Opinion issued=20
August 3, 2006
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-05-00185-CV
BOONDOGGLES=20
CORPORATION, Appellant
V.
JOHNATHAN F.=20
YANCEY, Appellee
On =
Appeal from the=20
234th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2002-31521
MEMORANDUM=20
OPINION
<=
/SPAN>Appellant, Boondoggles Corporation (Boondoggles =
or the=20
corporation) challenges a judgment that awarded appellee, =
Johnathan F.=20
Yancey, actual damages, attorney=E2=80=99s fees, and costs for his =
claim that=20
Boondoggles breached its employment contract by not paying him the =
bonus=20
of three percent of net sales specified in the contract. Trial was =
to the=20
court, which filed findings of fact and conclusions of law. In six =
points=20
of error, Boondoggles contends that it did not owe a bonus to =
Yancey as a=20
matter of law, because an oral condition precedent to receiving a =
bonus=20
was never fulfilled; that the trial court erred by awarding =
damages for=20
month in which Yancey worked only part of that month and by =
calculating=20
=E2=80=9Cnet sales=E2=80=9D as gross sales minus sales taxes =
collected; that the award of=20
attorney=E2=80=99s fees must be reversed because Yancey did not =
properly designate=20
his counsel as an expert witness; that the trial court erred by =
concluding=20
that the contract was not ambiguous; and that res judicata barred =
Yancey=E2=80=99s=20
claims as a matter of law. We affirm.
Facts =
and=20
Procedural History
<=
/SPAN>Boondoggles=20
is a microbrewery and restaurant in the Clear Lake area of =
Houston.=20
Boondoggles hired Yancey as general manager of the =
restaurant=E2=80=99s operations=20
in July 1999. The corporation had been experiencing financial=20
difficulties, and Yancey was hired because of his experience in =
managing a=20
similar restaurant, in particular, his skills in limiting theft, =
tracking=20
and monitoring inventory, and managing staff. The president and =
secretary=20
of Boondoggles joined Yancey in signing the employment contract on =
July=20
21, 1999, but neither the president nor the secretary testified at =
trial.=20
<=
/SPAN>Yancey=E2=80=99s=20
contract with the corporation confirmed a base salary of $35,000 =
for the=20
year beginning on July 12, 1999 and ending on July 11, 2000 and =
provided=20
for renegotiation before July 11, 2000 =E2=80=9Cto increase the =
base salary and=20
bonus, based on business growth and productivity.=E2=80=9D The =
contract specified=20
that benefits included, but were not limited to, the=20
following:
=E2=80=A2Monthly bonus of 3% of net=20
sales
=E2=80=A2Two weeks paid vacation after =
one year of=20
employment
=E2=80=A2Medical insurance (full =
coverage upon obtaining=20
medical insurance by Boondoggles Corp.)
=E2=80=A2Monthly expenses for cellular=20
phone
=E2=80=A2Automobile mileage for =
business-related=20
expenses.
The terms of the single-page contract =
also=20
proscribed any modification of the contract unless made in writing =
and=20
signed by the parties. The contract did not define the term =
=E2=80=9Cnet=20
sales.=E2=80=9D
<=
/SPAN>While=20
employed at Boondoggles, Yancey became a sixth =
shareholder-director of the=20
closely held corporation. The board later added three additional=20
shareholders. Yancey=E2=80=99s responsibilities included on-site =
management at the=20
Boondoggles restaurant for an average of 60 hours weekly and =
drafting=20
checks for all expenses and salaries, including his own. He also =
kept the=20
corporation=E2=80=99s books until January 2000, when Boondoggles =
hired an=20
independent company for that work. It is undisputed that Yancey =
never=20
wrote a bonus check to himself while working for the corporation.=20
<=
/SPAN>When=20
asked at trial why he did not draft checks payable to himself to =
pay the=20
bonus due, Yancey cited an agreement among the shareholders, which =
included him, to defer payment pending an improved financial =
outlook.=20
Yancey also explained that payment of his bonus had become a =
=E2=80=9Csticking=20
point=E2=80=9D with the board, beginning in October 1999. He =
attested, however, to=20
discussions with other board members in January 2000, in response =
to the=20
board=E2=80=99s requests for an accounting of funds or debts owed =
to Yancey.=20
Yancey claimed that he disclosed $40,000 to $50,000 owed to him, =
which=20
included his unpaid bonuses, as well as debts for reimbursement =
for=20
personal equipment and supplies Yancey brought into the =
corporation.=20
Yancey affirmed that his discussions with board members about =
debts=20
encompassed bonus payments owed to him and others, in addition to =
requests=20
for reimbursement for his equipment and supplies, but the =
Boondoggle=20
representatives who testified at trial denied any request relating =
to=20
Yancey=E2=80=99s bonus.
&=
nbsp;Boondoggles=20
continued to experience financial problems, and the board =
considered=20
liquidating in December 1999. By June 2000, the corporation was =
still=20
losing money and had not turned a profit. On June 11, 2000, the =
board of=20
directors notified Yancey of its decision not to renew his =
contract.=20
Yancey acknowledged receiving this notice, but contended that he =
did not=20
receive a written notice, dated the same day, which asked Yancey =
for a=20
statement of amounts the company owed to him. The record contains =
a copy=20
of the notice, but there is no record evidence that Yancey =
responded to=20
the notice, and it is undisputed that Yancey did not request =
payment of=20
his bonus before leaving Boondoggles.
<=
/SPAN>Later=20
in 2002, Yancey joined two other shareholders as plaintiffs in a=20
shareholder-oppression action against the three majority =
shareholders=20
whose shares at the time totaled 67%. The plaintiffs sought a =
declaration=20
of their respective ownership interests in the Boondoggles =
coporation,=20
actual and punitive damages, and attorney=E2=80=99s fees; the =
majority=20
shareholders filed counterclaims. The bench trial before the same =
trial=20
court that presided over the instant case resulted in no damages, =
with=20
each side bearing its own fees and costs, but the trial =
court=E2=80=99s judgment=20
recites a declaration of the amount and percentage of shares owned =
by each=20
of the nine shareholders. With respect to Yancey, the April 4, =
2002=20
judgment declared his ownership interest as 24,330 shares, or =
1.3268=20
percent Boondoggles=E2=80=99 total shares. The defendants in the =
instant case were=20
declared majority shareholders whose interest totaled 63 percent.=20
<=
/SPAN>Shortly=20
after the shareholder action concluded, and after Yancey =
unsuccessfully=20
demanded payment of Boondoggles pursuant to the bonus and =
vacation-pay=20
provisions of his employment contract, he filed this action on the =
contract. The case was transferred to the trial court on =
Boondoogles=E2=80=99=20
motion. Boondoggles=E2=80=99 answer to Yancey=E2=80=99s petition =
included claims of res=20
judicata, mutual mistake and fraud. Boondoggles sought summary =
judgment on=20
res judicata, but did not prevail.
<=
/SPAN>The=20
trial court ruled in Yancey=E2=80=99s favor and awarded him =
$25,265.20 in actual=20
damages on his claim for unpaid bonuses, and $16,000.00 for =
attorney=E2=80=99s=20
fees, in addition to interest and costs; Yancey did not prevail on =
his=20
claim for unpaid vacation benefits. The trial court filed findings =
of fact=20
and conclusions of law, to which Boondoggles excepted by =
requesting=20
additional findings and conclusions. Boondoggles perfected its =
appeal and=20
filed a cashier=E2=80=99s check in the amount of $43,672.38 in =
lieu of a=20
supersedeas bond.
Standard of=20
Review
=
Five=20
of Boondoggles=E2=80=99 six points of error challenge the trial =
court=E2=80=99s findings=20
of fact and conclusions of law. The=20
trial court=E2=80=99s conclusions of law are reviewable de novo as =
legal=20
questions. State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996); =
McDermott=20
v. Cronin, 31 S.W.3d 617, 623 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2000, no=20
pet.). Conclusions of law will be upheld if the judgment can be =
sustained=20
on any legal theory supported by the evidence unless they are =
clearly=20
erroneous. Tex. Dep=E2=80=99t of Pub. Safety v. Stockton, =
53 S.W.3d 421,=20
423 (Tex. App.=E2=80=94San Antonio 2001, no pet.).=20
=
=
Findings=20
of fact in a case tried to the court have the same force and =
effect as a=20
jury=E2=80=99s verdict on questions and are reviewable for legal =
and factual=20
sufficiency. Anderson v. City of Seven Points, 806 S.W.2d =
791, 794=20
(Tex. 1991); Min v. Avila, 991 S.W.2d 495, 500 (Tex. =
App.=E2=80=94Houston=20
[1st Dist.] 1999, no pet.). When, as here, the =
appellate=20
record contains a complete reporter=E2=80=99s record of the trial, =
the trial=20
court=E2=80=99s fact findings are not conclusive, but subject to =
the same,=20
well-settled standards that govern legal and factual sufficiency=20
challenges to jury findings. Comm=E2=80=99n of Contracts of the =
Gen. Executive=20
Comm. of the Petroleum Workers Union v. Arriba, Ltd., 882 =
S.W.2d 576,=20
582 (Tex. App.=E2=80=94Houston [1st Dist.] 1994, no writ); In =
the Interest of=20
M.J.Z., 874 S.W.2d 724, 728 (Tex. App.=E2=80=94Houston [1st =
Dist.] 1994, no=20
writ).
<=
/SPAN>In=20
determining legal sufficiency, therefore, we apply the analysis =
recently=20
stated by the supreme court in City of Keller v. =
Wilson, 168 S.W.3d 802 =
(Tex.=20
2005), in which the court concluded that =E2=80=9C[t]he final test =
for legal=20
sufficiency must always be whether the evidence at trial would =
enable=20
reasonable and fair-minded people to reach the verdict under =
review.=E2=80=9D=20
Id. at 827. =E2=80=9C[L]egal-sufficiency review in the =
proper light must=20
credit favorable evidence if reasonable jurors could, and =
disregard=20
contrary evidence unless reasonable jurors could not.=E2=80=9D =
Id. We =
may not=20
substitute our judgment for that of the trier-of-fact, here the =
trial=20
court, however, when the evidence falls within a zone of =
reasonable=20
disagreement, and although we must =
=E2=80=9Cconsider evidence=20
in the light most favorable to the judgment, and indulge every =
reasonable=20
inference that would support it . . . , [i]f the evidence allows =
of only=20
one inference, neither [the trier-of-fact] nor the reviewing court =
may=20
disregard it.=E2=80=9D See id. at 822, =
827.
<=
/SPAN>In determining =
factual=20
sufficiency, we must weigh all the evidence, both supporting and=20
conflicting, and may set the finding aside only if it is so =
contrary to=20
the overwhelming weight of the evidence as to be clearly wrong and =
manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. =
1986);=20
In re King=E2=80=99s Estate, 244 S.W.2d 660, 661 (Tex. =
1951);=20
Arriba, 882 S.W.2d at 582.
=
Several=20
of Boondoggles=E2=80=99 points of error also require that we =
analyze Yancey=E2=80=99s=20
employment contract with Boondoggles. Courts construe contracts as =
a=20
matter of law and enforce an unambiguous contract as written.=20
See SAS Inst., Inc. v. Breitenfeld, 167 =
S.W.3d 840,=20
841 (Tex. 2005) (quoting Coker v. Coker, 650 S.W.2d 391, =
393 (Tex.=20
1983)); Lopez v.=20
Mu=C3=B1oz, Hockema & Reed, L.L.P., 22 S.W.3d 857, =
862 (Tex.=20
2000). A basic rule of contract law requires courts to give =
plain=20
meaning to the words used in the writing. See City of Pinehurst =
v.=20
Spooner Addition Water Co., 432 S.W.2d 515, 518-19 (Tex. =
1968). Our=20
primary concern in construing a written contract is to ascertain =
the true=20
intent of the parties as expressed in the instrument. Forbau v. =
Aetna=20
Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994); Coker, =
650=20
S.W.2d at 393. In interpreting a written contract to ascertain the =
parties=E2=80=99 intent, we must examine and consider the entire =
writing in an=20
effort to harmonize and give effect to all provisions of the =
contract so=20
that none will be rendered meaningless. Coker, 650 S.W.2d =
at 393;=20
Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, =
158 (Tex.=20
1951). Thus, no single provision taken alone will be given =
controlling=20
effect, and all provisions must be considered with reference to =
the whole=20
instrument. Coker, 650 S.W.2d at 393; Myers v. Gulf =
Coast=20
Minerals Mgmt. Corp., 361 S.W.2d 193, 196 (Tex. 1962). =
A. Challenge=20
to Yancey=E2=80=99s Entitlement to Bonus
<=
/SPAN>Boondoggles=E2=80=99=20
first point of error challenges the trial court=E2=80=99s =
conclusions of law one=20
and seven and its eighth finding of fact, which =
state,
Conclusions of =
Law:
1.Boondoggles Corp. is indebted to =
Johnathan F.=20
Yancey in the amount of $25,265 representing 3% of net sales =
during his=20
employment.
7.Johnathan F. Yancey=E2=80=99s right to =
collection of his=20
indebtedness is due.
Finding of Fact
8.Boondoggles failed to pay Johnathan F. =
Yancey=20
his monthly bonus of 3% of net sales for any of the months that he =
was=20
employed.
<=
/SPAN>Boondoggles=20
challenges these rulings on several grounds, in particular through =
Yancey=E2=80=99s trial testimony that he could, but never did, =
write himself a=20
bonus check; testimony by Dominic Gelfo, a shareholder who stated =
that the=20
board did not plan =E2=80=9Con making an incentive =
program=E2=80=9D until =E2=80=9Cwe were making=20
money=E2=80=9D; and minutes of the =E2=80=9Cinformal=E2=80=9D July =
5, 1999 board meeting held to=20
address hiring Yancey=E2=80=99s hiring. ![3DFootnote](3D"")
In addition to noting Yancey=E2=80=99s =
qualifications and=20
his willingness =E2=80=9Cto work at least 60 hrs a week,=E2=80=9D =
the July 5, 1999 minutes=20
recite that Yancey =E2=80=9Cwill start for $35,000 with expenses =
and then when=20
business improves an incentive program . . . . We discussed 3% of =
net as=20
the incentive.=E2=80=9D
<=
/SPAN>None=20
of this testimony, however, alters the terms of the employment =
contract=20
that Yancey signed after the informal board meeting cited =
above, on=20
July 21, 1999, and that the president and the secretary of the =
Boondoggles=20
corporation also signed. These terms state that benefits =
=E2=80=9Cshall include,=20
but are not limited to . . . [m]onthly bonus of 3% of net =
sales.=E2=80=9D In=20
addition, the contract refers to the bonus a second time by =
referring to=20
both the bonus and the base salary as terms to be renegotiated =
before the=20
single-year contract expired. Although Boondoggles disputes the =
meaning of=20
=E2=80=9Cnet sales=E2=80=9D in this contract, the corporation has =
never disputed that the=20
face of the contract mandates the payment or claimed that it paid =
Yancey=E2=80=99s=20
bonus. Similarly, Gelfo=E2=80=99s recollection of the =
board=E2=80=99s =E2=80=9Cintent=E2=80=9D before the=20
contract was signed does not alter the undisputed terms of the =
contract=20
that both sides signed, which negate that intent by imposing no =
conditions=20
on Yancey=E2=80=99s receiving a bonus. Instead, the terms mandate =
that benefit.=20
See Forbau, 876 S.W.2d at 133; Coker, 650 S.W.2d at=20
393
<=
/SPAN>Boondoggles=20
further emphasizes that Yancey did not write any bonus checks to =
himself,=20
although, as manager, he could have, to support its contention =
that Yancey=20
had =E2=80=9Centered into an oral agreement with the board =
directors that his=20
bonus was not due until such time as Boondoggles had the ability =
to fund=20
the payment=E2=80=9D and, therefore, that Yancey and the board had =
agreed to a=20
condition precedent, specifically, a sufficiently solvent =
financial status=20
for the corporation, that would have to occur before Boondoggles =
had any=20
duty to pay Yancey his bonus. Because that condition precedent =
never=20
occurred, Boondoggles argues that its indebtedness never became =
due,=20
despite Yancey=E2=80=99s pretrial demand.
<=
/SPAN>A condition =
precedent is an=20
event that must happen or be performed before a right can accrue =
to=20
enforce an obligation. Centex Corp. v. Dalton, 840 S.W.2d =
952, 956=20
(Tex. 1992). Contract law recognizes two types of conditions =
precedent:=20
those that must occur before a contract can be considered formed =
and those=20
that must occur before an obligation to perform an existing =
agreement can=20
occur. Hohenberg Bros. v. George E. Gibbons & Co., 537 =
S.W.2d=20
1, 3 (Tex. 1976). Boondoggles argues that a condition =
precedent to=20
performance not only arose in this case, but also absolved the =
corporation=20
of any duty to pay because the requisite financial solvency never=20
occurred. Because Yancey=E2=80=99s pleadings stated that all =
conditions precedent=20
to receiving the bonus had occurred, and because Boondoggles =
answered in=20
part by disputing that all conditions precedent had occurred, =
Boondoggles=20
argues that Yancey had the burden to prove compliance with all =
conditions=20
precedent. See Tex. R. Civ.=20
P. 54; Betty Leavell Realty Co. v. Raggio, 669 =
S.W.2d 102,=20
104 (Tex. 1984) (stating that plaintiff must prove satisfaction of =
condition precedent when defendant disputes that assertion).=20
<=
/SPAN>Boondoggles=20
contends that the following response by Yancey, when his trial =
counsel=20
inquired why Yancey wrote no bonus checks to himself, underscores =
its=20
condition-precedent theory:
I didn=E2=80=99t write my bonus checks =
for the reason=20
being, it was agreed upon with the Board of Directors and with =
Steve=20
Roberts and Dave Glover, which were the president and secretary of =
the=20
corporation, whom [sic] it was discussed that the corporation was =
not able=20
to pay those bonuses.
And so, we agreed upon when the =
corporation and=20
also, I had become a shareholder as well, [a]nd knowing if I paid =
myself,=20
then, it would send the company, you know, even more in the =
negative. And=20
so, it was agreed upon by the board that I would hold off my =
bonuses=20
until the corporation was able to take care of those =
responsibilities.=20
[Emphasis added.] Boondoggles supports =
its=20
interpretation of Yancey=E2=80=99s testimony by emphasizing that =
Yancey ignored=20
two invitations to submit a statement of debts owed by the =
corporation.=20
<=
/SPAN>But,=20
in merely agreeing to =E2=80=9Chold off,=E2=80=9D or defer, =
payment of Boondoggles=E2=80=99=20
indebtnedness, Yancey did not agree to modify the terms of his =
contract of=20
employment by adding a condition to the otherwise unconditional =
and=20
unambiguous statement of indebtedness stated in that contract. =
See=20
Okemah Const., Inc. v. Barkley-Farmer Inc., 583 S.W.2d 458, =
460 (Tex.=20
Civ. App.=E2=80=94Houston [1st Dist.] 1979, no writ). To be =
effective, a=20
modification must be supported by additional consideration, which =
was not=20
shown here. See id. (stating that agreeing to do what is =
already=20
required does not constitute new consideration). Moreover the =
terms of the=20
contract here expressly state that any modification would have to =
be in=20
writing and signed by both Yancey and the corporation to be =
effective. We=20
agree with Yancey, who contends, as in the trial court, that =
Boondoggles=20
had the burden to prove that the parties had modified =
Yancey=E2=80=99s employment=20
contract and had supported that modification with new =
consideration,=20
see Okemah Const., Inc., 583 S.W.2d at 460, and through=20
sufficiently ascertainable terms that would enable the court =
construing=20
the agreement to determine the parties=E2=80=99 obligations, =
see T.O. Stanley=20
Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992), =
which=20
burden Boondoggles did not meet.
<=
/SPAN>In=20
addition, as Yancey explained in the excerpt of his testimony =
quoted=20
above, his decision not to pay himself a bonus derived from his =
status as=20
a shareholder in fall 1999, whose first responsibility was to the=20
corporation, rather than his status as an employee when he first =
signed=20
the contract. The record reflects that when the board considered=20
liquidation in January 2000, Boondoggles=E2=80=99s debts totaled =
between $40,000=20
and $50,000. Accordingly, any decision by Yancey to pay himself =
the bonus=20
owed would have conflicted with his shareholder duties to the =
corporation=20
by compounding its financial difficulties. See generally =
Int=E2=80=99l Bankers=20
Life Ins. Co. v. Holloway, 368 S.W.2d 567, 577 (Tex. 1963) =
(stating=20
that corporate officer=E2=80=99s fiduciary duty encompasses duty =
not to usurp=20
corporate opportunities for personal gain). Yancey further =
explained,=20
moreover, that all check drafting he performed as manager was =
subject to=20
the approval of the board of directors and that he =E2=80=9Ccould =
not do anything=E2=80=9D=20
without board approval.
<=
/SPAN>Boondoggles=E2=80=99=20
emphasis on Yancey=E2=80=99s alleged failure to include the bonus =
owed in two=20
requests for indebtedness also fails to preclude Yancey=E2=80=99s =
entitlement to=20
the bonus as a matter of law. Yancey contested =
Boondoggles=E2=80=99 assertion by=20
describing several informal discussions with board members that =
addressed=20
the as-yet-unpaid bonus and stated that the bonus had become a =
=E2=80=9Csticking=20
point=E2=80=9D with the board. With respect to =
Boondoggles=E2=80=99 claim that it had=20
twice requested a listing of debts owed, Yancey acknowledged the=20
corporation=E2=80=99s first, oral request, which coincided with =
the possible=20
liquidation of Boondoggles in January 2000. According to Yancey, =
his=20
response to the request included not only the personal brewing =
equipment=20
and supplies that he had brought into the business, but also his =
own and=20
others=E2=80=99 unpaid bonuses. Yancey disputed ever receiving =
Boondoggles second,=20
written request in June 2000 for a statement of funds owed.=20
<=
/SPAN>On=20
reviewing the contentions of both parties within the confines of =
the=20
record and the applicable standards of review, we conclude that, =
in=20
construing the contract as a matter of law, the trial court =
impliedly=20
concluded that no condition precedent to performance of the duty =
to pay=20
Yancey his bonus had arisen and, therefore, that Boondoggles did =
not meet=20
its burden to establish that the parties had modified the terms of =
Yancey=E2=80=99s employment contract, which, we further note, =
expressly forbade=20
all but written and agreed-upon modifications. See Okemah =
Const.=20
Inc., 583 S.W.2d at 460. This implied legal conclusion =
supports the=20
trial court=E2=80=99s express conclusion number one, that =
Boondoggles is indebted=20
to Yancey.
Boondoggles=E2=80=99 challenge to the =
trial court=E2=80=99s eighth=20
fact finding, which states that Boondoggles failed to pay Yancey =
his=20
monthly bonus while he was employed, is premised, in turn, on =
Boondoggles=E2=80=99=20
oral condition-precedent and modification theories, which we have=20
rejected, and therefore lacks merit. Because the only inference =
permitted=20
by the record is that Boondoggles did not pay Yancey the bonus =
required by=20
his contract, we may not disregard that evidence and therefore =
hold that=20
the evidence is legally sufficient to support the trial =
court=E2=80=99s eighth=20
fact finding. See City of Keller, 168 S.W.3d at 827. Having =
reviewed the record, we further find that this finding is not so =
contrary=20
to the overwhelming weight of the evidence as to be clearly wrong =
and=20
manifestly unjust. See Cain, 709 S.W.2d at =
176.
<=
/SPAN>Having=20
concluded that the trial court properly found that Boondoggles =
never paid=20
Yancey the bonus required by his contract of employment and that =
Yancey=20
demanded payment before filing this action, the trial court =
correctly=20
ruled, in conclusion of law seven, that Yancey=E2=80=99s right to =
collect was due.=20
<=
/SPAN>We=20
overrule Boondoggles=E2=80=99 first point of =
error.
B. Challenge=20
to Calculation of Damages Due
<=
/SPAN>1. Remittitur=
=20
for Miscalculation?
<=
/SPAN>In=20
its second point of error, Boondoggles further challenges =
conclusion of=20
law one on the grounds that the total of damages awarded results =
from=20
miscalculation and requires a remittitur because the award =
includes=20
payment for the full month of July 1999, but Yancey did not begin =
working=20
until July 12, 1999. The total of damages, however, is premised on =
finding=20
of fact nine, which Boondoggles also challenges and which states, =
=E2=80=9CThree=20
percent of net sales for the period of July 12, 1999 to July 12, =
2000,=20
calculates to $25,265.20.=E2=80=9D Yancey explained at trial that =
his calculation=20
of damages included the first 11 days of July 1999, when he =
admittedly did=20
not work, but excluded the first 11 days of July 2000, when he =
did.=20
Boondoggles contends that there is no basis on which to assume =
that the=20
calculations for each of those time periods are interchangeable =
and,=20
therefore, that there is nothing from which the trial court could =
have=20
calculated the amount of sales for July 2000. Yancey disagrees; we =
agree=20
with Yancey.
<=
/SPAN>It=20
is undisputed that all damages calculations derived from =
Yancey=E2=80=99s trial=20
exhibit five. Exhibit five, however, is derived, in turn, from =
Yancey=E2=80=99s=20
trial exhibit four, which consists of State of Texas sales-tax =
records.=20
The table or chart of exhibit five includes a month-by-month =
calculation=20
of total sales and total sales taxes. As Yancey acknowledged, the =
table=20
includes the month of July 1999, but omits the month of July 2000. =
Despite=20
Boondoggles=E2=80=99 contention that the trial court had no =
evidence from which to=20
determine Yancey=E2=80=99s three percent commission for July 2006, =
the=20
state-sales-tax records that are the source of the data in the =
table,=20
include statistics for all months of the year 2000. According to =
these=20
records, Boondoggles=E2=80=99 sales for July 2000 totaled =
$83,196.00, which=20
incurred a tax liability of $2,035.55, and a net-sale total of =
$81,160.45.=20
At the rate of three percent, the net-sale total resulted in a =
bonus for=20
the entire month of $2,434.81. Reducing that total proportionally =
for 11=20
out of 31 days in July that Yancey worked results in a bonus due =
of=20
$863.96. Yancey=E2=80=99s calculations in his trial exhibit four, =
however, which=20
are premised on the July 1999 sales-tax records, result in a total =
of only=20
$826.60. In short, the calculations that Boondoggles challenges =
actually=20
benefitted Boondoggles by requesting a lesser bonus than was due.=20
<=
/SPAN>We=20
overrule Boondoggles=E2=80=99 second point of error. =
<=
/SPAN>2.=20
Meaning of =
=E2=80=9CNet=20
Sales=E2=80=9D
<=
/SPAN>Point=20
of error four challenges the trial court=E2=80=99s fourth fact =
finding, which=20
states, =E2=80=9CNet sales means gross sales minus sales taxes =
collected.=E2=80=9D This=20
finding is crucial to Yancey=E2=80=99s case because the three =
percent bonus due=20
Yancey was calculated based on that definition. The record =
reflects that=20
Boondoggles conceded in its motion for new trial that the trial =
court=20
relied on the table shown on Yancey=E2=80=99s trial exhibit five =
in awarding=20
damages. This table calculates =E2=80=9Cnet sales=E2=80=9D as the =
remainder after=20
subtracting sales tax from total sales. In the same motion, =
Boondoggles=20
acknowledged that the =E2=80=9Cevidence of what constituted =
=E2=80=9Cnet sales[,]=E2=80=9D . . .=20
the term used in the parties=E2=80=99 contract, came only from =
[Yancey].=20
<=
/SPAN>Boondoggles,=20
however, offered no evidence on the meaning of =E2=80=9Cnet =
sales=E2=80=9D and instead=20
mounted legal arguments during opening statements before the trial =
court=20
and in an objection to testimony by Yancey that his method of =
calculating=20
net sales was common in the restaurant industry. The trial court =
sustained=20
the objection by Boondoggles that Yancey was not qualified as an =
expert in=20
the accounting or restaurant business. Yancey later explained, =
however,=20
that the corporation commonly used the term to refer to sales =
after taxes=20
and also referred to the financial reports prepared by the =
accounting firm=20
that took over Yancey=E2=80=99s role as bookkeeper. Boondoggles =
prevailed=20
initially on a hearsay objection to testimony derived from the =
reports,=20
but the trial court permitted Yancey=E2=80=99s counsel to solicit =
testimony for=20
the limited purpose of demonstrating that the =
corporation=E2=80=99s financial=20
reports used the term =E2=80=9Cnet sales=E2=80=9D in the same =
manner proposed by Yancey.=20
Moreover, in response to cross-examination questions by =
Boondoogles,=20
Yancey twice testified that =E2=80=9Cnet sales,=E2=80=9D as =
referred to in his contract,=20
meant =E2=80=9Csales after taxes.=E2=80=9D
<=
/SPAN>The=20
trial court confronted Boondoggles with its failure of proof =
during=20
Boondoggles=E2=80=99 counsel=E2=80=99s final argument, by asking =
three times whether=20
Boondoggles had put on evidence of the meaning of net sales, and, =
if so,=20
what that evidence was.
Boondoggles first claimed that Yancey =
had the=20
burden to establish the term and then claimed that the record was=20
inconclusive on the meaning of the term. Twice confronted with =
=E2=80=9CThat=E2=80=99s not=20
what I asked=E2=80=9D responses by the trial court, =
Boondoggles=E2=80=99 counsel conceded=20
that the corporation had provided =E2=80=9Cno testimony whatsoever =
. . .=E2=80=9D and=20
reiterated its theory that lack of any profit precluded any bonus =
due.=20
<=
/SPAN>Having=20
reviewed the record within the confines of the applicable standard =
of=20
review, we conclude that the only inference permitted by the only =
evidence=20
before the trial court is that =E2=80=9Cnet sales=E2=80=9D meant =
total sales minus sales=20
taxes for purposes of calculating Yancey=E2=80=99s three-percent =
bonus. Just as=20
the trial court could not disregard that evidence, we may not =
disregard it=20
and therefore hold that the evidence is legally sufficient to =
support the=20
trial court=E2=80=99s fifth fact finding. See City of =
Keller, 168 S.W.3d at=20
827. We further find that this finding is not so contrary to the=20
overwhelming weight of the evidence presented to the trial court =
as to be=20
clearly wrong and manifestly unjust. See Cain, 709 S.W.2d =
at=20
176.
<=
/SPAN>We=20
overrule Boondoggles=E2=80=99 fourth point of =
error.
C. Alternative=20
Challenge to Conclusion that Contract Not=20
Ambiguous
<=
/SPAN>In=20
its fifth point of error, Boondoggles raises an alternative =
challenge to=20
the trial court=E2=80=99s ninth conclusion of law, which states =
that Yancey=E2=80=99s=20
employment contract was not ambiguous. Boondoggles argues that the =
meaning=20
of the term =E2=80=9Cnet sales=E2=80=9D rendered Yancey=E2=80=99s =
employment contract ambiguous=20
and that we must, therefore, remand the cause for a new trial to =
determine=20
the meaning of the term.
<=
/SPAN>We=20
review the trial court=E2=80=99s conclusion of no ambiguity de =
novo. Heal,=20
917 S.W.2d at 9; see MJR Corp. v. B&B Vending Co., 760 =
S.W.2d=20
4, 10 (Tex. App.=E2=80=94Dallas 1988, writ denied). A court may =
analyze a contract=20
for ambiguity even when, as here, neither party has raised the =
issue in=20
its pleadings. See Sage Street Assocs. v. Northdale Constr. =
Co.,=20
863 S.W.2d 438, 445 (Tex. 1993); Sun Oil Co. v. Madeley, =
626 S.W.2d=20
726, 731-32 (Tex. 1981); City of Pinehurst, 432 S.W.2d at=20
518=E2=80=9319.
<=
/SPAN>Whether=20
a contract is ambiguous is a question that the court decides as a =
matter=20
of law by examining the contract as a whole in light of the =
circumstances=20
present when it was executed. J.M Davidson, Inc. v. =
Webster, 128=20
S.W.3d 223, 229 (Tex. 2003); Lenape Resources Corp. v. Tenn. =
Gas=20
Pipeline Co., 925 S.W.2d 565, 574 (Tex. 1996). If, after =
applying the=20
pertinent rules of construction to the face of the contract, the =
court=20
concludes that the contract is subject to two or more reasonable=20
interpretations, the contract is ambiguous. See =
Universal C.I.T.=20
Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (Tex. 1951); =
see also=20
JM Davidson, Inc., 128 S.W.3d at 229 (concluding that =
arbitration=20
agreement ambiguous because court could not determine from face of =
agreement whether clause affording employer unilateral right to =
abolish or=20
modify =E2=80=9Cpersonnel policies=E2=80=9D applied to arbitration =
agreement itself so=20
that it, too, was a =E2=80=9Cpersonnel policy=E2=80=9D). A =
contract is not ambiguous,=20
however, simply because the parties offer conflicting =
interpretations of=20
its terms. Am. Mfrs. Mut. Ins. Co. v. Schafer, 124 S.W.3d =
154, 157=20
(Tex. 2003); Lopez, 22 S.W.3d at 861; Columbia Gas =
Transmission=20
Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). =
An=20
ambiguity arises only if both interpretations are =
reasonable.=20
Columbia Gas Transmission Corp., 940 S.W.2d at 589 =
(emphasis in=20
original).
<=
/SPAN>Settled=20
law recognizes the trial court=E2=80=99s authority to hear and =
consider extrinsic=20
evidence of the circumstances surrounding the formation and =
execution of=20
the contract and to apply the rules of contract construction when =
the=20
parties to a contract offer competing interpretations. See =
Columbia Gas=20
Transmission Corp., 940 S.W.2d at 591; Sun Oil =
Co., 626=20
S.W.2d at 731-32; City of Pinehurst, 432 S.W.2d at 518-19. =
The=20
extrinsic evidence offered to the court does not necessarily =
create a=20
triable issue of fact concerning the parties=E2=80=99 intent in =
forming the=20
contract. See Columbia Gas Transmission Corp., 940 S.W.2d =
at 592=20
(holding that extrinsic evidence of circumstances surrounding =
execution of=20
contract did not give rise to triable issue of fact regarding =
parties=E2=80=99=20
intent). Extrinsic evidence is admissible to clarify, explain, or =
give=20
meaning to terms of a contract that are facially incomplete, =
provided the=20
evidence does not attempt to provide essential terms or vary or =
contradict=20
other terms of the contract that are unambiguous, complete, and =
final.=20
See Tex. Builders v. Keller, 928 S.W.2d 479, 481 (Tex. =
1996);=20
Warren Bros. v. A.A.A. Pipe Cleaning Co., 601 S.W.2d 436, =
438-39=20
(Tex. Civ. App.=E2=80=94Houston [1st Dist.] 1980, writ =
ref=E2=80=99d=20
n.r.e.).
<=
/SPAN>Boondoggles=E2=80=99=20
answer to Yancey=E2=80=99s petition shows that the meaning of the =
term =E2=80=9Cnet sales=E2=80=9D=20
was a crucial determination in this case. In its answer, =
Boondoggles=20
disputed Yancey=E2=80=99s method of calculating his bonus by =
maintaining that the=20
bonus was a function of net profit and not gross profit. Having =
disputed=20
Yancey=E2=80=99s method, Boondoggles had the burden to =
substantiate its proffered=20
method, not only legally, but also factually. See, e.g., Lone =
Star Gas=20
Co. v. McCarthy, 605 S.W.2d 653, 656-57 (Tex. Civ. =
App.=E2=80=94Houston [1st=20
Dist.] 1980, writ ref=E2=80=99d n.r.e.) (construing meaning of =
term propounded by=20
appealing party=E2=80=99s interpretation under both the =
substantive law and=20
realities of oil and gas business). The trial court=E2=80=99s =
questions to=20
Boondoggles during closing argument clarify that Boondoggles did =
not meet=20
that burden and even conceded that it offered =E2=80=9Cno =
testimony whatsoever=E2=80=9D to=20
support its interpretation. Instead, Boondoggles relied on its =
legal=20
contentions that net sales were necessarily a function of net, =
rather than=20
gross, profit; and that Yancey had agreed to a condition precedent =
to=20
performance of the contract that was consistent with that theory. =
As=20
addressed above, the latter contention has no merit. =
<=
/SPAN>Yancey,=20
on the other hand, relied on three types of extrinsic evidence to =
clarify,=20
explain, and demonstrate that the term =E2=80=9Cnet sales=E2=80=9D =
meant sales after=20
taxes, as follows: common usage of the term with that meaning by =
the=20
corporation, State of Texas records used to establish sales taxes =
that=20
Boondoggles was obligated to pay, and financial statements =
prepared for=20
Boondoggles by an independent accounting firm. See Tex. =
Builders,=20
928 S.W.2d at 481; Warren Bros., 601 S.W.2d at 438-39. The =
trial=20
court agreed with Yancey, and, as we held above, the evidence was =
both=20
legally and factually sufficient to support the trial =
court=E2=80=99s finding.=20
Because Yancey thus met his burden by clarifying, explaining, and =
giving=20
meaning to the disputed term and did not attempt to vary or =
contradict the=20
otherwise unambiguous terms of his contract, the trial court did =
not err=20
by stating, in its ninth conclusion of law, that the employment =
contract=20
was unambiguous. See Tex. Builders, 928 S.W.2d at 481; =
Warren=20
Bros., 601 S.W.2d at 438-39. We overrule Boondoggles=E2=80=99 =
fifth point of=20
error.
D. Challenge=20
to Admissibility of Testimony on Attorney=E2=80=99s =
Fees
<=
/SPAN>Boondoggles=E2=80=99=20
third point of error challenges the admissibility of =
Yancey=E2=80=99s counsel=E2=80=99s=20
testimony to support the trial court=E2=80=99s award of =
attorney=E2=80=99s fees.=20
Boondoggles contends that the trial court should have excluded the =
testimony and the time records on which counsel relied because =
Yancey did=20
not properly designate counsel as a witness in response to =
Boondoggles=E2=80=99=20
request for disclosure. Because counsel=E2=80=99s testimony was =
the only evidence=20
offered in support of the $16,000 awarded to Yancey as =
attorney=E2=80=99s fees,=20
Boondoggles further contends that the award should be vacated.=20
<=
/SPAN>The=20
trial court=E2=80=99s evidentiary rulings are reviewable for abuse =
of discretion.=20
Morrow v. H.E.B., 714 S.W.2d 297, 298 (Tex. 1986). A trial =
court=20
abuses its discretion when it acts arbitrarily or unreasonably and =
without=20
reference to any guiding rules or principles. Walker v. =
Packer, 827=20
S.W.2d 833, 839 (Tex. 1992). A trial court has no discretion, =
however, in=20
determining what the law is, which law governs, or how to apply =
the law,=20
and we therefore review those rulings de novo. See Walker, =
827=20
S.W.2d at 840; Phoenix Network Techs., Ltd. v. Neon Sys, =
Inc., 177=20
S.W.3d 605, 611 (Tex. App.=E2=80=94Houston [1st Dist.] 2005, no =
pet. h.). When we=20
review a discretionary ruling that results from the trial =
court=E2=80=99s having=20
resolved underlying facts, we must defer to the trial =
court=E2=80=99s factual=20
resolutions and any credibility determinations that may have =
affected=20
those resolutions and may not substitute our judgment for the =
trial=20
court=E2=80=99s judgment in those matters. See Walker, 827 =
S.W.2d at=20
839=E2=80=9340.
<=
/SPAN>Boondoggles=20
relies on E.F. Hutton Co. v. Youngblood, 741 S.W.2d 363, =
364 (Tex.=20
1987), in which the supreme court, interpreting former Tex. R. Civ. P. 215.5, =
held that a=20
party=E2=80=99s complete failure to disclose that its counsel =
would testify=20
warranted exclusion of counsel=E2=80=99s testimony as a sanction. =
This case,=20
however, is governed by Tex. R.=20
Civ. P. 193.6. Rule 193.6 states that party who does not =
respond to=20
a discovery request to name a witness may not offer the testimony =
of a=20
witness not so identified, but further provides that the court may =
permit=20
the testimony on finding good cause or that the failure to respond =
timely=20
will not unfairly surprise the opponent. Tex. R. Civ. P.=20
193.6.
<=
/SPAN>Boondoggles=20
is correct in contending that the record on appeal does not =
contain a copy=20
of Yancey=E2=80=99s response to Boondoggles=E2=80=99 request for =
disclosure. In accordance=20
with recent changes in the rules of discovery aimed at resolving =
storage=20
problems by reducing the amount of documents filed before trial, =
however,=20
discovery responses are not filed pretrial, but reserved until =
needed at=20
trial. See Tex. R. =
Civ.=20
P. 191.4(a)(2); Chris=20
Griesel, The =E2=80=9CNew=E2=80=9D Discovery Rules: =
Three Years Later Are Old=20
Dogs Learning New Tricks?, 15th Annual Advanced Evidence & =
Discovery Course =C2=A7 VI(A)(4) at 6. In response to Boondoggles =
counsel=E2=80=99s=20
objection that he had not received the responses, Yancey=E2=80=99s =
counsel=20
informed the trial court that his records indicated that the =
response had=20
been faxed to opposing counsel on October 21, 2003. As =
supplemented by=20
Yancey, the record on appeal contains the certificate of written =
discovery=20
that Yancey=E2=80=99s counsel filed with the trial court on =
October 23, 2003 to=20
indicate that the response had been served on opposing counsel. =
This=20
certificate recites that Yancey had served the response to =
Boondoggles=E2=80=99=20
request for disclosure two days earlier, but had not filed a copy =
with the=20
court at that time, in compliance with the rules. See Tex. R. Civ. P. =
194.(a)(2). The=20
record on appeal, as supplemented, further establishes that Yancey =
properly designated his counsel as his expert on =
attorney=E2=80=99s fees in=20
February 2003, as follows: =E2=80=9CHe is plaintiff=E2=80=99s =
attorney. He is familiar=20
with the reasonable and necessary fees and expenses in prosecuting =
plaintiff=E2=80=99s claim.=E2=80=9D
<=
/SPAN>The=20
award of attorney=E2=80=99s fees in this case is governed by Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 38.001(8) (Vernon Supp. 2005), which authorizes =
the award of=20
reasonable attorney=E2=80=99s fees and costs to a party who =
prevails in an action=20
for breach of an oral or written contract. Section 38.001(8) is =
part of=20
chapter 38 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 38.001=E2=80=93.006 (Vernon 1997). Section =
38.003 of chapter 38=20
creates a rebuttable presumption that the =E2=80=9Cusual and =
customary attorney=E2=80=99s=20
fees=E2=80=9D are reasonable for a chapter 38 claim. See =
Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 38.003; Gen. Elec. Supply Co. v. Gulf =
Electroquip,=20
Inc., 857 S.W.2d 591, 601 (Tex. App.=E2=80=94Houston [1st =
Dist.] 1993, no=20
writ) (noting that section 38.003 presumption does not apply if=20
reasonableness of fees not controverted). Moreover, pursuant to =
section=20
38.004 of Chapter 38, a trial court may take judicial =
notice=E2=80=94without=20
receiving further evidence=E2=80=94not only of the usual and =
customary attorney=E2=80=99s=20
fees, but also of the contents of the court=E2=80=99s file. =
See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 38.004; Gill Sav. Ass=E2=80=99n v. Chair =
King, Inc., 797=20
S.W.2d 31, 32 (Tex. 1990); see also Purvis Oil Corp. v. =
Hillin, 890=20
S.W.2d 931, 939 (Tex. App.=E2=80=94El Paso 1994, no writ) (further =
holding that=20
appellate court may presume that trial court took judicial notice=20
authorized by chapter 38); Holley v. Holley, 864 S.W.2d =
703, 706=20
(Tex. App.=E2=80=94Houston [1st Dist.] 1993, no writ) (same). =
<=
/SPAN>Given=20
the statutory framework of chapter 38, and the standards stated in =
rule=20
193.6 for permitting testimony upon an objection premised on =
allegations=20
of lack of compliance with a discovery request, and =
Yancey=E2=80=99s=20
representations to the trial court in response to =
Boondoggles=E2=80=99 objections,=20
we conclude that the trial court properly construed the governing=20
principles of both chapter 38 and rule 193.6. See Walker, =
827=20
S.W.2d at 840. We further conclude, on reviewing the record on =
appeal,=20
including the supplemental clerk=E2=80=99s record provided by =
Yancey, and=20
deferring to the determinations by the trial court that may have =
depended=20
on credibility determinations, that we cannot say that the trial =
court=20
abused its discretion by permitting Yancey=E2=80=99s counsel to =
testify and by=20
overruling Boondoggles=E2=80=99 objections to Yancey=E2=80=99s =
counsel=E2=80=99s relying on his=20
billing records.
<=
/SPAN>We=20
overrule Boondoggles=E2=80=99 third point of =
error.
E. Res=20
Judicata Challenge
<=
/SPAN>In=20
its sixth point of error, Boondoggles presents a two-pronged =
challenge to=20
the trial court=E2=80=99s sixth conclusion of law, which states =
that Yancey=E2=80=99s=20
right to collection of his indebtedness is not barred by res=20
judicata.
Although Boondoggles does not challenge =
them=20
specifically, we note further that the trial court=E2=80=99s =
findings of fact 15=20
through 17 state the following:
15.Case 1 was an equitable minority =
shareholder=20
oppression case.
16.Case 2 (the instant case) is a breach =
of=20
employment case.
17.Boondoggles Corp. was not a party in =
Case=20
1.
<=
/SPAN>Res=20
judicata prevents parties and their privies from relitigating a =
cause of=20
action that has been finally adjudicated by a competent tribunal.=20
Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, =
206=20
(Tex. 1999). Res judicata precludes claims or defenses that, =
through=20
diligence, should have been litigated in the prior suit but were =
not; the=20
doctrine is intended to prevent causes of action from being split =
and thus=20
to curb vexatious litigation and promote judicial economy. =
Id. at=20
207. Texas applies the =E2=80=9Ctransactional test=E2=80=9D test =
to claims of res=20
judicata. Barr v. Resolution Trust Corp., 837 S.W.2d 627, =
629-30=20
(Tex. 1992). To prevail on its claim of res judicata, Boondoggles =
had to=20
establish (1) a prior final judgment on the merits by a court of =
competent=20
jurisdiction, (2) identity of parties or those in privity with =
them, and=20
(3) a second action based on the same claims as were raised or =
could have=20
been raised in the first action. See id. at 629. =
<=
/SPAN>Boondoggles=20
contends Yancey could have asserted his claims in the first suit, =
the=20
shareholder-oppression lawsuit (case 1) and that the majority=20
shareholder-defendants in the first suit were in privity with =
Boondoggles,=20
the defendant in the second suit. Because Yancey did not assert =
his claims=20
in the first suit, Boondoggles contends that his claims are =
barred.=20
<=
/SPAN>Determining=20
whether Yancey=E2=80=99s breach-of-contract claim could have been =
brought in the=20
first suit requires an analysis of the factual basis of the =
respective=20
claims. See id. at 630. Analogizing the principles that =
control res=20
judicata to those that govern compulsory counterclaims, the =
supreme court=20
has instructed that the factors that will determine whether res =
judicata=20
applies include the following: (1) whether the claims sought to be =
barred=20
arise out of the same transaction or occurrence as the first suit =
and (2)=20
whether those claims are against the opposing party in the same =
capacity.=20
See Ingersoll-Rand Co., 997 S.W.2d at 207; Gracia v. RC =
Cola=20
7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984) =
(holding=20
that res judicata did not bar suit by woman in individual capacity =
who had=20
signed prior agreed judgment solely in representative capacity as =
next=20
friend of daughter); see also Guest v. Cochran, 993 S.W.2d =
397, 405=20
(Tex. App.=E2=80=94Houston [14th Dist.] 1999, no pet.) =
(distinguishing claims=20
brought by plaintiff in individual capacity from those brought by=20
plaintiff in capacity as coexecutor of estates).
<=
/SPAN>Reviewing=20
the trial court=E2=80=99s conclusion de novo by applying these =
factors=20
demonstrates that Boondoggles cannot meet the second element of =
the=20
Barr test. Yancey=E2=80=99s claims in this case do not =
derive from his=20
capacity as a minority shareholder, on which he relied in joining =
the=20
remaining minority shareholders in the shareholder-oppression =
action=20
against the majority shareholders as individuals, but from his =
initial,=20
retained capacity as an employee of the Boondoggles =
corporation=E2=80=94and not as=20
an employee of the shareholder individuals. Boondoggles thus fails =
to=20
establish the identity of capacity required to demonstrate that =
this=20
second action is based on the same claims as were raised or could =
have=20
been raised in the first action. See Ingersoll-Rand =
Co., 997=20
S.W.2d at 207; Barr, 837 S.W.2d at 629.
<=
/SPAN>Having=20
concluded that Boondoggles failed the identity-of-claims test, we =
need not=20
address its privity contentions.
<=
/SPAN>We=20
overrule Boondoggles=E2=80=99 sixth point of =
error.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
Sherry Radack
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Chief=20
Justice
Panel consists of Chief Justice Radack =
and=20
Justices Taft and=20
Nuchia. |