Hon. Jeff Brown [Former] District Judge | Appeals from the 55th District Court

Dec. 21, 2007 - Governor Rick Perry appoints Hon. Jeff Brown to the
Fourteenth Court of Appeals to replace Justice Harvey Hudson

Hon. Jeffrey Vincent Brown aka Judge Jeff Brown, former district court judge of the 55th
District Court in Harris County, Houston, TX
The current Judge of this court: Hon. Jeffrey Shadwick,
appointed by Governor Perry January 2, 2008 . Judge Shadwick was defeated in the 2008 elections

Court location for 55th District Court, 201 Caroline, 9th Fl. Houston, TX 77002
For contact Information including telephone number go to the
Official web page for the 55th District Court of Harris County

Judge Brown is now a member of the Fourteenth Court of Appeals (Houston)
He narrowly won the contested election for the unexpired term on the bench to which he was
appointed by the Governor
Also see ---> Judge Jeff Brown's curriculum vitae CV resume
Houston Opinions web page for Justice Jeff Brown (profile and opinions)

Recent Appeals from cases in the 55th District (Judge Jeff Brown)

Post-Answer Default Judgment Should Have Been Set Aside; Denial of Motion for New
Trial Reversed Ashworth v. Brzoska (Tex.App.- Houston [14th Dist.] Nov. 4, 2008)(Brown)
(post-answer default judgment, no notice of trial setting, denial of motion for new trial reversed)
REVERSED AND REMANDED: Opinion by Justice Brown
Before Justices Brock Yates, Guzman and Brown
14-07-00239-CV Douglas Ashworth v. Richard Brzoska
Appeal from 164th District Court of Harris County
Trial Court Judge: Martha Hill Jamison

Chau v. Riddle, MD (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Hanks) (opinion on remand)
(HCLC, botched intubation of newborn)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Nuchia, Keyes and Hanks
01-04-00551-CV Thao Chau and Ha Dien Do, Individually and as next friend of their minor child,
Steven Dien Do v. Jefferson Riddle, M.D., and Greater Houston Anesthesiology, P.A.
Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey Brown

GP II Energy, I n c. v. Chamberlain, Hrdlicka, White, WIlliams & Martin (Tex.App.- Houston [1st Dist.]
Aug. 26, 2008)(Frost)(fraud, breach of fiduciary duty, escrow agent, non-disclosure)
AFFIRMED: Opinion by Justice Frost
Before Justices Fowler, Frost and Seymore
14-07-00237-CV        GP II Energy, Inc., George Mitchell, II and Brian M. Sirgo v. Chamberlain,
Hrdlicka, White, Williams & Martin, and Brian L. Gennity
Appeal from 55th District Court of Harris County
Trial Court Judge: Justice Jeff Brown

Capital Finance & Commerce AG v. First International Oil (Tex.App.- Houston [1st Dist.] May 22,
2008)(Radack) (foreign defendant, personal jurisdiction, interlocutory appeal of special
appearance) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Hanks and Higley
01-06-00822-CV Capital Finance & Commerce AG v. First International Oil Corporation n/k/a First
International Oil Co., Ltd; FIOC Holder Representative, L.L.C.; Daniel Idzal; Bill D. Holland; Dennis
B. Tower; and Sinopec Overseas Oil & Gas, Ltd.--Appeal from 55th District Court of Harris County
Trial Court Judge: The Honorable Jeffrey Vince Brown
Attorneys: Attorney John E. O'Neill, Reagan D. Pratt, Maria Wyckoff Boyce , Rebeca Aizpuru
Huddle, Rosemarie Donnelly, Sylvia A. Matthews, Joe C. Holzer, Kendall M. Gray Joe C. Holzer

Astolfo v. Hobby Lobby Stores, Inc. (Tex.App.- Houston [1st Dist.] May 22, 2008)(Taft) (premises
liability, store, falling objects)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala)
01-06-00486-CV Patricia Astolfo and Harry Astolfo v. Hobby Lobby Stores, Inc.
Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey Brown
Attorneys: Nuru Lateef Witherspoon, David L. Pacione

DISMISSED: Per Curiam (joint motion to dismiss; settlement) (Mar. 6, 2008)
Before Justices Brock Yates, Fowler and Guzman
14-07-00668-CV Gregory A. Buford, Gulf Coast Demolition Services, L.P., and Buford & Connell
Construction Services, Inc. v. Partners Bank of Texas
Appeal from 55th District Court of Harris County (Judge [now Justice] Jeff Brown)

Ebrahim v. Middlebury Properties, II (Tex.App.- Houston [1st Dist.] Mar. 6, 2008)(Nuchia) (lease
law, P roperty C ode, preservation of error, trial court record)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
01-06-01175-CV Lisha Ebrahim v. Middlebury Properties, II, L.P.
Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey Brown
In re Reese (Tex.App.- Houston [1st Dist.] Dec. 13, 2007)(per curiam denial)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam (order complained of not attached to
petition)
Before Chief Justice Radack, Justices Alcala and Bland)
01-07-00807-CV In re Roderick L. Reese
Appeal from 55th District Court of Harris County (Hon. Jeffrey Brown)

Anaheim Industries, Inc. v. GM Corp (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Bland)
(commercial law, UCC, BoC, extracontractual claims, estoppel, misrepresentation)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00440-CV Anaheim Industries, Inc., Frank Gilchrist, Inc., d/b/a Texas Stagecoach of
Houston v. General Motors Corporation
Appeal from 55th District Court of Harris County (Judge Jeff Brown)

FInley v. U-Haul Co. (Tex.App.- Houston [14th Dist.] Nov. 20, 2007)(Edelman)(negligence,
forseeability)
AFFIRMED: Opinion by Justice Edelman
Before Justices Fowler, Edelman and Frost
14-05-01161-CV Allene Finley, Administratrix of the Estate of John Finley, Deceased v. U-Haul Co.
of Arizona and U-Haul Co. of Texas
Appeal from 55th District Court of Harris County (Hon. Jeff Brown)

Casarez v. Alltec Construction Co., Inc. (Tex.App.- Houston [14th Dist.] Nov. 6, 2007)(Anderson)
(construction law, BoC, prior breach by plaintiff, excuse, DTPA)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00068-CV Rueben and Nicole Casarez v. Alltec Construction Co., Inc.
Appeal from 55th District Court of Harris County (Hon. Jeff Brown)

Morris Hartis, Jr. v. Century Furniture Industries Inc. (Tex.App.- Houston [14th Dist.] Jun. 28, 2007)
(Guzman)(payment dispute)
AFFIRMED: Opinion by Justice Guzman
Before Chief Justice Hedges, Justices Hudson and Guzman
14-05-01099-CV Eugene Morris Hartis, Jr. v. Century Furniture Industries Inc.
Appeal from 55th District Court of Harris County (Judge: Jeff Brown)

Hunt v. State Office of Risk Management (Tex.App.- Houston [14th Dist.] May 15, 2007)(Guzman)
[employment , worker comp, workplace law, jury, workers comp, workplace injury, psychological
injury]
AFFIRMED: Opinion by Justice Guzman
Before Justices Frost, Seymore and Guzman
14-05-00819-CV Norma Hunt v. State Office of Risk Management
Appeal from 55th District Court of Harris County (Judge Jeff Brown)

Montgomery v. Jacob Varon, M.D (Tex.App.- Houston [14th Dist.] Apr. 3, 2007)(Frost)(HCLC)
[health care liability claim]
AFFIRMED: Opinion by Justice Frost
(Before Chief Justice Hedges, Justices Frost and Seymore)
14-05-01059-CV        Yolanda Montgomery, Individually and as Next Friend and Natural Parent of
L'Jaunet Shantelle Montgomery and Donovan Leon Montgomery v. Jacob Varon, M.D.
Appeal from 55th District Court of Harris County (Judge Jeff Brown)

Rogers v. Texas Sterling Construction , LP (Tex.App.- Houston [14th Dist.] Mar. 29, 2007) (Yates)
(wrongful death, summary judgment for defendant, duty, premises liability, control)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Anderson and Hudson
14-05-01061-CV David Rogers, Individually and as Representative of the Estate of Leroy Brown v.
Texas Sterling Construction, L.P. a/k/a Texas Sterling Construction Inc. a/k/a Texas Sterling, L.P.
Appeal from 55th District Court of Harris County (Judge Jeff Brown)

Tan v. Lee (Te (Tex.App.- Houston [14th Dist.] Feb. 27, 2007)(Hedges)(arbitration, motion to
confirm arbitration award, securities fraud)
AFFIRMED: Opinion by Chief Justice Hedges
(Before Chief Justice Hedges, Justices Fowler and Edelman)
14-06-00319-CV        Ying Chun Tan v. Hung Pin Lee
Appeal from 55th District Court of Harris County (Hon. Jeff Brown)

Sydow v. Verner, Liipfert, Bernhard, McPerson and Hand, No. 14-05-00877-CV (Tex.App.-
Houston [14th Dist.] Jan. 25, 2007)(Hedges)(arbitration law, confirmation of arbitration award)
AFFIRMED: Opinion by Chief Justice Hedges
(Before Chief Justice Hedges, Justices Seymore and Mirabal)
14-05-00877-CV        Michael D. Sydow v. Verner, Liipfert, Bernhard, McPherson and Hand,
Chartered--Appeal from 55th District Court of Harris County (Judge Jeff Brown)

HCAD v. CCH Parkhearterwood LTD (Tex.App.- Housotn [14th Dist.] Jan. 25, 2007)(per curiam)
(tax appraisal contest appeal, voluntary dismissal)
DISMISSED: Per Curiam
Before Justices Frost, Seymore and Guzman
14-05-01266-CV Harris County Appraisal District and the Appraisal review Board of Harris County
Appraisal District v. CCH Parkhearterwood Ltd., as The Property Owners and the Property Owners
Appeal from 55th District Court of Harris County (Hon. Jeff Brown)

Selected 2006 Appeals Court Cases Originating in the 55th District Court

Robinson v. Crown Cork & Seal Company, Inc. (Tex.App.-Houston [14th Dist.] May 4, 2006)
(majority opinion by Fowler)(asbestos claim, constitutional challenge as retroactive law denied)
AFFIRMED: Plurality Opinion by Justice Fowler
Before Chief Justice Hedges, Justices Fowler and Frost
14-04-00658-CV Barbara Robinson, Individually and as Representative of the Estate of John
Robinson,
Deceased v. Crown Cork & Seal Company, Inc.
Appeal from 55th District Court of Harris County (Hon. Jeff Brown)

Disse n t in Robinson v. Crown Cork & Seal Company, Inc. (Tex.App.-Houston [14th Dist.] May 4,
2006)(dissent by Frost)(“In deciding whether the legislation at issue violates the prohibition
against retroactive laws in the Texas Bill of Rights, the court concludes that if the Texas
Legislature reasonably exercises its police power to enact a statute, then that statute does not
violate the Texas Constitution, even though the statute is retroactive and destroys the vested
rights of some individuals. The people of the State of Texas, in emphatic and compelling
language set forth in section 29 of the Texas Bill of Rights, have expressly withheld from the
Legislature the authority to enact retroactive laws in violation of section 16 of the Texas Bill of
Rights. Because the Legislature has no police power to enact retroactive laws in violation of
section 16, this court should not use a police-power analysis to determine whether the statute is
unconstitutionally retroactive. Furthermore, the weight of precedent from the Texas Supreme
Court and this court requires the use of the vested-rights analysis. Under this analysis, the
statute in question destroys the vested rights of the appellant in this case and therefore violates
section 16 of the Texas Bill of Rights, as applied.
Because the court, using a police-power analysis, reaches the opposite conclusion, I respectfully
dissent.”)

Ledig v. Duke Energy, No. 01-04-00922-CV, (Tex.App.- Houston [1st Dist.] March 23,2006)
(Jennings) (employment dispute, bonus, defamation, and other causes of action, rescission, offset)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
(Before Justices Nuchia, Jennings and Higley)
01-04-00922-CV Peter J. Ledig v. Duke Energy Corporation and Duke Energy Trading
and Marketing, L.L.C.
Appeal from 55th District Court of Harris County (Judge Jeffrey Brown)

HCAD v. CCH Parkhearterwood LTD (Tex.App.- Housotn [14th Dist.] Jan. 25, 2007)(per curiam)
(tax appraisal contest appeal, voluntary dismissal)
DISMISSED: Per Curiam
Before Justices Frost, Seymore and Guzman
14-05-01266-CV Harris County Appraisal District and the Appraisal review Board of Harris County
Appraisal District v. CCH Parkhearterwood Ltd., as The Property Owners and the Property Owners
Appeal from 55th District Court of Harris County (Hon. Jeff Brown)

NO. 01-04-00922-CV
__________

PETER J. LEDIG, Appellant

V.

DUKE ENERGY CORPORATION AND DUKE ENERGY TRADING AND MARKETING, L.L.C.,
Appellees

O P I N I O N

Appellant, Peter J. Ledig, challenges the trial court’s rendition of summary judgment in favor of
appellees, Duke Energy Corporation (“Duke Energy”) and Duke Energy Trading and Marketing, L.
L.C. (“DETM”), in his suit for “unjust enrichment, rescission of contract, breach of contract,
misrepresentation, and defamation,” brought after DETM terminated his employment. In four
issues, Ledig contends that the trial court erred in granting partial summary judgment in favor of
appellees because genuine issues of material fact exist regarding whether his election, made
while employed by Duke Energy North America (“DENA”), to exchange 50% of any bonus he might
receive in 2001 for Duke Energy stock options applied to the bonus he received from DETM
following his transfer to DETM in 2001; whether “the illusory nature of the [election] agreement
precludes summary judgment on [his] equitable claims”; whether DETM was required to pay Ledig
a bonus for the full year of 2001, rather than a pro-rated bonus; and whether “libelous statements
published by [a]ppellees defamed [a]ppellant given that a reasonable reader could reasonably
believe them to be true.” We affirm.

Factual and Procedural Background

On December 29, 2000, while employed by DENA, a non-party to this lawsuit, Ledig elected to
exchange 50% of any bonus he might receive in 2001 for Duke Energy stock options. Ledig made
this election by signing the “Short Term Incentive Exchange Program Election Form 2001.” The
front page of the election form instructed Ledig to “[c]omplete and submit this form no later than
Dec. 29, 2000, to make your election under this Program for 2001” and further stated that “[e]
lections that you make to forgo bonus in exchange for stock options will remain in effect for
subsequent years, unless you are no longer eligible for the Program or make a change during a
subsequent election period.” The election form provided the following cautionary instruction:
“Because your choices under this Program have significant financial implications, we encourage
you to review your Program brochure and share the information with your financial or tax advisor.”
By signing this form, Ledig acknowledged the following:

I hereby authorize Duke Energy to reduce my bonus . . . as I elected on this form. I understand . . .
that if I forgo bonus under the Short-Term Incentive Exchange Program, I will be granted a stock
option under the Duke Energy Corporation 1998 Long-Term Incentive Plan in exchange, with the
number of shares and exercise price of my stock option to be determined on the grant date. I
further understand that if my Duke Energy employment terminates or I become ineligible for the
Program before the stock option is granted, my election to forgo bonus will automatically be
cancelled. . . . I confirm that I have been given copies of the Short-Term Incentive Exchange
Program brochure. . . . I also understand that my election[] to . . . forgo bonus to be earned in
2001 in exchange for a stock option under the Program [is] irrevocable after Dec. 29, 2000, will
take effect Jan. 1, 2001, and will continue for subsequent years as long as I remain eligible unless
I file a change in a subsequent election period.

(Emphasis added). The Duke Energy Short Term Incentive Exchange Program (the “Program”)
brochure, which described the restrictions of the Program, and which Ledig conceded receiving
prior to signing the election form, provided

YOUR ELECTION MUST BE MADE IN ADVANCE AND IS IRREVOCABLE

Participating in this program gives you certain tax advantages, but also imposes some restrictions.
For example, the bonus that you exchange for stock options will not be subject to current income
taxes. To preserve this tax advantage, however, you must decide about participating in the
program before the beginning of the period during which you bonus is earned.

Your agreement to make this exchange is irrevocable. After the annual election deadline, you
cannot cancel the agreement and receive the cash bonus you elected to forgo. However, if your
Duke Energy employment terminates before the option is granted, your election to forgo bonus is
automatically cancelled.

The brochure further provided

To participate in the program, you must have earned a bonus under the short term incentive plans
applicable to your business unit. Below is a list of plans that determine how you become eligible
for bonuses and the amount you may receive. These plans are incorporated by reference into this
program.

Included in this list of nine plans were (1) the Duke Energy International/Duke Energy North
America Annual Incentive Program (the “DENA Plan”) and (2) the Duke Energy Services Trading
Pool Plan (the “DETM Plan”).

Ledig testified that, in April 2001, he left his position with DENA and began employment with DETM
as the Vice President of Eastern Gas Trading. His election to exchange 50% of his 2001 bonus for
Duke Energy stock options under the Program was based on the fact that the DENA Plan was a
corporate plan with limited bonus potential and that his maximum bonus potential under the DENA
Plan was approximately 53% of his salary. After beginning employment with DETM, Ledig
determined that his election under the Program “no longer made economic sense” because his
bonus potential under the DETM Plan was over 700% of his salary. Thus, after beginning
employment with DETM, he told Jackie Salinas, Director of Human Resources, that he wanted to
change his election from 50% to 0%. Salinas told Ledig the he could not change his election due
to an Internal Revenue Service regulation. In early 2002, Ledig was awarded $1,500,000 for his
2001 bonus under the DETM Plan and, based on Ledig’s election under the Program, DETM
converted 50% of his bonus to Duke Energy stock options.

Ledig further testified that, “in connection” with his move to DETM, he spoke with his supervisor,
Todd Reid, concerning whether his 2001 DETM bonus would be pro-rated. According to Ledig,
Reid assured him that he would receive a bonus for the full year of 2001, despite the fact that
Ledig commenced employment with DETM, at the earliest, in April 2001. Ledig learned that Reid
had received a bonus for the full year of 2000 even though Reid started at DETM in May 2000,
and Ledig knew from “personal observation” that another DETM employee, Tim Kramer, received
similar treatment with respect to his bonus for the year 2000. Ledig asserts that his 2001 bonus
was pro-rated, in violation of Reid’s promise and in contrast to the past treatment of Reid and
Kramer.

In May 2002, in response to an inquiry from the Securities and Exchange Commission (“SEC”),
appellees conducted investigations into the company’s energy trading practices, and, on August
1, 2002, following the conclusion of those investigations, Ledig was removed from his
management position with DETM. Ledig asserts that on that day, DETM represented that he was
being retained and would be reassigned to a new job. However, Ledig’s employment was
terminated after he received his salary from DETM through November 2002. On or about August
1, 2002, appellees allegedly published statements referencing the discharge of employees in
connection with their investigation into energy trading practices.

Ledig filed suit, asserting multiple claims arising out of the above alleged incidents. Pertinent to
this appeal, we consider the claims made in counts one, four, and five of Ledig’s second amended
petition. In count one, labeled “rescission of contract, misrepresentation, and unjust enrichment,”
Ledig, in regard to his election to exchange 50% of his 2001 bonus for Duke Energy stock
options, asserts that he made this election without knowledge that he would be transferred to
DETM six months later, “materially changing the amount of the bonus subject to the election.”
Ledig also asserts that when he moved to DETM, he was told that he would not be able to change
his election. Ledig contends that “as a result of the vagueness of the agreement and the mistake
as to the amount subject to the election,” he is entitled to rescission of the contract. In count four,
labeled “breach of contract, unjust enrichment, and misrepresentation,” Ledig, in regard to his
contention that he is entitled to receive a bonus for the full year of 2001 rather than a pro-rated
bonus, asserts that appellees had previously compensated other employees who had been
employed for only part of a year as if they had been employed for the full year. Although Ledig
does not clearly assert in his petition why he is entitled to a bonus based on a full year, he does,
in his summary judgment response, allege that he had an oral agreement with his supervisor to be
paid a bonus based on the full year. In count five, labeled “defamation,” Ledig alleges that he was
falsely accused of (1) directing traders to trade for volume and not for economic benefit, and (2)
of not cooperating in the investigation of the trading practices.
On appeal, Ledig asserts that he was defamed in two publications, which are includedin the record
and which we address below.

Ledig asserts that the “circumstances surrounding [his] disaffiliation with Duke are commonly
known in the market place and to his peers.”

DETM filed a motion for partial summary judgment, attacking the claims asserted by Ledig in
counts one, four, and five of his petition.
The record indicates that the parties settled other claims asserted by Ledig and that thetrial court
dismissed Ledig’s claim for attorneys’ fees in a final judgment entered aftera bench trial. The
appeal before this Court concerns Ledig’s claims that weredisposed by the trial court’s order
granting appellees’ partial summary judgmentmotion, and this Court is addressing only the
propriety of the summary judgment asto those claims.

The motion was labeled as a “traditional” and no-evidence motion. See Tex. R. Civ. P. 166a(c),
166a(i). Without specifying the grounds upon which it relied, the trial court granted appellees’
summary judgment motion as to these claims.                                   The trial court denied DETM’s
summary judgment motion in regard to Ledig’s claim“for monies due him under the 2001 Trading
Pool Plan for April, 2001.”

Standard of Review

To prevail on a Rule 166a(c) summary judgment motion, a movant has the burden of proving that
it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex.
R. Civ. P. 166a(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex. 1990); Farah v.
Mafrige & Kormanik, P.C., 927 S.W.2d 663, 670 (Tex. App.—Houston [1st Dist.] 1996, no writ). We
may affirm a summary judgment only when the record shows that a movant has disproved at least
one element of each of the plaintiff’s claims or has established all of the elements of an affirmative
defense as to each claim. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Farah,
927 S.W.2d at 670. In deciding whether there is a disputed material fact issue precluding summary
judgment, proof favorable to the non-movant is taken as true, and the court must indulge every
reasonable inference and resolve any doubts in favor of the non-movant. Randall’s Food Mkts.,
Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Lawson v. B Four Corp., 888 S.W.2d 31, 33–
34 (Tex. App.—Houston [1st Dist.] 1994, writ denied).

When a summary judgment does not specify the grounds on which the trial court granted it, the
reviewing court will affirm the judgment if any theory included in the motion is meritorious. Harwell
v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995); Summers v. Fort Crockett
Hotel, Ltd., 902 S.W.2d 20, 25 (Tex. App.—Houston [1st Dist.] 1995, writ denied).

Election to Exchange Bonus for Stock Options

In his first issue, Ledig argues that the trial court erred in granting appellees’ summary judgment
on his claim for rescission of his election agreement to exchange 50% of his 2001 bonus for stock
options because the agreement, signed when he was an employee of DENA and was covered
under the DENA Plan, did not bind him to an election to exchange 50% of his 2001 bonus he
received under the DETM Plan for stock options. Ledig asserts that the DETM Plan refers only to
DETM, not to DENA, and that the election form he signed “refers only to DENA” and “makes no
references to DETM.” Ledig argues that a material issue of fact exists “as to the uniqueness of the
two plans,” and that, because the plans are separate, the irrevocability language contained in the
election form and the Program brochure is a non-issue. Also, within his first issue, Ledig argues
that the trial court erred in granting appellees’ summary judgment on his claim for
misrepresentation because Ledig also asserts that he was misled by Salinas regarding his ability
to change his election after transferring to DETM and that he “presented more than a scintilla of
evidence on the challenged elements.”

Contrary to Ledig’s arguments, there are no material fact issues surrounding his election to
exchange 50% of his bonus for stock options that “preclude summary judgment” on his claims for
rescission and misrepresentation. Ledig’s arguments under his first issue are centered on the
proposition that the DENA and the DETM Plans are “separate.” However, regardless of whether
these plans are separate or unique, under the plain language of the election form and the
Program brochure, Ledig’s election applied to both the DENA and the DETM Plans.
Ledig contends that there is a genuine issue of material fact as to the uniqueness ofthe two plans
and cites appellees’ admission in their discovery responses that theplans are “wholly different and
unrelated.” However, appellees do not dispute thatthe plans are separate or unique. Rather, the
issue is whether the plans are bothsubject to the Program and whether Ledig’s election under the
Program applies tobonuses earned under both plans for the year 2001.

Close These documents establish that any election made under the Program applied to bonuses
earned under any one of nine plans, including the DETM Plan and the DENA Plan. There is no
evidence supporting Ledig’s assertion that his election under the Program was invalidated upon
his transfer to DETM. It is clear that in order to participate in the Program, Ledig was required to
make his election in advance and that his election was irrevocable after December 29, 2000.
While the Program brochure provides that an employee’s election is automatically cancelled if
“Duke Energy employment terminates before the option is granted,” it does not state that an
employee’s election is revocable or that it may be cancelled upon the employee’s transfer to
another Duke Energy business unit subject to the Program. It is of no significance that the election
form does not refer to any particular Duke Energy business unit or associated plan because the
brochure expressly states that the election applies to bonuses earned under any one of nine
plans, including both the DENA and DETM plans. Thus, the summary judgment evidence
establishes that Ledig’s election applied to any bonus earned at DETM in 2001 and that Salinas
did not make any misrepresentation to Ledig when she informed him that he could not change his
election under the Program.

In regard to Ledig’s claim for rescission of contract, “as a general rule, a mistake that justifies
rescission must be a mutual, not a unilateral, mistake.” Cigna Ins. Co. of Tex. v. Rubalcada, 960 S.
W.2d 408, 412 (Tex. App.—Houston [1st Dist.] 1998, no pet.). However, equity may permit
rescission based on a unilateral mistake when “(1) the mistake is of so great a consequence that
to enforce the contract would be unconscionable; (2) the mistake relates to a material feature of
the contract; (3) the mistake occurred despite ordinary care; and (4) the parties can be placed in
status quo, i.e., the rescission must not prejudice the other party except for the loss of the
bargain.” Id.; James T. Taylor & Son, Inc. v. Arlington Indep. Sch. Dist., 160 Tex. 617, 620, 335 S.
W.2d 371, 373 (Tex. 1960).

Here, there is no allegation of mutual mistake. To the extent that there is any allegation of a
unilateral mistake, it is only that Ledig did not recognize that his election under the Program was
irrevocable for the year 2001 and that his election would apply to a number of different plans,
including the DETM plan, in the event that he was transferred to DETM in the year 2001. But this
information was disclosed in the Program documents that Ledig conceded receiving before
making his election. Thus, Ledig cannot show that enforcement of the terms of the Program would
be unconscionable or that he made a “mistake” despite the exercise of ordinary care. Also,
although Ledig testified that he would not have made this election had he known that he would be
transferred to DETM during the year 2001, this is a “mistake” concerning a future event. A
unilateral mistake based on a future event, as opposed to an existing fact, is not the type of
mistake that would typically permit a party to void a contract. See City of Austin v. Cotten, 509 S.W.
2d 554, 557 (Tex. 1974); Green v. Morris, 43 S.W.3d 604, 607 (Tex. App.—Waco 2001, no pet.)
(citing the Restatement and stating that “[m]any authorities, in dealing with mistake, draw a
distinction between mistakes concerning ‘past or present facts’ and those concerning factual
occurrences in the future”).
There is no allegation, or evidence, that appellees knew that, prior to Ledig makinghis election,
Ledig would be transferred to DETM in the spring of 2001 or thatLedig’s 2001 DETM bonus would
be so significant and would exceed any bonus thathe could have earned at DENA.

Close We hold that Ledig’s claims for rescission of contract and misrepresentation fail as a matter
of law.

In regard to Ledig’s claim for unjust enrichment, we note that, generally, “when a valid, express
contract covers the subject matter of the parties’ dispute, there can be no recovery under a quasi-
contract theory,” such as unjust enrichment. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671,
684 (Tex. 2000). “That is because parties should be bound by their express agreements. When a
valid agreement already addresses the matter, recovery under an equitable theory is generally
inconsistent with the express agreement.” Id. Here, Ledig is bound by his express election to
exchange 50% of his bonus for stock options, and we hold that his unjust enrichment claim fails as
a matter of law. See id. at 683–85.

Accordingly, we hold that the trial court did not err in granting appellees summary judgment on
Ledig’s claims for rescission of contract, misrepresentation, and unjust enrichment arising out of
his assertion that his election did not apply to his 2001 DETM bonus.

We overrule Ledig’s first issue.

Illusory Nature of AgreementIn his second issue, Ledig argues that the trial court erred in granting
appellees summary judgment “regarding the election of stock options because the agreement
supporting the election is itself illusory.” He asserts that the agreement provided appellees “with
an opportunity to avoid their promises and obligations regarding stock options.”
In his original petition, Ledig also alleged that he was not informed of, or was misledabout, the fact
that, under the Program, any options would expire three months aftertermination of his
employment. In his second amended petition, Ledig drops thisspecific complaint, and we do not
address it here. However, we note that the brochurespecifically states: “If you leave Duke Energy
before the tenth anniversary of youroptions’ grant date(s) for any reason other than retirement,
death or disability, youropportunity to exercise your option(s) will expire three months after
termination ofyour employment . . . .”

Close Ledig concludes that because the agreement was illusory, the trial court erred in granting
summary judgment on his claims against appellees for quantum meruit and unjust enrichment.

The Program brochure provides, in pertinent part:

Duke Energy Corporation reserves the right to change the program in any respect, including
terminating the program or discontinuing an employee’s eligibility, at any time. Such a change may
result in no grant of a stock option that has not been granted prior to the change, and the
associated bonus exchange election being cancelled.

Ledig’s argument is misplaced. Here, appellees simply provided Ledig with an opportunity to elect
to exchange a portion of any bonus he might earn during the year 2001 for Duke Energy stock
options, and he, with knowledge that his election would be irrevocable in order to preserve certain
tax advantages, elected to exchange 50% of his 2001 bonus for such options. Moreover, the
Program brochure plainly stated that participation in the Program was not “an offer or guarantee
of employment” and did not “create an employment contract.” Thus, it appears that the parties
simply agreed to change how Ledig was to be compensated in regard to any bonus he earned in
2001. See Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986) (holding that when
employer notifies employee of change to at-will employment contract and employee “continues
working with knowledge of the changes, he has accepted the changes as a matter of law”).
We note that employment relationships in Texas are presumed at will, and we presume, absent
evidence to the contrary, that Ledig and appellees had an at-willrelationship. See Montgomery
County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502(Tex. 1998).

Although appellees could have terminated the Program or cancelled Ledig’s eligibility, appellees
could have also terminated Ledig’s employment or he could have quit. In fact, pursuant to the
terms of the Program, if appellees had terminated Ledig’s employment or if Ledig had quit before
the options were granted, Ledig’s election to forgo his bonus in exchange for stock options would
have been automatically cancelled and Ledig would have received any bonus to which he was
entitled. Yet, Ledig continued to work for appellees, even after Ledig was told that he could not
change his election and that he would be compensated, in part, with stock options, in the event he
earned a bonus.

In support of his argument that he should be able to proceed with his equitable claims of unjust
enrichment and quantum meruit because the stock option agreement was illusory, Ledig relies on
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003), and In re Halliburton Co., 80 S.W.3d
566 (Tex. 2002). However, these cases, which deal with an employer’s effort to compel arbitration
of employee claims, are substantively distinguishable. Here, appellees are not bringing suit to
enforce, or to void, their agreement to provide stock options to Ledig pursuant to Ledig’s election.
Rather, Ledig is contending that, after being given the opportunity to make an irrevocable election
for tax advantages, after making that election in writing and confirming that he understood that the
election was irrevocable, after subsequently being informed that he could not change his election
following his transfer of employment, and after continuing to work for appellees and earning and
receiving his bonus, he is now entitled to void his election and compel appellees to compensate
him in cash. J.M. Davidson and Halliburton do not support Ledig’s contention.

Despite Ledig’s claim that appellees had the “opportunity to avoid their promises and obligations
regarding stock options,” either by terminating the Program or by terminating Ledig’s employment,
appellees honored his election and, pursuant to the terms of the Program, exchanged a portion of
Ledig’s bonus for stock options. Accordingly, we reject Ledig’s argument concerning the illusory
nature of the agreement and hold that the trial court did not err in granting summary judgment on
Ledig’s claims for quantum meruit and unjust enrichment on these grounds.

We overrule Ledig’s second issue.

Pro-Rated BonusIn his third issue, Ledig contends that “fact issues surrounding [his] pro-rata
award preclude a summary judgment on [his claim for] breach of contract.”
In count four of his second amended petition, Ledig asserts claims of “breach ofcontract, unjust
enrichment, and misrepresentation,” arising out of his contention thathe was entitled to a bonus
for the full year of 2001. In his appellant’s brief, Ledigspecifically asserts error with respect to the
trial court’s entry of summary judgmenton his breach of contract claim; he makes absolutely no
reference to hismisrepresentation and unjust enrichment claims. While Ledig makes a
limitedreference to these claims in his reply brief, a reply brief may not be used to raisecomplaints
not raised in the initial brief. See Tex. R. App. P. 38.3. Alternatively, wehold that these issues have
been inadequately briefed. See Tex. R. App. P. 38.1. Thus, we do not address these claims.

Ledig asserts that his supervisor, Todd Reid, assured him that he would receive a bonus from
DETM for the year 2001 based on an entire year of service, despite the fact that Ledig began
employment with DETM in April 2001.                                       Ledig also asserts that there is a
fact issue concerning whether he commencedemployment at DETM in April or May of 2001, and, if
his bonus was properly pro-rated, whether it should have been pro-rated based on an April or
May start date. SeeMiller v. Riata Cadillac Co., 517 S.W.2d 773, 775 (Tex. 1974) (stating that
“anemployee who is discharged without good cause prior to the time specified forpayment of a
bonus is entitled to recover a pro rata part of such bonus for the periodhe actually worked”).
However, the final judgment reflects that Ledig’s claim for hisApril 2001 bonus was settled.
Appellees also assert in their brief that this issue wassettled, and Ledig does not challenge this
assertion in his reply brief, though hecontinues to assert arguments about his start date with
DETM. Because the recordindicates that this issue was settled by the parties, we do not consider
this issue onappeal. Rather, we address Ledig’s breach of contract claim arising out of
hisallegation that he was entitled to a bonus for the full year of 2001.

Ledig also asserts that Reid and Tim Kramer, another employee, had previously been paid
bonuses for the year 2000 based on a full year of service, even though Reid and Kramer had
commenced employment with DETM in May 2000. Finally, Ledig cites an e-mail from an employee
in Duke Energy’s human resources department allegedly indicating that Mike Kimner, another
DETM employee, was promoted in the year 2001 to the position of President of Duke Energy
Merchants, a separate Duke Energy business unit, but Kimner was allowed to remain in the DETM
Plan for 2001.

The “Duke Energy Services Trading Pool Plan” expressly provides that “[a]n employee hired after
January 1, 2000 will be compensated with a pro-rated award based on hire date.” The DETM Plan
further provides

If an employee begins employment after the commencement of a year, or an employee transfers
during the year to another Duke Energy affiliate, performance achievement will be awarded pro
rata. All pro rata calculations under this Plan shall be based on the amount of full-time
employment completed compared to the full year.

There is nothing in the Plan providing Reid with the authority to alter the terms of the Plan. Rather,
the Plan provides

This summary states the complete Plan. Any other statements, whether verbal or written, which
are inconsistent with the terms and conditions set forth in this summary, are unauthorized by the
Company. Any amendments or modifications to the Plan shall be in writing and designated as
such.

When, as here, the parties have concluded a valid integrated agreement, the parol evidence rule
precludes enforcement of a prior or contemporaneous inconsistent agreement. Gonzalez v. United
Carpenters & Joiners, 93 S.W.3d 208, 211 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Parol
evidence is only admissible to show “(1) the execution of a written agreement was procured by
fraud, (2) an agreement was to become effective only upon certain contingencies, or (3) the
parties’ true intentions if the writing is ambiguous.” Id. Here, Ledig specifically testified that, in early
2001, in connection with his move to DETM, he spoke with Reid, his supervisor, and was assured
that he would receive a bonus for the full year of 2001. Ledig is not asserting that the DETM Plan
was procured by fraud, that the DETM Plan was to become effective only upon certain
contingencies, or that the Plan was ambiguous. Even accepting Ledig’s testimony as true, that
Reid promised him that he would receive a bonus for the full year of 2001, the terms of the Plan,
which expressly provide that Ledig would be entitled to a pro-rated bonus, control appellees’
obligations under the Plan.
We recognize that the parol evidence rule does not bar evidence of a collateral agreement.
Transit Enter. v. Addicks Tire & Auto Supply, Inc., 725 S.W.2d 459, 461(Tex. App.—Houston [1st
Dist.] 1987, no writ). A collateral agreement is one thatthe parties might naturally make separately,
i.e., one not ordinarily expected to be embodied in, or integrated with, the written agreement and
not so clearly connected with the principal transaction as to be part and parcel of it. Boy Scouts of
Am. v.Responsive Terminal Sys., 790 S.W.2d 738, 745 (Tex. App.—Dallas 1990, writ denied).
Reid’s alleged promise to Ledig that he would receive a bonus under the DETM Plan for the full
year of 2001, rather than a pro-rated bonus, cannot be considered collateral to the DETM Plan.

In regard to appellees’ alleged treatment of other employees, Ledig’s assertion that Reid and
Kramer were granted bonuses for the entire year of 2000 is not supported by competent summary
judgment evidence.
The trial court sustained appellees’ objections to Ledig’s testimony regardingDETM’s treatment of
Reid and Kramer. However, Ledig fails to reference this factand instead cites this “evidence” in his
briefing.

Close Finally, the e-mail that Ledig asserts establishes that another DETM employee was
permitted to participate in the DETM Plan after transferring to another Duke Energy business unit
has no relevance to this case and does not support Ledig’s breach of contract claim.

We hold that the trial court did not err in granting summary judgment on Ledig’s breach of contract
claim arising out of his allegation that he was entitled to a bonus for the full year of 2001, rather
than a pro-rated bonus.

We overrule Ledig’s third issue.

Defamation

In his fourth issue, Ledig contends that “libelous statements published [] by appellees defamed
him given that a reasonable reader could reasonably believe them to be true.” In his brief, Ledig
cites two statements in support of his defamation claim. First, Ledig asserts that appellees,
through counsel representing them in an investigation conducted by the SEC, stated that “Duke
has taken certain other personnel actions . . . [and] reorganized its trading and marketing
operations to ensure proper leadership and management are in place . . . .”
In his summary judgment response, Ledig asserts that this statement is contained ina letter from
Duke Energy’s counsel to the SEC in regard to an investigation beingconducted by the SEC.

Second, Ledig asserts that appellees published a report which provided, “Duke states that most of
the senior management in the Houston office, including all who participated in the inaccurate
reporting, are no longer with the company.”                                   In his brief, Ledig asserts that
this statement was published in the “Final Report onPrice Manipulation in Western Markets, Fact
Finding Investigation of PotentialManipulation of Electric and Natural Gas Prices,” prepared by the
“staff of theFederal Regulatory Commission in March 2003.” Ledig does not explain howappellees
are responsible for the publication of this second statement.

Appellees contend that the trial court properly granted summary judgment on Ledig’s defamation
claim because “he had no evidence from which reasonable minds could find that [appellees]
published false and defamatory statements about him.” (Emphasis in original).

In order to prevail on his defamation claim, Ledig must establish that the statement referred to
him. Newspapers, Inc. v. Matthews, 161 Tex. 284, 289, 339 S.W.2d 890, 893 (Tex. 1960); Delta
Air Lines, Inc. v. Norris, 949 S.W.2d 422, 427 (Tex. App.—Waco 1997, writ denied). A person is
referred to in a defamatory statement if he is named in the statement or if those who know the
person would understand that the statement was referring to the person. Matthews, 339 S.W.2d at
893; Am. Broad. Cos. v. Gill, 6 S.W.3d 19, 34 (Tex. App.—San Antonio 1999, pet. denied).
Whether a plaintiff is referred to in a statement is a question of law for the court. Am. Broad. Cos.,
6 S.W.3d at 34. This question is submitted to a jury only if the contested language is ambiguous
or of doubtful import. See Denton Pub. Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970).

Appellees’ statements that Duke had “taken certain other personnel actions” and “reorganized its
trading and marketing operations to ensure proper leadership and management” do not make any
reference to Ledig, directly or indirectly, and are insufficient, as a matter of law, to be capable of
defamatory meaning. Ledig concedes that the second statement, that “most of the senior
management in the Houston office, including all who participated in the inaccurate reporting, are
no longer with the company,” does not directly refer to him. However, Ledig asserts that the
statement refers to him because “he is unquestionably a member” of Duke’s senior
management.           Texas courts have routinely held that “a member of a group has no cause of
action for a defamatory statement directed to some or less than all of a group when there is
nothing to single out the plaintiff.” Eskew v. Plantation Foods, Inc., 905 S.W.2d 461, 462 (Tex. App.
—Waco 1995, no writ); see also Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 429 (Tex.
2000) (holding that family law judge could not bring defamation claim because general criticism of
family law courts was not directed at particular judge). In Eskew, Plantation Foods conducted an
investigation into irregularities in its maintenance department. 905 S.W.2d at 461. At the
conclusion of the investigation, Plantation Foods fired several employees. Id. The local newspaper
published an article in which a representative of Plantation Foods stated, “I don’t think everyone
we let go had something to do with this. But some of those we let go, we think, were involved.” Id.
at 462. Three employees who were terminated brought suit, alleging that although they were not
named in the article, anyone knowing them would be aware that the article referred to them. Id.
The court entered summary judgment in favor of Plantation Foods, noting that the statement did
not single out the plaintiffs or “malign the entire group of persons terminated.” Id.

Here, the statement at issue indicates that most of the senior management, including those who
had engaged in the inaccurate reporting, were no longer with Duke Energy. Appellees did not
assert that all who were dismissed were involved in the inaccurate reporting, and thus did not
malign the entire group of persons terminated. In fact, the statement suggests that those involved
in the inaccurate reporting were only a subset of the senior management that were dismissed. We
hold that this statement, like the first, does not refer to Ledig and is insufficient, as a matter of law,
to be capable of defamatory meaning.

Appellees also assert that Ledig was not terminated until November 2002, well afterthe publication
of the alleged statements in August 2002, and that the statements did not refer to Ledig, but
rather to other employees, including Reid and Kramer.

Accordingly, we hold that the trial court did not err in granting summary judgment on Ledig’s
defamation claim.

We overrule Ledig’s fourth issue.

Conclusion

We affirm the judgment of the trial court.

                 Terry Jennings

                 Justice

Panel consists of Justices Nuchia, Jennings, and Higley.