Peter Leavitt v. McLane Company, Inc. ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00529-CV
Peter Leavitt, Appellant
v.
McLane Company, Inc., Appellee
FROM THE 169TH DISTRICT COURT OF BELL COUNTY
NO. 282,147-C, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
MEMORANDUM OPINION
McLane Company, Inc. sued its former employee Peter Leavitt for breaches of a
separation agreement, a settlement agreement, and an agreed injunction after Leavitt performed
consulting work for McLane’s customers. The trial court rendered judgment on the jury’s
verdict, awarding McLane over $1.6 million in damages. Leavitt appeals from the judgment,
complaining that the trial court erred in directing a verdict on McLane’s civil-contempt claim,
not determining that McLane’s claims were barred by res judicata, improperly commenting on
the weight of the evidence, admitting evidence of a prior contempt proceeding, and rendering
judgment on the jury’s verdict when it was not supported by legally or factually sufficient
evidence. For the following reasons, we will affirm the trial court’s judgment.
BACKGROUND1
The genesis of this dispute lies in a “Release and Separation Agreement” (the
Separation Agreement) that Leavitt executed in connection with McLane’s termination of his
employment in late 2007. Leavitt had worked for McLane, a wholesale grocery distributor,
for over a decade and was a senior executive when terminated. The Separation Agreement
prohibited Leavitt from “tak[ing] any action reasonably likely to be harmful to the business or
affairs of McLane” and required him to keep McLane’s proprietary information confidential.
While employed with McLane, Leavitt had negotiated a “Distribution Service Agreement”
(DSA) between McLane and its customer Circle K Stores, Inc. The DSA authorized Circle K to
perform audits to determine whether McLane was charging it correctly for the products and
services it provided.
After his termination from McLane’s employ, Leavitt signed an agreement with
Circle K to advise it in conducting an audit pursuant to the DSA and engaged other former
McLane employees to assist. Shortly after engaging Leavitt, Circle K sent McLane a letter
stating that it had contracted the services of SVG Advisors to assist with an audit but did not
disclose Leavitt’s involvement. When McLane later discovered Leavitt’s involvement, it sued
Leavitt2 for breach of the Separation Agreement and misappropriation of trade secrets. In
January 2012, Leavitt and McLane settled the lawsuit and presented a Settlement Agreement to
the trial court, which rendered an Agreed Final Judgment and Injunction (Agreed Injunction)
1
Except as otherwise noted, the facts in this section are derived from unobjected-to
evidence admitted at trial and the clerk’s record.
2
McLane also sued two other former employees, but those individuals are not parties to
this appeal.
2
thereon. The Agreed Injunction provides, “This Agreed Final Judgment and Injunction is also a
contract between [McLane] and [Leavitt].”
In April 2012, Leavitt communicated with the same Circle K executive with
whom he had negotiated the DSA and advised him that Circle K should pursue its audit “claim”
against McLane; at this juncture no audit had yet occurred because Circle K and McLane could
not agree about the audit procedures and parameters, and communication between Circle K and
McLane regarding the audit had been on hiatus. About seven weeks after Leavitt sent his email,
Circle K contacted McLane to renew its audit request. When McLane refused to allow Circle K
to conduct an audit, Circle K initiated an arbitration proceeding against McLane before the
American Arbitration Association (AAA) pursuant to the DSA’s dispute-resolution provision,
alleging that McLane breached the DSA by refusing to allow it to perform the audit and seeking
a declaration of its audit rights. The Circle K arbitration ensued for three years, and McLane
ultimately prevailed on Circle K’s audit claim but incurred over $2,400,000 in attorney’s fees in
the proceeding.
Through discovery during the arbitration process, McLane learned about Leavitt’s
April 2012 communication with the Circle K executive and on January 29, 2015, filed a verified
motion to hold Leavitt in contempt for breaching the Agreed Injunction.3 After an evidentiary
hearing, at which Leavitt testified, the trial court issued an order holding Leavitt in criminal
contempt and finding “beyond a reasonable doubt” that Leavitt was “guilty of wrongfully and
intentionally violating” the Agreed Injunction by sending an April 2012 email to the Circle K
executive “advising of [Leavitt’s] belief that there was a reason to pursue Circle K’s claim
3
At trial, Leavitt objected to evidence related to the contempt proceeding, and he
challenges the admission of such evidence on appeal.
3
against McLane.” The trial court sentenced Leavitt to incarceration in the Bell County jail for
twenty days, suspended for twelve months conditioned upon his strict compliance, beginning
April 1, 2015, with the Agreed Injunction.
On January 6, 2016, McLane filed this lawsuit against Leavitt alleging breaches
of the Separation Agreement, Settlement Agreement, and Agreed Injunction. McLane also
asserted a claim against Leavitt for “civil contempt.” The case was tried to a jury in April 2019.
Before the trial court ordered the jury to deliberate, it directed a verdict for McLane on its claim
for breach of the Agreed Injunction. The jury returned a verdict for McLane, making specific
findings that (1) Leavitt failed to comply with the Separation Agreement, (2) Leavitt failed to
comply with the Settlement Agreement, (3) McLane suffered $1,682,000 in damages as a result
of Leavitt’s failures to comply with the Separation Agreement, Settlement Agreement, and
Agreed Injunction, and (4) a reasonable fee for the necessary services of McLane’s attorneys in
the instant suit is $181,000. The trial court rendered judgment per the jury’s findings and denied
Leavitt’s motion for new trial. Leavitt then perfected this appeal.
DISCUSSION
In his first issue, Leavitt contends that the trial court erred in directing a verdict on
McLane’s contempt claim because “no independent cause of action for civil contempt exists
under Texas law.” See Galtex Prop. Invs., Inc. v. City of Galveston, 113 S.W.3d 922, 928 (Tex.
App.—Houston [14th Dist.] 2003, no pet.) (“The law is well established in Texas that a court
may not award a civil judgment to a private litigant in a contempt proceeding.”). However,
Leavitt’s framing of this issue is erroneous because the trial court did not direct a verdict on
McLane’s contempt claim but rather on its claim for breach of the Agreed Injunction, as
4
reflected in the jury charge’s Question Number Three: “You are instructed that Peter Leavitt
failed to comply with the Injunction [c]ontained in the Agreed Final Judgment and Injunction.”4
Because Leavitt’s asserted error does not correspond to any action the trial court actually took,
he presents nothing by this issue for our review. Accordingly, we overrule Leavitt’s first issue.
In his second issue, Leavitt contends that the trial court erred in not determining
that McLane’s claims were barred by res judicata. See Amstadt v. U.S. Brass Corp., 919 S.W.2d
644, 652 (Tex. 1996) (“Res judicata precludes relitigation of claims that have been finally
adjudicated, or that arise out of the same subject matter and that could have been litigated in the
prior action.”). Res judicata requires proof of the following elements: (1) a prior final judgment
on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with
them; and (3) a second action based on the same claims as were raised or could have been raised
in the first action. Id. Leavitt argues that the doctrine applies because the contempt order is a
final judgment on the merits; the contempt proceeding involved the identical parties as those
involved in this action; and this action is based on the same claims, facts, and subject matter as
those that formed the basis of the contempt proceeding.
Res judicata bars a subsequent suit only “if it arises out of the same subject matter
of a previous suit and . . . through the exercise of diligence . . . could have been litigated in a
prior suit.” Barr v. Resolution Tr. Corp., 837 S.W.2d 627, 631 (Tex. 1992) (emphasis added).
Leavitt’s argument is premised on the notion that McLane could have brought its claims for
breach of the three agreements within the context of the contempt proceeding because those
4
The question continued, “What sum of money, if any, if paid now in cash, would fairly
and reasonably compensate McLane for its damages, if any, that resulted from the failure to
comply with the Injunction and any failures to comply that you have found in Question Nos. 1 or
2 [asking, respectively, whether Leavitt failed to comply with (1) the Release and Separation
Agreement and (2) the Settlement Agreement]?”
5
claims are based on the “same alleged actions forming the basis of the contempt order,” i.e.,
Leavitt’s April 2012 communications with the Circle K executive. But as a matter of law
McLane could not have brought its breach-of-contract claims in the contempt proceeding. See
Galtex, 113 S.W.3d at 928 (noting that plaintiff “may be entitled to recover the civil penalties
contemplated by the agreed order,” but that it could not obtain such judgment through contempt
proceedings, and trial court’s award of judgment in favor of plaintiff through contempt
proceeding was reversible error); Smith v. Smith, 130 S.W.2d 1096, 1098 (Tex. App.—Beaumont
1939, writ dism’d) (noting that remedy of contempt for violation of injunction is “merely
cumulative of [party’s] right to sue for the damages flowing out of the wrong committed by
[defendant] subsequent to the entry of” permanent injunction); see also Cannan v. Green Oaks
Apts., Ltd., 758 S.W.2d 753, 754 (Tex. 1988) (per curiam) (“This court has earlier held that in a
contempt proceeding a private party cannot recover damages for a violation of a court order.”);
Green Oaks, Ltd. v. Cannan, 749 S.W.2d 128, 131 (Tex. App.—San Antonio 1987) (“It is true
that a court may punish a contempt by fine or imprisonment in order to vindicate its authority.
But in addition, a litigant injured by a contempt may file a civil suit for damages.” (citations
omitted)), writ denied per curiam, 758 S.W.2d 753 (Tex. 1988).
Furthermore, when McLane filed its verified motion to hold Leavitt in contempt
of the Agreed Injunction, the trial court’s plenary power over that lawsuit had long expired.
While the trial court retained inherent authority to enforce its injunction through contempt, such
authority did not extend to exercising jurisdiction over new breach-of-contract claims arising
from Leavitt’s actions occurring after the court’s plenary power had expired. See In re McCrum,
No. 04-14-00047-CR, 2014 WL 783445, at *3 (Tex. App.—San Antonio Feb. 26, 2014, orig.
proceeding) (mem. op.) (noting that there are “limited circumstances in which a trial court may
6
act long after a final judgment has been signed,” including trial court’s authority to enforce
injunctions by contempt or modify permanent injunctions upon showing of changed conditions);
see also Ex parte Pryor, 800 S.W.2d 511, 512 (Tex. 1990) (“The power to punish for contempt is
an inherent power of a court and an essential element of judicial independence and authority.”).
Therefore, it follows that, for res judicata purposes, a contempt proceeding—constituting a means
by which a court enforces its judgment rendered in a legal action that was based on a particular
nucleus of operative facts—cannot itself operate as a new legal action based on a different
nucleus of operative facts. Cf. Xitronix Corp. v. KLA-Tenor Corp., No. 03-12-00206-CV,
2014 WL 3893082, at *3 (Tex. App.—Austin Aug. 7, 2014, pet. denied) (mem. op.) (noting that
Texas courts apply “transactional test” to determine whether two actions involve “same claims”
and explaining that cases arise from same transaction if they are based on “same nucleus of
operative facts”). In sum, McLane could not have brought its breach-of-contract claims in the
contempt proceeding, and the claims here are not the same as those at issue in the prior lawsuit.
Thus, McLane’s claims are not barred by res judicata, and we overrule Leavitt’s second issue.
In his third issue, Leavitt contends that the trial court erred by “commenting on
the weight of the evidence” when it instructed the jury in Question Number Three, per its
directed verdict, that Leavitt “failed to comply with the [Agreed] Injunction.”5 He argues that
the instruction was “prejudicial and harmful” because it “suggested to the jury that Mr. Leavitt
5
In his brief, Leavitt does not challenge the propriety of the directed verdict itself but
merely the alleged erroneous jury charge. Charge error and directed-verdict error are two
separate issues triggered by separate judicial rulings and reviewed under separate standards of
review. See Salazar v. Sanders, 440 S.W.3d 863, 873–74 (Tex. App.—El Paso 2013, pet.
denied). We accordingly do not address the propriety of the directed verdict, and we review
Leavitt’s assertion that the charge constituted an improper comment on the weight of the
evidence for an abuse of discretion. See Elness Swenson Graham Architects, Inc. v. RLJ II-C
Austin Air, LP, 520 S.W.3d 145, 158 (Tex. App.—Austin 2017, pet. denied) (explaining that
appellate courts review complaints of jury-charge error for abuse of discretion).
7
[also] failed to comply in Question 1 and 2 of the charge [which questions asked whether Leavitt
failed to comply with the Release and Separation Agreement and the Settlement Agreement,
respectively].” We disagree.
“[W]hen under the evidence produced upon a trial by jury, a party is entitled to a
verdict as a matter of law, the court may and should instruct the jury as to the verdict it must
return.” Homme v. Varing, 852 S.W.2d 74, 77 (Tex. App.—Beaumont 1993, no writ); see also
Field v. AIM Mgmt. Grp., Inc., 845 S.W.2d 469, 473 (Tex. App.—Houston [14th Dist.] 1993,
no writ) (“A directed verdict is a legal determination which establishes an issue as a matter of
law.”). Texas Rule of Civil Procedure 278 requires the submission of jury questions that are
supported by the written pleadings and the evidence, Tex. R. Civ. P. 278, and an instruction is
proper if it: (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings
and evidence, Natural Soda LLC v. Bunnett & Co., Inc., No. 13-17-00558-CV, 2020 WL 1951454,
at *14 (Tex. App.—Corpus Christi–Edinburg Apr. 23, 2020, pet. filed) (mem. op.) (citing Union
Pac. R.R. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002)). Only disputed issues of fact must be
submitted to the jury. Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995). The
evidence conclusively established that Leavitt breached the Agreed Injunction, evidenced by the
contempt order. Thus, the trial court’s instruction that Leavitt failed to comply with the Agreed
Injunction was not an improper comment but rather a necessary instruction because it constituted
the predicate to the remainder of the instruction in Question Number Three, asking the jury to
determine the amount of damages, if any, to which McLane was entitled due to Leavitt’s failure
to comply with the Agreed Injunction.
Furthermore, to constitute a comment on the weight of the evidence, an
instruction must be worded so as to indicate the opinion of the trial judge as to the veracity or
8
accuracy of the facts in inquiry. See McDonald Transit, Inc. v. Moore, 565 S.W.2d 43, 45 (Tex.
1978); see also Tex. R. Civ. P. 277 (“The court shall not in its charge comment directly on the
weight of the evidence or advise the jury of the effect of their answers, but the court’s charge
shall not be objectionable on the ground that it incidentally constitutes a comment on the weight
of the evidence or advises the jury of the effect of their answers when it is properly a part of
an instruction or definition.”). The instruction that Leavitt failed to comply with the Agreed
Injunction did not directly or indirectly indicate the trial judge’s opinion about any of the facts in
inquiry—i.e., whether Leavitt also failed to comply with either of the other two agreements at
issue or whether McLane suffered damages as a result. The trial court’s instruction in Question
Number Three informing the jury that Leavitt failed to comply with the Agreed Injunction
was therefore proper and did not constitute an abuse of discretion. Accordingly, we overrule
Leavitt’s third issue.
In his fourth issue, Leavitt contends that the trial court abused its discretion in
admitting evidence of the contempt proceeding, including a copy of the contempt order. We
uphold a trial court’s admission or exclusion of evidence unless (1) there was no legitimate basis
for the court’s ruling, and (2) the error probably caused the rendition of an improper judgment.
In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). We sustain an admission or exclusion of
evidence if it is correct under any applicable legal theory. Id.Leavitt argues that the challenged evidence “was prejudicial and misleading to the
jury as they were being asked to consider breaches of contract that were related to the same
injunction Leavitt was found to have violated.” He claims that the prejudicial effect of the
challenged evidence “outweighed any benefit it could have had to the jury’s determination of
the breach of contract issues at hand.” See Tex. R. Evid. 403 (allowing trial court to exclude
9
relevant evidence if “its probative value is substantially outweighed by a danger of . . . unfair
prejudice [or] misleading the jury”). Leavitt’s argument on this issue rests on the premise that
the only agreements at issue at trial were the Separation Agreement and Settlement Agreement
because the Agreed Injunction was not enforceable as a contract but merely as a judgment.
However, the following provision in the Agreed Injunction explicitly belies this contention:
“This Agreed Final Judgment and Injunction is also a contract between [McLane] and [Leavitt].”
See Yazdchi v. State, No. 14-04-00500-CV, 2005 WL 2149416, at *3 (Tex. App.—Houston
[14th Dist.] Sept. 8, 2005, pet. denied) (mem. op.) (noting that agreed judgments are contracts
between parties and may be enforced through claims for breach of contract). Because the issue
of whether Leavitt breached the Agreed Injunction was expressly at issue at trial, it follows that
evidence of the contempt proceeding—which proceeding tried the very issue of breach of the
Agreed Injunction—was directly relevant and thus admissible unless provided otherwise by law.
See Tex. R. Evid. 401 (defining relevant evidence as that having “any tendency to make a fact
more or less probable than it would be without the evidence [if] the fact is of consequence in
determining the action”), 402 (making relevant evidence admissible unless provided otherwise
by constitutional or statutory law or applicable rules).
Leavitt further argues that evidence of the contempt proceeding was “prejudicial,”
“misleading,” and “confusing” to the jury because the evidence likely influenced the jury’s
findings on whether Leavitt breached the other two agreements at issue (i.e., the Release and
Separation Agreement and the Settlement Agreement). However, testimony is not inadmissible
“on the sole ground that it is ‘prejudicial’ because in our adversarial system, much of a
proponent’s evidence is legitimately intended to wound the opponent.” Diamond Offshore Servs.
Ltd. v. Williams, 542 S.W.3d 539, 549 (Tex. 2018). Rather, “unfair prejudice is the proper
10
inquiry,” which means in this context “an undue tendency to suggest a decision on an improper
basis, commonly, though not necessarily, an emotional one.” Id. We fail to see how evidence of
the contempt proceeding—which tended to make more probable the fact that Leavitt violated
the Agreed Injunction—created an undue tendency to suggest to the jury that it make findings on
the other issues before it on any improper basis. On this record, we cannot conclude that there
was no legitimate basis for the trial court’s admission of evidence of the contempt proceeding.
Accordingly, the trial court did not abuse its discretion in admitting the challenged evidence.
We overrule Leavitt’s fourth issue.
In his final issue, Leavitt complains that the evidence was insufficient to support
the jury’s findings concerning breach, causation, and damages, as reflected in the jury’s answers
to Questions One through Three. Question One asked, “After January 5, 2012 [the date the
Agreed Injunction was entered], did Peter Leavitt fail to comply with the Release and Separation
Agreement?” Question Two asked, “Did Peter Leavitt fail to comply with the Settlement
Agreement?” The jury answered “Yes” to both. Under the notation “Question Three” the
charge continued,
You are instructed that Peter Leavitt failed to comply with the Injunction
[c]ontained in the Agreed Final Judgment and Injunction.
What sum of money, if any, would fairly and reasonably compensate McLane for
its damages, if any, that resulted from the failure to comply with the Injunction
and any failures to comply that you have found in Question Nos. 1 or 2?
...
Answer: [$]1,682,000.00
We begin by reviewing the sufficiency of the evidence supporting the jury’s
answer to the third question because our conclusion as to that is dispositive of Leavitt’s
11
complaints about the first two questions. Leavitt first contends that there was “no evidence” to
support the jury’s answer because McLane presented no evidence showing that Leavitt’s
actions caused any damages. He specifically argues that no Circle K representative testified that
Leavitt’s actions caused Circle K to decide to bring the arbitration claim against McLane and
that, therefore, there is “no showing of causal damages stemming from the breach of contract.”
We consider this argument to be challenging the legal sufficiency of the evidence supporting the
jury’s finding on causation.
When an appellant challenges the legal sufficiency of the evidence supporting
an adverse finding on which the opposing party had the burden of proof, the appellant must
demonstrate that there is no evidence, or merely a scintilla of evidence, to support the adverse
finding. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Anything more than a
scintilla is legally sufficient to support a challenged finding. Formosa Plastics Corp. USA v.
Presidio Eng’rs & Contractors, 960 S.W.2d 41, 48 (Tex. 1998). To meet this standard, the
evidence must rise to a level that “would enable reasonable and fair-minded people to reach
the verdict under review.” City of Keller, 168 S.W.3d at 827. When reviewing a finding for
legal sufficiency, the reviewing court considers the evidence in the light most favorable to
the judgment, crediting favorable evidence if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable factfinder could not. Id.
To establish liability for damages in a breach-of-contract suit, the plaintiff must
show that the defendant’s breach was a substantial factor in causing the injury. Tamimi Glob.
Co. v. Kellogg Brown & Root, L.L.C., 483 S.W.3d 678, 705 (Tex. App.—Houston [14th Dist.]
2015, no pet.); City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773, 796 (Tex.
App.—Dallas 1992, writ denied). Actual damages are recoverable for a breach of contract if
12
the plaintiff shows that the injury complained of was the natural, probable, and foreseeable
consequence of the defendant’s breach. Mead v. Johnson Grp., Inc., 615 S.W.2d 685, 687
(Tex. 1981).
While Leavitt is correct that no Circle K representative testified as to how or why
Circle K made the decision to file its arbitration demand, and there is no other direct evidence
establishing a causal link between Leavitt’s actions and Circle K’s arbitration demand, McLane
was entitled to rely on circumstantial evidence to prove causation. See Browning-Ferris, Inc. v.
Reyna, 865 S.W.2d 925, 928 (Tex. 1993). “By its very nature, circumstantial evidence often
involves linking what may be apparently insignificant and unrelated events to establish a
pattern.” Id. at 927. “Thus, each piece of circumstantial evidence must be viewed not in isolation,
but in light of all the known circumstances.” Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001).
Our review of the record reveals more than a scintilla of circumstantial evidence supporting
causation—i.e., that Leavitt’s breach of the Agreed Injunction was a substantial factor in Circle
K’s decision to demand arbitration and that the attorney’s fees McLane incurred in the arbitration
were the natural, probable, and foreseeable consequence of Leavitt’s breach.
We begin our review of the evidence with the April 9, 2012 email that Leavitt
sent Brian Hannasch, the President and COO of Circle K (the Hannasch email). In the email, on
which McLane heavily relied at trial, Leavitt wrote,
Brian,
It was good to speak with you today as it has been [a] while since we last spoke. I
want you to know that it has been a pleasure to work with your company. Rod
has been a true professional and is a credit to your organization. I have thought
about your questions and think that there is a reason to pursue your claim with
McLane. While I recognize that you may not want to battle it out with them any
more than you already have done so, my thoughts are that it may be advantageous
13
for Couche Tard [Circle K’s parent company] to at least present McLane with a
number for the cig reconciliation plus the OTP monies and whether you choose to
pursue or not is your business, but as you indicated, it is inevitable that CT
[Couche Tard] will acquire retailers who are serviced by McLane. It may be a
good strategy to have already presented to McLane a number that you expect
from them.
Thank you for your consideration in these opportunities. I look forward to
connecting with you in the future.
(Emphasis added.) Leavitt testified that he had spoken by phone with Hannasch earlier that day,
during which conversation Hannasch asked him some “questions about McLane.” While Leavitt
did not specify what, exactly, those questions were, he admitted that by sending the Hannasch
email, he was “providing advice regarding Circle K’s business dealings with McLane” and that
his reference to “pursuing your claim with McLane” meant that Circle K “should pursue an audit
against” McLane. Leavitt further testified that Hannasch said the April 9, 2012 communication
with Leavitt “was a factor in Circle K’s decision to move forward with the audit.”6 Leavitt also
testified that he remembered “part” of his April 9 phone conversation with Hannasch in which
Leavitt recommended not “fight[ing] with McLane” and that the two parties simply “get together
and resolve the issue.” However, on the witness stand Leavitt was impeached by his testimony
from the contempt hearing during which he testified that he remembered “nothing” about the
Hannasch conversation. As specifically recited in the contempt order and found by the trial court
on directed verdict, the Hannasch email constituted a breach of the Agreed Injunction.7
6
It is not clear from the record when or in what context Hannasch allegedly made this
statement, and Hannasch did not testify at trial.
7
The contempt order reads, “Peter Leavitt is in contempt for violation of . . . the Agreed
Final Judgment and Injunction . . . for advising the President and Chief Operating Officer of
Circle K to pursue a claim against McLane Company, Inc., in the April 9, 2012 e-mail.”
14
Only seven weeks later, on May 31, 2012, Circle K representative Rod Smith sent
an email to McLane representative Kevin Koch, stating that Circle K “would like to resume the
audit process” of the DSA “that was delayed due to the various legal issues in 2010 and 2011”
and that consulting company Ernest & Young was “willing to conduct the audit.” The next
day, Koch responded to Smith’s email indicating that he was “somewhat surprised” to receive
Smith’s email because his “correspondence file . . . indicates that we had not communicated
regarding this topic since my letter to you dated July 26, 2011 in response to your email to me of
July 15, 2011.” Koch’s email continued, stating that—while McLane was “still very much
willing to proceed” with the audit with the assistance of Ernst & Young—such audit needed to
be “consistent with our requests as previously outlined in” correspondence from November and
December 2010 and July 2011. Koch summarized those prior requests as the requirement that
Circle K assist us in completing our “risk assessment” regarding the secret
unauthorized release of McLane related financial data that we believe has been
disseminated to . . . Peter Leavitt and/or his agents or perhaps other persons not
properly disclosed to McLane. Our extensive discovery efforts have led us to
learn that data was disseminated to Mr. Leavitt and/or his agents utilizing multiple
formats which include but are not necessarily limited to, USB devices, CD’s,
DVD’s, electronic transmission, and hard copies contained in one or more
notebooks.
Koch’s email concluded by conditioning the audit on Circle K’s completion of the “risk
assessment” requested by McLane: “When we have a full accounting of this information we can
set up a meeting to kick off the contract compliance review [i.e., audit].” Instead of complying
with McLane’s request, Circle K filed its demand for arbitration with the AAA a few months
later on November 19, 2012.
As indicated by Koch’s email and other evidence, Leavitt did not send the
Hannasch email in a vacuum but rather on the heels and within the context of a long,
15
complicated, and discordant relationship between McLane and Circle K concerning Leavitt’s
work with Circle K in its efforts to conduct an audit under the DSA. First, in late 2006, Leavitt
negotiated the DSA with Circle K executives, including Hannasch, and executed it on behalf of
McLane. Having negotiated and signed the DSA, Leavitt was aware that it contained a broad
arbitration clause requiring all disputes to be arbitrated through the AAA. Leavitt testified that
the DSA was a “significant deal for both parties” and “worth hundreds of millions of dollars.”
Just a little over a year after Leavitt negotiated and executed the DSA on behalf of McLane, he
was terminated from McLane’s employment for “insubordination,” McLane’s Executive Vice
President of Administration, Jim Kent, testified. Shortly after leaving McLane, Leavitt began a
consulting business to “assist retailers negotiate contracts with distributors.” His work expanded
over time to include consulting for wholesalers and assisting retailers with audits of their
distributors, and he engaged other former McLane employees to assist him in his “contract audit
offering[s].”
In late August 2009, Leavitt contracted with Circle K to provide “contract
compliance audit services related to” the very DSA he had negotiated and executed on behalf of
McLane. Leavitt’s agreement with Circle K provided that his firm would be compensated on a
contingency basis with different tiers of compensation based on the amount that Circle K
recovered from McLane as a result of the audit. Within just two weeks of engaging Leavitt’s
services, Circle K sent McLane a letter—the substantive portions of which Leavitt drafted—
informing McLane that, as part of its “overall quality improvement process,” Circle K had
“implemented a Contract Compliance Assurance Program with key suppliers,” and that McLane
had been “selected for a contract compliance review.” The letter noted that Circle K “has
contracted the services of SVG Advisors to perform the review” of the parties’ “contractual
16
relationship” and “expressly consents to the release and divulging by McLane of all its contract
commercial terms and other relevant information regarding our agreements . . . necessary for
SVG Advisors to perform its review.” The letter contained a bulleted list of numerous specific
categories of data and documentation requested. It further stated that the audit specialists would
use “generally accepted review sampling and extrapolation techniques to determine the accuracy
of all invoices and the value of any contract variances”; that “variances resulting from review of
the invoice statistical sample will be extrapolated over the total invoice population for the review
period”; and that “should errors be found in the sample, payment will be expected for the
extrapolated amount.”
Friction between Circle K and McLane quickly ensued, as evidenced by a
September 15, 2009 response letter from Don Graves, McLane’s Vice President and Controller of
Grocery Distribution. Graves wrote, “I am initially confused by the [data] request in light of the
existing audit of McLane that Circle K has been engaged in since last November,” through which
McLane had “already provided . . . much of the same data as . . . [sought] here. Having two
separate, similar, simultaneous reviews seems inappropriate. And repeating extensive data
collection efforts that have already been provided for you is not a constructive use of my team’s
resources.” Furthermore, Graves wrote, “[n]othing in the DSA’s applicable provisions calls for
the extensive electronic file you have requested. Indeed, whether unintentional or by design,
the breadth of data your letter seeks is staggering . . . [and] represents more than 10 million
lines of data.”
Graves suggested an alternate “methodology” to share McLane’s data for purposes
of the audit but cautioned that “[w]hether we follow this [alternate] process or another . . . the
broad scope outlined in your letter is unworkable” and that “before McLane can agree to honor
17
the results of any ‘extrapolation’ procedure” as requested by Circle K, McLane would need to
“satisfy” itself that the procedure “represents a statistically valid procedure.” Graves, having
“dealt with dozens of major audit firms” in his career, was “unfamiliar with SVG Advisors” and
thus requested “some background information” about the firm “as well as the individuals who
will be performing the audit. On this note, attached is the Confidentiality Agreement that
McLane requires of third party individuals who are granted access to McLane’s records and
data.” Graves’s letter concluded, “we do not agree with Circle K’s request to view McLane’s
wholesale programs with cigarette manufacturers. We fail to see its pertinence in a contract
pricing compliance review.”8
Kent testified about McLane’s receipt of Circle K’s September 9, 2009 “out of the
blue” letter requesting “an unusual audit”: McLane was “somewhat suspicious” of the request,
given that the company was “already being audited by Circle K in different locations,” and this
request was seeking to use an “outside third party called ‘SVG,’ which was somebody [McLane]
had never heard of,” and sought to use “sampling techniques and a variety of different unusual
audit procedures that hadn’t been used in the past.” Kent explained that, while audits themselves
are not unusual, typically Circle K and other companies conduct the audits with their own
“internal auditors or somebody within the company” rather than outside firms. After Graves sent
his letter responding to Circle K’s “unusual” audit request, McLane requested a meeting in
Houston to “meet the SVG people” so that McLane could determine if SVG “really had offices,
if they were a real company, who the people were.” Kent testified that SVG “really didn’t have
8
Leavitt testified that shortly before his employment with McLane was terminated,
he had learned about a sales-tax “loophole” that McLane had discovered related to cigarettes
and OTP (other tobacco products) and that McLane had filed several tax-refund lawsuits in
connection therewith. Leavitt testified that he believed McLane’s customers were entitled to a
portion of the refunds obtained in those lawsuits.
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offices,” had just “rented a space,” and had just been formed, and McLane did not feel that SVG
was “qualified to do an audit.” He said that, towards the end of the meeting with SVG, he
learned that Leavitt “was involved” with SVG and “had ended up being part of this overall audit
request.” Kent testified that McLane was “shocked and surprised” to discover that Leavitt was
“conspiring” with Circle K to “work against” McLane and filed its initial lawsuit against Leavitt
shortly after the SVG meeting. That lawsuit “lasted for about two years” and was resolved
through the Settlement Agreement and Agreed Injunction.
Although he did not attend the SVG meeting, Leavitt described it as “a very ugly
meeting” and “very hostile,” as reported to him by an SVG representative, partly because
McLane had learned about Leavitt’s involvement in the audit and then “disallowed” the audit to
proceed. Leavitt admitted that, ever since the “ugly” Houston meeting (which occurred in
October 2008), he has known that McLane was “taking the position that [the] [S]eparation
[A]greement prohibited [him] from engaging or assisting Circle K in an audit of McLane.”
Evidence showed that the DSA terminated on September 10, 2011, and that,
although McLane and Circle K attempted to negotiate an extension, no agreement was reached.
Kent testified that Circle K’s May 31, 2012 email seeking to pursue its latent audit request was
“out of the blue” because McLane believed that the legal proceedings involving Circle K “had
been resolved”; that Circle K’s audit rights had terminated upon the DSA’s termination, thus
“completely separat[ing]” the two parties’ relationship; and that Circle K had “never ended up
resolving the issues of taking [McLane’s] confidential information and giving it to a bunch of
miscellaneous people with SVG.”
In the arbitration proceeding, the arbitrator issued a partial final award on April 2,
2015 on the sole issue of whether Circle K was entitled to an audit, reserving all other “disputes
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and controversies” (including an award of attorney’s fees) for a final hearing. The partial final
award recited that Circle K’s request for an audit under the DSA was denied because the
“Doctrine of Unclean Hands [is] dispositive” of Circle K’s rights to an audit. Among the factual
recitations in the arbitration partial final award were the following:
• Sometime prior to August 2009, McLane “received anonymous phone calls informing [it]
that Leavitt was in contact with [Circle K]. Neither party confronted the other as to
whether Leavitt was acting on behalf of [Circle K] until August 2009. After questioning
by [McLane], [Circle K] disclosed . . . that Leavitt was working for [Circle K].” McLane
“instructed [Circle K] not to use Leavitt or his entities, directly or indirectly, in any work
. . . in connection with the audit of [McLane].” Nonetheless, Circle K made “continued
requests for the audit,” and McLane “continued to express concern about Leavitt’s
involvement and the disclosures of confidential data by Leavitt and [Circle K] to third
parties.”
• “The disclosures of [McLane]’s confidential data continued to be the major concern
discussed between the Parties through the termination date of the DSA.”
• McLane “conditioned an audit on [Circle K] disclosing the identity of third parties
receiving [McLane]’s confidential data. [McLane] never received any disclosure of data
by [Circle K]. [Circle K] conditioned releasing data on a release and hold harmless
agreement by [McLane]. The release was not given and the data was never provided, and
therefore, the audit was never conducted.”
• Circle K “could have questioned [McLane] directly about Leavitt’s involvement
concerning [McLane’s confidential affairs but] . . . chose not to do so and accepted
Leavitt’s representation that no problem existed.”
• Circle K’s “top management approved the use of Leavitt’s services, and was made aware
of the effort to keep Leavitt’s identity a secret from the Respondent.”
• “The continuing presence or influence of Leavitt so affected the Parties’ relationship that
terms for the audit were not reached. When [McLane] asked [Circle K] to discontinue
any involvement of Leavitt, he continued in the background and influenced [Circle K]
and its representatives.”
(Emphasis added.)
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In light of all the events leading up to the Hannasch email, and in the context of
the strained relationships among the parties—especially their respective opposite positions about
audit rights and procedures—as well as Leavitt’s awareness of such context, the jury could
reasonably have concluded that Leavitt’s advising Circle K to “pursue its audit claim” was a
substantial factor in bringing about Circle K’s arbitration demand and the resulting arbitration
proceeding and that such proceeding and McLane’s incurring of legal fees were the natural,
probable, and foreseeable consequences of Leavitt’s so advising Circle K. The following
evidence supports such reasonable conclusion by the jury: Leavitt’s close involvement with and
fashioning of Circle K’s audit requests from the very beginning; Leavitt’s intimate familiarity
with McLane’s business and the DSA as well as his personal animosity towards McLane
executives and his belief that the company was improperly retaining tax refunds that should have
been shared with its customers; Leavitt’s awareness of the nonnegotiable conditions McLane
placed on its willingness to allow an audit and Circle K’s refusal to agree to such conditions; the
span of nearly three years during which Circle K and McLane had sporadic communications
about the audit, during which time Leavitt continued to closely advise Circle K and McLane
steadfastly refused to allow an audit; and Leavitt’s advising Circle K to pursue its audit claim—
and Circle K doing so on the heels of that advice—nearly a year after Circle K and McLane had
last communicated about the audit, even though the DSA had terminated and Circle K was well
aware of McLane’s nonnegotiable conditions for the requested audit. Because there is more than
a scintilla of evidence to support the jury’s finding that Leavitt’s breach of the Agreed Injunction
was a substantial factor in bringing about the damages that McLane suffered in the form of its
attorney’s fees incurred in defending itself in the arbitration, we conclude that the evidence is
legally sufficient to support the jury’s finding on causation.
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As to the amount of damages, Leavitt argues that the jury’s award of $1,682,000
is “against the great weight and preponderance of the evidence” because McLane has been
“made whole” and “satisfied for the [attorney’s] fees” it incurred in the Circle K arbitration in
that it was awarded $700,000 in attorney’s fees in the final arbitration award. He argues that
“awarding additional damages to McLane against Leavitt is excessive and not supported by
the evidence” because it would constitute a “double recovery,” which is barred by the one-
satisfaction rule. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991) (“The one
satisfaction rule applies to prevent a plaintiff from obtaining more than one recovery for the
same injury.”). He asks this Court to suggest a remittitur because the jury’s award of $1,682,000
in damages is “grossly excessive.”9 See Pope v. Moore, 711 S.W.2d 622, 623–24 (Tex. 1986)
(noting that “proper remittitur standard is factual sufficiency”); Williams v. Crawford, No. 03-
16-00696, 2018 WL 1124306, at *10 (Tex. App.—Austin Mar. 2, 2018, no pet.) (mem. op.)
(appellate court will suggest remittitur only if evidence for damages award is so “factually
insufficient or against the great weight and preponderance of the evidence as to be manifestly
unjust” (citations omitted)).
Leavitt’s argument fails for two reasons. First, as reflected in Circle K’s
arbitration demand and the partial and final awards, the arbitration was in the nature of a
declaratory-judgment action—Circle K urged that the DSA entitled it to conduct an audit, and
McLane responded that the DSA did not authorize an audit for various reasons, including the
doctrine of unclean hands. The only “injury” for which McLane sought relief in that proceeding
was the injury it was likely to suffer if Circle K prevailed in the arbitration—i.e., the costs
9
In response to Question Number Four, the jury awarded McLane $181,000 in attorney’s
fees incurred in the instant lawsuit, and Leavitt does not challenge that award (or the trial court’s
judgment rendered thereon) on appeal.
22
associated with facilitating an audit and any net deficiencies it would have owed Circle K if
discovered in an audit. This is an injury distinct from the injury at issue here, and the $700,000
attorney’s fees awarded to McLane in the arbitration final award did not constitute actual
damages but merely the arbitrator’s determination that McLane was entitled to that amount
as “equitable and just” attorney’s fees pursuant to applicable AAA rules and the Uniform
Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code § 37.009 (“In any proceeding
under this chapter, the court may award costs and reasonable and necessary attorney’s fees as
are equitable and just.”). Such award comports with the general rule that attorney’s fees incurred
to defend or prosecute an action are not recoverable in that same action as actual damages. See
Haubold v. Medical Carbon Rsch. Inst., LLC, No. 03-11-00115-CV, 2014 WL 1018008, at *6–8
(Tex. App.—Austin Mar. 14, 2014, no pet.) (mem. op.).
However, attorney’s fees incurred in a prior action may be recovered as damages
when they are the natural, probable, and foreseeable consequence of a defendant’s breach of a
contract, such as a settlement agreement, that necessitated defending or prosecuting such breach.
See id. (citing In re Nalle Plastics Fam. Ltd. P’ship, 406 S.W.3d 168, 174–75 (Tex. 2013) (orig.
proceeding)); Ganske v. WRS Grp., Inc., No. 10-06-00050-CV, 2007 WL 1147357, at *12 (Tex.
App.—Waco Apr. 18, 2007, no pet.) (mem. op.). Therefore, McLane’s seeking in this lawsuit its
damages incurred in the arbitration proceeding—in the form of attorney’s fees—is an attempt to
recover for an injury separate from that in the arbitration, to which the one-satisfaction rule does
not apply. See Stewart Title, 822 S.W.2d at 7; see also McCullough v. Scarborough, Medlin &
Assocs., 435 S.W.3d 871, 905 (Tex. App.—Dallas 2014, pet. denied) (in action for breach of
fiduciary duty, noting that equitable disgorgement and actual damages “are intended to address
23
separate and distinct injuries,” and thus one-satisfaction rule “does not preclude the recovery
of both”).
Secondly, McLane presented extensive evidence of the attorney’s fees and costs it
incurred in the arbitration proceeding, totaling over $2,448,000—an amount well in excess of the
$700,000 it was awarded in the arbitration. Its evidence included itemized invoices from the
law firms representing McLane in the arbitration as well as expert testimony from its counsel
explaining why the fees and costs were reasonable and necessary. Leavitt did not introduce any
expert testimony challenging the reasonableness or necessity of McLane’s attorney’s fees.
Subtracting the $700,000 in attorney’s fees that McLane was awarded in the arbitration from the
total fees it incurred leaves a balance of over $1,748,000 in out-of-pocket damages for which
McLane had not been compensated. The jury’s award of $1,682,000 was less than that amount
and, therefore, supported by legally and factually sufficient evidence. See Gulf States Utils. Co.
v. Low, 79 S.W.3d 561, 566 (Tex. 2002) (noting that jury generally has discretion to award
damages within range of evidence presented at trial).
We thus conclude that the evidence was legally and factually sufficient to support
the jury’s award of damages. Because we so conclude, we need not address Leavitt’s complaints
that the evidence was legally insufficient to support the jury’s answers to Questions One and
Two—asking whether Leavitt breached the Release and Separation Agreement and Settlement
Agreement, respectively—because Leavitt’s breach of the Agreed Injunction alone supports
the jury’s findings on causation and damages. The only evidence of actions Leavitt took after
January 5, 2012—the date specifically mentioned in Question Number One pertaining to the
Release and Separation Agreement and the date of the Settlement Agreement’s execution—was
the Hannasch email and conversation. Whether such actions constituted a breach of only the
24
Agreed Injunction or also of one or both of the other two agreements, McLane suffered only
one injury for those actions: the attorney’s fees it incurred in the arbitration. Therefore, even if
the jury’s findings as to Questions One and Two are erroneous, such error is harmless because it
did not probably cause the rendition of an improper judgment. See Tex. R. App. P. 44.1.
Accordingly, we overrule Leavitt’s fifth issue.
CONCLUSION
Having overruled each of Leavitt’s issues, we affirm the trial court’s final
judgment.
__________________________________________
Thomas J. Baker, Justice
Before Chief Justice Byrne, Justices Baker and Triana
Affirmed
Filed: April 29, 2021
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