Central Texas Micrographics v. Leal

• Decision Date: 20 September 1995
• Docket Number: No. 04-94-00581-CV,04-94-00581-CV
• Parties: CENTRAL TEXAS MICROGRAPHICS, Appellant, v. Charlie R. LEAL, Appellee.
• Court: Texas Court of Appeals

Page 292

908 S.W.2d 292

CENTRAL TEXAS MICROGRAPHICS, Appellant, v. Charlie R. LEAL, Appellee.

No. 04-94-00581-CV.

Court of Appeals of Texas,

San Antonio.

Sept. 20, 1995.

Terrence J. Martin, Edward T. Hecker, Martin & Strolle, P.C., San Antonio, for appellant.

J. Vince Hightower, San Antonio, for appellee.

Before CHAPA, C.J. and HARDBERGER and DUNCAN, JJ.

OPINION

CHAPA, Chief Justice.

Nature of the Case

This is an appeal from a jury verdict on breach of contract and promissory estoppel claims. The jury awarded appellee actual damages in the amount of $36,375 and attorney fees of $22,500, and awarded appellant $1,042.27 on a claim for unreimbursed salary and expenses owed by appellee. The trial court directed a verdict in appellant's favor on a fraud charge. Appellant appeals on fifteen points of error ¹ on legal and factual insufficiency grounds. Appellee brings three cross-points.

Background

Appellee, Charlie Leal, worked for appellant Central Texas Micrographics (CTM) and its president and sole shareholder, Lang Glotfelty, as a salesman selling Kodak products from February 1990 until November 1991, when Kodak terminated its contract with CTM. When CTM decided to sue Kodak and its codefendant, Micro Images, Leal continued to work for CTM to prepare for the litigation. After a year and a half, Kodak and then Micro Images settled with CTM for a total of $1.1 million dollars. From November 1991 until August 1992, Leal worked fulltime for CTM, organizing its records for litigation, attending depositions for CTM, and serving as primary liaison between CTM and its attorneys. According to Leal, the initial oral employment agreement had the following terms:

--Leal would work fulltime on the Kodak litigation

--Leal would be paid by CTM $3,000 per month

--Leal would receive an unspecified share of the proceeds of the litigation. Leal contends the amount was left unspecified at the suggestion of CTM's attorneys and with CTM's knowledge to enhance the value of his testimony at trial that he had no enforceable agreement to share in the proceeds.

In August 1992, Leal took a fulltime position in Austin, but continued to work parttime for CTM on the litigation. In October 1992, Leal moved to Houston to be with his seriously ill mother. He offered to resume his fulltime duties with CTM, which CTM accepted. This time the employment agreement was memorialized in writing on October 14, 1992. It included the $3,000 per month salary, but did not mention the share in any litigation proceeds. On advice of counsel, Leal was named a vice president of CTM so he could represent the company at depositions. Leal testified that Glotfelty alluded frequently to Leal's sharing in the litigation proceeds. Leal worked nights, days, and weekends from October 1992 until March 1993, when they went to trial against Micro Images. Kodak had settled with CTM in February 1993 for $875,000. Leal testified that he did not take any vacation in 1993 because they were so busy preparing for the litigation. There was testimony that Glotfelty promised to take Leal and a companion, as well as several other people including his attorney, to Cancun when the trial was over.

After they had been in trial for two weeks, on March 25, 1995, Glotfelty, his wife, and Leal met at the Travelodge. Leal testified that Glotfelty expressed a desire to press on with the litigation, and named $50,000 as the heretofore unspecified bonus. Glotfelty testified that he had by this time decided to settle with Micro Images, because an offer of approximately $200,000 was on the table, and contended that he offered Leal $25,000 as a bonus. They settled the case the next day. Within a few days, Leal began asking Glotfelty for the money because he needed it for his dying mother. Glotfelty sent him checks for $5,000 each on April 21, 28, and June 6, writing "loan" on two of them. Leal testified he gave Glotfelty an undated invoice for $50,000 and that Glotfelty did not question the amount; Glotfelty denied this. When Leal asked repeatedly for the money, Glotfelty told him that he had to wait until the accounting was settled and fees paid, and made other excuses. The accountant for CTM's attorney testified that Glotfelty had 99.5% of the settlement monies by May 24, 1993. Soon Leal was no longer able to reach Glotfelty by phone, although he called repeatedly. On July 1, 1993, Leal wrote a letter to Glotfelty asking for the remaining money owed. Receiving no response, he wrote a demand letter on July 14. He filed suit in October. Glotfelty testified that he would have paid Leal the remaining $10,000 of the $25,000 had Leal not filed suit.

Analysis

In considering a "no evidence" or legal sufficiency point, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If there is more than a scintilla of probative evidence in the record which supports the jury's answers, the court may not disregard the jury's findings. Penwell v. Barrett, 724 S.W.2d 902, 905 (Tex.App.--San Antonio 1987, no writ). In considering a factual sufficiency point, we may not substitute our judgment for that of the jury, but must assess all the evidence and reverse for a new trial only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, shocking to the conscience, or clearly demonstrating bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). "In considering an 'insufficient evidence' point, we must remain cognizant of the fact that it is for the jury, as the trier of fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the testimony." Commonwealth Lloyd's Ins. Co. v. Thomas, 678 S.W.2d 278, 289 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.); accord Texas Employers' Ins. Ass'n v. Jackson, 719 S.W.2d 245, 249-50 (Tex.App.--El Paso 1986, writ ref'd n.r.e.).

a. Unpaid Vacation

In points of error one, four, and five, appellant CTM contends there is no evidence of consideration to support the trial court's submission of Question 1(b), and there is no evidence or factually insufficient evidence to support the jury's findings on Question 1(b), which asked: "Did W. Lang Glotfelty on behalf of Central Texas Micrographics agree: (b) to allow Charlie R. Leal a reasonable amount of paid vacation during his employment in 1993 with Central Texas Micrographics?" The jury answered "yes" and awarded $375.00.

The testimony revealed that Leal received $3,000 a month according to the contract and was a vice president of CTM during the time in question. Both Leal and CTM's lead attorney for the Micro Images trial testified that Leal worked long hours, including weekends, during the first three months of 1993, and the attorney testified that he told Leal and Glotfelty that Leal's presence was necessary during this time and that Leal could not take any time off due to the pressures of preparing for litigation. Both Leal and Glotfelty testified that the CTM company policy provided for a two-week paid vacation after one year's employment. Although CTM entered into evidence copies of Leal's wages as reported on Internal Revenue Service 1099 forms, indicating that Leal was paid on a "contract labor" basis, there was no testimony that this form of payment necessarily precluded paid vacation time. The jury's award of $375 for unused vacation for three months' labor, based on a monthly salary of $3,000, is both legally and factually supported by the record. Appellant's points of error one, four, and five are overruled.

b. Cancun Trip

In points of error one, six, and seven, appellant argues that there is no evidence of consideration to support the trial court's submission of Question 1(c), and there is no evidence or factually insufficient evidence to support the jury's findings on Question 1(c), which asked: "Did W. Lang Glotfelty on behalf of Central Texas Micrographics agree: (c) to provide as a work incentive an expense paid vacation for Charlie R. Leal and his companion to Cancun, Mexico?" The jury answered "yes" and in Question 3 awarded $2,000, which was reduced in the judgment to $1,000, the figure mentioned in testimony.

The evidence revealed that Glotfelty on numerous occasions told Leal that he would take him on a trip to Cancun with a companion as a reward for working hard on the litigation. Glotfelty also testified that he would have taken Leal on the trip, except that Leal could not get a date (which Leal denied). Glotfelty also made this same promise to his attorney and to the attorney's secretary, who expressed "disappointment" when she did not receive the trip. We agree with appellant that this was nothing more than a gratuitous promise unsupported by consideration. Leal did not perform any additional work other than that which he had already contracted to perform, and therefore there was no consideration to support the promise. See Smith v. Renz, 840 S.W.2d 702 (Tex.App.--Corpus Christi 1992, writ denied) (consideration a fundamental element of every contract). We reverse that part of the judgment awarding $1,000 for the Cancun trip.

c. The Bonus

In points of error one, eight, and nine, CTM contends that there is no evidence of consideration to support the trial court's submission of Question 4, and there is no evidence or factually insufficient evidence to support the jury's findings to Question 4, which asked how much CTM agreed to pay Leal. The jury answered, $50,000.

CTM contends that there was insufficient consideration for the bonus, which both Leal and Glotfelty agreed was discussed on March 25, 1993, because Leal provided no new consideration...