United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 11, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-51650
DONNIE WILLIAMS,
Plaintiff-Appellant,
versus
COLONIAL BANK, N.A., as successor-in-interest
to First Mercantile Bank, N.A. and
THE COLONIAL BANCGROUP, INC. as successor-in-interest
to Mercantile Bancorp, Inc.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
Before KING, GARWOOD, and JOLLY, Circuit Judges.
PER CURIAM:1
Plaintiff-appellant Donnie Williams (Williams) appeals the
district court’s September 21, 2005 Order denying his Motion to
Alter or Amend Judgment and its August 22, 2005 final Amended
Judgment that Williams take nothing in his suit against defendants-
appellees Colonial Bank, N.A. (Colonial Bank) and The Colonial
1
Per 5th Cir. R. 47.5, the court has decided that this
opinion should not be published and is not precedent except under
those limited circumstances set forth by 5th Cir. R. 47.5.4.
Bancgroup, Inc. (Colonial Bancgroup). We affirm.
FACTS AND PROCEEDINGS BELOW
In 1999, First Mercantile Bank (First Mercantile), located in
Dallas, a wholly owned subsidiary of Mercantile Bancorp, Inc.
(Mercantile), decided to open a branch bank in Austin. By letter
dated April 4, 2000, Roy Salley, First Mercantile Bank president
and holding company CEO, offered Williams, and Williams accepted,
the position of area president of First Mercantile’s Austin branch
bank.
Williams joined First Mercantile in May 2000. His employment
agreement included both non-incentive and performance-based stock
options. Specifically, upon hire, First Mercantile granted
Williams ten thousand stock options outright, and it was further
agreed that:
“After three months of profitability, you will receive an
additional 5,000 stock options at the then current stock
price to be vested out over five years. Finally, if you
achieve $50 million in total assets within 24 months from
the opening of the Austin branch, you will receive 5,000
stock options at the then current stock price to be
vested over five years.”
The Austin branch opened in March 2001.
On November 29, 2001, Mercantile entered into a merger
agreement with Colonial Bancgroup. Subsequently, on January 10,
2002, First Mercantile executed an agreement of merger with
Colonial Bank, a subsidiary of Colonial Bancgroup. On March 21,
2002, Williams executed an employment agreement with Colonial Bank
2
that designated Williams as Branch President/Austin-Lender of the
Texas Region following the merger. The agreement, stated to take
effect upon the merger, did not mention any performance-based stock
options and included the following provision:
“This Agreement constitutes the entire understanding and
agreement between the parties hereto with respect to the
subject matter hereof, and there are no agreements,
understandings, restrictions, representations, or
warranties between the parties other than those set forth
or provided for herein.”
Parent companies Mercantile and Colonial Bancgroup merged on March
28, 2002. Colonial Bank and First Mercantile merged the next day.
Colonial Bancgroup and Colonial Bank are the surviving entities.
At the time of the merger, neither of the two performance goals
outlined in Williams’ employment agreement with First Mercantile,
each of which would have triggered receipt of the five thousand
options, had been met.
Williams brought suit against Colonial Bank, as successor-in-
interest to First Mercantile, and Colonial Bancgroup, as successor-
in-interest to Mercantile, alleging breach of contract, unjust
enrichment, and promissory estoppel. On May 17, 2005, Williams
moved for partial summary judgment. Defendants-appellees responded
and moved for summary judgment on June 20, 2005. Williams filed
his response on June 28, 2005. The district court ruled on both
motions on August 11, 2005, denying Williams’ motion and granting
the motion brought by defendants-appellees. Judgment was entered
August 12, 2005, and amended sua sponte on August 22, 2005 to
3
correct a clerical error. On August 26, 2005, Williams filed a
Motion to Alter or Amend Judgment, claiming that the district
court’s ruling did not address his unjust enrichment and promissory
estoppel claims. The district court overruled Williams’ motion on
September 21, 2005.
DISCUSSION
We review a district court’s grant of summary judgment de
novo. Garcia v. Lumacorp, Inc., 429 F.3d 549, 553 (5th Cir. 2005).
Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c).
Williams contends the district court erred in granting summary
judgment because genuine issues of material fact existed with
respect to whether his employment agreement with First Mercantile
was breached. He argues that (1) the Colonial entities repudiated
the employment agreement with First Mercantile and that (2) First
Mercantile failed to provide Williams the continuing opportunity to
earn performance-based options.
The district court did not err in granting summary judgment.
Williams’ employment agreement with First Mercantile did not forbid
a merger, and Colonial Bank’s discussion with Williams regarding
the post-merger terms of employment with Colonial Bank did not
4
constitute a repudiation of the First Mercantile agreement.
Williams also contends that the district court erred in
applying the doctrine of merger to hold that his employment
agreement with Colonial Bank superseded his agreement with First
Mercantile. Again, we disagree. Under the “doctrine of merger,”
a prior contract is absorbed into a subsequent one when “the same
parties to an earlier agreement later enter into a written
integrated agreement covering the same subject matter.” Fish v.
Tandy Corp., 948 S.W.2d 886, 898 (Tex. App.—Fort Worth 1997, writ
denied). Thus, where the parties and subject matter are the same,
and ambiguity, fraud, accident, or mistake is neither pleaded nor
proven, “a written instrument presumes that all prior agreements of
the parties relating to the transaction have been merged into the
written instrument.” Weinacht v. Phillips Coal Co., 673 S.W.2d
677, 679 (Tex. App.—Dallas 1984, no writ). The merger doctrine
triggers the parol evidence rule, precluding enforcement of prior
agreements. Tri-Steel Structures, Inc. v. Baptist Found. of Tex.,
166 S.W.3d 443, 451 (Tex. App.—Fort Worth 2005, pet. denied). The
parol evidence rule is “particularly applicable” where there is an
integration clause such as that included in Williams’ employment
agreement with Colonial Bank. See Boy Scouts of Am. v. Responsive
Terminal Sys., Inc., 790 S.W.2d 738, 745 (Tex. App.—Dallas 1990,
writ denied).
Williams has not pleaded ambiguity, fraud, accident, or
5
mistake. Rather, he claims the parties and subject matter of the
two employment agreements differ. As the district court made
clear, however, these arguments must fail:
“He first contends the [employment agreement] was not
between the same parties as his prior agreement. Once
again, Plaintiff has failed to consider the language in
the Agreement of Merger which deems the ‘Resulting Bank
. . . the same corporation as [First Mercantile] and
Colonial [Bank].’ Clearly, the Defendants sought to
place Colonial Bank into the shoes of First Mercantile in
executing a merger agreement including this language.
Accordingly, for the purposes of the [employment
agreement], Colonial Bank and First Mercantile must be
considered equivalent entities.
Second, Williams, contends the [employment
agreement] did not involve the same subject matter as his
prior agreement. Plaintiff characterizes his prior
agreement as relating to his employment and options prior
to the merger. According to him, the [employment
agreement] governed his post-merger employment and made
promises of future discretionary grants of Colonial
Bancgroup stock options. Thus, Williams concludes the
two agreements addressed wholly separate employment
arrangements and stock options.
The Court declines to adopt such a narrow reading of
the two agreements. It is clear the subject matter of
te to areet ivle te trs o Wlim’ epomn a te Peiet o te Asi bac. Te
h w gemns novd h em f ilas mlyet s h rsdn f h utn rnh h
differences in the terms of Plaintiff’s employment under the two
agreements does not alter the nature, and identity, of the subject
matter.”
The district court correctly applied the merger doctrine to hold
that Williams’ employment agreement with Colonial Bank superseded
his agreement with First Mercantile.
Finally, plaintiff-appellant argues that the district court
erred in issuing a final judgment because it did not specifically
mention Williams’ unjust enrichment and promissory estoppel claims.
Here, too, we disagree with plaintiff-appellant. Having ruled that
6
Williams’ employment agreement with Colonial Bank superseded that
which he entered with First Mercantile, the district court
correctly issued a final judgment. Williams did not allege in his
motion to alter or amend the judgment (or in any of his other
filings below), and he has not asserted on appeal, any facts
extraneous to those the district court considered that would
support his unjust enrichment and promissory estoppel claims
notwithstanding the correctness of the district court’s
determination that the employment contract with Colonial Bank
superceded his agreement with First Mercantile.
The existence of a valid, express contract that covers the
subject matter of the parties’ dispute generally precludes recovery
under a quasi-contract theory. Fortune Prod. Co. v. Conoco, Inc.,
52 S.W.3d 671, 684 (Tex. 2000). Thus, because an express agreement
has at all times governed the terms of Williams’ employment, he may
not recover in quantum meruit for the services he rendered in
helping to establish the Austin bank branch. See Vortt Exploration
Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990)
(“Generally, a party may recover under quantum meruit only where
there is no express contract covering the services or materials
furnished.”). He is limited to the compensation outlined in his
employment agreement with Colonial. See First Union Nat’l Bank v.
Richmont Capital Partners I, L.P., 168 S.W.3d 917, 931 (Tex.
App.—Dallas 2005, no pet.) (noting that, when a relevant contract
7
exists, “there can be no recovery under a quasi-contract theory
because parties should be bound by their express agreements”).
Similarly, Williams’ promissory estoppel claim must fail. See
Doctors Hosp. 1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634,
636 (Tex. App.—Houston [14th Dist.] 2004, pet. abated) (stating
that “promissory estoppel becomes available to a claimant only in
the absence of a valid and enforceable contract”). Had Williams
alleged a promise independent of the contract, a promissory
estoppel claim might have been sustainable. See Richter v. Wagner
Oil Co., 90 S.W.3d 890, 899 (Tex. App.—San Antonio 2002, no pet.).
As Williams alleges the facts, he was clearly told he would not
receive incentive-based options under Colonial Bank. In his
Opposition to Defendants’ Motion for Summary Judgment, Williams
stated:
“Mr. Williams raised the issue of his 10,000 ungranted
incentive options prior to the merger, and continued to
raise the issue with both Mercantile and, following the
merger, Colonial. Colonial consistently took the
position that the options were extinguished in the
merger, and that they had no continuing liability under
the Mercantile agreement. In addition, Roy Salley, the
president of Mercantile and president of Colonial’s Texas
region following the merger, took this position during
conversations with Mr. Williams.”
In short, according to plaintiff-appellant’s own version of the
facts, there was no promise upon which Williams could have relied
to support a promissory estoppel claim.
Although the unjust enrichment and promissory estoppel claims
were not specifically named, the district court clearly included
8
them in its August 11, 2005 summary judgment order stating that
“Defendants are entitled to summary judgment on all claims against
them.” In its August 22, 2003 Rule 58(a) judgment the court
“ORDERED, ADJUDGED, and DECREED that the plaintiff Donnie Williams
TAKE NOTHING in this cause against defendants . . . and that all
costs of suit are taxed against the plaintiff, for which let
execution issue.” And, in its order overruling Williams’s Motion
to Alter or Amend Judgment, the court stated:
“Williams well knew the defendants were seeking a summary
judgment regarding all issues. . . . Williams filed a
Motion to Alter or Amend Judgment contending the Court
did not address or rule ‘upon plaintiff’s claims of
unjust enrichment and promissory estoppel, neither of
which were placed before the Court for decision.’ This
statement is completely inaccurate. The defendants
placed all issues for summary judgment on its behalf
before the Court and Williams in its response to the
summary judgment and in the Motion to Alter or Amend
Judgment cites no evidentiary record before the Court
which would establish any factual issue regarding
theories of unjust enrichment and promissory estoppel.
The defendants sought summary judgment, filed an
evidentiary record, and the Court granted the same based
on the evidentiary record before the Court.”
The district court unambiguously manifested its intention to, and
in fact did, dispose of all of Williams’s claims.2
2
Williams relies on Stillman v. Travelers Ins. Co., 88 F.3d
911 (11th Cir. 1996), in which the Eleventh Circuit held that the
district court erred in granting a summary final judgment because
a list of alternative affirmative defenses had not been
addressed. Id. at 912. In that case, the motion for summary
judgment that formed the basis for the final judgment set forth
facts that addressed (and rejected) only one affirmative defense.
Id. Consequently, the district court’s holding on the single
affirmative defense did not permit the conclusion that the
plaintiff’s claims were correct as a matter of law. Id. at 913
9
CONCLUSION
The judgment of the district court is
AFFIRMED.
n.2. Conversely, in the instant case, the district court’s
determination that Williams’ employment agreement with Colonial
superseded his employment agreement with First Mercantile
provides a basis for dismissing Williams’ unjust enrichment and
promissory estoppel claims.
10