East Texas Copy Systems, Inc. v. Jason Player

ACCEPTED
06-16-00035-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/6/2016 4:58:17 PM
DEBBIE AUTREY
CLERK
No. 06-16-00035-CV
In the Court of Appeals for the FILED IN
6th COURT OF APPEALS
Sixth Court of Appeals District of Texas TEXARKANA, TEXAS
Texarkana, Texas 10/7/2016 9:06:00 AM
______________________________________ DEBBIE AUTREY
Clerk
EAST TEXAS COPY SYSTEMS, INC.
Appellant,
v.
JASON PLAYER
Appellee.
_______________________________________
On Appeal from the County Court at Law #2
Gregg County, Texas
_______________________________________
BRIEF OF APPELLEE
Eric M. Albritton
Texas State Bar No. 00790215
ema@emafirm.com
ALBRITTON LAW FIRM
P.O. Box 2649
Longview, Texas 75606
Telephone: (903) 757-8449
Facsimile: (903) 758-7397
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel certifies that the following persons have an interest
in the outcome of this case.
Appellant Counsel for Appellant
East Texas Copy Systems, Inc. Michael E. Starr
Texas Bar No. 1907840
mstarr@ccfww.com
COGHLAN, CROWSON, LLP
1127 Judson Road, Suite 211
P.O. Box 2665
Longview, Texas 75606-2665
Appellee Counsel for Appellee
Jason Player Eric M. Albritton
Texas State Bar No. 00790215
ema@emafirm.com
Shawn A. Latchford
Texas State Bar No. 24066603
sal@emafirm.com
ALBRITTON LAW FIRM
P.O. Box 2649
Longview, Texas 75606
i
TABLE OF CONTENTS
I. STATEMENT OF THE CASE .................................................................... viii
II. STATEMENT REGARDING ORAL ARGUMENT .................................. viii
III. ISSUES PRESENTED .................................................................................. ix
IV. INTRODUCTION ...........................................................................................1
V. STATEMENT OF FACTS ..............................................................................2
VI. SUMMARY OF ARGUMENT .......................................................................6
VII. ARGUMENT ...................................................................................................7
A. Standard of Review on Appeal..............................................................7
B. General Legal Principles of Contract Construction ..............................7
1. The primary goal of contract construction is to ascertain the
objective intent of the parties as expressed in the agreement. ....7
2. Courts should interpret contracts using plain and ordinary
meaning. ......................................................................................8
3. Texas law prohibits rewriting a contract under the guise of
interpretation. ..............................................................................9
4. A contract is only ambiguous when it is reasonably
susceptible to more than one interpretation. .............................10
C. The trial court properly found the plain language of the parties’
Agreements was unambiguous. ...........................................................10
1. The Agreements unambiguously state they are no longer
binding if Player’s employment is terminated for any
reason other than cause within two years of the date of the
Agreements. ..............................................................................11
2. The plain and ordinary meaning of the Disputed Clause
gives meaning to the parties’ Agreements. ...............................13
ii
D. The trial court properly rejected ETCS’s request to rewrite the
Disputed Clause under the guise of harmonizing the Agreements. ....14
1. It is unnecessary to harmonize the Agreements because
there are no inconsistent or discordant parts. ............................15
2. The plain and ordinary meaning of the Disputed Clause
does not render Player’s promise illusory.................................18
3. ETCS’s request to harmonize the Agreements is really a
request to rewrite the Agreements contrary to Texas law. .......19
4. The use of the passive voice in the Disputed Clause supports
the plain and ordinary meaning adopted by the trial court. ......23
E. ETCS’s attempt to rewrite the Disputed Clause cannot create
ambiguity. ............................................................................................24
VIII. CONCLUSION..............................................................................................25
IX. PRAYER........................................................................................................26
iii
TABLE OF AUTHORITIES
Cases
Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154 (Tex. 2003) .....................9, 10
Anderson v. Twin City Rapid Transit Co., 84 N.W.2d 593 (Minn. 1957)...............23
Anglo-Dutch Petroleum v. Greenberg Peden, P.C., 352 S.W.3d 445 (Tex. 2011) ...8
Cleveland Constr., Inc. v. Levco Constr. Inc., 359 S.W.3d 843
(Tex. App.—Houston [1st Dist.] 2012, pet. dism’d) .....................................19
Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) .........................................................10
Craig Sessions, M.D., P.A. v. TH Healthcare, Ltd.,
412 S.W.3d 738 (Tex. App.—Texarkana 2013, no pet.) ...................... passim
El Paso Field Servs. v. Mastec N.A., 389 S.W.3d 802 (Tex. 2012) ......... 7, 9, 10, 16
Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011) ...........................................................7
Fletcher v. Energy Res. Tech. GOM, Inc., 2012 Tex. App. LEXIS 7034
(Tex. App.—Houston [1st Dist.] Aug. 23, 2012, no pet.) .............................18
FPL Energy v. TXU Portfolio Mgt. Co., 426 S.W.3d 59 (Tex. 2014) .................7, 16
Hamblin v. Lamont, 433 S.W.3d 51
(Tex. App.—San Antonio 2013, pet. denied)............................................8, 21
Heritage Res. v. Nationsbank, 939 S.W.2d 118 (Tex. 1996) ..............................8, 22
Hoffman v. Am. Soc’y for Technion-Israel Inst. of Tech., Inc.,
2013 U.S. Dist. LEXIS 9921 (S.D. Cal. Jan. 23, 2013) ................................23
In re 21st Century Grp., LLC, 2012 Tex. App. LEXIS 5701
(Tex. App.—Texarkana 2012, pet. denied) .................................................8, 9
In re Serv. Corp. Int’l, 355 S.W.3d 655 (Tex. 2011).................................................7
InterPay, Inc. v. Bigham,
2002 U.S. Dist. LEXIS 16202 (D. Mass. Aug. 15, 2002) .............................23
iv
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) ................................25
Karen Corp. v. Burlington Northern & Santa Fe Ry.,
107 S.W.3d 118 (Tex. App.—Fort Worth 2003, pet. denied) .........................8
LG Ins. Mgmt. Servs., L.P. v. Leick,
378 S.W.3d 632 (Tex. App.—Dallas 2012, pet. denied) ....................... 10, 21
MCI Telecomms. Corp. v. Tex. Utils. Elec. Co.,
995 S.W.2d 647 (Tex. 1999) ...........................................................................7
McLane Foodservice, Inc. v. Table Rock Rests., L.L.C.,
736 F.3d 375 (5th Cir. 2013) .....................................................................9, 22
Meckes v. Cina, 75 A.D.2d 470 (N.Y. App.—4th Div. July 10, 1980) ...................23
Natural Gas Clearinghouse v. Midgard Energy Co.,
113 S.W.3d 400 (Tex. App.—Amarillo 2003, pet. denied) ............................9
Providence Land Servs., LLC v. Jones,
353 S.W.3d 538 (Tex. App.—Eastland 2011, no pet.)....................................8
Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211 (Tex. 2003) ...........................................................................7
R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc.,
596 S.W.2d 517 (Tex. 1980) ...........................................................................7
Smith v. Carter & Burgess, Inc., 2005 Tex. App. LEXIS 1140
(Tex. App.—Fort Worth Feb. 10, 2005, no pet.) ..........................................18
Solar Applications Eng’g, Inc. v. T.A. Operating Corp.,
327 S.W.3d 104 (Tex. 2010) .........................................................................13
Sun Oil Co. v. Madeley, 626 S.W.2d 726 (Tex. 1981) ............................................10
Vincent v. Bank of Am., N.A.,
109 S.W.3d 856 (Tex. App.—Dallas 2003, pet. denied) ................................8
Walden v. Affiliated Computer Servs.,
97 S.W.3d 303 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)..........24
v
Willenson v. Miner, Barnhill & Galland, P.C., 998 N.E.2d 984,
2011 Ill. App. Unpub. LEXIS 579 (Ill. App. [1st Dist.] April 14, 2011) ......22
Treatises
Restatement (Second) of Contracts § 224 (1981) ....................................................19
Other
BRYAN A. GARNER, THE REDBOOK: A MANUAL ON LEGAL STYLE
(Thompson/West 2006) (2002) ................................................................................24
vi
No. 06-16-00035-CV
In the Court of Appeals for the
Sixth Court of Appeals District of Texas
Texarkana, Texas
______________________________________
EAST TEXAS COPY SYSTEMS, INC.
Appellant,
v.
JASON PLAYER
Appellee.
_______________________________________
On Appeal from the County Court at Law #2
Gregg County, Texas
_______________________________________
TO THE HONORABLE SIXTH COURT OF APPEALS:
Appellee in the above-captioned appeal, Jason Player, hereby files his brief
respectfully requesting this Honorable Sixth Court of Appeals overrule the issues
presented by Appellant, East Texas Copy Systems, Inc., and affirm the judgment of
the trial court, County Court at Law #2 of Gregg County, Texas.
vii
I. STATEMENT OF THE CASE
Appellee, Jason Player (“Player”), sued Appellant, East Texas Copy Systems,
Inc. (“ETCS”), for a declaratory judgment that non-compete clauses were no longer
binding under the express terms of the parties’ agreements. CR 4-25.1 Player moved
for summary judgment that the non-compete clauses were no longer binding under
the express terms of the parties’ agreements based on their plain and ordinary
meaning. CR 28-69. ETCS filed a cross-motion for summary judgment that the
non-compete clauses were still binding. CR 75-99. After full briefing on both
motions and oral argument (RR, Vol. 1, 1-37)2 the trial court granted Player’s motion
for summary judgment and denied ETCS’s motion for summary judgment (RR,
Vol. 1, 35-36). The trial court issued Final Judgment in favor of Player (CR 177-
178). ETCS filed this appeal. CR 179-180 (Notice of Appeal).
II. STATEMENT REGARDING ORAL ARGUMENT
Player agrees with ETCS that oral argument may aid the Court’s consideration
of the issues in this appeal and respectfully requests oral argument.
1
References to “CR [page number]” refer to the page number of the Clerk’s Record
in this appeal.
2
References to “RR, Vol. [number], [number]” refer to the volume and page number
of the Reporter’s Record in this appeal.
viii
III. ISSUES PRESENTED
Issue 1: Did the trial court properly find the parties’ unambiguous agreements
were no longer binding based on the plain language of those agreements
when Player’s employment with ETCS was terminated for a reason
other than cause within two years of the date of the agreements?
Issue 2: Did the trial court properly reject ETCS’s argument that its attempt to
rewrite the parties’ agreements rendered those agreements ambiguous?
ix
IV. INTRODUCTION
Appellant, East Texas Copy Systems, Inc. (“ETCS”), has buyer’s remorse.
ETCS asks the Court to rewrite multiple agreements it freely and voluntarily entered
into with Appellee, Jason Player (“Player”), in hopes that this Court will give ETCS
a better deal than it bargained for. Player and ETCS entered into multiple
agreements creating a working relationship between them to provide computer
services to customers in the East Texas area, including former customers of Player.
The agreements between ETCS and Player included covenants not to compete. The
covenants not to compete state that they are no longer binding on Player if his
employment is terminated within two years of the date of the parties’ agreements for
any reason other than cause. Player voluntarily resigned and terminated his
employment with ETCS prior to two years after the agreements, as expressly
provided by the agreements. Since Player did not work for ETCS for more than two
years, the covenants not to compete are no longer binding on Player by their own
terms. ETCS now asks this Court to rewrite the parties’ agreements under the guise
of harmonizing those documents. The trial court properly rejected ETCS’s request
as contrary to the plain language of the agreements, the intentions of the parties as
expressed in those agreements, and Texas law. This Court should reject ETCS’s
request to rewrite the parties’ agreements for all the same reasons, overrule ETCS’s
issues on appeal, and affirm the trial court’s Final Judgment.
1
V. STATEMENT OF FACTS
Prior to July 1, 2013, Player was providing computer services to customers in
Longview, Texas and throughout the East Texas area. CR 42. ETCS wanted to work
with Player to provide service to Player’s customers. See CR 9 (requiring Player’s
employment with ETCS). To that end, Player and ETCS negotiated and entered into
a series of agreements whereby ETCS would acquire Player’s customer list and
Player would work for ETCS to provide service to those customers. CR 9-24. Player
and ETCS effectively entered into those agreements on July 1, 2013 and went into
business together on that date. CR 9-24.
Section A of the parties’ agreement titled “Asset Purchase Agreement”
(“APA”) contains a clause titled “Consideration” which states that ETCS shall pay
Player $300,000. CR 9. The Consideration clause also states that Player and ETCS
entered into an employment contract which is part of the consideration for the APA.
CR 9. Section A of the APA also contains a clause titled “Payment” which states
that $50,000 will be paid to Player by ETCS upon the execution of the APA and
ETCS will pay Player 10 monthly payments of $25,000 after the execution of the
APA to make up the remaining $250,000 of the monetary consideration. CR 9.
Section B of the APA contains a clause titled “Non-Compete” (the “Non-Compete
Clause”). CR 11. The Non-Complete Clause of the APA states in relevant part:
2
If Jason Player’s employment with Buyer is terminated
prior to two year [sic] from the date of this Agreement for
any reason other than a for cause termination, this Non-
Compete clause will no longer be binding.
CR 11.
An employment agreement titled “Employment Contract” is attached to the
APA as Exhibit B. CR 16-20. Paragraph 4 of the Employment Contract states that
Player will be paid an annual salary of $93,000. CR 17. Paragraph 8 of the
Employment Contract states that either party may terminate Player’s employment
with ETCS. CR 18. Specifically, the Employment Contract provides Player’s
employment with ETCS “may be terminated by ETCS upon 60 days written notice,
and by Jason Player upon 60 days written notice.” CR 18 (emphasis added).
ETCS and Player also executed an agreement titled “NonCompete [sic]
Agreement” (the “Non-Compete Agreement”). CR 21-24. The Non-Compete
Agreement states in relevant part:
If Jason Player’s employment with Buyer is terminated
prior to two years from the date of this Agreement for any
reason other than a for cause termination, this Non-
Compete Agreement will no longer be binding.
CR 22.
On April 29, 2015, Jason Player gave 60 days of written notice to ETCS that
he was voluntarily resigning from his position at ETCS, pursuant to his right to do
3
so under ¶ 8 of the Employment Contract. CR 67-68. On June 30, 2015, Player’s
employment with ETCS was terminated by Player’s voluntarily resignation. CR 43.
On July 8, 2015, Player received a letter from Michael C. Coker, an attorney
representing ETCS. CR 54. ETCS, through Mr. Coker, made a demand that Player
“immediately cease any” “business that competes with ETCS accounts.” CR 54.
ETCS, through Mr. Coker, also threatened that if Player did not cease conducting
business, that ETCS would take “additional action” against him and that he would
be responsible for damages “and all attorneys’ fees and related expenses.” CR 54.
On July 10, 2015, Player filed a petition in the trial court seeking a declaratory
judgment that the Non-Compete Clause and the Non-Compete Agreement are no
longer binding on Player. CR 4-25. On August 7, 2015, ETCS answered by filing
a general denial. CR 26-27. On September 18, 2015, ETCS’s counsel sent Player a
demand letter seeking payment of $199,142.85 based on twelve months of revenue
from some of Player’s former customers. CR 65-66.
On November 12, 2015, Player filed a Motion for Summary Judgment
(“Player’s MSJ”) seeking a declaratory judgment that the Non-Compete Agreement
and Non-Compete Clause were no longer binding on Player based on the clear and
unambiguous language of those agreements. CR 28-69.
On November 23, 2015, ETCS filed a counterclaim against Player based on
Player’s alleged breach of a covenant not to compete. CR 70-74.
4
On November 30, 2015, ETCS filed a cross-motion for partial summary
judgment (“ETCS’s MSJ”) asking the Court to hold as a matter of law that “a
noncompetition agreement (‘NCA’) between ETCS and [Player], prevents Player
from competing with ETCS in an area within a 60 mile radius of Longview, Texas
for one year from the end of Player’s employment with ETCS. In the alternative,
ETCS ask[ed] the Court to hold as a matter of law that the language of the NCA is
ambiguous and set for trial the question of the intent of the parties.” CR 78.
On December 14, 2015, Player answered ETCS’s counterclaims generally
denying and asserting defenses to ETCS’s breach of contract claim. CR 158-161.
On December 21, 2015, after briefing and oral argument, the trial court
granted Player’s MSJ and denied ETCS’s MSJ. RR, Vol. 1, 35-36. When the trial
court granted Player’s MSJ from the bench the trial judge specifically noted he was
considering the parties’ agreements as a whole, stating “the way ‘termination’ is
used throughout all the agreements tied in, it anticipates termination by either the
plaintiff or the defendant.” RR, Vol. 1, 35-36. ETCS filed a Motion for
Reconsideration which was denied by the trial court. CR 162-166, 176. On April
1, 2016, the trial court entered Final Judgment for Player. CR 177-78.
On May 6, 2016, ETCS filed its notice of appeal. CR 179-180. On August 4,
2016, ETCS filed its brief in this appeal.
5
VI. SUMMARY OF ARGUMENT
Appellant, East Texas Copy Systems, Inc. (“ETCS”), has buyer’s remorse.
ETCS asks this Court to rewrite the plain terms of multiple agreements it freely and
voluntarily entered into with Appellee, Jason Player (“Player”), in hopes that this
Court will give it a better deal. Player and ETCS entered into Agreements to form
a working relationship. CR 9-24. Their Agreements include covenants not to
compete that are conditioned on Player’s employment with ETCS for more than two
years after the date of the agreements. CR 11, 22. Prior to two years after the date
of the agreements, Player terminated his employment with ETCS, as expressly
provided by the agreements, and went back to work for himself, as expressly
provided by the agreements. Since Player did not work for ETCS for more than two
years, the covenants not to compete are no longer binding, by their own terms. ETCS
now asks this Court to rewrite the parties’ agreements so that Player cannot return
to work for himself under the guise of “harmonizing” the agreements as a whole.
The trial court properly rejected ETCS’s unreasonable attempt to rewrite the parties’
agreements as contrary to the plain language of the agreements, the intentions of the
parties, and Texas law. This Court should reject ETCS’s request to rewrite the
parties’ agreements, overrule ETCS’s issues on appeal, and affirm the trial court’s
Final Judgment in favor of Player.
6
VII. ARGUMENT
A. Standard of Review on Appeal
“When a contract is not ambiguous, the construction of the written instrument
is a question of law for the court.” MCI Telecomms. Corp. v. Tex. Utils. Elec. Co.,
995 S.W.2d 647, 650 (Tex. 1999); R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc.,
596 S.W.2d 517, 518 (Tex. 1980). Thus, a trial court’s legal conclusions regarding
an unambiguous written instrument are reviewed de novo. MCI Telecomms., 995
S.W.2d at 651. An appellate court “must affirm the summary judgment if any of the
theories presented to the trial court and preserved for appellate review are
meritorious.” Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216
(Tex. 2003).
B. Legal Principles of Contract Construction
1. The primary goal of contract construction is to ascertain the objective
intent of the parties as expressed in the agreement.
The primary concern of a court interpreting a contract is to ascertain, and to
give effect to, the intentions of the parties as expressed in the contract. See, e.g.,
FPL Energy v. TXU Portfolio Mgt. Co., 426 S.W.3d 59, 63 (Tex. 2014); El Paso
Field Servs. v. Mastec N.A., 389 S.W.3d 802, 805 (Tex. 2012); In re Serv. Corp.
Int’l, 355 S.W.3d 655, 661 (Tex. 2011); Epps v. Fowler, 351 S.W.3d 862, 865 (Tex.
2011). It is the parties’ intent “as expressed in the agreement” that Texas courts
7
seek to determine. Anglo-Dutch Petroleum v. Greenberg Peden, P.C., 352 S.W.3d
445, 451 (Tex. 2011) (emphasis in original). The “intentions” in question are
objective as expressed in the agreement, rather than the subjective intentions not
stated in the agreement. Hamblin v. Lamont, 433 S.W.3d 51, 54 (Tex. App.—San
Antonio 2013, pet. denied); Providence Land Servs., LLC v. Jones, 353 S.W.3d 538,
541 (Tex. App.—Eastland 2011, no pet.); Vincent v. Bank of Am., N.A., 109 S.W.3d
856, 866 (Tex. App.—Dallas 2003, pet. denied); Karen Corp. v. Burlington
Northern & Santa Fe Ry., 107 S.W.3d 118, 122 (Tex. App.—Fort Worth 2003, pet.
denied). Extrinsic evidence cannot be used to show that the parties could have meant
or probably meant something other than what their agreement stated. Anglo-Dutch
Petroleum, 352 S.W.3d at 451. Thus, what the parties objectively expressed in the
contract governs the meaning of the contract, not subsequently claimed or
unexpressed opinions about what was intended. Craig Sessions, M.D., P.A. v. TH
Healthcare, Ltd., 412 S.W.3d 738, 742–743 (Tex. App.—Texarkana 2013, no pet.).
2. Courts should interpret contracts using plain and ordinary meaning.
When construing a contract, Texas courts “give terms their plain, ordinary,
and generally accepted meaning unless the instrument shows that the parties used
them in a technical or different sense.” Heritage Res. v. Nationsbank, 939 S.W.2d
118, 121 (Tex. 1996); In re 21st Century Grp., LLC, No. 06-12-00064-CV, 2012
Tex. App. LEXIS 5701, at *6 (Tex. App.—Texarkana 2012, pet. denied) (“we give
8
terms their plain, ordinary, and generally accepted meaning unless the instrument
shows that the parties used them in a technical or different sense”); see also McLane
Foodservice, Inc. v. Table Rock Rests., L.L.C., 736 F.3d 375, 378 (5th Cir. 2013)
(“Under Texas law, words not defined in a contract are to be given their ‘plain and
ordinary meaning.’”).
3. Texas law prohibits rewriting a contract under the guise of
interpretation.
In discerning the parties’ intent, Texas courts “must examine and consider the
entire writing in an effort to harmonize and give effect to all the provisions of the
contract so that none will be rendered meaningless.” El Paso Field Servs., 389
S.W.3d at 805. However, a court may not rewrite the parties’ contract or add to its
language under the guise of interpretation. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124
S.W.3d 154, 162 (Tex. 2003); In re 21st Century Grp., LLC, 2012 Tex. App. LEXIS
5701, at *6. “Unless the contract is ambiguous, the court will enforce it as written.”
In re 21st Century Grp., LLC, 2012 Tex. App. LEXIS 5701, at *6. For a court to
change the parties’ contract merely because it does not like the contract, or because
one party subsequently finds it distasteful, undermines the sanctity afforded a
contract and the expectations of the persons who created and relied on it. Natural
Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 407 (Tex. App.—
Amarillo 2003, pet. denied). A court will not rewrite a contract to insert provisions
that the parties could have included, nor will a court imply a restraint for which the
9
parties did not bargain. LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 638
(Tex. App.—Dallas 2012, pet. denied). Likewise, a court may not imply a term
merely to make a contract fair, wise, or just. Id. “The role of the courts is not to
protect parties from their own agreements, but to enforce contracts that parties enter
into freely and voluntarily.” El Paso Field Servs., 389 S.W.3d at 810–11.
4. A contract is only ambiguous when it is reasonably susceptible to
more than one interpretation.
A contract is only ambiguous when its meaning is uncertain and doubtful or
is reasonably susceptible to more than one interpretation. Coker v. Coker, 650
S.W.2d 391, 393 (Tex. 1983). When a written contract is worded so that it can be
given a certain or definite legal meaning or interpretation, it is unambiguous, and a
court should construe the contract as a matter of law. Am. Mfrs. Mut. Ins., 124
S.W.3d at 157. In the absence of fraud or mistake, the writing alone is deemed to
express the parties’ intention, and courts will enforce an unambiguous instrument as
written. Craig Sessions, 412 S.W.3d at 743–744; see also Sun Oil Co. v. Madeley,
626 S.W.2d 726, 728 (Tex. 1981) (Texas courts enforce unambiguous agreements
as written).
C. The trial court properly found the plain language of the parties’
agreements was unambiguous.
The Non-Compete Clause of the Asset Purchase Agreement and Non-
Compete Agreement (collectively, the “Agreements”) unambiguously state that if
10
Player’s employment with ETCS is terminated for any reason other than cause, prior
to two years from the date of those agreements, they are no longer binding. The
plain and ordinary meaning is the only reasonable interpretation of the Agreements,
consistent with the parties’ intent as expressed in the Agreements and Texas law.
1. The Agreements unambiguously state they are no longer binding if
Player’s employment is terminated for any reason other than cause
within two years of the date of the Agreements.
The Non-Compete Clause and Non-Compete Agreement both unambiguously
state that they do not bind Player if his employment with ETCS is terminated for any
reason other than cause less than two years after the execution of the Agreements.
The Non-Complete Clause of the APA states in full:
Non-Compete: See Non-Compete Agreement for full details.
Upon finalizing this transaction, the Seller will not directly or
indirectly engage in any business competitive with the type of
business Jason Player is engaged in prior to this Agreement other
than his employment with Buyer for a period of two years. This
covenant shall apply to the geographical area that includes the
area within a 60 miles-mile [sic] radius of Longview, Texas.
Directly or indirectly engaging in any competitive business
includes, but is not limited to: (i) engaging in a business as
owner, partner, or agent, (ii) becoming an employee of any third
party that is engaged in such business, (iii) becoming interested
directly or indirectly in any such business, or (iv) soliciting any
customer or current Executive or Employee of Jason Player for
the benefit of a third party that is engaged in such business. East
Texas Copy Systems agrees that this non-compete provision will
not adversely affect East Texas Copy Systems’ livelihood. If
Jason Player’s employment with Buyer is terminated prior to
two year [sic] from the date of this Agreement for any reason
other than a for cause termination, this Non-Compete clause
will no longer be binding.
11
CR 11 (emphasis added). The Non-Compete Agreement contains the same language
with respect to the conditional nature of the agreement not to compete:
1. NONCOMPETE COVENANT. For a period of 2 years after
the effective date of this Agreement, or 1 year after the
termination of Jason Player as an employee of ETCS, Jason
Player will not directly or indirectly engage in any business that
competes with ETCS accounts. This covenant shall apply to the
geographical area that includes the area within a 60 mile radius
of Longview.
2. NON-SOLICITATION COVENANT. For a period of 2
years after the effective date of this Agreement, or 1 years after
the termination of Jason Player as an employee of ETCS, Jason
Player will not directly or indirectly solicit business from, or
attempt to sell, license or provide the same or similar products or
services as are now provided to, any customer or client of ETCS.
Further, for a period of 2 years after the effective date of this
Agreement, or 2 years after the termination of Jason Player,
Jason Player will not directly or indirectly solicit, induce or
attempt to induce any employee of ETCS to terminate his or her
employment with ETCS. If Jason Player’s employment with
Buyer is terminated prior to two years from the date of this
Agreement for any reason other than a for cause termination,
this Non-Compete Agreement will no longer be binding.
CR 22 (emphasis added). The conditional clauses at the end of the Non-Compete
Agreement and the Non-Compete Clause are referred to in this brief as the “Disputed
Clause.”
The restrictions against competition in the Agreements were plainly
conditioned on Player’s continued employment with ETCS for more than two years.
The term “if” is used to “make performance specifically conditional” in an
12
agreement. Solar Applications Eng’g, Inc. v. T.A. Operating Corp., 327 S.W.3d
104, 109 (Tex. 2010) (“In order to make performance specifically conditional, a term
such as if, provided that, on condition that, or some similar phrase of conditional
language must normally be included.”) (quotations omitted). The Disputed Clause
states in relevant part “[i]f Jason Player’s employment with [ETCS] is terminated”
prior to two years from the date of the Agreements for any reason other than cause,
the Agreements are no longer binding. CR 11, 22. Thus, the Disputed Clause creates
a condition on Player’s covenants not to compete in the Agreements that is satisfied
by Player’s employment with ETCS for at least two years. Since the condition never
occurred, the Disputed Clause is not binding by its own terms.
2. The plain and ordinary meaning of the Disputed Clause gives meaning
to the parties’ Agreements.
The two-years of employment condition for the covenant not to compete was
a meaningful and negotiated part of the Agreements. The parties anticipated—and
expressed in the Agreements—that Player and ETCS would have a working
relationship after the Agreements. CR 9 (“The Employment Contract was an
essential piece of the compensation in the Agreement and Seller would not have
agreed to this Agreement without the Employment Contract”). Yet, either party
could terminate the employment relationship at will. CR 18. If the parties’
relationship was successful for two years, Player agreed not to compete with ETCS
for a period of one year after termination of his employment. CR 11, 22. However,
13
ETCS also agreed that if the relationship was not successful, either Player or ETCS
could terminate Player’s employment with ETCS and Player would be free to return
to work for himself. CR 18. Player’s work with ETCS for nearly two years, Player’s
customer list, and Player’s non-competition for two years after the date of the
Agreements while the parties worked together, is what ETCS bargained for and
received under the Agreements.
Player and ETCS’s relationship was not successful. Player terminated his
relationship with ETCS, as expressly anticipated by the parties and provided for by
their Agreements. CR 67. When considering the Agreements as a whole, this
interpretation of the parties’ Agreements (not what ETCS now wants them to say) is
the only reasonable interpretation of the Disputed Clause.
D. The trial court properly rejected ETCS’s request to rewrite the Disputed
Clause under the guise of harmonizing the Agreements.
ETCS has buyer’s remorse. After Player terminated his employment with
ETCS, ETCS decided it no longer liked the deal it made with Player. ETCS now
improperly asks the Court to rewrite the parties’ Agreements, under the guise of
harmonization, in hopes of getting a better deal after benefiting from the parties’
Agreements for nearly two years. Tellingly, ETCS previews for the Court that
harmonizing a document is “often co-opted by one or both of the litigants to argue
14
that the contract says what they meant it to say.” Brief, at 9.3 ETCS then goes on to
do exactly that—arguing the Court should rewrite the parties Agreements so the
Agreements will say what ETCS now wants them to say, rather than what ETCS
actually negotiated and agreed to in the Agreements. This Court should reject
ETCS’s request to rewrite the parties’ Agreements under the guise of interpretation.
1. It is unnecessary to harmonize the Agreements because there are no
inconsistent or discordant parts.
ETCS admits that harmonization is only required when there are “inconsistent
or discordant” parts of an agreement. Brief, at 9. Yet, ETCS fails to identify any
sections or clauses of the Agreements which are allegedly inconsistent or discordant
and require harmonization. When ETCS says the “entire agreement as a whole,”
“entire purpose of the transaction,” what ETCS means is its own current subjective
desires. See, e.g., Brief, at 4, 8. ETCS knows that rewriting the parties’ agreement
is impermissible, so it instead invites the Court to do so under the guise of
harmonizing the Agreements with ETCS’s “business activity.” Brief, 9-10. All of
these characterizations of Agreements, are only different expressions of ETCS’s
efforts to use its subjective desires to rewrite the Agreements.
The intent of the parties “as expressed by the agreement” shows that there are
no inconsistent or discordant parts of the agreement which requires harmonizing.
3
References to “Brief, at [page number]” refer to the page number of Appellant’s
Brief in this appeal (filed August 4, 2016).
15
FPL Energy, 426 S.W.3d at 63. The Agreements expressly provide that either Player
or ETCS were permitted to terminate Player’s employment with ETCS upon written
notice. CR 18. Thus, the other portions of the Agreements are consist with the plain
and ordinary meaning of the Disputed Clause, that is, termination of Player’s
employment with ETCS could include termination by either Player or ETCS. The
trial court specifically recognized the same in rejecting ETCS’s arguments. RR, Vol.
1, 35-36 (court stating “the way ‘termination’ is used throughout all the agreements
tied in, it anticipates termination by either the plaintiff or the defendant”).
The Agreements were specifically negotiated to allocate the risk involved in
the parties’ work together. El Paso Field Servs., 389 S.W.3d at 812 (“Freedom of
contract allows parties to . . . allocate risk as they see fit.”). Specifically, the
Disputed Clause is intended to offset that either ETCS or Player would terminate
Player’s employment earlier than two years after the Agreements because their
working relationship was not successful. The parties’ allocation of risk explains
ETCS’s hypothetical where Player quits immediately after payment from ETCS for
the customer list. Brief, at 11. Under the parties’ Agreement, ETCS bore some risk
that Player would terminate his employment with ETCS immediately after payment
for the customer list. CR 11, 18, 22 (Agreements would no longer be binding after
termination of Player’s employment with ETCS). ETCS balanced against that risk
by putting Player at risk of losing $250,000 in monthly payments (CR 9) and
16
$186,000 in salary payments over two years (CR 17). Player also bore risk that his
employment would not be suitable with ETCS and he would be forced to give up all
of his compensation to return to work for himself. Thus, ETCS’s hypothetical
actually demonstrates that the parties considered and bargained for the risks that one
or the other would not benefit from the transaction as expected and structured their
Agreements around those risks.
ETCS’s second hypothetical further confirms the parties’ attempted to
allocate risk as part of their Agreements. ETCS argues that, under the plain and
ordinary meaning of the Disputed Clause, ETCS could have terminated Player for
cause on the day before the expiration of two years and Player would be prohibited
from competing, but if Player voluntarily resigned on the same day he would not be
prohibited from competing. Brief, at 16. ETCS is correct. Player bore the risk, that
if he created some cause for his termination by ETCS, ETCS would be permitted to
terminate him and retain the benefit of the non-compete agreement. ETCS bore the
risk that if it did something to encourage Player to resign before two years of
employment, he could do so without being bound by the agreement not to compete.
Weighing the risks and benefits of the parties’ working relationship together after
the agreements was the very purpose of the Disputed Clause.
Further, the undisputed facts demonstrate ETCS received the benefit of its
bargain with Player. For nearly two years, ETCS benefited from the parties’
17
Agreements by working with Player and Player’s customers. ETCS received
Player’s customer list. Player worked as ETCS’s employee for nearly two years. It
was Player who permitted ETCS to access his business operations and strategies,
rather than the other way around as suggested by ETCS. Compare CR 18 (requiring
Player to help improve ETCS’s procedures), with Brief, at 16 (arguing Player
benefited from ETCS’s operating procedures and strategies). ETCS also received
sizable payments from Player’s former customers. CR 55. ETCS claims it made
hundreds of thousands of dollars from only some of Player’s customers based on its
relationship with Player. See CR 65 (alleging damages for Player’s breach based on
loss of customers). ETCS’s claim that the entire transaction was rendered
meaningless by the trial court’s construction is demonstrably false. Brief, at 12.
2. The plain and ordinary meaning of the Disputed Clause does not
render Player’s promise illusory.
ETCS argues in a single sentence that the conditional nature of the covenant
not to compete would render the promise not to compete illusory. Brief, at 11. This
argument was waived by ETCS’s failing to raise the argument in the court below.
Craig Sessions, 412 S.W.3d at 743 n.3 (appellant waived argument by failing to raise
it with the trial court). ETCS’s argument is contrary to law. Conditional promises
are enforceable in the employment context, and otherwise. Smith v. Carter &
Burgess, Inc., 2005 Tex. App. LEXIS 1140, at *9 (Tex. App.—Fort Worth Feb. 10,
2005, no pet.) (condition did not render employment contract meaningless); Fletcher
18
v. Energy Res. Tech. GOM, Inc., 2012 Tex. App. LEXIS 7034, at **8–10 (Tex.
App.—Houston [1st Dist.] Aug. 23, 2012, no pet.) (same); see also Restatement
(Second) of Contracts § 224 (1981) (“A condition is an event, not certain to occur,
which must occur, unless its non-occurrence is excused, before performance under
a contract becomes due.”). Second, the only case cited by ETCS in support of its
proposition that the clause would be illusory actually supports the opposite
conclusion. The case relied on by ETCS, Cleveland Constr., Inc. v. Levco Constr.
Inc., pointed out that a conditional clause is not rendered illusory because when the
“clause is part of an underlying contract, the rest of the parties’ agreement provides
the consideration.” 359 S.W.3d 843, 853 (Tex. App.—Houston [1st Dist.] 2012, pet.
dism’d). Since the arbitration clause at issue in Cleveland Constr. was part of an
underlying agreement which contained mutual obligations, the clause was not
illusory. Id. at 853–54. The same is true for Player’s promise not to compete. The
promise not to compete is part of an underlying agreement, the APA, which contains
mutual unconditional obligations. CR 9–20. Thus, the promise not to compete is
not rendered illusory. See Cleveland Constr., 359 S.W.3d at 853–54.
3. ETCS’s request to harmonize the Agreements is really a request to
rewrite the Agreements contrary to Texas law.
As an initial matter, ETCS’s interpretation of the Disputed Clause is
inconsistent with its own interpretation in the trial court. As shown below, ETCS’s
19
proposal in the trial court included much more than ETCS’s proposal on appeal that
“termination” means termination by ETCS.
Agreements ETCS in Trial Court ETCS on Appeal
(emphasis added) (emphasis added)
If Jason Player’s “in the event of termination by If Jason Player’s
employment with ETCS for a reason other than with employment with
Buyer is terminated cause, Player is released from the Buyer is
prior to two year[s] non-competition provision in that terminated by
from the date of event. Otherwise, he is obligated ETCS prior to two
this agreement for not to compete for at least two years from the
any reason other years after the effective date date of this
than a for cause (July 1, 2013) and for at least agreement for any
termination, this one year after the end of his reason other than a
Non-Compete separation from employment for cause
Agreement will no with ETCS should that termination, this
longer be binding. separation begin more than one Non-Compete
year after July 1, 2013.” Agreement will no
longer be binding.
CR 11, 22 (Agreements); CR 82 (ETCS in trial court); Brief, at 13 (ETCS on appeal).
ETCS inability to keep its own interpretation consistent is indicative of the
unreasonableness of its position(s). ETCS likely changed its position because of
multiple problems with its proposed construction as pointed out in the briefing to the
trial court. CR 125–26 (ETCS’s rewrite of the Disputed Clause so that Player is only
released from the non-competition provision, rather than the entire agreement); CR
126 (changing 2 years or 1 year to 2 years and 1 year of non-competition). In any
event, ETCS’s newly proposed construction on appeal is still unreasonable for the
same reasons it was in the trial court.
20
ETCS’s proposed construction on appeal is nothing more than an attempt to
rewrite the Disputed Clause by inserting the phrase “by ETCS” after the word
termination to limit the condition in the Disputed Clause. Brief, at 13 (“must be
interpreted as a protection for Player against termination by ETCS in less than two
years from July 1, 2013”). First, this Court should not rewrite the parties’
agreements to insert “by ETCS” into the parties’ Agreements because it is a
provision the parties could have included but did not. LG Ins. Mgmt. Servs., 378
S.W.3d at 638 (courts should not insert provisions the parties could have included).
Second, the fact that the phrase “by ETCS” is not in the parties’ Agreements
demonstrates that it is not what the parties objectively intended under the
Agreements. Hamblin, 433 S.W.3d at 54 (the court should determine the objective
intentions of the parties as expressed in the agreement). Third, ETCS’s proposal is
inconsistent with other portions of the Agreements that specifically anticipate and
expressly state that Player’s employment with ETCS could be terminated by Player
or ETCS. CR 18 (“Player’s employment with ETCS “may be terminated by ETCS
upon 60 days written notice, and by Jason Player upon 60 days written notice”)
(emphasis added). Thus, the parties intended “termination” of Player’s employment
to mean termination by either party, not just termination by ETCS. The parties could
have chosen to specify that termination meant termination “by ETCS” if they had
21
intended something different than “termination” in the parties’ employment
agreement.
ETCS’s addition of the term “by ETCS” is contrary to the plain language of
the Agreements. Contra Heritage Res., 939 S.W.2d at 121 (court’s interpretation
should be based on plain language); McLane Foodservice, 736 F.3d at 378 (same).
Black’s Law Dictionary definition indicates that “termination” of employment
means the complete severance of an employer-employee relationship by either the
employee or the employer. See CR 44. If the parties had intended termination to
mean anything other than its plain and ordinary meaning, they could have stated
differently by using terms “involuntary termination,” “fired,” or, as ETCS suggests,
“by ETCS” to make clear that termination only meant termination by the employer.
The parties did not. Tellingly, ETCS does not even attempt to explain how the plain
meaning of termination means only termination by the employer. There is no
reasonable basis to add the language ETCS requests into the parties’ Agreements.
Case law also indicates ETCS’s limitation of termination to termination by
the employer is unreasonable. Courts around the country have noted that
“termination” does not just refer to termination by the employer. See, e.g., Willenson
v. Miner, Barnhill & Galland, P.C., 998 N.E.2d 984, 2011 Ill. App. Unpub. LEXIS
579, at **7–8 (Ill. App. [1st Dist.] April 14, 2011) (“giving ‘termination’ its plain
and ordinary meaning in an employment context, it means an end to employment
22
and could mean a voluntary resignation, an involuntary termination or both”);
Anderson v. Twin City Rapid Transit Co., 84 N.W.2d 593, 598 (Minn. 1957) (“quit
. . . is defined by the United States Bureau of Labor Statistics as a termination of
employment by the worker because of his desire to leave”) (internal quotations
omitted); Meckes v. Cina, 75 A.D.2d 470, 474 (N.Y. App.—4th Div. July 10, 1980)
(“termination of employment was defined as a voluntary quitting by the employee
or a discharge by the employer”) (internal quotations omitted); Hoffman v. Am. Soc’y
for Technion-Israel Inst. of Tech., Inc., 2013 U.S. Dist. LEXIS 9921, at *10 (S.D.
Cal. Jan. 23, 2013) (resignation constituted termination); InterPay, Inc. v. Bigham,
2002 U.S. Dist. LEXIS 16202, at *11 (D. Mass. Aug. 15, 2002) (“[t]he plain
meaning of voluntary termination is that the employee has freely chosen to cease
employment with the company”). ETCS cites no case law or any other sources in
support of its position that termination of employment means termination only by
the employer.
4. The use of the passive voice in the Disputed Clause supports the plain
and ordinary meaning adopted by the trial court.
For the first time on appeal, ETCS argues that the Disputed Clause is “more
consistent with a termination by ETCS of Player than voluntary resignation by
Player” because it is written in the passive voice. Brief, at 14. ETCS waived this
argument by failing to raise it in the court below. Craig Sessions, 412 S.W.3d at
743 n.3. Further, ETCS is grammatically and legally incorrect. The Redbook, a
23
manual on legal style, explains that “the passive voice is appropriate in some places,
especially (1) when the emphasis is on the recipient of the action instead of the actor,
and (2) when the actor is unknown or unimportant.” BRYAN A. GARNER, THE
REDBOOK: A MANUAL ON LEGAL STYLE 166 (Thompson/West 2006) (2002)
(emphasis added). Texas case law is consistent with the Redbook and suggests the
use of passive voice shifts focus of the clause onto the action when the action taker
is unimportant. See Walden v. Affiliated Computer Servs., 97 S.W.3d 303, 316–17
(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (use of passive voice shifted
focus to the action, away from the actor). Further, and as explained in detail above,
the other portions of Agreements expressly provide that either Player or ETCS may
terminate Player’s employment with ETCS. CR 18. ETCS’s failed attempt to use
grammatical rules to justify rewriting the Disputed Clause demonstrates how
desperately ETCS is searching for any support in favor of rewriting the Agreements.
Contrary to ETCS’s unsupported argument, the parties’ use of the passive voice in
the Disputed Clause demonstrates that the trial court properly adopted the parties’
plain and ordinary meaning.
E. ETCS’s attempt to rewrite the Disputed Clause cannot create ambiguity.
ETCS’s argument that the Disputed Clause is ambiguous is just another
recitation of its flawed arguments to rewrite the Disputed Clause. ETCS concedes
that for an agreement to be ambiguous it “must be reasonably susceptible to two or
24
more meanings.” Brief, at 15 (citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d
223, 229, (Tex. 2003)). However, ETCS does not propose a meaning for the
Disputed Clause at all. Instead, ETCS asks the Court to rewrite the parties’
Agreements into something substantially different as explained herein. ETCS
cannot argue that its alternative agreement would have been reasonable for the
parties to make in order to create ambiguity in the agreement that the parties actually
made. See Craig Sessions, 412 S.W.3d at 744 (evidence outside the contract cannot
be used to vary the plain terms of an agreement). The trial court properly found that
the Disputed Clause is not ambiguous because it is only subject to one reasonable
interpretation based on the plain terms of the Agreements.
VIII. CONCLUSION
The trial court properly found that the plain language of the Disputed Clause
in the Agreements is clear and unambiguous. If Player’s employment with ETCS is
terminated for any reason other than cause prior to two years from the date of the
Agreements, the Non-Compete Agreement and Non-Compete Clause are no longer
binding on Player. ETCS wants more than what it bargained for under the
Agreement. It asks the Court to rewrite the parties’ Agreements so that ETCS can
prohibit Player from competing as punishment for voluntarily resigning his
employment with ETCS. This Court should reject ETCS’s request to write in new
terms to the Disputed Clause under the guise of interpretation and affirm the trial
25
court’s Final Judgment consistent with the objective intent of the parties, the plain
language of the Agreements, and Texas law.
IX. PRAYER
Player respectfully requests that the Court reject ETCS’s request to rewrite
the Agreements, overrule ETCS’s issues on appeal, and affirm the trial court’s
judgment. Player further requests all relief in law and equity to which this Court
determines he is entitled.
Respectfully submitted,
____________________________
Eric M. Albritton
Texas State Bar No. 00790215
ema@emafirm.com
Shawn A. Latchford
Texas State Bar No. 24066603
sal@emafirm.com
ALBRITTON LAW FIRM
P.O. Box 2649
Longview, Texas 75606
Telephone: (903) 757-8449
Facsimile: (903) 758-7397
Counsel for Appellee
Jason Player
26
CERTIFICATE OF COMPLIANCE
I hereby certify that the above and foregoing Brief of Appellee is 6,407 words
in length in 14pt Times New Roman, a proportional font, and that all footnotes are
in 14pt of the same font.
______________________________
Eric M. Albritton
CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. P. 9.5, I certify that on October 6, 2016, a copy
of this motion was served on Appellant’s counsel by e-File system and email.
______________________________
Eric M. Albritton
27