Victor Catalanotto v. Meador Oldsmobile LLC F/K/A Meador Oldsmobile Inc. ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00044-CV
VICTOR CATALANOTTO APPELLANT
V.
MEADOR OLDSMOBILE LLC F/K/A APPELLEE
MEADOR OLDSMOBILE INC.
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In five issues, Appellant Victor Catalanotto appeals the trial court‘s
judgment on the jury‘s verdict in favor of Appellee Meador Oldsmobile LLC F/K/A
Meador Oldsmobile Inc. We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural History
Catalanotto worked for Meador Oldsmobile for over twenty-three years; he
worked as the dealership‘s general manager for the last twelve or thirteen of
those years. Catalanotto sued Meador Oldsmobile for breach of contract,
specifically, his entitlement to around $75,000 in severance pay,2 after the
dealership closed.
A. Background
Before Moorman Meador, Meador Oldsmobile‘s president and owner,
became physically unable to run the dealership, General Motors announced that
it would stop producing Oldsmobiles. Moorman put everything into a revocable
trust while he sought alternatives to the dealership‘s demise and named Taylor
Gandy and Max Spillar co-trustees. Gandy, executor of the Moorman Meador
Estate,3 was personally involved in running Meador Oldsmobile from November
18, 2002, to January 2005. Until Spillar died, Spillar was co-trustee and then co-
executor of Moorman‘s estate with Gandy. Moorman‘s trust terminated upon his
death on October 9, 2003, and funded his estate.4 When Moorman died,
2
The other defendants were dismissed, and Catalanotto‘s other claims
resolved, prior to submission of the charge to the jury.
3
At the time of trial, Gandy was president of a real estate investment
company. He was also an attorney, although he had not practiced law since
1992, and an accountant, although he also no longer practiced accounting.
Gandy met Moorman Meador in 1963.
4
Meador Oldsmobile, Inc.‘s assets were transferred to Meador Oldsmobile
L.L.C.; the Meador Estate owns the L.L.C.
2
Catalanotto became the dealership‘s dealer-approved principal, a General
Motors dealership operation requirement.
Moorman acquired a letter of intent for a new Dodge dealership and had
several discussions with Catalanotto about it; they wanted to keep the existing
group of employees together.5 However, on November 18, 2002, Gandy and
Spillar called Catalanotto into Moorman‘s office. They explained that they were
cancelling Moorman‘s plans for the new Dodge dealership and taking over the
dealership operations and Moorman‘s assets because Moorman‘s health was
failing, and they asked Catalanotto to stay and run the dealership. In October
2004, the dealership began losing money; the end of December 2004 became
the target date to finish winding down the business.
B. Evidence
Gandy and Catalanotto testified in person. Spillar testified by deposition,
as did his wife Greta, who had worked for Moorman since before Meador
Oldsmobile opened on December 1, 1957. Several documents were admitted in
evidence.
1. February 21, 2003 Compensation Agreement
Plaintiff‘s Exhibit 1, a letter agreement between Catalanotto and Moorman
Meador Revocable Trust signed by Catalanotto, Gandy, and Spillar, and dated
February 21, 2003, set out the following:
5
As late as the fourth quarter of 2004, Catalanotto kept looking for a new
dealership for the employees.
3
This letter will confirm in writing the agreement that was made with
you at a meeting at Meador Oldsmobile on November 18, 2002 with
Taylor Gandy, Max Spillar, Moorman Meador and you.
We requested that you remain as the General Manager of
Meador Oldsmobile, Inc. through the time 1.) that General Motors no
longer furnishes us new cars and Meador Olds discontinues
operations as a result or 2.) the stockholders of Meador Olds
determine to discontinue operations, whichever event occurs first.
You have indicated your willingness to make this commitment. Your
duties and responsibilities would continue to be the same as they
have been in the past devoting your full time and attention to
managing the dealership to achieve maximum results consistent with
prior policies. Your full time would be expected and you would
report to us or to our successors.
During this remaining time at Meador Oldsmobile you will be
compensated at the same level using the same bonus formula as
you have received in the past.[6] However, your compensation will
not drop below $12,000 in any one month or $150,000 per year even
if the formula should produce a lower compensation because of the
lower volume of new car sales during the remaining time.
In addition we agree that if you complete your commitment to
Meador Oldsmobile, Inc. as outlined above and remain until
operations have ceased, Meador Oldsmobile, Inc. [w]ill pay you a
bonus of $150,000, payable in a lump sum upon cessation of
operations by the dealership.
Your salary and bonus as outlined above would be earned
only upon your carrying out the policies of the Company as we may
determine from time to time. If you are discharged for just cause,
your salary beyond such date and your bonus would not be due and
payable. The commitments in this letter made by each of us will not
be binding on either of us unless General Motors has ceased
production of new cars no longer than December 31, 2004.
6
Catalanotto‘s pay formula was a complex arrangement of $1,000 per
month as salary, $80 per used car sold retail, 4.75% of the dealership‘s net
profits, and 7% of net profits from a used car lot affiliated with the dealership,
among other benefits.
4
2. November 4, 2004 Severance Pay Memo
Plaintiff‘s Exhibit 2 was a November 4, 2004 memorandum addressed to
―All Employees of Meador Oldsmobile, Inc.‖ from ―Executors[] of Meador‘s
Estate‖ regarding ―Severance Pay.‖ Defendant‘s Exhibit 4, containing the same
document, included the email to which the memo was attached, also dated
November 4, 2004, sent by Gandy to Spillar and Catalanotto. It states, ―Here is a
draft of the proposed memo to the employee‘s. [sic] Let me have your
comments.‖ The memo set out the following:
This memo is intended to confirm to each of you the
severance pay plan the General Manager presented to you on
October 21, 2004.
For those of you that continue working at Meador Olds
performing your assigned duties until such date as determined by
the General Manager that your services are no longer needed, you
will receive severance pay according to the following formula:[7]
....
On behalf of Mr. Meador‘s Estate we would like to express our
appreciation for your many contributions over the years. The
discontinuance of the Oldsmobile Division of General Motors more
than the death of Mr. Meador has resulted in the closing of Meador
Olds.
As we wind down the business of the Company your valuable
service will continue to be important to the final days of the
7
The memo‘s eight paragraphs about severance calculation set out that the
amount per employee would be determined by taking the greater amount of
annual pay from 2003 or 2004, dividing the amount by fifty-two, and then
multiplying it by years of service. The memo also states that employees who left
before being asked to would not be eligible to participate in the plan.
5
Company. If you have any questions, please see the General
Manager for clarification.
3. Max Spillar’s Calculations
The final document, offered by both parties, was a set of calculations by
Spillar on a printout showing the hire date, 2003 earnings, and 2004 earnings for
thirty-one individuals. There were handwritten calculations beside the names of
the employees, showing what each ―would get applying the bonus to them.‖
Spillar had drawn lines through Catalanotto‘s earnings,8 and there was no
handwritten amount of severance by Catalanotto‘s name.
4. Taylor Gandy’s Testimony
Gandy described the company‘s chain of command as employees
reporting to managers, who reported to the general manager (Catalanotto), who
reported to Gandy and Spillar. He, Catalanotto, and Spillar had regular
meetings. Gandy stated that neither he nor Spillar had any experience running a
car dealership and that the February 21, 2003 compensation agreement‘s main
purpose was to keep Catalanotto—who was key to the business‘s continued
profitability—at the dealership. With its extra $150,000 and salary floor added to
Catalanotto‘s existing pay, the agreement was set up to ensure that Catalanotto
would stay until the dealership stopped receiving Oldsmobiles—that is, ―[t]o
ensure that Victor [didn‘t] get another job and leave us high and dry.‖ Gandy
8
Spillar had also drawn lines through the names of three individuals not
involved here and through each line item associated with their names, and he did
not write an amount of severance pay for them.
6
stated that the idea of a minimum level of compensation was Catalanotto‘s.
Gandy acknowledged that, at the time the compensation agreement was signed,
there was no plan for severance for any of the employees.
Sometime before October 21, 2004, Gandy, Spillar, and Catalanotto
discussed a severance plan for the employees; Catalanotto was involved in the
severance plan‘s creation from the beginning. The three men devised and
developed it over ―quite a few different meetings‖ and over many weeks, and its
main purposes were ―to incentivize the employees to stay and continue working
for Victor in a new dealership if he got one.‖ Additionally, taking care of the
employees was something Meador would have wanted, and the plan was a
reward for longevity with the company.
Catalanotto called a meeting on October 21, 2004, and presented the
severance plan to the employees. Gandy stated that he and Spillar had not
discussed when Catalanotto was going to make the announcement and that
Catalanotto made the announcement without Gandy knowing. While Catalanotto
had the authority to do this, Gandy wished it had been done differently because
he had wanted to be present and he assumed, but did not know, that Catalanotto
had told the employees about the severance plan like they had discussed. To
avoid any misunderstandings about the severance arrangements, Gandy drafted
the November 4, 2004 memo. Gandy sent an email to Catalanotto and Spillar
with the draft memo attached and asked for their comments, and Catalanotto
called him and told him to add a sentence about ―if you‘re terminated for just
7
cause you‘re not going to receive severance.‖ The draft was never finalized or
given to the employees.9 Gandy agreed that the actual severance agreement
with the employees was entered into on October 21, 2004.
Gandy stated that when he addressed the memo to ―all employees,‖ he did
not intend to include Catalanotto as an employee ―because the three of us had
devised that plan, and it was never our intention—and I don‘t think it was Victor‘s
intention—that he be included in that plan.‖ He did not consider Catalanotto an
employee for purposes of the memo, although he acknowledged that it could be
read either way. Specifically, he explained that in the last paragraph of the
November 4, 2004 memo, ―you‖ was a reference to all of the employees except
Catalanotto, because Catalanotto was the general manager and was in a
different category, even though he was also an employee.
Gandy admitted that he never told Catalanotto ―in so many words‖ that he
would not be eligible for the severance plan, and he stated, ―I should have said
something different than I did in the memo. It was just a draft. But I don‘t think I
misled anybody, including Victor.‖ Catalanotto ―well knew that he was not
intended to be included‖ in the severance plan ―because of the many hours of
discussion that we had had about how we were going to compensate the other
employees. Never once did we ever say Victor was going to be included.‖ After
9
Gandy admitted that he did not initially recall preparing the memo and
sending the email about it, and he acknowledged that during a 2006 deposition in
a lawsuit by a former dealership employee, he stated that he did not remember
the memo.
8
Gandy emailed the draft, Catalanotto never called to ask if he was included in the
severance plan.
Gandy acknowledged that Catalanotto was an employee and that there
was nothing in the severance pay memo that would preclude him from receiving
severance pay, but he also stated that he thought the $150,000 Catalanotto
received was in lieu of, or could be construed as including, severance pay. And
he stated that Catalanotto should not receive two payments; that is, because
Catalanotto had the February 21, 2003 compensation agreement, he should not
also be eligible to receive severance pay under the severance agreement. On
cross-examination, Gandy gave the following testimony:
Q. Looking at this paragraph down here [in Plaintiff‘s Exhibit
1] with the $150,000 payment in it, this $150,000 was to be paid to
Mr. Catalanotto after operations have ceased—it was to be paid
upon cessation of operations by the dealership: is that correct?
A. That‘s correct.
Q. And when the dealership operations ceased, what was
going to happen to Mr. Catalanotto‘s employment?
A. Well, everybody, including Victor, was hopeful that he
could land a new dealership and all of the employees would be
employed by Victor in new a [sic] dealership. And that was the hope
of everybody.
Q. That was the hope at that time. What was going to
happen to his employment at Meador Olds, though?
A. Well, it would cease.
Q. Okay. He would be terminated, right?
A. Yes.
9
Q. And he‘s going to get paid $150,000 upon the termination
of his employment with Meador Olds?
A. That‘s correct.
Gandy stated that the $150,000 payment seemed to fit within the definition of
―severance‖ and that he would treat it as a severance bonus.10
Finally, Gandy explained that the severance plan did not apply to
Catalanotto
[b]ecause the idea for the severance really originated out of several
meetings that Max [Spillar] and Victor and I had. And those
discussions [re]volved around maintaining profitability of Meador
Oldsmobile. And Victor made the point, which was a good point,
that it‘s going to be hard to maintain profitability if he starts losing
employees. And I agreed, and so did Max. We all agreed. And he
also said, you know, ―If we get an opportunity to have another
dealership, it would be nice to have everybody still working at
Meador Oldsmobile.‖ And I agreed with that. So it was in that
context that we decided to come up with a plan that would apply to
all the other employees. It was never discussed, ever discussed,
that Victor would be included in that severance plan. It was really
designed to assist Victor and his employer to maintain profitability.
Gandy testified that Catalanotto received a copy of Spillar‘s calculations
because they had discussions with him to make sure that it was accurate and
that he was in agreement with it. Catalanotto never asked them why his earnings
had been lined out or why there were no handwritten numbers beside his name.
To the contrary, Catalanotto objected to the amount Randy Courtney was to
10
Gandy read the definition of ―severance pay‖ from Black‘s Law Dictionary
to the jury, reciting, in pertinent part, ―Payment by an employer to [an] employee
beyond his wages on termination of his employment. Generally, it is paid when
termination is not due to the employee‘s fault.‖
10
receive—which had been approximately $7,000 originally and which was
increased to $15,000—because he needed him at the dealership, did not want
him to leave, and did not think $7,000 was enough to keep him there until the
end.
Catalanotto called Gandy in April 2005 about a problem with a payment
from the used-car lot. In the two or three phone calls he received from
Catalanotto between March and April 2005, Catalanotto never mentioned
anything to Gandy about not being paid severance under the severance plan
prior to the March 2007 demand letter from his attorney. Gandy stated he did not
recall Catalanotto telling him that he would sue for his severance pay as well as
the used car bonus.
5. Max Spillar’s Testimony by Deposition
Spillar testified that he and Gandy came up with the severance plan and
payout calculations in the last quarter of 2004 to retain the employees until they
were no longer needed, to reward them for good service, and to let them share in
the company‘s overall goodwill. There was no written memo about the
severance plan, and once he and Gandy came up with the plan, they reviewed it
with Catalanotto. Spillar also told his wife Greta about it, and she communicated
it to the dealership‘s office employees.
Catalanotto asked if he could communicate the plan to the employees, and
they said he could tell the shop and sales employees about it. Spillar was not
present when Catalanotto told the employees about the severance plan.
11
6. Greta Spillar’s Testimony by Deposition
Gandy and Greta‘s husband came up with the severance plan and told
Greta about it. She did not know when Catalanotto told the employees about the
severance plan but said that it could not have been in October 2004 because her
husband did not create the computation schedule until the middle of December
2004, and the severance plan was not communicated to the employees until
December 2004, when her secretary printed up the computation schedule and
her husband calculated the amount of severance pay. She never saw a memo
setting out the severance plan. Her husband gave the computation schedule to
her and her secretary to write the checks for the amounts indicated. She first
became aware that Catalanotto had expected to receive severance pay when
Gandy called her and said they were being sued.
7. Victor Catalanotto’s Testimony
Catalanotto agreed that Gandy and Spillar backloaded the 2003
compensation agreement to keep him there until the end and that he asked
Gandy to put the agreement in writing. Plaintiff‘s Exhibit 1 is the final draft of the
agreement.
Prior to Moorman‘s death, Catalanotto initially met with Gandy and Spillar
once a month and later with increasing frequency. Spillar would go over the
financial statement and ask questions and Catalanotto would update them on his
progress in finding a new dealership. At one of their meetings in early fall 2004,
Gandy and Spillar told him that they were going to devise a severance package
12
for all of the employees. He was ecstatic, both for himself and ―also for the
employees.‖ He stated that Spillar was supposed to be working on the plan
because, in a subsequent meeting, Gandy asked Spillar, ―Have you got that stuff
together on the severance yet?‖ And Spillar said, ―No, not yet. I‘m working on
it.‖
When Gandy and Spillar first told him about the severance plan, they told
him that they were going to decide what they would pay out, and the formula was
discussed later. They told him what the formula would be in a meeting on
October 21, 2004. He asked them if he ―could go back and tell all the
employees‖ about it, and they said he could. He immediately went back and
explained the plan to the employees.11 He did not announce the plan to the
office staff—Greta‘s staff—because they already knew about it.
Catalanotto stated that in all of the meetings, neither Gandy nor Spillar
ever told him that he would not be included in the severance plan and that no
one at Meador Oldsmobile ever told him that he was not intended to be included
in it. He had no reason at all to believe that he would not be included in the
severance plan and believed that he would be included. However, he admitted
on cross-examination that he had never specifically discussed with Gandy or
Spillar whether the severance plan applied to him.
11
Catalanotto admitted that he became concerned about whether he would
be able to retain the employees at Meador Oldsmobile several times between
December 2000 and January 2005.
13
Gandy emailed the severance plan memo to Catalanotto and Spillar on
November 4, 2004, asking if they had any comments. Catalanotto replied, ―[I]n
line 7, we needed to put a clause in there that if they‘re fired for just cause they
would not collect severance.‖ He never received a revised copy of the memo.
On January 20, 2005, Spillar told Catalanotto, ―We no longer need your
services,‖ and Greta handed him an envelope. Catalanotto opened the envelope
when he arrived home, looked inside, and thought, ―Okay, where‘s the other
check?‖ His check for his work from January 1, 2005, to January 20, 2005, was
in the envelope, as was his bonus check for $150,000, but there was no
severance check. He thought that there was a mistake, so he went back to the
office the next day. He told Greta that he had not received his severance check,
and she looked at him and said, ―You got all the money you‘re going to get.‖
The next time Catalanotto spoke with Gandy was at the end of March.
During his first two phone calls, Catalanotto only discussed his pay dispute with
the used car lot. In his third call, Catalanotto told Gandy, ―If you‘re not going to
pay me on the [used car] lot, then I guess I‘m going to have to sue for that and
also for my severance pay.‖ Gandy replied, ―Well, I thought we took care of that
already with you with that $150,000.‖ Catalanotto told Gandy that the $150,000
was his bonus check. On cross-examination, Catalanotto gave the following
testimony:
Q. So you thought you were entitled to severance, [Gandy]
thought the $150,000 was your severance. That was clear from that
conversation, wasn‘t it?
14
A. Okay.
Q. So you have to agree with me then that your mind and his
mind didn‘t meet on that issue, did they?
A. That‘s correct.
Q. Okay. And let‘s talk about what Max Spillar thought. Max
Spillar filled out the form with all the names on it, and he left a blank
by your name; isn‘t that right?
A. Apparently, yes.
Q. Yeah. And when he instructed Greta to cut checks, there
was no check cut for you, was there?
A. No, there was not.
Q. And we know that Max is dead now, he‘s not here to
testify. But just looking at those two facts, you‘ll agree with me that
in his mind you weren‘t entitled to payment under that severance
plan too, won‘t you?
A. I‘ll agree he had no intention of paying me the severance.
Q. Right. So there was no meeting of your mind and his on
severance either, was there?
A. There was a meeting of the minds of the severance for all
employees.
Q. Yeah. Let me rephrase the question. There was no
meeting of your mind and his as to whether or not you were going to
get paid severance under that plan, was there?
A. My name specifically, no.
Catalanotto admitted that, although he and Gandy had had a good relationship
as business friends, he did not call, write, or email Gandy the day after he
received his checks to ask about the severance check. And he admitted that the
15
deciding factor for how long he would stay at Meador Oldsmobile was not the
severance plan but whether someone offered him a lot of money to go
elsewhere.
C. Procedural Posture
The jury found in favor of Meador Oldsmobile on jury question #1—a
contract formation question—and the trial court entered a take-nothing judgment
against Catalanotto. Catalanotto filed a motion for judgment notwithstanding the
verdict (JNOV), asking the trial court to disregard the jury‘s finding on jury
question #1 because the question pertained to a question of law for the court to
decide, and he filed a motion for new trial, raising complaints about the legal and
factual sufficiency of the evidence to support the jury‘s answer to jury question
#1, error in the jury charge, and statements in defense counsel‘s closing
argument. The trial court denied both motions, and this appeal followed.
III. Preservation of Error
In his first issue, Catalanotto argues that the trial court erred by submitting
a contract-formation question to the jury because the contract in question was
unambiguous. In his second issue, he complains that the trial court abused its
discretion by allowing the admission of extrinsic evidence of unexpressed
subjective intent to contradict the contract‘s express terms.
With regard to jury question #1, Catalanotto filed the following proposed
jury question:
16
PLAINTIFF’S PROPOSED QUESTION NO. 1
QUESTION
Did Meador Oldsmobile LLC f/k/a Meador Oldsmobile, Inc. and
Victor Catalanotto agree that Meador Oldsmobile LLC f/k/a Meador
Oldsmobile, Inc. would pay Victor Catalanotto ―severance pay‖ (as
defined by the November 4, 2004 memo regarding severance pay[)].
In deciding whether the parties reached an agreement, you
may consider what they said and did in light of the surrounding
circumstances, including any earlier course of dealings. You
may not consider the parties‘ unexpressed thoughts or
intentions.
Answer ―Yes‖ or ―No‖
The actual question submitted in the jury charge asked,
Question No. 1:
Did Victor Catalanotto and Meador Oldsmobile, Inc. (now
known as Meador Oldsmobile, L.L.C.) agree that Victor Catalanotto
was to be included in the November 4, 2004, Severance Pay Plan?
Business organizations, by their nature, cannot act without
human agents. Business organizations act by and through their
officers, employees, and agents. The actions of an individual on
behalf of a business organization are considered the business
organization‘s acts.
In deciding whether the parties reached an agreement, you
may consider what they said and did in light of the surrounding
circumstances, including any earlier course of dealing. You may not
consider the parties‘ unexpressed thoughts or intentions.
To form a valid contract, the parties must have the same
understanding of the subject matter of the contract and all its
essential terms.
Answer ―Yes‖ or ―No.‖ [Underlining added.]
17
During the charge conference, Catalanotto objected only to the underlined
language above, stating that it was unnecessary, superfluous, and potentially a
comment on the weight of the evidence—none of which he complains about
here—and the trial court overruled his objection.
We initially note that a party complaining about the jury charge must have
timely and plainly made the trial court aware of the complaint and must have
obtained a ruling to preserve its error. Ford Motor Co. v. Ledesma, 242 S.W.3d
32, 43–44 (Tex. 2007); State Dep’t of Highways & Pub. Transp. v. Payne, 838
S.W.2d 235, 241 (Tex. 1992) (op. on reh‘g); see also Tex. R. Civ. P. 272–274.
Furthermore, when the trial court has to resolve a legal issue before the jury can
properly perform its fact-finding role, a party desiring to preserve the issue for
appellate review must lodge an objection in time for the trial court to make an
appropriate ruling without having to order a new trial. Holland v. Wal-Mart
Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). And finally, a party may not invite
error by asking ―something of a court and then complain[ing] that the court
committed error in giving it to him.‖ Ne. Tex. Motor Lines v. Hodges, 138 Tex.
280, 158 S.W.2d 487, 488 (1942); see also Gen. Chem. Corp. v. De La Lastra,
852 S.W.2d 916, 920 (Tex. 1993) (―Parties may not invite error by requesting an
issue and then objecting to its submission.‖), cert. denied, 510 U.S. 985 (1993).
Here, Catalanotto specifically requested submission of most of the
component parts of jury question #1, and the only component he objected to at
trial does not match his complaint on appeal. See Banda v. Garcia, 955 S.W.2d
18
270, 272 (Tex. 1997) (noting that the complaint on appeal must be the same as
that presented in the trial court). We hold that he has failed to preserve this issue
for our review. See Tex. R. App. P. 33.1; Ledesma, 242 S.W.3d at 43–44.
Likewise, although Catalanotto argues that the trial court erred by allowing
―extrinsic evidence of Defendant‘s unexpressed subjective intent that it did not
intend to include [Catalanotto] in the severance plan to contradict the express
terms of a written instrument . . . thereby supposedly creating ambiguity where
there was none,‖ Catalanotto himself brought out most of the controversial
testimony by Gandy during his direct examination, and he failed to object to any
of Gandy‘s testimony brought out by the defense.12 Because Catalanotto gave
the trial court no indication that he found this evidence objectionable during trial,
he has failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a);
Tex. R. Evid. 103; State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.6 (Tex.
1989); One Call Sys., Inc. v. Houston Lighting & Power, 936 S.W.2d 673, 677
(Tex. App.—Houston [14th Dist.] 1996, writ denied). We overrule Catalanotto‘s
first and second issues.
IV. Sufficiency of the Evidence
In his third and fourth issues, Catalanotto argues that the trial court erred
by entering judgment on the jury‘s verdict instead of granting his motion for JNOV
12
The only evidence Catalanotto specifically directs us to as inadmissible is
―Mr. Gandy‘s testimony about his subjective intent regarding the Severance Pay
Memo.‖
19
because the jury‘s answer to the contract-formation question was wrong, as there
was no evidence to support it. He also argues that the evidence was factually
insufficient to support the jury‘s answer.
A. Standards of Review
A trial court may disregard a jury verdict and render JNOV if no evidence
supports the jury finding on an issue necessary to liability or if a directed verdict
would have been proper, i.e., when the evidence conclusively establishes the
right of the movant to judgment or negates the right of the opponent, or when the
evidence is insufficient to raise a material fact issue. See Tex. R. Civ. P. 301;
Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003); Fort Bend County Drainage
Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991); Farlow v. Harris Methodist
Fort Worth Hosp., 284 S.W.3d 903, 919 (Tex. App.—Fort Worth 2009, pet.
denied).
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In
determining whether there is legally sufficient evidence to support the finding
20
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
evidence supporting the finding is so weak, or so contrary to the overwhelming
weight of all the evidence, that the answer should be set aside and a new trial
ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on
reh‘g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate, 150
Tex. 662, 244 S.W.2d 660, 661 (1951).
B. Ambiguity
With regard to contract interpretation, this court has previously stated,
When construing contracts, our primary concern is to
ascertain the true intent of the parties as expressed in the contract.
We must examine and consider the entire contract in an effort to
harmonize and give effect to all provisions so that none are rendered
meaningless. ―We presume that the parties to the contract intend
every clause to have some effect. We give terms their plain,
ordinary, and generally accepted meaning unless the contract shows
that the parties used them in a technical or different sense.‖ A
specific contractual provision controls over a general provision.
Lack of clarity or a disagreement among the parties does not
necessarily create an ambiguity. Rather, whether ―a contract is
ambiguous is a question of law that must be decided by examining
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the contract as a whole in light of the circumstances present when
the contract was entered.‖ ―If, after the pertinent rules of
construction are applied, the contract can be given a definite or
certain legal meaning, it is unambiguous and we construe it as a
matter of law.‖ But if a contract is ambiguous, then interpretation of
the contract presents a fact issue for the jury. ―When the [contract]
is not ambiguous on its face, extrinsic evidence may not be used to
create an ambiguity.‖
Clark v. Cotten Schmidt, L.L.P., 327 S.W.3d 765, 772–73 (Tex. App.—Fort Worth
2010, no pet.) (internal citations omitted).
The November 2004 memorandum is the only expression of the October
21, 2004 oral contract‘s terms. Catalanotto argues that it is ―not ambiguous as to
the class of persons who can accept the severance offer because it expressly
includes ‗All Employees of Meador Oldsmobile, Inc.‘‖ Nonetheless, the
memorandum‘s plain language also appears to separate the ―General Manager‖
(Catalanotto) from the ―you‖ referred to as ―the employees,‖ specifically, in the
first paragraph (referring to the ―plan the General Manager presented to you‖),
the second paragraph (―until such date as determined by the General Manager
that your services are no longer needed‖), and the last paragraph (―If you have
any questions, please see the General Manager for clarification.‖). [Emphases
added.]
Furthermore, the trial court and the jury heard differing testimonies about
the oral contract‘s circumstances. While all of the witnesses agreed that the
severance plan was in response to the changing conditions at Meador
Oldsmobile, Gandy stated that Catalanotto helped create the plan, while
22
Catalanotto and Spillar said it was presented to Catalanotto by Gandy and
Spillar. Because it is not entirely clear from the face of the document whether the
―General Manager‖ was in a class separate from the employees referred to as
―you,‖ and because the evidence conflicted about who participated in creating the
agreement, the memo is ambiguous. Therefore, a material question of fact
existed for the jury to resolve.13
C. Meeting of the Minds
A valid contract requires a meeting of the minds. Rice v. Metropolitan Life
Ins. Co., 324 S.W.3d 660, 670 (Tex. App.—Fort Worth 2010, no pet.). In
determining whether mutual assent is present, courts consider the
communications between the parties, the acts and circumstances surrounding
the communications, and any course of dealing between the parties. Parker
Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 75 (Tex. App.—Houston [14th
Dist.] 2010, pet. filed) (citing Haws & Garrett Gen. Contractors, Inc. v. Gorbett
Bros. Welding Co, 480 S.W.2d 607, 609 (Tex. 1972)). The determination of a
meeting of the minds is based on the objective standard of what the parties said
13
During the hearing on Meador Oldsmobile‘s motion for directed verdict,
the trial court spelled out the jury issue:
[W]hat we‘re going to do is we‘re going to submit a charge to the jury
that inquires as to whether or not the contracting party . . . entered
into a contract with the plaintiff. And that‘s what this all boils down
to. It‘s up or down, ―yes‖ or ―no.‖ If they did, the contract says how
he calculates what he‘s supposed to get. If it didn‘t, he doesn‘t get
it.
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and did, not on their subjective states of mind. Id. This determination is a
question of fact, and the factfinder‘s decision that one party reasonably drew the
inference of a promise from the other party‘s conduct will be given legal effect.
Id.
Plaintiff‘s Exhibit 1, the February 21, 2003 compensation agreement
signed by Catalanotto and Gandy and Spillar, and the testimony about it, shows
that Catalanotto had a separate agreement in place before the controversial
severance agreement was contemplated by anyone. It memorialized the parties‘
agreement on November 18, 2002, between Gandy, Spillar, Moorman Meador,
and ―you,‖ meaning Catalanotto, setting out a new floor for Catalanotto‘s
compensation as general manager and agreeing to pay him an additional
$150,000 bonus if he stayed as general manager until operations ended.
As noted above, Plaintiff‘s Exhibit 2, the November 4, 2004 severance pay
memo, is ambiguous with regard to whether Catalanotto fits into the ―you‖ of the
employees or if he is held out separately as the general manager. Defendant‘s
Exhibit 4, Gandy‘s email asking for comments from Catalanotto and Spillar, to
which the memo was attached, supports Gandy‘s testimony that Catalanotto was
involved in developing the severance plan from the beginning. According to
Gandy, he and Spillar never told Catalanotto that he would be included in the
plan to compensate the other employees and to give them an incentive to stay
until the end, and Catalanotto never asked for clarification, even after receiving
Spillar‘s payout calculations, which had no severance payout calculation for him.
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Catalanotto admitted that he had never specifically discussed with Gandy or
Spillar whether the severance plan applied to him. And, according to Gandy,
Catalanotto‘s reason to develop the severance plan with the co-trustees involved
his interest in keeping the employees together for his future dealership plans, an
interest that was separate and apart from that of his mutual interest with the co-
trustees in maintaining the existing dealership‘s profitability.
The jury had the responsibility to evaluate the witnesses‘ credibility and to
determine whether there was a meeting of the minds between Catalanotto and
the co-trustees. Based on Gandy‘s testimony, the jurors could have reasonably
found that there was no meeting of the minds as to Catalanotto‘s inclusion in the
severance plan because Catalanotto helped develop it and because there was
no evidence presented that he had ever been told he would be included or that
he ever asked Gandy and Spillar whether he would be included in it. See
Uniroyal Goodrich, 977 S.W.2d at 334. We hold that the evidence is legally
sufficient to support the jury‘s verdict and that the trial court did not err by
denying Catalanotto‘s motion for JNOV.
And although Spillar‘s and Catalanotto‘s testimonies about only Gandy and
Spillar devising the severance plan supports Catalanotto‘s theory that he was
included in the plan as an ―employee,‖ as does Catalanotto‘s testimony that no
one ever told him that he was not intended to be included in it, the jury could
have reasonably chosen to disbelieve this. Therefore, we hold that the evidence
is also factually sufficient to support the jury‘s verdict and that the trial court did
25
not abuse its discretion by denying Catalanotto‘s motion for new trial. We
overrule Catalanotto‘s third and fourth issues.
V. Jury Argument
In his fifth issue, Catalanotto argues that defense counsel created error by
twice instructing the jury to ignore the trial court‘s instructions during closing
arguments. Specifically, he complains of the following remarks made while
defense counsel discussed the jury charge with the jury:
Now, there‘s this other paragraph up here. ―In deciding
whether the parties reached an agreement, you may consider what
they said and did in light of the surrounding circumstances,
including‖—that ―including‖ word—―any earlier course of dealing.‖
You’re not limited to what happened before. You can also
include things that happened after. This is making it clear that you
can take into account the earlier course of dealing. So the
comments of the parties afterwards is not something you just
disregard. [Emphasis added.]
And defense counsel subsequently restated, ―In deciding whether the parties
reached an agreement, you may consider what they said and did in light of the
surrounding circumstances, including what happened before. Doesn’t exclude
what happened afterward.‖ [Emphasis added.]
Generally, an objection must be made immediately after the contested
statement, or the error is waived. Miller v. Bock Laundry Mach. Co., 568 S.W.2d
648, 653 (Tex. 1977). However, a complaint of incurable jury argument may be
asserted and preserved in a motion for new trial, even without a complaint and
ruling during the trial. See Tex. R. Civ. P. 324(b)(5); Phillips v. Bramlett, 288
26
S.W.3d 876, 883 (Tex. 2009). Catalanotto raised his complaint about incurable
jury argument in his motion for new trial.
Control of counsel‘s conduct during jury argument rests in the sound
discretion of the trial court. Wells v. HCA Health Servs. of Tex., Inc., 806 S.W.2d
850, 854 (Tex. App.—Fort Worth 1990, writ denied); see also Tex. R. Civ. P. 269.
The test for improper jury argument is whether, based on the record as a whole,
the offensive argument was so extreme that a juror of ordinary intelligence could
have been persuaded by that argument to agree to a verdict contrary to that to
which he would have agreed but for such argument. See Phillips, 288 S.W.3d at
883. Reversal is required only when the entire record shows that the argument
was improper, uninvited and unprovoked, preserved, and incurable by
instruction, withdrawal, or trial court reprimand. See Standard Fire Ins. Co. v.
Reese, 584 S.W.2d 835, 839 (Tex. 1979).
Incurable jury argument is rare because ―[t]ypically, retraction of the
argument or instruction from the court can cure any probable harm . . . .‖ Living
Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). The burden to
prove that improper argument was incurable rests on the claimant. Jones v.
Rep. Waste Servs. of Tex., Ltd., 236 S.W.3d 401, 402 (Tex. App.—Houston [1st
Dist.] 2007, pet. denied). ―A jury argument is ‗curable‘ when the harmful effect of
the argument can be eliminated by a trial judge‘s instruction to the jury to
disregard what they have just heard. The error is ‗cured‘ and rendered harmless
by the instruction.‖ Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968).
27
And the complaining party on appeal must explain why opposing counsel‘s
argument was incurable based on an evaluation of the entire case, from voir dire
to closing argument. Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 707
(Tex. App.—Dallas 2008, no pet.) (op. on reh‘g).
We note initially that, contrary to Catalanotto‘s argument, the charge itself
does not prohibit the jury from considering what the parties did after they reached
their agreement. Rather, the charge states, ―In deciding whether the parties
reached an agreement, you may consider what they said and did in light of the
surrounding circumstances, including any earlier course of dealing. You may not
consider the parties‘ unexpressed thoughts or intentions.‖ [Emphasis added.]
Furthermore, Catalanotto fails to explain why defense counsel‘s argument
was incurable based on an evaluation of the entire case. See Dieterich, 270
S.W.3d at 708 (―[T]he Company does not explain why the arguments were
incurable based on an evaluation of the whole case. And after examining the
entire record, we cannot say that the error was so harmful that its effect could not
have been removed by a proper curative instruction.‖). Catalanotto failed to
object to the complained-of argument either time defense counsel made it,
which—if the argument were improper—would have been curable by an
instruction to the jury to disregard the argument and follow the law as set out in
the court‘s charge. See Standard Fire Ins., 584 S.W.2d at 839–41; see also
Smith v. Cox, 446 S.W.2d 52, 63 (Tex. Civ. App.—Corpus Christi 1969, writ ref‘d
n.r.e.) (holding no prejudicial error when appellants complained of incurable harm
28
but the trial court overruled some of their objections, partially sustained others,
and also ―admonished appellees‘ counsel to refrain from citing law which was not
contained in the charge; several times the court instructed the jury to consider
only such law as was in the charge‖); cf. Penalver, 256 S.W.3d at 681 (reciting
that appeals to racial prejudice; unsupported, extreme, and personal attacks on
opposing parties and witnesses; and accusing an opposing party of manipulating
a witness without evidence of witness tampering can all be incurable jury
argument). And based on the record before us, we cannot say that the jury
argument, if improper, was so extreme that a juror of ordinary intelligence could
have been persuaded to change his verdict because of it. See Phillips, 288
S.W.3d at 882–83. We overrule Catalanotto‘s fifth issue.
VI. Conclusion
Having overruled all of Catalanotto‘s issues, we affirm the trial court‘s
judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DELIVERED: March 3, 2011
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