Berryman's S. Fork, Inc. v. J. Baxter Brinkmann Int'l Corp.

• Decision Date: 20 November 2013
• Docket Number: No. 05–12–00492–CV.,05–12–00492–CV.
• Citation: 418 S.W.3d 172
• Parties: BERRYMAN'S SOUTH FORK, INC. and Richard Berryman, Appellants v. J. BAXTER BRINKMANN INTERNATIONAL CORPORATION, The Brinkmann Corporation and J. Baxter Brinkmann, Appellees.
• Court: Texas Court of Appeals

418 S.W.3d 172

BERRYMAN'S SOUTH FORK, INC. and Richard Berryman, Appellants

v.J. BAXTER BRINKMANN INTERNATIONAL CORPORATION, The Brinkmann Corporation and J. Baxter Brinkmann, Appellees.

No. 05–12–00492–CV.

Court of Appeals of Texas, Dallas.

Nov. 20, 2013.

F. Leighton Durham, Kirk L. Pittard, Christy Denison Wollin, Peter M. Kelly, Sean Reed Cox, Barbara Thompson Hale, Thad D. Spalding, Kelly, Durham & Pittard, LLP, Dallas, for Appellants.

Michael G. Brown, Amber Grand, Figari Davenport, LLP, Dallas, for Appellees.

Before Justices FITZGERALD, LANG, and MYERS.

OPINION

Opinion by Justice LANG.

This case arises from a written contract (the “Agreement”) under which appellee J. Baxter Brinkmann International Corporation (“JBBI”) employed appellant Berryman's South Fork, Inc. (“BSF”) for the purpose of “engaging the full-time services” of appellant Richard Berryman (“Berryman”) as a “sales and marketing representative.” Appellees JBBI and The Brinkmann Corporation (“TBC”) filed this lawsuit against appellants asserting claims for, in part, declaratory judgment, breach of contract, and money had and received. Appellants (1) counterclaimed against JBBI for, in part, breach of an alleged contract to pay Berryman's expenses and (2) asserted claims against J. Baxter Brinkmann, individually, (“Brinkmann”) as a third party defendant.¹ Appellees filed a motion for (1) traditional summary judgment in their favor on the claims asserted by JBBI and TBC and appellants' counterclaims and (2) no-evidence summary judgment in their favor on appellants' counterclaims. The trial court signed a final judgment in which it (1) sustained appellees' objections to an affidavit of Berryman filed by appellants as summary judgment evidence, (2) granted appellees' motion for summary judgment, (3) made declarations respecting the Agreement, and (4) awarded appellees damages, attorneys' fees, interest, and costs of court.

In eleven issues on appeal, appellants contend the trial court erred because (1) the evidence raises fact issues as to the parties' claims; (2) the declaratory relief requested by JBBI and TBC was “redundant with” their breach of contract claim and therefore was “barred as a matter of law”; (3) appellees “failed to conclusively prove the reasonableness and necessity of the claimed [attorneys'] fees by not segregating fees”; (4) Brinkmann, individually, did not recover on any cause of action and therefore should not have been awarded damages, attorneys' fees, interest, or costs of court; and (5) the sustaining of appellees' objections to Berryman's affidavit constituted an abuse of discretion.

For the reasons below, on this voluminous summary judgment record, we reverse the trial court's judgment in part, render judgment in part, and otherwise affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Agreement was executed on July 2, 2001.² It stated in part that JBBI “desires to employ the services of [Berryman], through [BSF], for the benefit of [JBBI] and its affiliated companies.” Additionally, the Agreement provided in part

2. Compensation

In exchange for the services to be rendered hereunder by [Berryman], [JBBI] shall pay, or cause to be paid, the sum of one million dollars per year in equal monthly installments....

3. Term

This Agreement is for a term of five years starting August 1, 2001 and is to be renewed annually thereafter unless either parties [sic] gives notice in writing 90 days prior to the end of any anniversary date. Notwithstanding the five year fixed term, [JBBI] may terminate this Agreement and have no further payment obligation if [Berryman] is unable to perform full-time services due to death or disability or has failed to carry out the duties of a senior sales and marketing representative in accord with general industry standards.

Approximately seven years after the Agreement was executed, an attorney for appellants sent JBBI a letter dated May 20, 2008. In that letter, appellants' attorney stated that as a result of actions taken by JBBI, “including, but not limited to, making defamatory statements” to JBBI employees and others, JBBI had “substantially undermined [Berryman's] ability to perform his job duties and responsibilities” and therefore had “constructively terminated [Berryman] and breached the implied covenant of good faith and fair dealing with respect to the Agreement.” Further, appellants' attorney (1) stated JBBI had “failed and refused” to reimburse Berryman for approximately $160,000 in expenses that JBBI was “obligated to pay” pursuant to “Mr. Berryman's contract” with JBBI and (2) requested that JBBI contact him to “negotiate a fair and equitable severance for Mr. Berryman.”

On May 23, 2008, JBBI and TBC (“plaintiffs”) filed this lawsuit against BSF and Berryman (“defendants”). In their original petition, plaintiffs asserted a claim for “declaratory judgment relief.” Specifically, plaintiffs requested in part that the trial court declare (1) “whether [d]efendants have carried on its or their required duties under the terms of the [Agreement]”; (2) that plaintiffs have not violated the terms of their “agreements or obligations, if any,” to defendants; and (3) “other declaratory relief as necessary to terminate the controversy and remove uncertainty relating to the [plaintiffs'] alleged remaining rights and obligations to [d]efendants, if any.” Further, plaintiffs requested “reasonable and necessary attorneys' fees incurred herein and on any appeal.”

In a letter to defendants dated August 29, 2008, counsel for JBBI stated (1) defendants had failed to perform as obligated under the Agreement “for some months now” and (2) JBBI “hereby terminates the Agreement as permitted in Section 3 and as otherwise allowed by law.” Subsequent to that letter, plaintiffs filed supplements to their original petition in which they added claims for breach of contract and “money had and received/unjust enrichment.” In their breach of contract claim, plaintiffs alleged in part that defendants “failed and refused and continue to fail and refuse to fulfill their obligations under the [Agreement],” thus entitling plaintiffs to damages and attorneys' fees. In their claim for “money had and received/unjust enrichment,” plaintiffs asserted in part that “during the May 2008 through August 2008 time period,” defendants “received monies they were not entitled to keep and to which they have been unjustly enriched.” Pursuant to that claim, plaintiffs sought to recover approximately $334,000 received by defendants during that time period, including (1) “$291,666.66 paid during a time period [defendants] performed no work for [plaintiffs]” and (2) approximately $42,000 in “Airplane Allowance payments” made to defendants pursuant to a “separate verbal agreement” that plaintiffs would “provide [d]efendants an upfront allowance for expenses (up to $12,000 per month) [d]efendants incurred related to the operation of an aircraft to be used to assist [d]efendants in performing their duties owed to [p]laintiffs” (the “Airplane Allowance”).

Defendants filed a general denial answer and asserted several affirmative defenses, including “equitable estoppel.” Additionally, defendants asserted (1) a counterclaim against JBBI for “breach of contract relating to reimbursement of expenses,” in which defendants contended they were owed $157,600.83 in “expenses not paid” by JBBI; and (2) claims for business disparagement, defamation, and exemplary damages against Brinkmann as a third-party defendant.

JBBI and Brinkmann filed separate general denial answers to defendants' counterclaims. Additionally, JBBI asserted several affirmative defenses, including the statute of frauds. Further, in Brinkmann's prayer for relief in his answer, he requested, in part, that he recover costs of court.

On December 12, 2011, plaintiffs and Brinkmann filed a motion for (1) traditional summary judgment on plaintiffs' breach of contract, money had and received, and declaratory judgment claims and defendants' counterclaims and (2) no-evidence summary judgment on defendants' counterclaims. In their motion, plaintiffs stated in part (1) “[b]ased on [d]efendants' breach of contract, [p]laintiffs are entitled to elect as their remedy the recovery of the largest damage amount suffered due to [d]efendants' breach, such amount being the $291,666,67 paid from May through August 2008, plus attorney's fees totaling $160,948.00”; (2) to “prevent unjust enrichment,” defendants must return to plaintiffs “overpayments” of “$291.666.67 for work not performed” ³ and “$41,999.96 in Airplane Allowance payments”; (3) defendants “ceased performing under the Agreement in at least May of 2008, and thereby materially breached same”; (4) “[t]he Agreement was terminable from [May of 2008] forward by [p]laintiffs, and no further obligations are due under the Agreement following its lawful termination in August 2008”; (5) “[n]otwithstanding [p]laintiffs' proper termination of Agreement for cause, the Agreement actually expired on August 1, 2008”; and (6) JBBI did not breach the Agreement or “any ancillary agreement to pay business expenses.”

The appendix filed in support of the summary judgment motion included, in part (1) excerpts from depositions of Berryman and Brinkmann; (2) an affidavit of Brinkmann; (3) copies of the Agreement and correspondence described above; and (4) an affidavit of plaintiffs' counsel respecting attorneys' fees.

Berryman stated in part in his deposition that (1) his job responsibilities pursuant to the Agreement included preparing for and attending meetings with retailers' representatives to solicit orders for JBBI's products, communicating “almost on a daily basis” with Brinkmann, and participating in the “finalization” process respecting retailers' orders; (2) during two separate meetings in 2006 and 2008, Brinkmann complained in front of retailers' representatives that Berryman “didn't work” and buyers did not want to do...