Butler v Continental Airlines Inc.
| Decision Date | 17 August 2000 |
| Parties | <!--31 S.W.3d 642 (Tex.App.-Houston 2000) LONNIE BUTLER, JR., Appellant V. CONTINENTAL AIRLINES, INC., Appellee NO. 01-98-00662-CV NO. 01-00-00396-CV In The Court of Appeals For the First District of Texas |
| Court | Texas Court of Appeals |
On Appeal from the 157th District Court Harris County, Texas Trial Court Cause No. 9544257 & 9544257-A
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Panel consists of Justices Andell, Taft and Duggan. *
While an employee of Continental Airlines, Inc. (Continental), Lonnie Butler, Jr. wrote several macro computer programs. Butler later sued Continental, alleging it had adopted and copied his macros, ultimately using them in its new reservation system without compensating him. We are asked to determine if the trial court erred in its rendition of summary judgment in favor of Continental on Butler's claims of fraud, conversion, breach of fiduciary duty, breach of contract, an accounting, unjust enrichment, constructive trust, misappropriation of trade secrets, estoppel/quasi-estoppel, and quantum meruit. We are also asked to determine if the trial court abused its discretion when it entered a "death penalty" sanction order dismissing Butler's cause of action for breach of contract. We affirm the trial court's rendition of summary judgment on Butler's claim for fraud. We dismiss Butler's remaining claims for lack of subject matter jurisdiction. We overrule all points of error on appeal.
Butler worked for Continental from 1990 to 1995 as a reservation agent. During that time, Continental reservation agents made passenger reservations on a host computer system called SONIC, which they accessed through Telex keyboards attached to "dumb terminals."1 These terminals lacked Personal Computer (PC) capability, but had Programmable Function (PF) keys, which could execute a type of computer program called a "macro."2 While the parties disagree on many factual details, they agree Butler wrote several of these macro programs.
The purpose of these macros is to reduce the number of keystrokes necessary to create a passenger reservation, thus shortening response time and increasing agent productivity. Butler created a macro program for each PF key, and a keyboard template showing the function of each PF key, and named it Advanced Agent Productivity, or AAP. In 1993, Butler disclosed to Continental the macros he had written. Butler spoke to Vice President George Moore, Senior Director of Reservations, in October of 1993, and later wrote a letter to Ed McChrystal, Continental's Staff Vice President for Reservations. He also contacted Robert Ferguson, C.E.O. of Continental. According to Butler, this disclosure was done in confidence for the limited purpose of testing and evaluation, pursuant to the provisions of the written "Assignment of Inventions Agreement" Butler had with Continental as an employee. In his deposition testimony, however, Butler admits he never told anyone at Continental he was revealing AAP to them in confidence. With Butler's help, Continental tested the macros.
The parties disagree on the results of the testing and the extent to which the macros were used by Continental employees then, and possibly even today. When Continental suggested further testing was needed, Butler told Moore that he did not want further testing to be done, but that he just wanted the macros available for reservation agents' use. In a letter to Moore in 1994, Butler stated he had accomplished what he set out to do--to offer Continental an alternative to the expense of purchasing a new computerized reservation system.
Shortly thereafter, Continental purchased a new computerized reservation system called "Qik-Res." The Qik-Res system used terminals with PC capability instead of dumb terminals. Butler claims Continental incorporated his macros into the configuration during the transition phase from the SONIC system to Qik Res to use as a fall back until the reservation agents learned the new system.
The procedural history in this case includes motions for summary judgment and partial summary judgment by both parties. Butler filed a motion for partial summary judgment on liability. Continental countered with a response and cross-motion for summary judgment. On May 9, 1997, the trial court entered an order granting Continental's cross-motion for summary judgment, but it vacated the ruling on June 5, 1997. The trial court gave Continental 10 days to file a second motion for summary judgment addressing new claims raised by Butler in his second amended petition.3 Continental filed a second motion for summary judgment, which was granted on Butler's claims for fraud, conversion, breach of fiduciary duty, unjust enrichment, misappropriation of trade secrets, constructive trust, estoppel/quasi estoppel, and quantum meruit causes of action. Butler's only remaining cause of action was for breach of contract.4 Continental filed a motion for sanctions that the trial court denied by written order on April 22, 1998. Nevertheless, on April 23, 1998, the trial court signed an "Order Granting Continental's Motion for Sanctions and Dismissing Plaintiff's Cause of Action With Prejudice." The trial court struck all reference to sanctions from the text of the order. In a judgment nunc pro tunc dated September 24, 1998, the trial court ordered that the April 23, 1998 order be replaced with a corrected and amended title, "Order Granting Continental's Second Motion for Summary Judgment as to Plaintiff's Contract Claim and Dismissing Plaintiff's Contract Claim with Prejudice." Butler appeals the trial court's actions.
In point of error one, Butler argues the trial court erred in dismissing his claim for breach of contract as a death penalty sanction, without notice or a hearing. On April 22, 1998, the trial court signed an order denying Continental's motion for sanctions. The next day, the trial court signed an order entitled: "Order Granting Continental's Motion for Sanctions and Dismissing Plaintiff's Cause of Action with Prejudice." The entire text of the order concerning sanctions was crossed out by the trial court, with the following text remaining:5
Be it remembered that there came on for consideration by the Court the Motion of Continental Airlines, Inc. for an Order dismissing Plaintiff's remaining claim for breach of contract with prejudice. . . . The Court, having reconsidered Continental's Motion, the pleadings, and the law, concludes that Continental's Motion should be granted. Accordingly, IT IS ORDERED that Plaintiff's remaining cause of action, (breach of contract) against Continental be and it is hereby dismissed with prejudice.
A judgment nunc pro tunc was later entered by the trial court in response to Continental's motion to correct judgment nunc pro tunc. The judgment nunc pro tunc states that the judgment rendered on April 23, 1998 granted Continental's summary judgment motion on Butler's remaining cause of action (for breach of contract,) and did not grant Continental's motion for sanctions.
Once the trial court has lost its jurisdiction over a judgment, it can only correct clerical errors in the judgment entered by using a judgment nunc pro tunc. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). The trial court can only correct a final written judgment that incorrectly states the judgment actually rendered. Id. at 231-32. A clerical error is a mistake or omission in the entry of a judgment in the official record and the judgment as it was actually rendered. Universal Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex. 1971). A judicial error, however, is an error arising from a mistake of law or fact that requires judicial reasoning or determination to correct. West Texas State Bank v. Gen. Resources Management Corp., 723 S.W.2d 304, 306 (Tex. App.--Austin 1987, writ ref'd n.r.e.). Whether an error in a judgment is judicial or clerical is a question of law after the trial court makes factual findings that it previously rendered judgment and the judgment's contents. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968); Escobar, 711 S.W.2d at 232. We review those factual determinations under a no-evidence and factually insufficient evidence standard of review. Escobar, 711 S.W.2d at 232.
In the nunc pro tunc order, the trial court states that during the April 20, 1998 hearing, counsel for Continental asked the trial court to reconsider Continental's second motion for summary judgment and dismiss with prejudice Butler's breach of contract claim. The trial court's nunc pro tunc order states that its "minute entry," i.e. docket sheet, for April 23, 1998, correctly states that the trial court was reconsidering Continental's second motion for summary judgment, and the trial courtt had signed the order granting Continental's second motion for summary judgment. In the order signed April 23, 1998, all of the language referring to sanctions and improper conduct by Butler's counsel was crossed out by the trial court. The only reference to the motion for sanctions remained in the title of the order. The nunc pro tunc order states that the error was in not crossing out the corresponding language in the title of the order he signed.
We conclude this was a clerical error on the part of the trial court and did not result from judicial reasoning or determination. Burgess v. Burgess, 834 S.W.2d 538, 540 (Tex. App.--Houston [1st Dist.] 1992, no writ). There is evidence in the record supporting the finding of the trial court that the judgment actually rendered by the trial court on April 23, 1998 granted Continental's second motion for summary judgment. The trial court did not dismiss Butler's claim for breach of contract as a death penalty sanction. Accordingly, we overrule point of error one.
Butler argues the trial court erred...
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