day) and, on the next day, he accepted Sika's employment offer. Pursuant to the terms of that offer, Posey signed an "Agreement on Prohibited Disclosures" that stated:
Sika Corporation ("Sika") expects you to protect and secure Sika's intellectual property and proprietary information. Likewise, Sika requires you to protect the intellectual property and proprietary information of your former employers. In short, Sika does not want to receive and does not want you to use in your employment with Sika any confidential or proprietary information that you may have developed or to which you were exposed at your previous employer. Accordingly, as a condition of your employment with Sika:
You agree not to use, have in your possession, or refer to any information, data, process, or method which is or was claimed to be confidential or proprietary by any former employer, customer, supplier or consultant.
By way of clarification, and not by limitation, you agree neither to use, have in your possession, nor refer to any of the following items from a former employer . . . if such information is or was claimed to be confidential or proprietary:
•Blue Prints
•Business Plans
•Computer Programs
•Computers
•Confidential Knowledge
•Consultant Lists
•Customer Lists
•Data Bases
•Confidential or Proprietary Data
•Computer Media (e.g., disks CDs)
•Documents
•Employee Lists
•Equipment
•Training Materials
•Files
•Financial Information
•Formulas
•Manuals
•Market Information
•Marketing Materials
•Notebooks
•Notes
•Original Works of Authorship
•Sketches
•Software
•Telephone Directories
•Trade Secrets
•Vendor Lists
On November 21, 2006, approximately one month after Posey left WRG to work for Sika, WRG sued Posey, alleging breach of contract, misappropriation of confidential and proprietary information, and breach of fiduciary duty. WRG sought a temporary restraining order and temporary injunction to enjoin and restrain Posey "from disclosing or using any proprietary or confidential information belonging to WRG" and "from soliciting, contacting, calling upon, communicating with or attempting to communicate with [certain WRG customers] in an attempt to sell or provide any product, equipment or service that is competitive with any product equipment or service offered by WRG." WRG also requested that the district court order Posey to "immediately return any confidential or proprietary information belonging to WRG." The district court issued an order denying WRG's application for a temporary injunction. WRG appeals from this order.
DISCUSSION
Standard of review
A temporary injunction is an extraordinary remedy that does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The purpose of a temporary injunction is to preserve the subject matter of the litigation pending a trial on the merits. Id. To obtain a temporary injunction, the applicant must plead and prove three elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Synergy Ctr., Ltd. v. Lone Star Franchising, Inc., 63 S.W.3d 561, 564 (Tex. App.--Austin 2001, no pet.).
Whether to grant or deny a temporary injunction is within the trial court's sound discretion. Butnaru, 84 S.W.3d at 204. A reviewing court must not substitute its judgment for the trial court's judgment unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. Id. A trial court does not abuse its discretion when it bases its decision on conflicting evidence, as long as some evidence in the record reasonably supports the trial court's decision. Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101, 105-106 (Tex. App.--Austin 2003, no pet.). As a reviewing court, we must view the evidence in the light most favorable to the trial court's order and indulge every reasonable inference in its favor. Id. When, as here, the trial court does not make findings of fact or conclusions of law, we must uphold the court's decision to deny the temporary injunction on any legal theory supported by the record. EMSL Analytical, Inc. v. Younker, 154 S.W.3d 693, 696 (Tex. App.--Houston [14th Dist.] 2004, no pet.).
Noncompetition covenant
In its first issue, WRG asserts that the district court abused its discretion in denying its request for a temporary injunction to enjoin Posey from soliciting WRG customers. WRG devotes much of its argument to establishing the enforceability of the noncompetition covenant--specifically arguing that the employment agreement, which does not recite any explicit reciprocal promises of WRG, is nonetheless an "otherwise enforceable agreement" in light of Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006). See Tex. Bus. & Com. Code Ann. § 15.50(a) (West 2002). (2)
We need not address here whether the noncompetition covenant is enforceable, however. Even if it was enforceable, the district court would not have abused its discretion in denying the temporary injunction on the basis that WRG failed to prove that it would suffer a probable, imminent, and irreparable injury.
An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204. Relying on Graham v. Mary Kay, Inc., 25 S.W.3d 749, 753 (Tex. App.--Houston [14th Dist.] 2000, pet. denied), WRG asserts that a "loss or potential loss of customer goodwill and clientele alone constitutes irreparable harm." However, on this record, the district court would not have abused its discretion in determining that WRG had failed to prove that it has lost or is in danger of losing customers.
At the hearing on its request for a temporary junction, Posey's attorney asked WRG's corporate representative if WRG had lost any business due to Posey's departure to Sika:
Q: It's true, is it not, that you can't name one customer, one contract, one purchase order that Grace has lost because of anything you-all claim Mr. Posey has done?
A In Mr. Posey's former territory, we have not lost any customers. However, we did lose a customer for a period of time in December to Sika, but [that customer] returned back to Grace due to performance issues.
* * *
Q: What happened was is that NAPCO had been a Grace customer for a long time. Right?
A: That's correct.
Q: Then they decided to try the Sika product that Mr. Posey had talked to them about. Right?
A: That's correct.
Q: And they didn't like it, and they have now come back to you, and you're under contract to them and they're still your customer. Right?
A: That's correct.
During oral argument before this Court, WRG's attorney represented that WRG had to make a price concession in order to regain that customer's business and that this price concession constituted proof of irreparable injury. We find nothing in the record regarding WRG's making price concessions in order to regain customer business. Having found no other evidence of irreparable injury, we conclude that the district court did not abuse its discretion in denying WRG's request for a temporary injunction to enforce the noncompetition covenant.
Nondisclosure provision
In its second issue, WRG contends that the district court abused its discretion in denying its request for a temporary injunction to enforce the nondisclosure provision. WRG argues that it furnished Posey with confidential information during his employment and that Posey accessed that information after he began negotiations for employment with Sika.
However, at the hearing on the temporary injunction, Posey testified that he returned or destroyed all physical forms of information relating to his employment with WRG and WRG cites no evidence showing that Posey has actually used or disclosed any of WRG's confidential information while working for Sika. In fact, Posey's employment agreement with Sika explicitly prohibits the use or disclosure of such information.
On this record, we conclude that the district court did not abuse its discretion in concluding that WRG had failed to prove a probable, imminent, and irreparable injury from Posey's disclosing information governed by the nondisclosure provision and in denying a temporary injunction to enforce that provision.
CONCLUSION
We affirm the district court's order denying WRG's application for temporary injunction.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton and Waldrop
Affirmed
Filed: August 30, 2007
1. See Tex. Civ. Prac. & Rem. Code. Ann. § 51.014(a)(4) (West Supp. 2006).
2. See also W. R. Grace & Co.-Conn v. Taylor, No. 14-06-01056-CV, 2007 Tex. App. LEXIS 3779, at *5 (Tex. App.--Houston [14th Dist.] May 17, 2007, no pet. h.) (mem. op.).
Wednesday, August 29, 2007
Anders brief terminates appeal from parental rights termination case
Derrasette Westbrook v. Texas Department of Family and Protective Services, No. 03-06-00681-CV, (Tex.App.- Austin, Aug. 29, 2007)(Opinion by Justice Patterson)(termination, Anders brief)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,847-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
NO. 212,847-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an accelerated appeal from an order terminating the parental rights of Derrasette Westbrook to her minor child, F.M. Westbrook's court-appointed attorney filed an Anders brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights).
A copy of counsel's brief was delivered to Westbrook, who was advised of her right to examine the record and to file a pro se brief. No pro se brief has been filed. After reviewing the record, we have found nothing that would arguably support an appeal, and we agree that the appeal is frivolous and without merit. We affirm the judgment of the trial court and further grant counsel's motion to withdraw as attorney.
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Before Justices Patterson, Puryear and Pemberton
Affirmed
Dunn v. Calahan (Tex.App.- Austin, Aug. 28, 2007)
Summary judgment for defendant in tortious interference suit affirmed.
Terry L. Dunn vs. M. Ann Calahan, No. 03-05-00426-CV (Tex.App.- Austin, August 28, 2007)(Opinion by Chief Justice Law)(tortious interference, IIED)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 199,002-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Terry L. Dunn appeals from the summary judgment rendered against him in his suit for tortious interference with contract and intentional infliction of emotional distress. In five issues on appeal, Dunn claims that the trial court erred in granting summary judgment for appellee Dr. M. Ann Calahan because a genuine issue of material fact existed in his tortious interference cause of action and in all of Calahan's affirmative defenses. Because we hold that Calahan conclusively negated at least one element of Dunn's cause of action, we affirm the trial court's summary judgment.
Background
Dunn was a student at the Killeen campus of Tarleton State University (Tarleton) working toward a degree in elementary education. In April 2000, on his way to a student teaching assignment at an elementary school, Dunn stopped at a men's bathroom facility in a public park in Killeen. (1) A man followed him into the rest room, the two had sex, and they were subsequently arrested and charged with public lewdness. Dunn pleaded no contest to the offense and was placed on deferred adjudication in August 2000.
On discovery of the arrest, Tarleton's administration had placed Dunn on probation pending the outcome of the criminal charges. One of Calahan's official duties as the head of the the Curriculum and Instruction Department at Tarleton was to decide whether a person was to be admitted or retained in the teacher education department. Pursuant to standard procedures, Calahan recommended that Dunn be removed from public school classrooms after his conviction. In a series of letters from September to November 2000, the Dean of Education, Joe Gillespie, agreed that Tarleton would provide a "deficiency plan" by which Dunn could obtain his teacher certification if he secured employment with a school district or private school as long as he met two requirements: (1) make "full disclosure" about his arrest to his prospective employer, and (2) the employer confirmed in writing to Tarleton that Dunn had fully disclosed his arrest.
In mid-July 2001, Dunn applied for a fourth grade teaching position in the Temple Independent School District (TISD). He was interviewed by Gail Leidy, an elementary school principal in the TISD. TISD expressed interest in hiring him. Dunn gave Susan Brown, the director of human resources, a letter for her to send on TISD's behalf requesting a deficiency plan from Tarleton. However, Brown was disturbed because the letter requesting the deficiency plan also stated that "Mr. Dunn has been totally forthcoming about his arrest record." As part of a reference check, Brown called the Copperas Cove school district and was informed about a newspaper article related to plaintiff's arrest. Brown had her assistant find this article; this was the same article to which Calahan later referred. As part of her follow-up reference check, Brown also called Gillespie, and was referred to Calahan. Brown asked Calahan how she, Brown, could know "that what he told me is what really happened." Calahan referred to the existence of an article in the Temple newspaper discussing the arrest; this was the same article that Brown already possessed. Calahan said that she told Brown about the newspaper article so that TISD would not be "blindsided" if a resident of TISD had seen the article in the paper. Calahan had not yet read the article.
Brown said that she did not feel comfortable that Dunn "had been totally forthcoming about his arrest records and provided all documentation related to his arrest." Although Dunn had disclosed his arrest to Leidy, he simply said that it was for "public lewdness" without detail. Leidy said that she assumed that Dunn meant he had been caught doing something like urinating on the side of a building, or perhaps "gyrating" in public where people could see. (2) The routine criminal background check showed that appellant had received deferred adjudication for public lewdness. Dunn, however, had answered "No" to a question on his application that asked if he had "ever been convicted of a felony or offenses involving moral turpitude and/or received probation or deferred adjudication." Although Dunn had already been assigned a classroom and placed in paid training, TISD ultimately declined to allow him to teach. Dunn then sued Calahan for tortious interference with contract and intentional infliction of emotional distress. (3)
Discussion
We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 n.4 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). We construe the evidence in favor of the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Dupont Photomasks, Inc. v. Strayhorn, 219 S.W.3d 414, 418 (Tex. App.--Austin 2006, pet. denied).
A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense. Missouri Pac. R.R. v. Lely Dev. Corp., 86 S.W.3d 787, 790 (Tex. App.--Austin 2002, pet. dism'd) (citing Centeq Realty v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). If the defendant establishes its right to summary judgment the plaintiff must then raise a fact issue. Id. When the summary judgment does not specify the grounds on which it was granted, the non-movant (as appellant) must show that each ground alleged in the motion is insufficient to support it. Goss v. Bobby D. Assocs., 94 S.W.3d 65, 68 (Tex. App.--Tyler 2002, no pet.). We must affirm the summary judgment if any of the grounds asserted in the motion are meritorious. Texas Workers' Comp. Comm'n v. Patient Advocates of Texas, 136 S.W.3d 643, 648 (Tex. 2004).
The theory of tortious interference with business relations by a third person includes two causes of action: (1) tortious interference with existing contracts, and (2) tortious interference with prospective contractual relations. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex. 1989); see generally, 13 William V. Dorsaneo III & Cecil C. Kuhne III, Texas Litigation Guide § 205.01[1] (2007). Plaintiff has the burden of proving the essential elements of tortious interference with a contract. These elements are: (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) the act was the proximate cause of plaintiff's damages; and (4) actual damage or loss. John Paul Mitchell Sys. v. Randalls Food Markets, Inc., 17 S.W.3d 721, 730 (Tex. App.--Austin 2000) (citing Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996)). The elements of tortious interference with a prospective contract are: (1) there must be a "reasonable probability" that the plaintiff would have entered into the prospective relationship or contract; (2) an "independently tortious or wrongful" act by the defendant that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring, or knew that the interference was certain or substantially certain to occur as a result of the defendant's conduct; and (4) the plaintiff suffered actual harm or damage as a result of the defendant's interference. Johnson v. Baylor University, 188 S.W.3d 296, 304 (Tex. App.--Waco 2006, pet denied).
In his first issue, Dunn contends that the trial court erred in granting summary judgment against him on his tortious interference with contract claim. (4) Dunn's pleadings allege only interference with an existing contract. In his pleadings he states that he:
was notified by the Human Resources office of Defendant TISD that Susan C. Brown was authorizing Gail Liedy to hire Plaintiff as a teacher for academic year 2001-2002. Plaintiff signed a letter of commitment with Defendant TISD and in reliance upon the agreement that Plaintiff was hired, he gave notice and left his existing employment effective July 29, 2001."
(Emphasis added.) He also alleges that "Calahan was aware that he had been employed by TISD." (Emphasis added.) Because we will hold that Calahan conclusively negated the elements of intentional interference and causation, we will begin by assuming that a contract existed, and analyze the tort of interference with an existing contract. See Lely Dev. Corp., 86 S.W.3d at 787.
Recovery under tortious interference with contract requires that the alleged interfering party must be shown to have acted willfully and intentionally. COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 670 (Tex. App.--Dallas 2004, pet. denied). A willful act involves more than simple participation in some act with a breaching party. See John Paul Mitchell Sys., 17 S.W.3d at 730. The defendant must knowingly induce one of the contracting parties to breach its obligations. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993); John Paul Mitchell Sys., 17 S.W.3d at 730 (citing Davis v. HydPro, Inc., 832 S.W.2d 137, 139 (Tex. App.--Eastland 1992, writ denied). There must be some act interfering with a contract or act persuading a party to a contract to breach; for example, offering better terms or other incentives. Davis v. HydPro, Inc., 839 S.W.2d 137, 139 (Tex. App.--Eastland 1992, writ denied). Liability for intentional interference may not be based on a simple finding that the defendant performed certain acts; there must be a finding that the defendant performed certain acts with the knowledge or belief that interference with a contract would result from that contract. See Southwestern Bell Tel. Co. v. John Carlo Texas, 843 S.W.2d 470, 472 (Tex. 1992).
The act at issue in this case is the telephone conversation between Brown and Calahan in which
Calahan informed Brown about the newspaper article. Dunn alleges in his petition that Calahan "made it clear that she believed that hiring or retaining Plaintiff as a TISD teacher would embarrass both TISD and Tarleton." For evidentiary support, he refers to Brown's deposition. In Brown's deposition she said that Dr. Calahan referred to the newspaper article as giving the arrest date. Calahan did not read the article to Brown nor send her a copy. This is the totality of the evidence on which Dunn relies to support his assertion that Calahan advised TISD that hiring Dunn would create problems. Dunn refers to no other evidence that Calahan expressed any opinion to Brown, the only TISD administrator with whom she had contact, concerning Dunn's employment with TISD and our review of the record finds none. (5) In Calahan's deposition, she said that she responded to Brown's question about Dunn because she thought that Brown should have the information to "avoid being blindsided" by a parent who might have seen the article. She herself had not read the contents of the article at that time. She had no previous relationship with Brown. The record does not show any further contact with Brown or any other TISD administrator to whom she could have communicated a negative recommendation about Dunn.
Based on the evidence in the record, no reasonable fact finder could have concluded that Calahan performed an act intended to knowingly induce TISD to breach its contract with Dunn, see John Paul Mitchell Sys., 17 S.W.3d at 730, or that the conversation with Brown was done with the knowledge or belief that it would interfere with the Brown's TISD contract. See Southwestern Bell, 843 S.W.2d at 472. Accordingly, Calahan conclusively negated the element of tortious interference that requires a willful and intentional act. John Paul Mitchell Sys., 17 S.W.3d at 730. It then became Dunn's burden to raise a fact issue. Lely Dev. Corp., 86 S.W.3d at 790. Dunn produced no countervailing evidence that Calahan offered TISD some inducement to breach its contract with Dunn or that her reference to a newspaper article that TISD already had served as a "negative inducement" for TISD to breach the contract. Calahan demonstrated her entitlement to summary judgment; Dunn failed to meet his burden to raise a fact issue. See Lely Dev., 86 S.W.3d at 790.
Calahan also conclusively negated the element of causation. Causation in a tortious interference case is "but for" causation; the test in whether the act was a substantial factor in causing the injury "without which the harm would not have occurred." See COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 679 (Tex. App.--Dallas 2004, pet. denied). The factors given by TISD as the cause of the decision not to allow Dunn to teach were that he did not "fully disclose" his arrest to TISD and that he lied on his application when he said "No" in response to the question concerning deferred adjudication. (6) Dunn's pleadings allege that Calahan's interference caused the loss of his job and the associated wages and benefits. Dunn's brief addresses the element of causation thusly: "But for Calahan's interference, Dunn would have retained his position with TISD and Calahan's actions caused TISD [sic] actions. Victoria Bank & Trust v. Brady, 811 S.W.2d 931, 939 (Tex. 1991)." That is his sole discussion on this element and he refers to no specific reference in the record that shows any causative factors for his injury other than those enunciated by TISD, nor do we find such evidence in the record. Based on this record, no reasonable factfinder could conclude that Calahan's actions were a substantial factor in causing damages to Dunn. Calahan having conclusively negated the causation element of tortious interference, see COC Servs., Ltd., 150 S.W.3d at 679, the burden shifted to Dunn to raise a fact issue, see Lely Dev. Corp., 86 S.W.3d at 790. He did not do so. Accordingly, Calahan was entitled to summary judgment against Dunn because she negated the existence of at least one element of plaintiff's cause of action. See id.
We have accepted Dunn's characterization of the contract as existing. (7) Even if we were to consider Dunn's cause of action as that for interference with prospective business relations, Calahan would still prevail by negating the elements that the defendant's conduct was independently tortious or wrongful and that the plaintiff's damage was the result of defendant's act. Johnson, 188 S.W.3d at 304. An "independently tortious act" does not mean that plaintiff must be able to prove an independent tort; the plaintiff must prove that defendant's conduct would be actionable under a recognized tort. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001). Calahan and Brown produced evidence that their phone call simply involved a response by Calahan to Brown's question about how to verify the details of Dunn's offense; Calahan told Brown about a newspaper article about which Brown already knew. There is no actionable tort present; there is not even an assertion that the conversation was defamatory or fraudulent. (8) A reasonable fact finder could not conclude that Calahan committed a tortious act in her phone call. The causation element also fails for the same reasons as previously discussed. There was no evidence that Calahan's acts caused damage to Dunn; there is no evidence that the cause of TISD's non-retention of Dunn was based on any reasons other than those stated by the district, which were not based on the conversation between Brown and Calahan.
Dunn also claimed that Calahan interfered with his contract with Tarleton by preventing the deficiency plan from being implemented. However, the implementation of the deficiency plan depended on Dunn's securing employment. We have held that Calahan's actions did not interference with Dunn's contract; TISD's decision was not based on Calahan's actions. Accordingly, Calahan did not cause the termination of the deficiency plan by preventing his employment.
Conclusion
We hold that Calahan has conclusively negated one or more elements of Dunn's cause of action for tortious interference and, thus, was entitled to summary judgment. See Lely Dev. Co., 86 S.W.3d at 790. Accordingly, we overrule Dunn's first issue. Because we have held that Calahan was entitled to summary judgment as a defendant who conclusively negated one or more elements of the plaintiff's claim, we will not address Dunn's issues concerning Calahan's affirmative defenses because they are not necessary to resolve this case. See Tex. R. App. P. 47.1 (opinion to be as brief as practicable while addressing all issues necessary to disposition of claim). (9) We affirm the trial court's summary judgment.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: August 28, 2007
1. According to a newspaper article made part of the summary judgment record, the restroom in the park was under surveillance because of numerous complaints about drug use and lewdness around children. Calahan's reference to this article forms the basis of Dunn's complaint against her.
2. Similarly, Calahan said that she interpreted "public lewdness" to mean doing something "inappropriate" in public like flashing or mooning. When asked if the fact that another man was in the restroom "suggested anything to [her]" she said that it did not.
3. Dunn also sued TISD for sex discrimination and breach of contract. TISD filed a counter-claim alleging that Dunn's suit was groundless, and was brought in bad faith and for the purpose of harassment. TISD and Dunn entered an agreement to dismiss their claims against each other.
4. Dunn also contended that he had a contract with Tarleton concerning the deficiency plan with which Calahan interfered. Because the interference with the Tarleton contract could occur only if Calahan's actions caused TISD to refuse to employ Dunn, thus preventing the implementation of the deficiency plan, we discuss the claimed interference with the TISD contract first. At various times, Dunn refers to interference with business relationships, contract, and employment. However, the only relationships subject to interference are the contracts with TISD and with Tarleton. Appellee consistently refers to interference with contract, as will we.
5. Dunn asserts that Calahan was motivated to interfere with his contract because she personally did not think that Dunn should teach. At a deposition, when asked whether in her professional opinion Dunn should be a teacher, she said that he should not. However, at the time of the phone call, Calahan did not know all of the details about the arrest nor did she express an opinion to Brown concerning Dunn's employment. By the time of the deposition, Calahan learned more details and formed this professional opinion. At one point, Dunn even admitted that Calahan was not acting maliciously but in the best interests of Tarleton and the teacher education program.
6. We note that Dunn argues that he raised material fact issues concerning the scope of "full disclosure" of his arrest, i.e. did he have to disclose more than "public lewdness" and that the question concerning deferred adjudication could be interpreted as referring only to deferred adjudication for felonies and offense involving moral turpitude. However, the basis of his claim again Calahan is the one phone conversation and reference to the newspaper article, neither of which are affected by these arguments.
7. In other words, contrary to Dunn's position, a fact issue about whether the contract was existing or prospective may exist. Summary judgment is nevertheless proper because of the negation of other elements.
8. Dunn asserts that the "full disclosure" required by his "contract" for the deficiency plan did not specify that he had to disclose this newspaper article. He seems to have then interpreted the absence of specific language about the newspaper article as a prohibition against Calahan disclosing its existence. However, nowhere in the correspondence between Dunn and Tarleton concerning the deficiency plan is there any discussion of non-disclosure of any information.
9. Calahan also moved for summary judgment on Dunn's claim of intentional infliction of emotional distress. Dunn brings no issue or argument on appeal concerning the summary judgment against him on that claim and so waived appeal of that claim. See Tex. R. App. P. 38.1(e). Further, Calahan's action in disclosing the newspaper article does not rise to the level of "extreme and outrageous" conduct that this tort requires. See Twyman v. Tywman, 855 S.W.2d 619, 621 (Tex. 1993). Extreme and outrageous conduct is conduct so outrageous in character, and so extreme in degree, as to "go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (citing Restatement (Second) of Torts § 46, cmt. d.).
Terry L. Dunn vs. M. Ann Calahan, No. 03-05-00426-CV (Tex.App.- Austin, August 28, 2007)(Opinion by Chief Justice Law)(tortious interference, IIED)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 199,002-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Terry L. Dunn appeals from the summary judgment rendered against him in his suit for tortious interference with contract and intentional infliction of emotional distress. In five issues on appeal, Dunn claims that the trial court erred in granting summary judgment for appellee Dr. M. Ann Calahan because a genuine issue of material fact existed in his tortious interference cause of action and in all of Calahan's affirmative defenses. Because we hold that Calahan conclusively negated at least one element of Dunn's cause of action, we affirm the trial court's summary judgment.
Background
Dunn was a student at the Killeen campus of Tarleton State University (Tarleton) working toward a degree in elementary education. In April 2000, on his way to a student teaching assignment at an elementary school, Dunn stopped at a men's bathroom facility in a public park in Killeen. (1) A man followed him into the rest room, the two had sex, and they were subsequently arrested and charged with public lewdness. Dunn pleaded no contest to the offense and was placed on deferred adjudication in August 2000.
On discovery of the arrest, Tarleton's administration had placed Dunn on probation pending the outcome of the criminal charges. One of Calahan's official duties as the head of the the Curriculum and Instruction Department at Tarleton was to decide whether a person was to be admitted or retained in the teacher education department. Pursuant to standard procedures, Calahan recommended that Dunn be removed from public school classrooms after his conviction. In a series of letters from September to November 2000, the Dean of Education, Joe Gillespie, agreed that Tarleton would provide a "deficiency plan" by which Dunn could obtain his teacher certification if he secured employment with a school district or private school as long as he met two requirements: (1) make "full disclosure" about his arrest to his prospective employer, and (2) the employer confirmed in writing to Tarleton that Dunn had fully disclosed his arrest.
In mid-July 2001, Dunn applied for a fourth grade teaching position in the Temple Independent School District (TISD). He was interviewed by Gail Leidy, an elementary school principal in the TISD. TISD expressed interest in hiring him. Dunn gave Susan Brown, the director of human resources, a letter for her to send on TISD's behalf requesting a deficiency plan from Tarleton. However, Brown was disturbed because the letter requesting the deficiency plan also stated that "Mr. Dunn has been totally forthcoming about his arrest record." As part of a reference check, Brown called the Copperas Cove school district and was informed about a newspaper article related to plaintiff's arrest. Brown had her assistant find this article; this was the same article to which Calahan later referred. As part of her follow-up reference check, Brown also called Gillespie, and was referred to Calahan. Brown asked Calahan how she, Brown, could know "that what he told me is what really happened." Calahan referred to the existence of an article in the Temple newspaper discussing the arrest; this was the same article that Brown already possessed. Calahan said that she told Brown about the newspaper article so that TISD would not be "blindsided" if a resident of TISD had seen the article in the paper. Calahan had not yet read the article.
Brown said that she did not feel comfortable that Dunn "had been totally forthcoming about his arrest records and provided all documentation related to his arrest." Although Dunn had disclosed his arrest to Leidy, he simply said that it was for "public lewdness" without detail. Leidy said that she assumed that Dunn meant he had been caught doing something like urinating on the side of a building, or perhaps "gyrating" in public where people could see. (2) The routine criminal background check showed that appellant had received deferred adjudication for public lewdness. Dunn, however, had answered "No" to a question on his application that asked if he had "ever been convicted of a felony or offenses involving moral turpitude and/or received probation or deferred adjudication." Although Dunn had already been assigned a classroom and placed in paid training, TISD ultimately declined to allow him to teach. Dunn then sued Calahan for tortious interference with contract and intentional infliction of emotional distress. (3)
Discussion
We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 n.4 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). We construe the evidence in favor of the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Dupont Photomasks, Inc. v. Strayhorn, 219 S.W.3d 414, 418 (Tex. App.--Austin 2006, pet. denied).
A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense. Missouri Pac. R.R. v. Lely Dev. Corp., 86 S.W.3d 787, 790 (Tex. App.--Austin 2002, pet. dism'd) (citing Centeq Realty v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). If the defendant establishes its right to summary judgment the plaintiff must then raise a fact issue. Id. When the summary judgment does not specify the grounds on which it was granted, the non-movant (as appellant) must show that each ground alleged in the motion is insufficient to support it. Goss v. Bobby D. Assocs., 94 S.W.3d 65, 68 (Tex. App.--Tyler 2002, no pet.). We must affirm the summary judgment if any of the grounds asserted in the motion are meritorious. Texas Workers' Comp. Comm'n v. Patient Advocates of Texas, 136 S.W.3d 643, 648 (Tex. 2004).
The theory of tortious interference with business relations by a third person includes two causes of action: (1) tortious interference with existing contracts, and (2) tortious interference with prospective contractual relations. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex. 1989); see generally, 13 William V. Dorsaneo III & Cecil C. Kuhne III, Texas Litigation Guide § 205.01[1] (2007). Plaintiff has the burden of proving the essential elements of tortious interference with a contract. These elements are: (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) the act was the proximate cause of plaintiff's damages; and (4) actual damage or loss. John Paul Mitchell Sys. v. Randalls Food Markets, Inc., 17 S.W.3d 721, 730 (Tex. App.--Austin 2000) (citing Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996)). The elements of tortious interference with a prospective contract are: (1) there must be a "reasonable probability" that the plaintiff would have entered into the prospective relationship or contract; (2) an "independently tortious or wrongful" act by the defendant that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring, or knew that the interference was certain or substantially certain to occur as a result of the defendant's conduct; and (4) the plaintiff suffered actual harm or damage as a result of the defendant's interference. Johnson v. Baylor University, 188 S.W.3d 296, 304 (Tex. App.--Waco 2006, pet denied).
In his first issue, Dunn contends that the trial court erred in granting summary judgment against him on his tortious interference with contract claim. (4) Dunn's pleadings allege only interference with an existing contract. In his pleadings he states that he:
was notified by the Human Resources office of Defendant TISD that Susan C. Brown was authorizing Gail Liedy to hire Plaintiff as a teacher for academic year 2001-2002. Plaintiff signed a letter of commitment with Defendant TISD and in reliance upon the agreement that Plaintiff was hired, he gave notice and left his existing employment effective July 29, 2001."
(Emphasis added.) He also alleges that "Calahan was aware that he had been employed by TISD." (Emphasis added.) Because we will hold that Calahan conclusively negated the elements of intentional interference and causation, we will begin by assuming that a contract existed, and analyze the tort of interference with an existing contract. See Lely Dev. Corp., 86 S.W.3d at 787.
Recovery under tortious interference with contract requires that the alleged interfering party must be shown to have acted willfully and intentionally. COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 670 (Tex. App.--Dallas 2004, pet. denied). A willful act involves more than simple participation in some act with a breaching party. See John Paul Mitchell Sys., 17 S.W.3d at 730. The defendant must knowingly induce one of the contracting parties to breach its obligations. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993); John Paul Mitchell Sys., 17 S.W.3d at 730 (citing Davis v. HydPro, Inc., 832 S.W.2d 137, 139 (Tex. App.--Eastland 1992, writ denied). There must be some act interfering with a contract or act persuading a party to a contract to breach; for example, offering better terms or other incentives. Davis v. HydPro, Inc., 839 S.W.2d 137, 139 (Tex. App.--Eastland 1992, writ denied). Liability for intentional interference may not be based on a simple finding that the defendant performed certain acts; there must be a finding that the defendant performed certain acts with the knowledge or belief that interference with a contract would result from that contract. See Southwestern Bell Tel. Co. v. John Carlo Texas, 843 S.W.2d 470, 472 (Tex. 1992).
The act at issue in this case is the telephone conversation between Brown and Calahan in which
Calahan informed Brown about the newspaper article. Dunn alleges in his petition that Calahan "made it clear that she believed that hiring or retaining Plaintiff as a TISD teacher would embarrass both TISD and Tarleton." For evidentiary support, he refers to Brown's deposition. In Brown's deposition she said that Dr. Calahan referred to the newspaper article as giving the arrest date. Calahan did not read the article to Brown nor send her a copy. This is the totality of the evidence on which Dunn relies to support his assertion that Calahan advised TISD that hiring Dunn would create problems. Dunn refers to no other evidence that Calahan expressed any opinion to Brown, the only TISD administrator with whom she had contact, concerning Dunn's employment with TISD and our review of the record finds none. (5) In Calahan's deposition, she said that she responded to Brown's question about Dunn because she thought that Brown should have the information to "avoid being blindsided" by a parent who might have seen the article. She herself had not read the contents of the article at that time. She had no previous relationship with Brown. The record does not show any further contact with Brown or any other TISD administrator to whom she could have communicated a negative recommendation about Dunn.
Based on the evidence in the record, no reasonable fact finder could have concluded that Calahan performed an act intended to knowingly induce TISD to breach its contract with Dunn, see John Paul Mitchell Sys., 17 S.W.3d at 730, or that the conversation with Brown was done with the knowledge or belief that it would interfere with the Brown's TISD contract. See Southwestern Bell, 843 S.W.2d at 472. Accordingly, Calahan conclusively negated the element of tortious interference that requires a willful and intentional act. John Paul Mitchell Sys., 17 S.W.3d at 730. It then became Dunn's burden to raise a fact issue. Lely Dev. Corp., 86 S.W.3d at 790. Dunn produced no countervailing evidence that Calahan offered TISD some inducement to breach its contract with Dunn or that her reference to a newspaper article that TISD already had served as a "negative inducement" for TISD to breach the contract. Calahan demonstrated her entitlement to summary judgment; Dunn failed to meet his burden to raise a fact issue. See Lely Dev., 86 S.W.3d at 790.
Calahan also conclusively negated the element of causation. Causation in a tortious interference case is "but for" causation; the test in whether the act was a substantial factor in causing the injury "without which the harm would not have occurred." See COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 679 (Tex. App.--Dallas 2004, pet. denied). The factors given by TISD as the cause of the decision not to allow Dunn to teach were that he did not "fully disclose" his arrest to TISD and that he lied on his application when he said "No" in response to the question concerning deferred adjudication. (6) Dunn's pleadings allege that Calahan's interference caused the loss of his job and the associated wages and benefits. Dunn's brief addresses the element of causation thusly: "But for Calahan's interference, Dunn would have retained his position with TISD and Calahan's actions caused TISD [sic] actions. Victoria Bank & Trust v. Brady, 811 S.W.2d 931, 939 (Tex. 1991)." That is his sole discussion on this element and he refers to no specific reference in the record that shows any causative factors for his injury other than those enunciated by TISD, nor do we find such evidence in the record. Based on this record, no reasonable factfinder could conclude that Calahan's actions were a substantial factor in causing damages to Dunn. Calahan having conclusively negated the causation element of tortious interference, see COC Servs., Ltd., 150 S.W.3d at 679, the burden shifted to Dunn to raise a fact issue, see Lely Dev. Corp., 86 S.W.3d at 790. He did not do so. Accordingly, Calahan was entitled to summary judgment against Dunn because she negated the existence of at least one element of plaintiff's cause of action. See id.
We have accepted Dunn's characterization of the contract as existing. (7) Even if we were to consider Dunn's cause of action as that for interference with prospective business relations, Calahan would still prevail by negating the elements that the defendant's conduct was independently tortious or wrongful and that the plaintiff's damage was the result of defendant's act. Johnson, 188 S.W.3d at 304. An "independently tortious act" does not mean that plaintiff must be able to prove an independent tort; the plaintiff must prove that defendant's conduct would be actionable under a recognized tort. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001). Calahan and Brown produced evidence that their phone call simply involved a response by Calahan to Brown's question about how to verify the details of Dunn's offense; Calahan told Brown about a newspaper article about which Brown already knew. There is no actionable tort present; there is not even an assertion that the conversation was defamatory or fraudulent. (8) A reasonable fact finder could not conclude that Calahan committed a tortious act in her phone call. The causation element also fails for the same reasons as previously discussed. There was no evidence that Calahan's acts caused damage to Dunn; there is no evidence that the cause of TISD's non-retention of Dunn was based on any reasons other than those stated by the district, which were not based on the conversation between Brown and Calahan.
Dunn also claimed that Calahan interfered with his contract with Tarleton by preventing the deficiency plan from being implemented. However, the implementation of the deficiency plan depended on Dunn's securing employment. We have held that Calahan's actions did not interference with Dunn's contract; TISD's decision was not based on Calahan's actions. Accordingly, Calahan did not cause the termination of the deficiency plan by preventing his employment.
Conclusion
We hold that Calahan has conclusively negated one or more elements of Dunn's cause of action for tortious interference and, thus, was entitled to summary judgment. See Lely Dev. Co., 86 S.W.3d at 790. Accordingly, we overrule Dunn's first issue. Because we have held that Calahan was entitled to summary judgment as a defendant who conclusively negated one or more elements of the plaintiff's claim, we will not address Dunn's issues concerning Calahan's affirmative defenses because they are not necessary to resolve this case. See Tex. R. App. P. 47.1 (opinion to be as brief as practicable while addressing all issues necessary to disposition of claim). (9) We affirm the trial court's summary judgment.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: August 28, 2007
1. According to a newspaper article made part of the summary judgment record, the restroom in the park was under surveillance because of numerous complaints about drug use and lewdness around children. Calahan's reference to this article forms the basis of Dunn's complaint against her.
2. Similarly, Calahan said that she interpreted "public lewdness" to mean doing something "inappropriate" in public like flashing or mooning. When asked if the fact that another man was in the restroom "suggested anything to [her]" she said that it did not.
3. Dunn also sued TISD for sex discrimination and breach of contract. TISD filed a counter-claim alleging that Dunn's suit was groundless, and was brought in bad faith and for the purpose of harassment. TISD and Dunn entered an agreement to dismiss their claims against each other.
4. Dunn also contended that he had a contract with Tarleton concerning the deficiency plan with which Calahan interfered. Because the interference with the Tarleton contract could occur only if Calahan's actions caused TISD to refuse to employ Dunn, thus preventing the implementation of the deficiency plan, we discuss the claimed interference with the TISD contract first. At various times, Dunn refers to interference with business relationships, contract, and employment. However, the only relationships subject to interference are the contracts with TISD and with Tarleton. Appellee consistently refers to interference with contract, as will we.
5. Dunn asserts that Calahan was motivated to interfere with his contract because she personally did not think that Dunn should teach. At a deposition, when asked whether in her professional opinion Dunn should be a teacher, she said that he should not. However, at the time of the phone call, Calahan did not know all of the details about the arrest nor did she express an opinion to Brown concerning Dunn's employment. By the time of the deposition, Calahan learned more details and formed this professional opinion. At one point, Dunn even admitted that Calahan was not acting maliciously but in the best interests of Tarleton and the teacher education program.
6. We note that Dunn argues that he raised material fact issues concerning the scope of "full disclosure" of his arrest, i.e. did he have to disclose more than "public lewdness" and that the question concerning deferred adjudication could be interpreted as referring only to deferred adjudication for felonies and offense involving moral turpitude. However, the basis of his claim again Calahan is the one phone conversation and reference to the newspaper article, neither of which are affected by these arguments.
7. In other words, contrary to Dunn's position, a fact issue about whether the contract was existing or prospective may exist. Summary judgment is nevertheless proper because of the negation of other elements.
8. Dunn asserts that the "full disclosure" required by his "contract" for the deficiency plan did not specify that he had to disclose this newspaper article. He seems to have then interpreted the absence of specific language about the newspaper article as a prohibition against Calahan disclosing its existence. However, nowhere in the correspondence between Dunn and Tarleton concerning the deficiency plan is there any discussion of non-disclosure of any information.
9. Calahan also moved for summary judgment on Dunn's claim of intentional infliction of emotional distress. Dunn brings no issue or argument on appeal concerning the summary judgment against him on that claim and so waived appeal of that claim. See Tex. R. App. P. 38.1(e). Further, Calahan's action in disclosing the newspaper article does not rise to the level of "extreme and outrageous" conduct that this tort requires. See Twyman v. Tywman, 855 S.W.2d 619, 621 (Tex. 1993). Extreme and outrageous conduct is conduct so outrageous in character, and so extreme in degree, as to "go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (citing Restatement (Second) of Torts § 46, cmt. d.).
Sunday, August 26, 2007
Juvenile transferred to state jail to complete 20-years sentence for attempted capital murder - Austin Court of Appeals affirms transfer
In the Matter of R. C, No. 03-06-00355-CV (Tex.App.-Austin, Aug. 24, 2007)(Opinion by Chief Justice Law)(juvenile adjudicated for attempted capital murder transferred to state jail, decision affirmed on appeal)(Before Chief Justice Law, Justices Puryear and Henson)
In the Matter of R. C.--Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-17,565, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
In October 2000, appellant was adjudicated delinquent based on the underlying offense of attempted capital murder. Appellant was committed to the Texas Youth Commission (TYC) on a twenty-year determinate sentence. In January 2006, the TYC requested that R.C. be transferred to the Institutional Division of the Texas Department of Criminal Justice (TDCJ) to complete his determinate sentence. See Tex. Hum. Res. Code Ann. § 61.079(a) (West Supp. 2006). In April 2006, after a hearing, the court ordered appellant to be transferred to the TDCJ. See Tex. Fam. Code Ann. § 54.11 (West Supp. 2006). In one issue on appeal, appellant contends that the trial court abused its discretion in ordering this transfer. We affirm the trial court's order.
Background
At the transfer hearing, numerous witnesses testified. Most of the witnesses were employees of TYC who had dealt with appellant in various capacities. Jacqueline Daiss, a therapist at the Giddings State School, testified as the TYC psychological examiner. She described appellant's record with TYC. As of June 5, 2005, the date of the examination, appellant had accrued 58 documented incidents in the "Correctional Care System," including seven category one referrals, the most serious category. Among the problems documented were an "aggressive confrontation" with another student in November of 2005 and involvement in stealing letters and pornography from a "staff desk." Several incidents involved gang related activity. However, Dais characterized appellant's TYC record as revealing very few major incidents.
Samuel Adepipe, appellant's most recent caseworker, described TYC's methods of assessing a juvenile's progress. Each juvenile is assessed in three different areas: academics, behavior, and correctional theory. The correctional theory area is weighted more heavily than the other two areas in making an overall assessment of the juvenile's progress. Within each area, a rating of zero to four, with four being the best rating, is assigned. The juveniles need to meet certain goals to move from one rating to the next. Appellant achieved ratings of A-4 and B-4. He had earned his GED and high school diploma, as well as learning marketable skills in construction and cabinet making. However, appellant's correction theory rating had remained at C-2 for much of his time at TYC. (1) Adepipe testified that correction theory was important because it reflected a juvenile's attitude toward his crime. The principal reasons for appellant remaining at level two were his failure to take responsibility for his actions, tendency to blame others for his problems, and failure to express remorse or regret for his crime.
A phase assessment hearing is held to assess a juvenile's progress and whether the juvenile can move from C-2 to C-3. Achieving a C-3 rating shows that the juvenile has moved from understanding how they were affected in their lives by their offense to the effect their actions had on others. A juvenile at level C-3 has recognized the patterns of behavior and thought that lead to committing crimes and victimizing other people and accepted responsibility for his actions.
Josh Ethridge, an associate psychologist at the Giddings State School, testified that he sat in on phase assessment reviews for appellant in October 2005 and January 2006. He described how important it was for the students to learn to have real empathy for their victims. Ethridge testified that although appellant made progress in this area and was able to talk about empathy, the members of the phase assessment review team did not feel that he was being genuine or honest in his feelings. Further, he had failed to accept responsibility for his actions, both in seeming to blame the victims of his crime and in blaming others for his referrals within TYC.
The treatment team felt that he was being dishonest, manipulative and still viewed himself as the victim. Ethridge said that he thought that appellant attempted to "front" or fake remorse. This inability to display true empathy prevented appellant from achieving level C-3. Ethridge acknowledged that he knew of no studies that linked empathy and recidivism, however.
Appellant was at one time in a specialized group within TYC to treat capital offenders (COG). His case worker while in that group, Maxine Cooper, testified that appellant presented "a risk to the community." She based this assessment on his patterns of thinking, his manipulation, his being deceitful and sneaky, and his lack of empathy. She stated in her "Youth Behavior Summary" that he had "demonstrated the ability to maintain appropriate behavior when he makes the effort as well as demonstrate[d] the ability to master excellent skills in manipulation and deception." She said that although he had many strong qualities and was a likable person, his inability to change his patterns of thinking would make him a threat to victimize people in the future. He was eventually removed from the COG program because of his inability to complete the "Crime Story" portion of the program. Specifically, he left out important information about the offense and failed to display "care and concern" for others.
Nicolas Ramos, appellant's instructor in the cabinet construction program, testified that he had taught appellant for two years and never had behavioral problems with appellant. Appellant spent several hours a day in his class. He said that appellant would be able to get a job without any difficulty because of the skills he had developed. Appellant would help new students learn the shop's rules and guidelines. However, Ramos never spoke to appellant about the crime or appellant's feelings about his past. Sometimes appellant would be depressed about the possibility of being transferred to TDC and Ramos would tell him to talk to his case worker. In general, he does not read a student's file unless he has a serious concern about that student, so he was not familiar with the details of appellant's crime or his disciplinary record within TYC. He would be comfortable working with appellant or having appellant live next door to him.
Brandon Griggs, a correction officer, had worked at Giddings for nine months at the time of the transfer hearing. Appellant was housed in Griggs's dorm. Griggs never had a behavioral problem with appellant. Appellant participated well in the behavior group that Griggs ran and helped out the other students. He said that appellant had expressed shame about his offense. Appellant told Griggs that he wanted to get a job, have his own family and place to live, and build a soccer field for local kids. In his opinion, appellant was rehabilitated.
Leonard Cucolo, the TYC court liaison, presented the formal recommendation that appellant be transferred to TDCJ. He gave his opinion that appellant's case was a hard one that in many ways "boiled down to" subjective determinations of the staff that evaluated him. However, he also described the assault on another TYC juvenile which occurred six months before the transfer hearing, after appellant knew he was being evaluated for possible transfer to TDCJ and in a "high restrictions" environment. Cuculo considered this assault an indication that appellant was still using a lot of the same type of thinking and behavior that caused his crime even after five years of exposure to rehabilitative programs. There were no more intensive programs available to appellant than the ones that he had already tried. In any event, appellant would not be able to remain at TYC after age 21.
In addition to testimony about appellant's behavior while in TYC, there was testimony from various counselors concerning appellant's history before he attempted to commit capital murder. He had been referred to the juvenile system for aggravated assault for threatening his mother with a knife; assault with injury for hitting his brother with a stick; arson; truancy; and making a false report. He had assaulted teachers and peers, made terroristic threats, possessed weapons, and called in a bomb threat to his school when he was 13. In a psychological report that was in evidence, he said that he had been fascinated with knives from an early age and had stabbed one gang member. When asked about the stabbing, he stated that he "liked to get people back" and said that he intended to hurt or kill the gang member. Daiss testified that appellant had told her about conduct that went outside the official records. Most of the behavior involved gang-related activities such as burglaries, destruction of property, and transporting cocaine and marihuana for the gang. He also said that he had been "jumped into" a gang called Murder Cide Crips at age 11. However, she and other of appellant's therapists were suspicious that he was overstating his gang history.
Appellant was described as having been diagnosed with "conduct disorder, adolescent type, severe." (2) Such a diagnosis indicates a risk for future criminal behavior.
The targets of the crime underlying appellant's adjudication as delinquent were the parents of appellant's girlfriend and had forbidden her to see him anymore. Appellant, who was fourteen at the time, entered their home while they were asleep. He was dressed entirely in black, with a bandanna and pantyhose hiding his face. He had taped his shoes to minimize footprints. He carried two knives taped to his legs. The mother awakened first and alerted the father that someone was at the door. He confronted appellant and, in the altercation that followed, appellant stabbed both the father and mother. Eventually, the couple was able to restrain appellant and call the police.
At the hearing, the parents testified that they would be so frightened if appellant were released that they would obtain concealed handgun licenses. The father testified that he sustained six knife wounds from the attack. At the time of this hearing, he still experienced problems affecting the use of his right arm because of the knife wounds. The mother testified that she can no longer sleep without lights on, gets up two or three time a night to check on the family, no longer goes out at night, and sleeps facing the door. She said that they had to move out of their previous home and change jobs.
Marcus Ramirez, the program director for the super intensive parole supervision program for the State of Texas, described the security features of the program. However, he said that only about one in ten offenders referred to the program is actually placed in the program. The court had no power to place the juvenile in the program; the parole board has that power.
Appellant's mother did not testify, but was allowed to speak. She expressed sympathy to the victims and said that her son had learned that what he did was wrong while in TYC and had expressed regrets for his crime. She did not consider him a threat to the victims.
Discussion
Standard of Review
A juvenile committed to TYC under the family code may be referred to the juvenile court for approval of the transfer of the child to TDCJ if the juvenile is between the ages of sixteen and twenty-one, the juvenile has not completed his sentence, and the juvenile's conduct indicates that the welfare of the community requires the transfer. Tex. Hum. Res. Code Ann. § 61.079. The standard of review for a transfer decision is abuse of discretion. In re J.L.C., 160 S.W.3d 312, 313 (Tex. App.--Dallas 2005, no pet.); In re C.L., 874 S.W.2d 880, 886 (Tex. App.--Austin 1994, no writ). The reviewing court analyzes the district court's decision to see if it was made without reference to guiding or principles. J.L.C., 160 S.W.3d at 313; C.L., 874 S.W.2d at 886. A transfer will only be reversed if the court acted in an unreasonable and arbitrary manner. J.L.C., 160 S.W.3d at 313.
The trial court may consider the following factors when evaluating the transfer:
(1) the experiences and character of the person before and after the commitment to the youth commission;
(2) the nature of the penal offense that the person was found to have committed and the manner in which the offense was committed;
(3) the abilities of the person to contribute to society;
(4) the protection of the victim of the offense or any member of the victim's family;
(5) the recommendations of the youth commission and the prosecuting attorney;
(6) the best interests of the person; and
(7) any other factor relevant to the issue to be decided.
Tex. Fam. Code Ann. § 54.11(k).
The trial court need not consider all of the listed factors and
may assign different weights to the factors it considers. J.L.C., 160 S.W.3d at 313-14; C.L., 874 S.W.2d at 886.
Application
Appellant had an extensive history of offenses before his commitment to TYC. Further, most of those offenses were of a violent nature: assaults against family members and others, arson, and terroristic threats. He had also been diagnosed with early onset conduct disorder, a risk factor for re-offending. The second factor, the offense committed and the manner in which the offense was committed, weighs heavily against appellant. At fourteen, with the only provocation being the disapproval of his relationship with their daughter, he committed a brutal and carefully calculated offense against the parents. (3)
Weighing in appellant's favor, he has developed technical skills that would allow him to contribute to society. He completed his high school education and secured marketable skills that would allow him to be self-supporting. However, as detailed in the testimony at the transfer hearing, the professionals working with him did not think that he had developed certain very fundamental attitudes and values that would allow him to use these skills and function in society. He had not shown empathy for his victims, was prone to blame others for his problems, and continued to use violence, as demonstrated by his attempted assault on another juvenile
while aware that he was being evaluated for possible transfer to prison.
Although appellant has made no threats toward the victims, they feel endangered should he be released. Appellant's caseworkers testified that appellant continues to see himself as the victim of the father's "persecution" in harboring an unfounded dislike of appellant that resulted in the severing of appellant's relationship with the daughter. Such a thought process is part of the overall concern that appellant still thought in the same way that lead to his commitment in the first place.
The caseworkers and psychologists who had worked with appellant recommended transfer. The core concern about appellant was his failure to show empathy toward his victims and failure to take responsibility for his actions. Although one corrections officer said that he had heard appellant express shame for what he did, that evidence was contradicted by the various caseworkers who did not think that appellant felt empathy or remorse. One psychologist, Josh Ethridge, testified that he thought that appellant attempted to "front" or fake his remorse. He was removed from the COG program because he failed to accurately describe his crime.
Appellant argues that he had done well in his academic and vocational educational endeavors, and that his B-4 (highest level) behavior rating indicates that his behavior had improved at TYC. Appellant did not have the large number of referrals that some other juveniles did. However, he did have seven category one referrals, including the attempted assault.
With regard to the person's best interest factor, the State notes that it is "difficult to argue that a person is best served by limiting his freedom." The State notes his pre-TYC behavior was marked by a string of crimes, truancy, and misbehavior. In the structured environment of TYC however, he had been able to accomplish various goals. Appellant uses the same evidence of progress to argue for parole.
The focus of the evaluation was that appellant continued to display the same thought processes, in particular lack of empathy and failure to take responsibility for his actions, that resulted in his TYC placement. Without such changes, the staff evaluation was that transfer to TDCJ was the most appropriate placement. Appellant's counsel at trial vigorously cross-examined the various TYC caseworkers about their lack of contact with Ramos and Griggs, who spent more time with appellant than the caseworkers and who had a more favorable opinion of appellant than those caseworkers in an attempt to show that these various reports were deficient and to plead for parole.
The court engaged in a thorough analysis of the evidence. The court spoke at length to appellant. She told him that there were two fundamental reasons to send him to the TYC: rehabilitation and punishment. She told him that many times she had opposed the TYC's recommendation. She said that she did not think that he had been able to connect with Adedipe as a caseworker, and she was not sure she blamed appellant for that. She noted that Ramos, the shop teacher, a person with whom he connected, "drew a line" about how engaged he would become with the psychological aspects of his students. But, she also told appellant that he had not done "the hard work" of confronting and dealing with what he had done, not "put[] up walls" to block what he had done, saying: "And whether you do that at TYC, or on your own, or at TDCJ, you have to let yourself feel, live, and breathe, and quit trying to build a wall around yourself to act like it didn't happen; because it did. And it is that problem that I have that prevents me from granting your request."
She observed that the only time appellant made eye contact with her was when the father said that he forgave appellant and appellant had a look of shock on his face. She noted that she had not heard anything from appellant about wanting to do something to "make it up" to the victim. The court noted that "even those who believe in you the most," did not think that he had ever internalized what he did. The court concluded: "I do this because you committed a heinous crime, and you have not confronted it. And I don't know if society is safe, and you have some more time to pay."
Conclusion
There was extensive testimony about appellant's performance in TYC. The court's statements at the close of the hearing made it clear that she had considered factors in appellant's favor as well as factors working against him. Based on this record, we cannot say that the court's decision was made without reference to guiding rules or principles or that the court acted in an unreasonable and arbitrary manner. See J.L.C., 160 S.W.3d at 313. Accordingly, we affirm the trial court's order.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: August 23, 2007
1. Appellant was placed on phase level C-3 for five months in 2002. He was demoted to level C-2 because of behavior problems, ongoing problems in group therapy, being manipulative and deceptive, and involvement in gang-related activities. He failed to complete numerous assignments under his individual case plan, in spite of being warned that a demotion would occur.
2. One psychological report classified it as "childhood onset," making the disorder even more severe.
3. From some of the TYC reports dealing with the underlying offense, it appears that appellant's girlfriend asked appellant to kill her parents. In some reports, appellant disclosed that he had planned to kill her as well.
Juvenile's punishment for marihuana possession in drug-free zone affirmed
In the Matter of B. R. P, No. 03-07-00106-CV (Tex. App.- Austin, Aug. 23, 2007)(Opinion by Justice Pemberton) (Before Justices Patterson, Puryear and Pemberton)
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-26,460, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The district court adjudicated B.R.P. delinquent after B.R.P. pleaded true to the offense of possessing marihuana in a drug-free zone. See Tex. Health & Safety Code Ann. § 481.121 (West 2003), § 481.134 (West Supp. 2006). Punishment was assessed at six months' probation. In a single issue on appeal, B.R.P. asserts that the district court erred in denying his motion to suppress. We affirm the judgment.
BACKGROUND
In the hearing on B.R.P.'s motion to suppress, the district court heard evidence that on October 31, 2006, Ty Davidson, Assistant Principal of the Austin Independent School District's Crockett High School, received information that B.R.P. was selling and buying drugs. When asked about "the nature of that tip," Davidson explained:
I was speaking to [another] student about his own problems with drugs. And he mentioned to me that every morning all I had to do was go to a certain bathroom, and I would see [B.R.P.] and a fellow student exchanging drugs, whether it was [B.R.P.] selling it or [B.R.P.] buying it.
The following day, Davidson ran into B.R.P. in the school's hallway. Davidson testified that "[t]he bell had already rung" and that "[t]he students were supposed to be in class." In fact, according to Davidson, B.R.P. was "30 to 45 minutes late." Davidson explained that he had "a relationship with [B.R.P.] for over a year now," so he decided to bring B.R.P. into his office to ask him how he was doing and why he was late. However, when Davidson asked B.R.P. to come with him, B.R.P. appeared "nervous" and immediately claimed that he needed to go to the restroom. Davidson told him that he could not go, but B.R.P. asked again, stating "that he really needed to go." Davidson told B.R.P. that he could go to the restroom later and insisted that B.R.P. come with him. Davidson found this behavior suspicious because B.R.P. had been cooperative in their previous encounters.
At this point, based on B.R.P.'s behavior and Davidson's "history" with B.R.P., which included Davidson's knowledge that B.R.P. had been "busted with marijuana before," (1) Davidson decided to search B.R.P. for drugs. Davidson escorted B.R.P. to an empty conference room and, in accordance with school policy, summoned David Wilson, an Austin Police Department officer assigned to Crockett, to observe the search. Once Officer Wilson arrived at the conference room, Davidson performed the search, asking B.R.P. to empty everything out of his pockets. B.R.P. removed from his pockets some dice, his wallet, and an inhaler. Davidson then proceeded to search B.R.P.'s pockets, neck, waistline, ankles, shoes, and possessions. The last thing Davidson examined was the inhaler. Davidson pulled off the cap, looked inside, and found a "green substance" inside a "clear baggy" and a partially smoked cigarette. Officer Wilson recognized the substance as marihuana. Consequently, Wilson took B.R.P. into custody and processed the evidence. Both the green substance and the substance in the cigarette later tested positive for marihuana.
On November 9, 2006, the State filed a petition alleging that B.R.P. had engaged in delinquent conduct. In response, B.R.P. filed a motion to determine the admissibility of evidence. Following a hearing on the motion, the district court ruled that the evidence was admissible and proceeded to adjudication. B.R.P. pleaded true to the allegations against him and was adjudged delinquent. The district court sentenced him to six months' probation. This appeal followed.
DISCUSSION
In his sole issue on appeal, B.R.P. contends that the district court erred in denying his motion to suppress because the search conducted by Davidson was not justified at its inception or, in the alternative, was not reasonably related in scope to the circumstances that had justified the original interference.
Standard of review
A trial court's ruling on a motion to suppress lies within the sound discretion of that court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); In re K.C.B., 141 S.W.3d 303, 305 (Tex. App.--Austin 2004, no pet.). The trial court is the sole trier of fact and judge of the weight and credibility to be given to a witness's testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999); K.C.B. 141 S.W.3d at 305. Therefore, we give almost total deference to a trial judge's determination of facts and questions of "mixed law and fact" that turn on an evaluation of witness credibility and demeanor. K.C.B., 141 S.W.3d at 305; In re V.P., 55 S.W.3d 25, 30-31 (Tex. App.--Austin 2001, pet. denied). All other "mixed questions" and pure questions of law we review de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); In re L.M., 993 S.W.2d 276, 286 (Tex. App.--Austin 1999, pet. denied). In this case, because the facts are undisputed, we review the district court's ruling de novo. See K.C.B., 141 S.W.3d at 305.
In searches of students conducted by public school officials, the standard of suspicion necessary to comport with the Fourth Amendment is reasonable suspicion, not probable cause. New Jersey v. T.L.O., 469 U.S. 325, 340-41 (1986). The test to determine whether the facts support "reasonable suspicion" dictates that we look at (1) whether the action was justified at its inception and (2) whether the search as actually conducted was reasonably related in scope to the circumstances that justified the original interference. K.C.B., 141 S.W.3d at 306. B.R.P. argues that the search in this case fails both prongs of this test.
Justification for the search
"Under ordinary circumstances, a search of a student by a teacher or other school official will be 'justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." T.L.O., 469 U.S. at 341-42. B.R.P. argues that the search was not justified because it was based on an "uncorroborated anonymous tip" and that there were no reasonable grounds for suspecting that B.R.P. possessed marihuana. The State responds that the tip was not anonymous and, furthermore, that the search was based on B.R.P.'s suspicious behavior.
This Court has previously held that an anonymous tip, standing alone, will rarely provide the reasonable suspicion necessary to justify an investigative detention or search. See K.C.B., 141 S.W.3d at 307; In re A.T.H., 106 S.W.3d 338, 344 (Tex. App.--Austin 2003, no pet.). However, both of these cases are distinguishable from the facts here. The tip in A.T.H. was received over the telephone from a caller who refused to provide his name. 106 S.W.3d at 341-42. In K.C.B., the holding was predicated on a joint stipulation that the tip was truly anonymous. 141 S.W.3d at 307. However, the Court added that if the tip had been provided by an unidentified "known student," "there might be an added indicia of reliability, thus allowing [the school official] to rely upon the tip." Id.
In this case, Davidson testified that a "student came in [to his office] who was on another infraction." Although Davidson did not explicitly identify the student in court, the district court could have reasonably inferred that Davidson knew the identity of the student. The student was in Davidson's office on "another infraction," and, Davidson added, "I was speaking to the student about his own problem with drugs." Furthermore, the student was speaking to Davidson face-to-face, not over the telephone as in A.T.H. Texas courts have distinguished between anonymous telephone informants and informants who personally approach officers. See, e.g., State v. Garcia, 25 S.W.3d 908, 913 (Tex. App.--Houston [14th Dist.] 2000, no pet.); State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.--Fort Worth 1995, pet. ref'd). "Unlike a person who makes an anonymous telephone call, an individual presenting himself to the officer in person . . . puts himself in a position to be held accountable for his intervention; thus, the reliability of the information he provides is increased." Garcia, 25 S.W.3d at 913. No accountability concerns are present in this case, as the student informant, whose identity was known to Davidson, could have been held responsible if the information he provided turned out to be inaccurate. See Florida v. J.L., 529 U.S. 266, 270 (2000).
Furthermore, the tip contained "predictive information" that could be verified. See State v. Fudge, 42 S.W.3d 226, 239-40 (Tex. App.--Austin 2001, no pet.). The tip specifically mentioned B.R.P., another student, a particular bathroom, and a particular time of day. This sort of predictive information moves beyond "merely observable facts such as location or attire" and predicts certain events involving specific individuals. See K.C.B., 141 S.W.3d at 307 (citing J.L., 529 U.S. at 271-72). "Predictive information" and receiving an informant's information in-person have long been held to be sufficient indicia of reliability to warrant "reasonable suspicion." See J.L., 529 U.S. at 271 (finding deficiency in anonymous tip because it lacked predictive information); Adams v. Williams, 407 U.S. 143, 146-47 (1972) (holding that informant whom officer personally knew provided "enough indicia of reliability" to create probable cause). Thus, this tip does not raise the same reliability concerns as the tips in K.C.B. and A.T.H.
Additionally, the tip in this case, unlike the tips in A.T.H. and K.C.B., was not the only basis for the search. Davidson also relied on B.R.P.'s suspicious behavior in deciding to search B.R.P. B.R.P. argues that needing to go to the bathroom is not suspicious behavior. What was significant to Davidson, however, was the context of B.R.P.'s request. On cross-examination,
Davidson explained:
Q: So basically is it fair to assume that you just performed the search based upon your history of B.R.P. and not because of any other factors?
A: I wouldn't say that. I would say suspicious behavior.
Q: Of wanting to go to the bathroom; is that correct?
A: Wanting to go to the bathroom after we wanted to talk. Usually when I do talk to [B.R.P.] he's pretty good. He follows me. I can calm him down, and we've had some really good conversations. There's been some bad ones in our history.
Q: Other than wanting to go to the bathroom, he was pretty compliant?
A: He was nervous.
In summary, Davidson had the following information prior to his search of B.R.P:
(1) a tip from an informant whom Davidson knew and that had other sufficient indicia of reliability; (2) B.R.P.'s repeated requests to use the restroom immediately after Davidson asked B.R.P. to accompany Davidson to his office, in contrast to B.R.P.'s usual behavior of following Davidson to his office without incident; and (3) the fact that B.R.P. appeared "nervous" when he encountered Davidson. Considered in their totality, we conclude that these factors provide "reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." T.L.O., 469 U.S. at 341-42. Therefore, the search was justified at its inception.
Scope of the search
B.R.P. also argues that the scope of the search was not reasonably related to the circumstances that justified the search at its inception. A search justified at its inception "will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id. at 342. B.R.P. contends that the circumstance that justified the search at its inception was his tardiness to class. We disagree. Although Davidson testified that he stopped B.R.P. because he was "30 to 45 minutes" late to class, that was not the reason that he searched B.R.P. In fact, Davidson testified that the reason that he decided to search B.R.P. was B.R.P.'s suspicious behavior after Davidson asked B.R.P. to come with him to his office. It was at this point that Davidson suspected that B.R.P. may have been carrying drugs. Thus, suspected drug possession was the reason for the search, not tardiness to class.
Because the objective of Davidson's search was to ascertain whether B.R.P. possessed drugs, we conclude that the scope of the search was not "excessively intrusive in light of the age and sex of the student and the nature of the infraction." In Coronado v. State, 835 S.W.2d 636 (Tex. Crim. App. 1992), the case relied on by B.R.P., the principal pulled down the suspect's pants and subsequently searched both the suspect's locker and his car for drugs. Id. at 638. The court of criminal appeals held that the search was excessively intrusive, especially in light of the fact that the principal's stated justification for the search of the locker and car was that the suspect was "skipping school." Id. at 641. In contrast, the search in this case was reasonable in light of the justification for the search, suspected drug possession. B.R.P. was first asked to empty his pockets. Then, Davidson searched B.R.P.'s pockets, neck, waistline, ankles, shoes, and the possessions emptied from B.R.P.'s pockets. That was the extent of the search. Similar searches have been found reasonable by Texas courts. See, e.g., Coffman v. State, 782 S.W.2d 249, 251 (Tex. App.--Houston [14th Dist.] 1989, no pet.); Irby v. State, 751 S.W.2d 670, 673 (Tex. App.--Eastland 1988, no pet). We hold that Davidson's search of B.R.P. was not excessively intrusive in light of the age and sex of B.R.P. and the nature of the infraction.
Because the search satisfied both prongs of the T.L.O. test, we conclude that the district court did not err in denying B.R.P.'s motion to suppress. We overrule B.R.P.'s sole issue on appeal.
CONCLUSION
We affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: August 23, 2007
1. In February 2006, B.R.P. had previously been adjudged delinquent based on evidence of marihuana possession. The judgment of delinquency was included in the clerk's record.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-26,460, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The district court adjudicated B.R.P. delinquent after B.R.P. pleaded true to the offense of possessing marihuana in a drug-free zone. See Tex. Health & Safety Code Ann. § 481.121 (West 2003), § 481.134 (West Supp. 2006). Punishment was assessed at six months' probation. In a single issue on appeal, B.R.P. asserts that the district court erred in denying his motion to suppress. We affirm the judgment.
BACKGROUND
In the hearing on B.R.P.'s motion to suppress, the district court heard evidence that on October 31, 2006, Ty Davidson, Assistant Principal of the Austin Independent School District's Crockett High School, received information that B.R.P. was selling and buying drugs. When asked about "the nature of that tip," Davidson explained:
I was speaking to [another] student about his own problems with drugs. And he mentioned to me that every morning all I had to do was go to a certain bathroom, and I would see [B.R.P.] and a fellow student exchanging drugs, whether it was [B.R.P.] selling it or [B.R.P.] buying it.
The following day, Davidson ran into B.R.P. in the school's hallway. Davidson testified that "[t]he bell had already rung" and that "[t]he students were supposed to be in class." In fact, according to Davidson, B.R.P. was "30 to 45 minutes late." Davidson explained that he had "a relationship with [B.R.P.] for over a year now," so he decided to bring B.R.P. into his office to ask him how he was doing and why he was late. However, when Davidson asked B.R.P. to come with him, B.R.P. appeared "nervous" and immediately claimed that he needed to go to the restroom. Davidson told him that he could not go, but B.R.P. asked again, stating "that he really needed to go." Davidson told B.R.P. that he could go to the restroom later and insisted that B.R.P. come with him. Davidson found this behavior suspicious because B.R.P. had been cooperative in their previous encounters.
At this point, based on B.R.P.'s behavior and Davidson's "history" with B.R.P., which included Davidson's knowledge that B.R.P. had been "busted with marijuana before," (1) Davidson decided to search B.R.P. for drugs. Davidson escorted B.R.P. to an empty conference room and, in accordance with school policy, summoned David Wilson, an Austin Police Department officer assigned to Crockett, to observe the search. Once Officer Wilson arrived at the conference room, Davidson performed the search, asking B.R.P. to empty everything out of his pockets. B.R.P. removed from his pockets some dice, his wallet, and an inhaler. Davidson then proceeded to search B.R.P.'s pockets, neck, waistline, ankles, shoes, and possessions. The last thing Davidson examined was the inhaler. Davidson pulled off the cap, looked inside, and found a "green substance" inside a "clear baggy" and a partially smoked cigarette. Officer Wilson recognized the substance as marihuana. Consequently, Wilson took B.R.P. into custody and processed the evidence. Both the green substance and the substance in the cigarette later tested positive for marihuana.
On November 9, 2006, the State filed a petition alleging that B.R.P. had engaged in delinquent conduct. In response, B.R.P. filed a motion to determine the admissibility of evidence. Following a hearing on the motion, the district court ruled that the evidence was admissible and proceeded to adjudication. B.R.P. pleaded true to the allegations against him and was adjudged delinquent. The district court sentenced him to six months' probation. This appeal followed.
DISCUSSION
In his sole issue on appeal, B.R.P. contends that the district court erred in denying his motion to suppress because the search conducted by Davidson was not justified at its inception or, in the alternative, was not reasonably related in scope to the circumstances that had justified the original interference.
Standard of review
A trial court's ruling on a motion to suppress lies within the sound discretion of that court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); In re K.C.B., 141 S.W.3d 303, 305 (Tex. App.--Austin 2004, no pet.). The trial court is the sole trier of fact and judge of the weight and credibility to be given to a witness's testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999); K.C.B. 141 S.W.3d at 305. Therefore, we give almost total deference to a trial judge's determination of facts and questions of "mixed law and fact" that turn on an evaluation of witness credibility and demeanor. K.C.B., 141 S.W.3d at 305; In re V.P., 55 S.W.3d 25, 30-31 (Tex. App.--Austin 2001, pet. denied). All other "mixed questions" and pure questions of law we review de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); In re L.M., 993 S.W.2d 276, 286 (Tex. App.--Austin 1999, pet. denied). In this case, because the facts are undisputed, we review the district court's ruling de novo. See K.C.B., 141 S.W.3d at 305.
In searches of students conducted by public school officials, the standard of suspicion necessary to comport with the Fourth Amendment is reasonable suspicion, not probable cause. New Jersey v. T.L.O., 469 U.S. 325, 340-41 (1986). The test to determine whether the facts support "reasonable suspicion" dictates that we look at (1) whether the action was justified at its inception and (2) whether the search as actually conducted was reasonably related in scope to the circumstances that justified the original interference. K.C.B., 141 S.W.3d at 306. B.R.P. argues that the search in this case fails both prongs of this test.
Justification for the search
"Under ordinary circumstances, a search of a student by a teacher or other school official will be 'justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." T.L.O., 469 U.S. at 341-42. B.R.P. argues that the search was not justified because it was based on an "uncorroborated anonymous tip" and that there were no reasonable grounds for suspecting that B.R.P. possessed marihuana. The State responds that the tip was not anonymous and, furthermore, that the search was based on B.R.P.'s suspicious behavior.
This Court has previously held that an anonymous tip, standing alone, will rarely provide the reasonable suspicion necessary to justify an investigative detention or search. See K.C.B., 141 S.W.3d at 307; In re A.T.H., 106 S.W.3d 338, 344 (Tex. App.--Austin 2003, no pet.). However, both of these cases are distinguishable from the facts here. The tip in A.T.H. was received over the telephone from a caller who refused to provide his name. 106 S.W.3d at 341-42. In K.C.B., the holding was predicated on a joint stipulation that the tip was truly anonymous. 141 S.W.3d at 307. However, the Court added that if the tip had been provided by an unidentified "known student," "there might be an added indicia of reliability, thus allowing [the school official] to rely upon the tip." Id.
In this case, Davidson testified that a "student came in [to his office] who was on another infraction." Although Davidson did not explicitly identify the student in court, the district court could have reasonably inferred that Davidson knew the identity of the student. The student was in Davidson's office on "another infraction," and, Davidson added, "I was speaking to the student about his own problem with drugs." Furthermore, the student was speaking to Davidson face-to-face, not over the telephone as in A.T.H. Texas courts have distinguished between anonymous telephone informants and informants who personally approach officers. See, e.g., State v. Garcia, 25 S.W.3d 908, 913 (Tex. App.--Houston [14th Dist.] 2000, no pet.); State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.--Fort Worth 1995, pet. ref'd). "Unlike a person who makes an anonymous telephone call, an individual presenting himself to the officer in person . . . puts himself in a position to be held accountable for his intervention; thus, the reliability of the information he provides is increased." Garcia, 25 S.W.3d at 913. No accountability concerns are present in this case, as the student informant, whose identity was known to Davidson, could have been held responsible if the information he provided turned out to be inaccurate. See Florida v. J.L., 529 U.S. 266, 270 (2000).
Furthermore, the tip contained "predictive information" that could be verified. See State v. Fudge, 42 S.W.3d 226, 239-40 (Tex. App.--Austin 2001, no pet.). The tip specifically mentioned B.R.P., another student, a particular bathroom, and a particular time of day. This sort of predictive information moves beyond "merely observable facts such as location or attire" and predicts certain events involving specific individuals. See K.C.B., 141 S.W.3d at 307 (citing J.L., 529 U.S. at 271-72). "Predictive information" and receiving an informant's information in-person have long been held to be sufficient indicia of reliability to warrant "reasonable suspicion." See J.L., 529 U.S. at 271 (finding deficiency in anonymous tip because it lacked predictive information); Adams v. Williams, 407 U.S. 143, 146-47 (1972) (holding that informant whom officer personally knew provided "enough indicia of reliability" to create probable cause). Thus, this tip does not raise the same reliability concerns as the tips in K.C.B. and A.T.H.
Additionally, the tip in this case, unlike the tips in A.T.H. and K.C.B., was not the only basis for the search. Davidson also relied on B.R.P.'s suspicious behavior in deciding to search B.R.P. B.R.P. argues that needing to go to the bathroom is not suspicious behavior. What was significant to Davidson, however, was the context of B.R.P.'s request. On cross-examination,
Davidson explained:
Q: So basically is it fair to assume that you just performed the search based upon your history of B.R.P. and not because of any other factors?
A: I wouldn't say that. I would say suspicious behavior.
Q: Of wanting to go to the bathroom; is that correct?
A: Wanting to go to the bathroom after we wanted to talk. Usually when I do talk to [B.R.P.] he's pretty good. He follows me. I can calm him down, and we've had some really good conversations. There's been some bad ones in our history.
Q: Other than wanting to go to the bathroom, he was pretty compliant?
A: He was nervous.
In summary, Davidson had the following information prior to his search of B.R.P:
(1) a tip from an informant whom Davidson knew and that had other sufficient indicia of reliability; (2) B.R.P.'s repeated requests to use the restroom immediately after Davidson asked B.R.P. to accompany Davidson to his office, in contrast to B.R.P.'s usual behavior of following Davidson to his office without incident; and (3) the fact that B.R.P. appeared "nervous" when he encountered Davidson. Considered in their totality, we conclude that these factors provide "reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." T.L.O., 469 U.S. at 341-42. Therefore, the search was justified at its inception.
Scope of the search
B.R.P. also argues that the scope of the search was not reasonably related to the circumstances that justified the search at its inception. A search justified at its inception "will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id. at 342. B.R.P. contends that the circumstance that justified the search at its inception was his tardiness to class. We disagree. Although Davidson testified that he stopped B.R.P. because he was "30 to 45 minutes" late to class, that was not the reason that he searched B.R.P. In fact, Davidson testified that the reason that he decided to search B.R.P. was B.R.P.'s suspicious behavior after Davidson asked B.R.P. to come with him to his office. It was at this point that Davidson suspected that B.R.P. may have been carrying drugs. Thus, suspected drug possession was the reason for the search, not tardiness to class.
Because the objective of Davidson's search was to ascertain whether B.R.P. possessed drugs, we conclude that the scope of the search was not "excessively intrusive in light of the age and sex of the student and the nature of the infraction." In Coronado v. State, 835 S.W.2d 636 (Tex. Crim. App. 1992), the case relied on by B.R.P., the principal pulled down the suspect's pants and subsequently searched both the suspect's locker and his car for drugs. Id. at 638. The court of criminal appeals held that the search was excessively intrusive, especially in light of the fact that the principal's stated justification for the search of the locker and car was that the suspect was "skipping school." Id. at 641. In contrast, the search in this case was reasonable in light of the justification for the search, suspected drug possession. B.R.P. was first asked to empty his pockets. Then, Davidson searched B.R.P.'s pockets, neck, waistline, ankles, shoes, and the possessions emptied from B.R.P.'s pockets. That was the extent of the search. Similar searches have been found reasonable by Texas courts. See, e.g., Coffman v. State, 782 S.W.2d 249, 251 (Tex. App.--Houston [14th Dist.] 1989, no pet.); Irby v. State, 751 S.W.2d 670, 673 (Tex. App.--Eastland 1988, no pet). We hold that Davidson's search of B.R.P. was not excessively intrusive in light of the age and sex of B.R.P. and the nature of the infraction.
Because the search satisfied both prongs of the T.L.O. test, we conclude that the district court did not err in denying B.R.P.'s motion to suppress. We overrule B.R.P.'s sole issue on appeal.
CONCLUSION
We affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: August 23, 2007
1. In February 2006, B.R.P. had previously been adjudged delinquent based on evidence of marihuana possession. The judgment of delinquency was included in the clerk's record.
Tuesday, August 21, 2007
Contract Law: Agreement not ambiguous; ergo parol evidence not to be considered
Jon Maniccia and Southwest Intelecom, Inc. v. John Collins, No. 03-04-00810-CV (Tex.App.- Austin, Aug. 17, 2007)(Opinion by Justice Puryear)(contract construction, no ambiguity found)(Before Chief Justice Law, Justices Patterson and Puryear)
Appeal from 201st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. GN401779, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
John Collins and Jon Maniccia were the owners of Southwest Intelecom, Inc., ("Intelecom"). As part of its business operations, Intelecom received periodic payments from various collection agencies, including Billing Concepts; Integretel, Inc. ("Integretel"); and Aargon Collection Agency ("Aargon").
In 2002, Collins and Maniccia began having disagreements over how to run Intelecom. As a result of these differences, in July 2002, Collins, Maniccia, and Intelecom entered into a Stock Repurchase Agreement and Mutual Release (the "Agreement") under which Collins agreed to sell all of his stock back to Intelecom. As compensation, Collins was entitled to receive one-half of whatever amount of money Billing Concepts, Integretel, and Aargon paid Intelecom. After the Agreement was signed, Intelecom received $81,000 from Billing Concepts, $42,533.28 from
Integretel, and $7,148.04 from Aargon for a total of $130,681.32.
Collins asked Intelecom to pay him one-half of the amounts paid to Intelecom by the previously mentioned companies, but Intelecom refused to pay him. Eventually, Collins filed suit against Intelecom and Maniccia, seeking to recover one-half of the money received by Intelecom. He also filed a motion for summary judgment, which the district court ultimately granted. In its judgment, the court ordered that Collins was entitled to one-half of the $130,681.32 collected ($65,340.66) plus attorney's fees. Intelecom and Maniccia appeal the judgment of the district court.
STANDARD OF REVIEW
The standards for obtaining a traditional summary judgment are well established: the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant's favor. Sergeant Enters., Inc. v. Strayhorn, 112 S.W.3d 241, 245 (Tex. App.--Austin 2003, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)); see Tex. R. Civ. P. 166a(c). If the movant establishes a right to summary judgment, the burden shifts to the nonmovant, who must present summary-judgment evidence to the trial court raising a genuine issue of material fact to preclude summary judgment. Cannon v. Texas Indep. Bank, 1 S.W.3d 218, 223 (Tex. App.--Texarkana 1999, pet. denied). If the evidence raises no more than a surmise or suspicion of a fact in issue, no genuine issue of fact exists to defeat summary judgment. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex. App.--Dallas 2005, no pet.) (citing Wiggins v. Overstreet, 962 S.W.2d 198, 200 (Tex. App.--Houston [14th Dist.] 1998, writ denied)). We review the trial court's decision to grant summary judgment de novo. Sergeant Enters., Inc., 112 S.W.3d at 245 (citing Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)).
DISCUSSION
On appeal, Maniccia and Intelecom contend that the district court erred when it granted Collins's summary-judgment motion. Essentially, they argue that the district court improperly interpreted the portion of the Agreement specifying what amounts Collins was entitled to recover. In their first argument, they contend that the Agreement unambiguously requires that certain offsets be applied before Collins recovers his award. Alternatively, Maniccia and Intelecom contend that if the language does not unambiguously require offsets to Collins's recovery, the language is ambiguous as to what effect the listing of certain costs in the Agreement has on Collins's recovery. Because of this ambiguity, they urge this Court to consider extrinsic evidence to ascertain the meaning of the relevant provision, including an email sent by Collins to Intelecom's lawyer.
Determining whether a contract is ambiguous is a question of law for courts to decide. General Agents Ins. Co. v. Arredondo, 52 S.W.3d 762, 766 (Tex. App.--San Antonio 2001, pet. denied). If a contract is subject to more than one reasonable interpretation, then it is ambiguous. Id. However, a contract is unambiguous if it can be given a definite or certain meaning, and conflicting interpretations of a contract by the parties, without more, do not create an ambiguity. See id. If a contract is unambiguous, courts must enforce the contract as written. Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 859 (Tex. App.--Austin 2001, pet. denied). Further, if the contract is unambiguous, parole evidence may not be admitted for the purpose of creating an ambiguity. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). It is only after a court has determined that an agreement is ambiguous that a court may consider extraneous evidence to determine the meaning of the agreement. Id.
The Agreement explains that Collins was entitled to recover one-half of any money Intelecom "received" from Billing Concepts, Integretel, and Aargon. The relevant portion of the Agreement specifying Collins's compensation provides as follows:
By signing below, Collins agrees to sell his stock to Intelecom for the payment of one-half of any monies received by Intelecom from Billing Concepts, expressly acknowledging that Intelecom may receive no monies from Billing Concepts. . . . To the extent that funds from Billing Concepts are received after the obligation to RFC is satisfied, payment will be made to Collins within fourteen (14) days thereafter. . . . These monies will be the sole amounts to be received by Collins in exchange for his stock, regardless of any other recoveries, payments, profits, or amounts received by Intelecom or Maniccia at any time after the execution of this agreement except as expressly follows: as additional consideration for the stock, Intelecom will also pay one-half of any sums received on account of the billing records sent to Integretel for collection, to include monies received from Aargon, the collection agency presently seeking payment on said reports; as additional consideration for the stock, Intelecom will pay Collins one-half of any sums received on the judgment that has been taken against Frank Murillo in Southwest Intelecom v. Murillo . . . . (Emphasis added.)
However, Maniccia and Intelecom both insist that, under the Agreement, Collins's recovery was subject to offsets both before and after Intelecom received money from Billing Concepts, Integretel, and Aargon. First, Maniccia and Intelecom argue that before paying Intelecom, Billing Concepts was required to apply the money collected to two of Intelecom's financial obligations. The first obligation was to RFC, which is a third-party vendor. The second obligation was to the attorney general. Maniccia and Intelecom insist that the obligation to pay the attorney general resulted from an inquiry made by the Consumer Protection Division and that the payments covered costs incurred through the investigation. They further insist that the district court erred by failing to reduce Collins's recovery to account for these offsets. The portion of the Agreement relevant to this argument provides as follows:
Said payment from Billing Concepts to Intelecom will be made upon full satisfaction of Intelecom's obligations to RFC and the Texas Attorney General's office. . . . Money received from RFC Capital or the Attorney General of Texas on account of overpayment of funds to them by Billing Concepts will be considered monies received from Billing Concepts for purposes of this paragraph.
Collins disagrees with Maniccia and Intelecom's interpretation of the language above. He asserts that the quoted portions of the Agreement only affected the timing of his ultimate recovery, not the amount of his ultimate recovery. Essentially, he argues that the sentence merely described the circumstances under which Billing Concepts was obligated to pay Intelecom and related that Billing Concepts was not obligated to pay Intelecom until after Intelecom had satisfied its own financial obligations to RFC and the attorney general.
As a preliminary matter, we note that the language Maniccia and Intelecom claim proves that Collins's award was subject to pre-payment offsets only refers to payments from Billing Concepts and makes no reference to money Intelecom received from Aargon and Integretel. Consequently, we fail to see how Maniccia and Intelecom's interpretation would justify reducing Collins's entitlement to half the money Aargon and Integretel paid to Intelecom. Regardless, we need not determine which of the parties' competing interpretations correctly reflects their intentions when entering the Agreement.
No matter which interpretation is correct, the Agreement unambiguously states that Collins is entitled to "one-half of any monies received from Billing Concepts," Integretel, and Aargon. It is undisputed that Intelecom received $81,000 from Billing Concepts, $42,533.28 from Integretel, and $7,148.04 from Aargon, and Collins is, therefore, entitled to one-half of the total of those three amounts. If Billing Concepts was under some obligation to apply the money that it collected to satisfy some of Intelecom's financial obligations but failed to comply with that requirement--a determination we cannot make in this appeal--that failure cannot be used to undo the fact that Intelecom received $81,000 from Billing Concepts, nor can it be used to justify a type of after-payment offset not authorized by the Agreement between Collins, Maniccia, and Intelecom.
In addition to before-payment offsets, Maniccia and Intelecom also assert that the Agreement provides for offsets to Collins's recovery that were to be applied after Billing Concepts, Aargon, and Integretel transferred the money they collected to Intelecom and further assert that Collins was only entitled to recover if the amount Intelecom collected was greater than the value of the offsets. Specifically, Maniccia and Intelecom insist that, before paying Collins, they were required to use the money they collected to pay delinquent-contractor commissions and certain legal fees. The portion of the Agreement relevant to this argument provides as follows:
Intelecom further guarantees that--until Collins receives his half--such funds will not be used to satisfy any of its other accumulated debts, aside from delinquent contractor commissions and legal fees incurred solely as a result of the pending Illinois case and the RFC/[Billing Concepts] disputes.
We disagree with Maniccia and Intelecom's interpretation. First, we note that as discussed previously, the relevant sentence quoted above makes no reference to money collected from Aargon and Integretel. The sentence is found immediately after the sentences describing Collins's entitlement to half the money collected from Billing Concepts, and the phrase "such funds" is a specific reference to that money. Moreover, the relevant sentence comes well before the sentence stating that Collins was entitled to one-half of the funds transferred from Aargon and Integretel, and that subsequent sentence provides no modification to Collins's entitlement to those funds. For all these reasons, we believe that the provision previously quoted has no bearing on Collins's entitlement to one-half of the money Intelecom received from Aargon and Integretel.
Second, we also disagree with Maniccia and Intelecom's construction of the sentence as authorizing an offset to Collins's entitlement to the money Intelecom received from Billing Concepts. The primary component of the sentence ensures that before Collins was able to collect his entitlement, Intelecom did not use the money received from Billing Concepts to pay Intelecom's debts. Further, although the sentence does list delinquent-contractor commissions and legal fees as exceptions to this hold requirement, the sentence in no way states that Collins's entitlement to one-half of the money collected from Billing Concepts should be reduced to account for those costs. On the contrary, the sentence again clarifies that Collins is entitled to a full, unadjusted half of the funds received from Billing Concepts by including the phrase "until Collins receives his half" in reference to those funds. While the sentence may have authorized Intelecom to use its one-half of the money received from Billing Concepts to pay delinquent commissions and legal fees, it does not authorize Intelecom to use Collins's half of the funds for these same purposes.
For these reasons, we conclude that the relevant language of the Agreement can be given a definite and certain meaning and is, therefore, unambiguous. Therefore, we need not address Maniccia and Intelecom's alternative assertion that the Agreement is ambiguous and that parole evidence should be used to ascertain the meaning of the Agreement. We further conclude that nothing in the Agreement authorizes a reduction to Collins's entitlement to the money Intelecom received from Aargon and Integretel and that the Agreement does not allow for offsets to Collins's recovery after Intelecom received money from Billing Concepts. In light of the preceding, we must conclude that there is no genuine issue of material fact relating to Collins's recovery and that he was entitled to one half of the money collected from Billing Concepts, Integretel, and Aargon as a matter of law. Accordingly, we affirm the judgment of the district court.
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed: August 17, 2007
Appeal from 201st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. GN401779, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
John Collins and Jon Maniccia were the owners of Southwest Intelecom, Inc., ("Intelecom"). As part of its business operations, Intelecom received periodic payments from various collection agencies, including Billing Concepts; Integretel, Inc. ("Integretel"); and Aargon Collection Agency ("Aargon").
In 2002, Collins and Maniccia began having disagreements over how to run Intelecom. As a result of these differences, in July 2002, Collins, Maniccia, and Intelecom entered into a Stock Repurchase Agreement and Mutual Release (the "Agreement") under which Collins agreed to sell all of his stock back to Intelecom. As compensation, Collins was entitled to receive one-half of whatever amount of money Billing Concepts, Integretel, and Aargon paid Intelecom. After the Agreement was signed, Intelecom received $81,000 from Billing Concepts, $42,533.28 from
Integretel, and $7,148.04 from Aargon for a total of $130,681.32.
Collins asked Intelecom to pay him one-half of the amounts paid to Intelecom by the previously mentioned companies, but Intelecom refused to pay him. Eventually, Collins filed suit against Intelecom and Maniccia, seeking to recover one-half of the money received by Intelecom. He also filed a motion for summary judgment, which the district court ultimately granted. In its judgment, the court ordered that Collins was entitled to one-half of the $130,681.32 collected ($65,340.66) plus attorney's fees. Intelecom and Maniccia appeal the judgment of the district court.
STANDARD OF REVIEW
The standards for obtaining a traditional summary judgment are well established: the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant's favor. Sergeant Enters., Inc. v. Strayhorn, 112 S.W.3d 241, 245 (Tex. App.--Austin 2003, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)); see Tex. R. Civ. P. 166a(c). If the movant establishes a right to summary judgment, the burden shifts to the nonmovant, who must present summary-judgment evidence to the trial court raising a genuine issue of material fact to preclude summary judgment. Cannon v. Texas Indep. Bank, 1 S.W.3d 218, 223 (Tex. App.--Texarkana 1999, pet. denied). If the evidence raises no more than a surmise or suspicion of a fact in issue, no genuine issue of fact exists to defeat summary judgment. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex. App.--Dallas 2005, no pet.) (citing Wiggins v. Overstreet, 962 S.W.2d 198, 200 (Tex. App.--Houston [14th Dist.] 1998, writ denied)). We review the trial court's decision to grant summary judgment de novo. Sergeant Enters., Inc., 112 S.W.3d at 245 (citing Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)).
DISCUSSION
On appeal, Maniccia and Intelecom contend that the district court erred when it granted Collins's summary-judgment motion. Essentially, they argue that the district court improperly interpreted the portion of the Agreement specifying what amounts Collins was entitled to recover. In their first argument, they contend that the Agreement unambiguously requires that certain offsets be applied before Collins recovers his award. Alternatively, Maniccia and Intelecom contend that if the language does not unambiguously require offsets to Collins's recovery, the language is ambiguous as to what effect the listing of certain costs in the Agreement has on Collins's recovery. Because of this ambiguity, they urge this Court to consider extrinsic evidence to ascertain the meaning of the relevant provision, including an email sent by Collins to Intelecom's lawyer.
Determining whether a contract is ambiguous is a question of law for courts to decide. General Agents Ins. Co. v. Arredondo, 52 S.W.3d 762, 766 (Tex. App.--San Antonio 2001, pet. denied). If a contract is subject to more than one reasonable interpretation, then it is ambiguous. Id. However, a contract is unambiguous if it can be given a definite or certain meaning, and conflicting interpretations of a contract by the parties, without more, do not create an ambiguity. See id. If a contract is unambiguous, courts must enforce the contract as written. Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 859 (Tex. App.--Austin 2001, pet. denied). Further, if the contract is unambiguous, parole evidence may not be admitted for the purpose of creating an ambiguity. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). It is only after a court has determined that an agreement is ambiguous that a court may consider extraneous evidence to determine the meaning of the agreement. Id.
The Agreement explains that Collins was entitled to recover one-half of any money Intelecom "received" from Billing Concepts, Integretel, and Aargon. The relevant portion of the Agreement specifying Collins's compensation provides as follows:
By signing below, Collins agrees to sell his stock to Intelecom for the payment of one-half of any monies received by Intelecom from Billing Concepts, expressly acknowledging that Intelecom may receive no monies from Billing Concepts. . . . To the extent that funds from Billing Concepts are received after the obligation to RFC is satisfied, payment will be made to Collins within fourteen (14) days thereafter. . . . These monies will be the sole amounts to be received by Collins in exchange for his stock, regardless of any other recoveries, payments, profits, or amounts received by Intelecom or Maniccia at any time after the execution of this agreement except as expressly follows: as additional consideration for the stock, Intelecom will also pay one-half of any sums received on account of the billing records sent to Integretel for collection, to include monies received from Aargon, the collection agency presently seeking payment on said reports; as additional consideration for the stock, Intelecom will pay Collins one-half of any sums received on the judgment that has been taken against Frank Murillo in Southwest Intelecom v. Murillo . . . . (Emphasis added.)
However, Maniccia and Intelecom both insist that, under the Agreement, Collins's recovery was subject to offsets both before and after Intelecom received money from Billing Concepts, Integretel, and Aargon. First, Maniccia and Intelecom argue that before paying Intelecom, Billing Concepts was required to apply the money collected to two of Intelecom's financial obligations. The first obligation was to RFC, which is a third-party vendor. The second obligation was to the attorney general. Maniccia and Intelecom insist that the obligation to pay the attorney general resulted from an inquiry made by the Consumer Protection Division and that the payments covered costs incurred through the investigation. They further insist that the district court erred by failing to reduce Collins's recovery to account for these offsets. The portion of the Agreement relevant to this argument provides as follows:
Said payment from Billing Concepts to Intelecom will be made upon full satisfaction of Intelecom's obligations to RFC and the Texas Attorney General's office. . . . Money received from RFC Capital or the Attorney General of Texas on account of overpayment of funds to them by Billing Concepts will be considered monies received from Billing Concepts for purposes of this paragraph.
Collins disagrees with Maniccia and Intelecom's interpretation of the language above. He asserts that the quoted portions of the Agreement only affected the timing of his ultimate recovery, not the amount of his ultimate recovery. Essentially, he argues that the sentence merely described the circumstances under which Billing Concepts was obligated to pay Intelecom and related that Billing Concepts was not obligated to pay Intelecom until after Intelecom had satisfied its own financial obligations to RFC and the attorney general.
As a preliminary matter, we note that the language Maniccia and Intelecom claim proves that Collins's award was subject to pre-payment offsets only refers to payments from Billing Concepts and makes no reference to money Intelecom received from Aargon and Integretel. Consequently, we fail to see how Maniccia and Intelecom's interpretation would justify reducing Collins's entitlement to half the money Aargon and Integretel paid to Intelecom. Regardless, we need not determine which of the parties' competing interpretations correctly reflects their intentions when entering the Agreement.
No matter which interpretation is correct, the Agreement unambiguously states that Collins is entitled to "one-half of any monies received from Billing Concepts," Integretel, and Aargon. It is undisputed that Intelecom received $81,000 from Billing Concepts, $42,533.28 from Integretel, and $7,148.04 from Aargon, and Collins is, therefore, entitled to one-half of the total of those three amounts. If Billing Concepts was under some obligation to apply the money that it collected to satisfy some of Intelecom's financial obligations but failed to comply with that requirement--a determination we cannot make in this appeal--that failure cannot be used to undo the fact that Intelecom received $81,000 from Billing Concepts, nor can it be used to justify a type of after-payment offset not authorized by the Agreement between Collins, Maniccia, and Intelecom.
In addition to before-payment offsets, Maniccia and Intelecom also assert that the Agreement provides for offsets to Collins's recovery that were to be applied after Billing Concepts, Aargon, and Integretel transferred the money they collected to Intelecom and further assert that Collins was only entitled to recover if the amount Intelecom collected was greater than the value of the offsets. Specifically, Maniccia and Intelecom insist that, before paying Collins, they were required to use the money they collected to pay delinquent-contractor commissions and certain legal fees. The portion of the Agreement relevant to this argument provides as follows:
Intelecom further guarantees that--until Collins receives his half--such funds will not be used to satisfy any of its other accumulated debts, aside from delinquent contractor commissions and legal fees incurred solely as a result of the pending Illinois case and the RFC/[Billing Concepts] disputes.
We disagree with Maniccia and Intelecom's interpretation. First, we note that as discussed previously, the relevant sentence quoted above makes no reference to money collected from Aargon and Integretel. The sentence is found immediately after the sentences describing Collins's entitlement to half the money collected from Billing Concepts, and the phrase "such funds" is a specific reference to that money. Moreover, the relevant sentence comes well before the sentence stating that Collins was entitled to one-half of the funds transferred from Aargon and Integretel, and that subsequent sentence provides no modification to Collins's entitlement to those funds. For all these reasons, we believe that the provision previously quoted has no bearing on Collins's entitlement to one-half of the money Intelecom received from Aargon and Integretel.
Second, we also disagree with Maniccia and Intelecom's construction of the sentence as authorizing an offset to Collins's entitlement to the money Intelecom received from Billing Concepts. The primary component of the sentence ensures that before Collins was able to collect his entitlement, Intelecom did not use the money received from Billing Concepts to pay Intelecom's debts. Further, although the sentence does list delinquent-contractor commissions and legal fees as exceptions to this hold requirement, the sentence in no way states that Collins's entitlement to one-half of the money collected from Billing Concepts should be reduced to account for those costs. On the contrary, the sentence again clarifies that Collins is entitled to a full, unadjusted half of the funds received from Billing Concepts by including the phrase "until Collins receives his half" in reference to those funds. While the sentence may have authorized Intelecom to use its one-half of the money received from Billing Concepts to pay delinquent commissions and legal fees, it does not authorize Intelecom to use Collins's half of the funds for these same purposes.
For these reasons, we conclude that the relevant language of the Agreement can be given a definite and certain meaning and is, therefore, unambiguous. Therefore, we need not address Maniccia and Intelecom's alternative assertion that the Agreement is ambiguous and that parole evidence should be used to ascertain the meaning of the Agreement. We further conclude that nothing in the Agreement authorizes a reduction to Collins's entitlement to the money Intelecom received from Aargon and Integretel and that the Agreement does not allow for offsets to Collins's recovery after Intelecom received money from Billing Concepts. In light of the preceding, we must conclude that there is no genuine issue of material fact relating to Collins's recovery and that he was entitled to one half of the money collected from Billing Concepts, Integretel, and Aargon as a matter of law. Accordingly, we affirm the judgment of the district court.
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed: August 17, 2007
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