International Piping Systems, Ltd. v. M.M. White & Associates, Inc.

• Decision Date: 14 May 1992
• Docket Number: No. B14-90-00629-CV,B14-90-00629-CV
• Citation: 831 S.W.2d 444
• Court: Texas Court of Appeals
• Parties: INTERNATIONAL PIPING SYSTEMS, LTD., Appellant v. M.M. WHITE & ASSOCIATES, INC. and M.M. White, Individually, Appellees. (14th Dist.)

Page 444

831 S.W.2d 444

INTERNATIONAL PIPING SYSTEMS, LTD., Appellant v. M.M. WHITE & ASSOCIATES, INC. and M.M. White, Individually, Appellees.

No. B14-90-00629-CV.

Court of Appeals of Texas Houston (14th Dist.)

May 14, 1992.

Rehearing Denied June 18, 1992.

John A. Buckley, Jr., Andrew J. Mytelka, Galveston, for appellant.

Douglas Andrew King, Jr., Larry W. Bass, Houston, for appellees.

Before PAUL PRESSLER, JUNELL and ELLIS, JJ.

OPINION

JUNELL, Justice.

Appellees M.M. White & Associates, Inc. and M.M. White (collectively known as White) sued appellant, International Piping Systems, Ltd. (IPS), for breach of contract, fraud, quantum meruit, failure to deal in good faith, and detrimental reliance on promises made. At the conclusion of the evidence, the trial court granted appellant's motion for instructed verdict on the claim of failure to deal in good faith. The remaining issues were submitted to the jury and it returned a verdict in favor of appellees. Based upon that verdict, the trial court rendered judgment in favor of appellees in the amount of $215,376.73 for breach of contract, plus attorney's fees, prejudgment and postjudgment interest, and costs of court. Appellant brings five points of error alleging: (1) there is no evidence or insufficient evidence that the parties had a meeting of the minds on the essential terms of the agreement; (2) there is no evidence or insufficient evidence on which to base the award of damages based upon a contractual agreement; (3) the employment contract violated the Statute of Frauds and was unenforceable; (4) the damages awarded in jury questions 2, 8, and 10 are inconsistent and in conflict; and (5) the trial court erred in not applying a six percent (6%) prejudgment rate of interest. We affirm.

In October of 1983, M.M. White arranged a meeting in Baton Rouge, Louisiana with John Calmes, president of IPS; Jim Dixon, vice-president of sales for the holding company which included IPS; and Bruce Brown, sales manager for IPS. White desired to become an IPS sales representative. White had previously formed M.M. White & Associates, Inc. for the purpose of providing purchasing and marketing services to clients in the Houston area. IPS, organized in 1982 in Louisiana, specialized in pipe fabrication and pipe bendings. White believed IPS would be a likely candidate for him to represent.

Following a tour of the IPS facilities, a general discussion was held regarding White's qualifications to be an IPS sales representative. White and Brown adjourned to discuss a possible agreement. After some discussion, Brown asked White to return to Houston and prepare and send a letter to IPS regarding White's thoughts on becoming an IPS sales representative. White complied and forwarded the letter dated October 18, 1983. Enclosed with the letter was a list of potential customers which White was interested in contacting on behalf of IPS.

On November 14, 1983, Brown met White in Houston. Prior to this meeting White had prepared a proposed employment agreement. During the meeting Brown was given a copy of the proposed agreement, and the two men discussed it. The specific items covered in the proposed agreement were: a one year period of employment from December 12, 1983, non-cancellable without cause; the territory to be covered by White (no specific geographic locations were designated, only customers); commissions to be paid White; and a ninety (90) day residual period after termination for commissions. Brown and White agreed that Brown would map out the geographic scope of the proposed agreement. The exact commission percentage was left blank, and the proposed agreement was unsigned. Brown informed White that the proposed agreement would have to be reviewed by IPS and its legal department.

Thereafter, White received a letter from Brown dated November 17, 1983, confirming that White was authorized to represent IPS in the Houston area. The letter stated that White's commission for any sale would be ten percent (10%). The letter further stated that the "commission schedule" and territory to be covered would be amended and more precisely defined in the actual contract. There is a dispute over the meaning of the term "commission schedule" as to whether it referred to the amount or the timing of the compensation.

In December of 1983, White returned to Baton Rouge, Louisiana and met with Dixon and Brown. Later that month IPS provided White with business cards showing the IPS logo. On December 27, 1983, IPS wrote a letter to White listing potential customers he should develop.

It appears that from December 1983 through April 12, 1984, White and his company performed services as sales representatives for IPS. In March of 1984, George Shephard was employed as the new president of IPS. Shephard terminated Brown and employed Dave Chapman to be IPS's new sales manager. Shephard called a meeting on April 12, 1984 between himself, Chapman and White. Subsequent to this meeting White was terminated and thereafter brought suit against IPS.

In its first point of error appellant alleges that there is no evidence or, in the alternative, insufficient evidence to support a finding that the parties had a meeting of the minds on the essential elements of the agreement made the basis of the contractual recovery.

When "no evidence" and "factual insufficiency" points of error are raised on appeal, the appellate court will address the "no evidence" or legal insufficiency point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). In reviewing legal insufficiency points the reviewing court shall consider only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding, and disregards all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). An appellate court is limited to reviewing only the evidence tending to support the jury findings in a "no evidence" point of error. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988). If the appellate court finds any evidence of probative force to support the complained of finding, the point of error must be overruled. Id. If there is more than a scintilla of evidence to support the finding, then the "no evidence" challenge must fail. Stafford, 726 S.W.2d at 16. If the evidence gives some reasonable basis for differing conclusions by reasonable minds about the existence of the vital fact, it amounts to more than a scintilla of evidence. Kindred v. Con/Chem. Inc., 650 S.W.2d 61, 63 (Tex.1983). If the appellate court finds evidence to support the complained of finding, the court will then review the claim of factual insufficiency.

In reviewing a factual insufficiency challenge the court of appeals must examine all of the evidence. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). After considering and weighing all of the evidence, the appellate court will set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Jury question number one asked the jury to determine whether there was an agreement between the parties and whether IPS had failed to comply with such agreement, if any. By its answer the jury found that there was an agreement and IPS had failed to comply with it. Appellant complains that there was no evidence or insufficient evidence to show a meeting of the minds on essential terms of the agreement.

The question and instructions submitted to the jury on the "agreement" issue did not ask the jury about a meeting of the minds on essential terms. If appellant desired such an issue or instruction, it should have objected and tendered in substantially correct form the desired issue or instruction. TEX.R.CIV.P. 278. Thus, the focus of review is whether there was evidence to support the question submitted to the jury, i.e. was there an agreement, not whether there was a meeting of the minds regarding essential terms. Nor do we have to review the question of sufficiency as to the breach of the agreement for appellant has not raised that issue before this court.

Reviewing the legal insufficiency or "no evidence" challenge first, viewing only the evidence favorable to the jury's finding, we find that there was more than a scintilla of evidence to support the jury's finding that there was an agreement.

The record reflects that White met with Brown on November 14, 1983, and the two men went over and discussed the "proposed agreement" drawn up by White. Brown stated he would have to go back to IPS for final approval. That approval was received by White through the November 17, 1983, letter from IPS to White stating that as of November 17, 1983, White was authorized to act as a sales representative for IPS. Further, the letter set a ten percent (10%) commission rate, a term left blank in the agreement proposed by White. White testified that he had an agreement with IPS to act as their authorized sales representative as of November 17, 1983. The letter sent by IPS and White's testimony amount to more than a scintilla of evidence to support the jury's finding that there was an agreement between White and IPS. This evidence alone is sufficient to defeat the "no evidence" challenge brought by appellant IPS.

We now turn to appellant's contention that the evidence is factually insufficient to support the jury's finding that there was an agreement between White and IPS.

Once again the focus is on the meeting between White and Brown on November 14, 1983, and the letter of November 17, 1983. White testified that at the meeting with Brown, sales manager for IPS, a complete discussion was had regarding all pertinent terms of the agreement. And while Brown had to take the proposal back to IPS for approval, that approval was...