COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00123-CV
JOHN HAWKINS APPELLANT
V.
ANGELA MYERS APPELLEE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2012-20790-158
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MEMORANDUM OPINION1
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I. Introduction
In four issues, Appellant John Hawkins asserts that the trial court erred by
granting summary judgment to Appellee Angela Myers, denying Hawkins’s
summary judgment, entering sanctions against Hawkins, and denying Hawkins’s
1
See Tex. R. App. P. 47.4.
motion for new trial. We affirm the trial court’s summary judgment and vacate the
order of sanctions.
II. Background
Myers owns a company called Axis Meeting Group, LLC, which performs
event planning. One of Myers’s largest clients is Yum! Restaurants International
(YRI). Until 2009, Myers also worked for Fusion Performance Marketing. In late
2009, Myers left Fusion; around the same time, Frito-Lay’s event planner passed
away—leaving a vacancy at the company.
Paul Zmigrosky, the senior vice president of procurement for PepsiCo
Worldwide at the time, was a friend of Hawkins. Hawkins told Zmigrosky about
Myers, who he had known for over twenty years and worked with in the past, and
indicated that she would be a perfect fit for the position at Frito-Lay.2 The two
began to exchange emails concerning Myers in September 2009. In early
October, Zmigrosky confirmed that he had received approval to hire Myers and
that an offer should be forthcoming within twenty-four hours. Hawkins then
forwarded this email to Myers.
2
Frito-Lay is a wholly owned subsidiary of PepsiCo.
2
Myers and Hawkins then began to exchange emails discussing the hiring
process,3 the details of the Frito-Lay job offer,4 and Myers’s continued work with
YRI.5 Hawkins asserts that he and Myers agreed to split the proceeds from a
2011 YRI event in exchange for Hawkins’s helping Myers get an interview with
Frito-Lay and negotiating her salary, bonuses, signing bonuses, start date, and
permission to be able to operate the YRI program in 2011 and going forward.
Myers accepted an offer from Frito-Lay at the end of October 2009 that
allowed her to continue her work with YRI. After Myers began working for Frito-
Lay, Hawkins continued to email her about their “agreement,” inquiring as to
when he could expect to receive payment. Myers responded a few times,
indicating that the final billing had not been completed and that she would send
money to Hawkins once everything was completed.
In 2011, Hawkins hired counsel, who sent a demand letter to Myers.
Myers responded by emailing Hawkins’s counsel asserting that there was no
agreement between herself and Hawkins and that any money she would have
3
In early October, Myers expressed concern about the length of time it was
taking to finalize the offer. Hawkins indicated that he had talked with Zmigrosky
and that everything was still on track.
4
Myers received an offer from Frito-Lay that was below what she was
expecting; she and Hawkins discussed the possibility of a counteroffer.
5
In an October 11 email, Hawkins gave his “thoughts” regarding Myers’s
continued work with YRI, advising her to insist on being “paid [her] salary for the
next 6 months [so it would be] . . . a win win for [her] also.”
3
given Hawkins “would have been a ‘gesture of kindness’ nothing else.” Hawkins
ultimately sued Myers for breach of contract.
After filing suit, Hawkins issued a notice of deposition by written questions
and subpoena to Myers’s client, YRI. Attached to these questions was a
document that contained alleged misstatements of fact and allegations of fraud
that Myers allegedly committed upon YRI. Following the receipt of these
documents, Myers filed a “Defendant’s Motion to Quash the Notice for Deposition
on Written Questions and Motion for Emergency Protective Order” and attached
to this motion the document containing the alleged allegations of fraud she was
seeking to quash. The trial court granted the motion and quashed the subpoena.
Myers then filed a motion for Rule 13 sanctions. In this motion, Myers also
asked for sanctions under Rule 215. Attached to the motion was the subpoena
and deposition on written questions issued to YRI. Myers also attached her
affidavit setting forth the misstatements of fact contained in the subpoena and the
alleged irreversible harm this subpoena would cause if served on YRI. After a
hearing, the trial court granted the motion and awarded sanctions. The court
found that Hawkins had violated Rule 215.3 and awarded Myers “$5,000.00 as
reasonable and necessary attorney’s fees pursuant to Tex. R. Civ. P. 215.3.”
In August 2013, Hawkins filed a traditional motion for summary judgment.
Myers responded and then filed her own motion for partial summary judgment.
Hawkins responded to Myers’s summary judgment motion and objected to her
supporting evidence. On October 31, 2013, after hearing the parties’ motions on
4
October 28, 2013, the trial court signed an order granting Myers’s motion and
denying Hawkins’s motion without specifying on what grounds. The court
overruled Hawkins’s objections to Myers’s summary judgment evidence.
Hawkins and Myers each later dismissed all other claims so that the
summary judgment order could become final and appealable. Hawkins filed a
motion for new trial, which was overruled by operation of law.
III. Standard of Review
In a summary judgment case, the issue on appeal is whether the movant
met the summary judgment burden by establishing that no genuine issue of
material fact exists and that the movant is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo.
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
The summary judgment will be affirmed only if the record establishes that
the movant has conclusively proved all essential elements of the movant’s cause
of action or defense as a matter of law. City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678 (Tex. 1979). Once the defendant produces sufficient
evidence to establish the right to summary judgment, the burden shifts to the
plaintiff to come forward with competent controverting evidence that raises a fact
issue. Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999).
A defendant is entitled to summary judgment on an affirmative defense if the
defendant conclusively proves all the elements of the affirmative defense. Chau v.
5
Riddle, 254 S.W.3d 453, 455 (Tex. 2008); see Tex. R. Civ. P. 166a(b), (c). To
accomplish this, the defendant-movant must present summary judgment evidence
that establishes each element of the affirmative defense as a matter of law. Chau,
254 S.W.3d at 455; Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).
When both parties move for summary judgment and the trial court grants
one motion and denies the other, the reviewing court should review both parties’
summary judgment evidence and determine all questions presented. Mann
Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,
300 S.W.3d 746, 753 (Tex. 2009). The reviewing court should render the
judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d
at 848.
IV. Discussion
A. Summary Judgment
In his first and second issues, Hawkins asserts that the trial court erred in
granting Myers’s motion for summary judgment and denying his motion for
summary judgment because the parties formed a valid contract and because the
statute of frauds is inapplicable. In part of his fourth issue, he argues that the
trial court abused its discretion by denying his motion for new trial on the same
basis.
Before a plaintiff can prove a breach of contract, an enforceable contract
must exist. Coleman v. Reich, 417 S.W.3d 488, 491 (Tex. App.—Houston [14th
Dist.] 2013, no pet.). The plaintiff must prove that there was (1) an offer, (2) an
6
acceptance, (3) a meeting of the minds, (4) consent to the terms of the contract
by each party, (5) execution and delivery of the contract with the intent by both
parties that it become mutual and binding on each, and (6) consideration.6 Id.;
Hubbard, 138 S.W.3d at 481.
One of the most fundamental elements of an enforceable contract is
consideration. Hubbard, 138 S.W.3d at 481. In order for a contract to be
enforceable, it must be based on valid consideration. Consideration is
“[s]omething (such as an act, a forbearance, or a return promise) bargained for
and received by a promisor from a promisee.” Black’s Law Dictionary 347 (9th
ed. 2009) (emphasis added). It is a contemporaneous exchange between parties
that serves as an inducement by which the parties are moved to bind themselves
to an agreement. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496
(Tex. 1991) (noting that “consideration is a present exchange bargained for in
return for a promise”) (emphasis added). In other words, there must be some
kind of quid pro quo between the parties. See Iacono v. Lyons, 16 S.W.3d 92, 94
(Tex. App.—Houston [1st Dist.] 2000, no pet.) (noting that consideration is a
bargained-for exchange of promises).
Consideration can be in the form of performance. See Tex. Bus. & Com.
Code Ann. § 3.303(1) (West 2002) (“An instrument is issued or transferred for
6
The elements of a written contract and an oral contract are the same and
must be present in order for it to be binding. Hubbard v. Shankle, 138 S.W.3d
474, 481 (Tex. App.—Fort Worth 2004, pet. denied).
7
value if . . . the instrument is issued or transferred for a promise of performance,
to the extent the promise has been performed.”); see also Restatement (Second)
of Contracts § 71 (1981) (explaining the types of exchange that constitute
consideration, including performance). However, that performance must be
bargained-for. See TCA Bldg. Co. v. Entech, Inc., 86 S.W.3d 667, 672 (Tex.
App.—Austin 2002, no pet.) (noting that “it is essential . . . that the consideration
be bargained for”). A promise given after performance has already been
completed is not valid consideration. See Alex Sheshunoff Mgmt. Servs., L.P. v.
Johnson, 209 S.W.3d 644, 660 (Tex. 2006) (noting that past consideration is not
consideration); see also Cent. Tex. Micrographics v. Leal, 908 S.W.2d 292, 296
(Tex. App.—San Antonio 1995, no writ) (holding that an employer’s promise to
take an employee on a trip for a job well done was “nothing more than a
gratuitous promise unsupported by consideration”).
Here, Hawkins asserts that the evidence supporting his breach of contract
claim is uncontroverted; however it is Hawkins’s deposition that provides
evidence that his performance was not sufficient to establish valid consideration.
Hawkins’s testimony indicates that the offer of money made by Myers was in
response to the help Hawkins gave her in trying to obtain the job with Frito-Lay.
Hawkins stated in his deposition that he “got [Myers’s] permission from Frito-Lay
to allow her to be able to take the job at Frito-Lay and still do the program for YRI
and—for another corporation in 2011 . . . . [and] those were [Hawkins’s]
obligations that put [him] in the spot where [Myers] made the offer, and [Hawkins]
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accepted.” Moreover, the email referenced by Hawkins that he asserts is proof
of an agreement between the parties is only further evidence of the offer coming
after the promise by Hawkins to help Myers get the job:
October 15, 2009
Myers: I spoke with Donna Defferding yesterday about the
position . . . she thought I would hear from HR yesterday or this
morning at the very latest . . . but still not a peep. I’m not worried
about the offer . . . what I am worried about is if this is typical of what
it takes to get something done in their corporation its [sic] certainly
not impressive.
October 16, 2009
Hawkins: Thanks for keeping me in the loop on what is going on.
The real issue behind that is there is a hiring freeze in place. . . . You
mention[ed] to me how I would be your partner in 2011 on YRI? I
accept if you really meant it.
Myers: . . . And yes on YRI 2011 . . . since you brokered the
arrangement with FL. [emphasis added]
According to the record, Hawkins began communications with Frito-Lay
concerning a job for Myers in September 2009 with approval for the job coming
October 12, 2009. Myers’s and Hawkins’s emails concerning the Frito-Lay job
and even YRI never mentioned an agreement to split any money. It was not until
October 15, 2009, when the above exchange took place, that there was any
mention of an agreement. By this point Hawkins had already been in the midst of
performing the “obligations” he asserts were the basis for the contract with
Myers. As such, according to Hawkins’s testimony, his performance was not a
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bargained-for exchange and thus was not sufficient to form the basis of a valid
and enforceable contract.7
Because Hawkins did not establish sufficient consideration in order to form
a valid contract, we overrule Hawkins’s first issue and the part of his fourth issue
that pertains to this argument.8
B. Sanctions
In his third issue, Hawkins argues that the trial court abused its discretion
by ordering sanctions “under Tex. R. Civ. P. 215.3 without a motion for such
relief, without an evidentiary hearing, without the admission of any exhibits,
7
Hawkins argues that under Rule 54 his performance is established as a
matter of law. See Tex. R. Civ. P. 54 (providing that a plaintiff’s assertion that all
conditions precedent have occurred is sufficient to overcome a defendant’s
general denial, and unless specifically denied by the defendant, the plaintiff does
not have to prove the satisfaction of such conditions). In his First Amended
Petition, Hawkins pled that all conditions precedent occurred. In response,
Myers generally denied all claims and then made several further specific denials.
Among those denials, Myers included the following: “Plaintiff’s claims are barred,
in whole or in part, because the alleged contract lacked the essential element of
consideration for [sic] form a legally binding contract upon Defendant.” This
statement specifically denies one of the foundational elements of a valid
contract—consideration. As such, the burden of proof then shifted to Hawkins to
prove that he had indeed performed in a manner that was sufficient to form a
legally binding contract (and, in the alternative, remove the claim out of the
statute of frauds) and thus avoid summary judgment. See “Moore” Burger, Inc. v.
Phillips Petroleum Co., 492 S.W.2d 934, 936–37 (Tex. 1972) (holding that in
order to avoid summary judgment against the plaintiff, plaintiff had the burden to
raise a fact issue concerning its defense to the statute of frauds).
8
Because we overrule Hawkins’s first issue on the basis of an invalid
contract, we do not consider his second issue as to the statute of frauds. See
Tex. R. App. P. 47.1.
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without any evidence of any wrongdoing, without taking judicial notice of any
matter, and without any evidence of attorneys’ fees.”
We review a trial court's ruling on a motion for sanctions for abuse of
discretion. Humphreys v. Meadows, 938 S.W.2d 750, 751–52 (Tex. App.—Fort
Worth 1996, writ denied). A trial court abuses its discretion if it acts without
reference to any guiding rules and principles to the extent the act was arbitrary or
unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). We review the entire
record to determine whether the imposition of sanctions constitutes an abuse of
discretion. Law Offices of Windle Turley, P.C., 164 S.W.3d 487, 490–91 (Tex.
App.—Dallas 2005, no pet.). We may not substitute our judgment for that of the
trial court. Id. at 491.
When a trial court finds a party has abused the discovery process, the
court is authorized to impose a sanction that is just under the circumstances.
Tex. R. Civ. P. 215.3. When determining whether a sanction is just, a court first
considers whether there is a reasonable relationship between the abusive
conduct and the sanction imposed. TransAm. Natural Gas Corp. v. Powell, 811
S.W.2d 913, 917 (Tex. 1991) (stating that “the sanctions the trial court imposes
must relate directly to the abuse found”); Hanley v. Hanley, 813 S.W.2d 511, 523
(Tex. App.—Dallas 1991, no writ) (holding that an award of attorney’s fees in
excess of what is reasonable and not related to harm suffered as a result of
discovery abuse is unjust and not authorized by rule 215). Second, a court
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considers whether the sanction is excessive. TransAm. Natural Gas Corp., 811
S.W.2d at 917; Hanley, 813 S.W.2d at 522–23.
A sanctions order that awards the moving party attorney’s fees is unjust if
the record is void of any evidence as to the amount of attorney’s fees reasonably
incurred as a result of the allegedly violative conduct. See Estrello v. Eloboar,
965 S.W.2d 754, 759 (Tex. App.—Fort Worth 1998, no pet.) (stating the general
rule that a party seeking attorney’s fees must put on evidence of such fees); see
also Werley v. Cannon, 344 S.W.3d 527, 532 (Tex. App.—El Paso 2011, no pet.)
(same).
The record contains no such evidence here. Myers’s counsel had an
opportunity at the hearing to offer evidence of attorney’s fees and court costs but
did not. Although both parties’ counsel discussed attorney’s fees at the
sanctions hearing, Myers’s counsel did not submit an affidavit or testify regarding
the reasonableness, necessity, or amount of the fees.9 Likewise, there is no
other evidence in the record that would allow this court to determine what the trial
court based the fees award on, if there was a reasonable relationship between
the conduct and sanction imposed, or whether the sanction was excessive. See
In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998) (stating the factors to
consider when determining whether the sanctions a trial court imposes are just:
9
While Myers’s counsel tendered an exhibit to the court containing
information regarding his attorney’s fees and swore to its contents, it was never
offered or filed with the clerk and thus is not part of the record.
12
(1) a direct relationship between the offensive conduct and the sanction and
(2) excessiveness). Therefore, the trial court abused its discretion by awarding
$5,000 in attorney’s fees as a sanction. See Estrello, 965 S.W.2d at 759 (holding
that a party seeking attorney’s fees must put on evidence of such fees).
We sustain Hawkins’s third issue.10
V. Conclusion
Having overruled Hawkins’s first and part of his fourth issue, and having
determined we need not address his second, we affirm the trial court’s order
granting Myers’s partial summary judgment motion and denying Hawkins’s
summary judgment motion. Having sustained Hawkins’s third issue, we vacate
the trial court’s sanctions order.
/s/ Bob McCoy
BOB MCCOY
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: December 31, 2014
10
We need not address the remainder of Hawkins’s arguments regarding
the sanctions award. See Tex. R. App. P. 47.1.
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