Beverick v. Koch Power, Inc.

• Decision Date: 29 December 2005
• Docket Number: No. 01-03-01300-CV.,01-03-01300-CV.
• Citation: 186 S.W.3d 145
• Parties: Tim BEVERICK, Appellant, v. KOCH POWER, INC., Flint Hills Resources, L.P., and Entergy-Koch Trading L.P., Appellees.
• Court: Texas Court of Appeals

186 S.W.3d 145

Tim BEVERICK, Appellant, v. KOCH POWER, INC., Flint Hills Resources, L.P., and Entergy-Koch Trading L.P., Appellees.

No. 01-03-01300-CV.

Court of Appeals of Texas, Houston (1st Dist.).

December 29, 2005.

Rehearing Overruled March 13, 2006.

COPYRIGHT MATERIAL OMITTED

Timothy A. Beverick, Sugar Land, pro se.

Mark Allen White, Edward John O'Neill, Jr., Howrey, LLP, Houston, for Appellee.

Panel consists of Justices TAFT, HANKS, and BLAND.

OPINION

GEORGE C. HANKS, JR., Justice.

Tim Beverick, appellant, sued Koch Power, Inc., Flint Hills Resources, L.P., and Entergy-Koch Trading L.P. (hereafter collectively referred to as "Koch") for breach of contract, promissory estoppel, fraud, quantum meruit, and punitive damages after they failed to pay him the bonus they allegedly promised to pay him for legal services rendered. Beverick contends that the trial court erred in granting Koch's motions for summary judgment. We affirm.

Background

Beverick, an attorney for Koch Power, Inc., alleges that Koch orally promised him a bonus of based on the savings for his work on the Pine Bend Power Project ("the Project"). The Project involved negotiating a new contract for the purchase of electricity over a 10-year period for Koch's Pine Bend Refinery. The goal of the Project, as fellow attorney Bill Windle stated in testimony, was to "save money for the refinery." According to Beverick, Koch promised that he and Windle would split a bonus of 10 to 15% of the net present value of the after-tax expected savings from the Project in a lump sum at the Project's closing.¹ Koch failed to pay the bonus at closing, and, instead "proposed to Beverick that he would receive a bonus of approximately $400,000." Beverick initially sued Koch Power under theories of breach of contract, promissory estoppel, and fraud; later, he added a claim for quantum meruit.²

Koch filed no-evidence and traditional motions for summary judgment and also filed a separate motion attacking Beverick's claim for punitive damages. The trial court granted both of Koch's summary judgment motions without specifying its grounds and rendered a take-nothing judgment against Beverick.

Standard of Review

We follow the usual standard of review for an order granting summary judgment without specifying grounds. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). When a trial court does not state the basis for its decision in its summary judgment order, as in this case, we must uphold the order if any of the theories advanced in the motion is meritorious. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989).

When reviewing a trial court's granting of a motion for summary judgment, we consider the evidence in the light most favorable to the non-movant and indulge every reasonable inference in the non-movant's favor. TEX.R. CIV. P. 166a(i); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no pet). A summary judgment for the defendant that disposes of a plaintiff's entire case is proper only if the defendant can show that the plaintiff could not succeed on any of the theories pleaded. Wheeler v. Yettie Kersting Mem'l Hosp., 866 S.W.2d 32, 36 (Tex. App.-Houston [1st Dist.] 1993, no writ).

No-Evidence Motion for Summary Judgment

A rule 166a(i) motion for summary judgment is properly granted when a movant establishes that, "[a]fter adequate time for discovery[,] . . . there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." TEX.R. CIV. P. 166a(i); see also Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). A no-evidence summary judgment is, therefore, like a directed verdict. Flameout, 994 S.W.2d at 834. To defeat a no-evidence motion for summary judgment, the non-movant must produce summary judgment evidence raising a genuine issue of material fact. TEX.R. CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). A genuine issue of material fact exists if the non-movant produces more than a scintilla of evidence establishing the existence of the challenged element. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004); A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 378 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995).

Traditional Motion for Summary Judgment

To succeed in a motion for summary judgment under rule 166a(c), a movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). In deciding whether there is a disputed issue of material fact, every doubt must be resolved in favor of the non-movant. Johnson, 891 S.W.2d at 644; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Additionally, we take all evidence favorable to the non-movant as true. Lawson v. B Four Corp., 888 S.W.2d 31, 33 (Tex.App.-Houston [1st Dist.] 1994, writ denied).

Statute of Frauds

In their traditional motion for summary judgment, Koch asserted that Beverick's causes of action for breach of contract, promissory estoppel, and fraud were barred by the statute of frauds because these claims were based upon an alleged oral promise that could not be performed within one year.³ Beverick argues that, because it was possible for the project to be completed within one year, the statute of frauds does not apply. We agree.

Whether a contract falls within the statute of frauds is a question of law. Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex. App.-Houston [1st Dist.] 2000, no pet.); see also Niday v. Niday, 643 S.W.2d 919, 920 (Tex.1982) (stating that, if an agreement, either by its terms or by the nature of the required acts, cannot be performed within one year, it falls within the statute of frauds and must be in writing.) A contract that could possibly be performed within a year, however improbable performance within one year may be, does not fall within the statute of frauds. Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, 15 (1957). The fact that the entire performance within one year is not required, or expected, will not bring an agreement within the statute. Iacono, 16 S.W.3d at 95.

Beverick completed this project in two years. When asked if he could have completed the project in less time, Beverick testified, "Not under the circumstances, no." "We moved everything along as fast as we could." Beverick was asked specifically if there was any way to have completed the project in one year, and he answered, "I mean, if the moon [sic] lined up and if Northern States Power didn't fight to let us go and all of the parties—you know, we had some pro forma contract to do this on, then it would be easy." Beverick testified that "I won't say it was impossible, but there were a lot of things that would have had to fall in place for [the deal to have been completed within one year]."

The summary judgment evidence, viewed in a light most favorable to Beverick, establishes the possibility that Beverick could have completed the Project in one year. Therefore, the statute of frauds did not preclude Koch from entering into an oral contract with Beverick.

Breach of Contract

Beverick contends that the evidence was sufficient to create a fact issue and that the trial court erred in granting summary judgment on his breach-of-contract claim.

In their no-evidence motion for summary judgment, Koch asserted that there was no evidence that

(1) The contract alleged by Plaintiff was a valid oral contract including:

(a) an offer by any Defendant from a person with authority to make an offer on behalf of each Defendant;

(b) acceptance by Plaintiff;

(c) a meeting of the minds between an authorized agent of each Defendant on behalf of any Defendant and Plaintiff;

(d) consent to the terms by Plaintiff and an authorized agent of each Defendant;

(e) execution of a contract with the intent that it be mutual and binding; or

(f) consideration provided by Plaintiff;

(2) The Plaintiff tendered the performance demanded by the contract;

(3) Any Defendant breached the contract; or

(4) Plaintiff was damaged as a result of any Defendant's breach.

To prevail on a breach-of-contract claim, it must be proven that (1) a valid contract between plaintiff and defendant existed, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the plaintiff sustained damages as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

Valid Contract

The elements of a valid contract are: (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Id.

In their no-evidence motion for summary judgment, Koch contested each element of the "valid" contract with Beverick. Beverick was therefore required to produce more than a scintilla of evidence raising a genuine issue of material fact on each element. Flameout Design & Fabrication, Inc., 994 S.W.2d at 834.

Offer

Beverick does not allege the breach of a written contract. Rather, he asserts that Koch orally promised him a bonus based on expected savings of the Project. In determining the existence of an oral contract, the court looks to the communications between the parties and to the acts and circumstances surrounding those communications. Prime Prods., 97 S.W.3d at 636. For Beverick's contract claim to be valid and enforceable, he must allege and prove that the oral contract was made with an authorized...