IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-21042
_______________
ART ENSLEY,
Plaintiff-Appellee-
Cross-Appellant,
VERSUS
CODY RESOURCES, INC., ET AL
Defendants,
CODY RESOURCES INC; CODY ENERGY, INC.,
Defendants-Appellants-
Cross-Appellees.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
April 13, 1999
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Cody Resources, Inc., and Cody Energy, Inc. (collectively,
“Cody”), appeal a quantum meruit judgment. Art Ensley cross-
appeals, seeking prejudgment interest and to reverse summary
judgment entered against him on his fraud claim; in the
alternative, he requests a new trial. We affirm.
I.
Working as an independent broker and consultant for petroleum-
related businesses, Ensley provided services to Cody by bringing
mineral interests to Cody's attention, for which he typically was
paid a commission or finder's fee; he also performed marketing,
price analysis, title services, and various due diligence tasks at
a periodic rate. In their first few major transactions, the
parties reduced compensation agreements to writing.
In May 1992, Ensley and his wife, each taking a fifty percent
share, incorporated Ensley Properties, Inc. (“EPI”). Thereafter,
Ensley billed Cody for his due diligence and other services
through, and had Cody remit payments to, EPI.1
While working on Cody's attempt to acquire the Louisiana
Natural Gas pipeline in the spring of 1992, Ensley learned that
Ultramar Oil and Gas, Inc. (“Ultramar”), owned certain properties
likely to be of interest to Cody. Upon contacting Ultramar, Ensley
discovered that the entire corporation might be for sale and
brought this to Cody's attention. Rick Westerberg, Cody's chief
financial officer, testified that he informed Ensley during their
initial conversation regarding Ultramar that he already knew it was
for sale; Cody's president, Bob Kubik, apparently already was
1
For example, the written commission agreement for the Winding Stairwell
acquisition, a deal the parties initiated in March 1992, was addressed to EPI
rather than Ensley individually.
2
aware, too. Cody retained Ensley as a consultant to facilitate
contacts with Ultramar and perform due diligence services, paying
Ensley at a periodic rate.
The parties dispute whether they entered into a commission
agreement for the Ultramar deal.2 Westerberg testified that he and
Ensley discussed the possibility of a commission but that he
informed Ensley it would not be possible because of Cody's
foreknowledge. Westerberg told Ensley that he might be able to
work for Cody if they successfully completed the arrangement.
Ensley testified that he convinced Ultramar to negotiate with Cody
and that he believed they had reached an oral commission agreement.
When the deal closed, Westerberg asked Ensley to work for
Cody. According to Ensley, as part of the compensation package,
and in lieu of a commission on the Ultramar transaction, Westerberg
promised Ensley that he would share in a stock distribution to
Cody's management. Although a stock plan was not yet in place,
Westerberg showed Ensley an Ernst & Young report naming him a
participant in the proposed plan. Westerberg further encouraged
Ensley by saying that stock in a growing company would be more
valuable in the long run than would a one-time commission. Ensley
accepted employment.
Six months later, Cody's directors adopted the stock
management plan, but without Ensley's participation, and eliminated
2
This dispute forms the basis of the breach of contract and quantum meruit
claims.
3
Ensley's position. Ensley claims that, while indicating Cody was
pleased with Ensley's performance, Kubik “abruptly informed” him
that Cody was closing its Houston office and eliminating his job.
According to Cody, Ensley demanded a large salary increase to leave
Houston; Cody terminated him for the salary demand and because
Ensley needed supervision that was not available.
When terminated, Ensley asked about the stock promise. Kubik
allegedly replied, “What promises?”3 Kubik testified that he first
heard of a commission promise for the Ultramar deal in a letter
from Ensley's attorney two months after Ensley's termination.
II.
Ensley sued Cody for damages incurred as the result of the
Ultramar transaction and the reneged stock promise, alleging, inter
alia, breach of contract, quantum meruit, and fraudulent
inducement. At the close of Ensley's case-in-chief, Cody moved for
judgment as a matter of law (j.m.l.) on all three counts, claiming
that Ensley had failed to establish a prima facie case on the fraud
count and lacked standing to recover damages in his individual
capacity for services rendered by EPI during the Ultramar
transaction. The court entered j.m.l. on the fraud count and
deferred a ruling on the other two.
3
The alleged unfulfilled stock promise is the gravamen of Ensley's
fraudulent inducement claim.
4
Those two counts went to the jury, which found against Ensley
on the contract claim but awarded him $486,321 in quantum meruit.
The court entered judgment in that amount, plus prejudgment and
postjudgment interest.
Cody again moved for j.m.l. on the standing issue. Finding
that the quantum meruit claim belonged to EPI, the court granted
the motion and entered an amended take-nothing judgment and
provisionally found (in case it were reversed on the underlying
claim) that Ensley was not entitled to prejudgment interest.
On reconsideration, the court held that Cody's objection was
not “standing” in its jurisdictional sense and sua sponte
determined that the objection was a real-party-in-interest question
that Cody had waived by not raising it before trial. The court
entered a second amended judgment awarding Ensley the quantum
meruit damages and postjudgment interest.
III.
Cody argues that the court erred in denying its motion for
j.m.l. on the quantum meruit claim.4 Cody presents a simple
4
We review the grant or denial of j.m.l. de novo. See Freeman v. County
of Bexar, 142 F.3d 848, 850 (5th Cir. 1998); Hidden Oaks Ltd. v. City of Austin,
138 F.3d 1036, 1042 (5th Cir. 1998). “[W]e apply the same standard as the
district court, considering all evidence with all reasonable inferences in the
light most favorable to the non-moving party.” Id. (quotations and citation
omitted). But neither party disputes the narrow issue of whether sufficient
evidence supports the verdict that Ensley performed services for Cody for which
he was not compensated, entitling him to damages in quantum meruit. Rather, they
dispute whether he performed those services through EPI and whether he can
collect for damages that belong to EPI.
5
argument: Because Ensley performed all the work on the Ultramar
deal through EPI, EPI incurred the damages, and Ensley, as an EPI
shareholder, lacks standing to pursue those damages individually.5
Cody styles the argument as jurisdictional, hence excusing the fact
that it delayed making the argument until after Ensley's case-in-
chief. Ensley responds that the record provides sufficient
evidence of his individual efforts to support the jury's verdict
and, as the objection is not to standing in its jurisdictional
sense, Cody waived it by failing to raise it before trial.
Assuming arguendo that the cause of action belongs to EPI,6 we
agree with the district court that the objection is waived and
affirm the judgment.
A.
“The standing doctrine has its origins in 'both constitutional
imitations on federal court jurisdiction and prudential limitations
on its exercise.'” O'Hair v. White, 675 F.2d 680, 685 (5th Cir.
1982) (en banc) (quoting Warth v. Seldin, 422 U.S. 490, 498
(1975)). The irreducible minimum constitutional standing
5
The standing issue presents a question of law that we review de novo.
Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 369 (5th Cir.
1998), cert. denied, 119 S. Ct. 798 (1999).
6
The jury decided for Ensley on the quantum meruit claim when the
complaint and arguments focused on Ensley but made no distinction between EPI and
Ensley. It appears that Cody did attempt to distinguish between the two in some
of its questioning but not in arguments or jury instructions. Without a timely
objection to Ensley's pursuing the claim, we affirm the verdict.
6
requirement to invoke a federal court's article III jurisdiction is
(1) injury-in-fact (2) fairly traceable to the defendant's actions
and (3) likely to be redressed by a favorable decision. See Raines
v. Byrd, 521 U.S. 811, 818 (1997); Valley Forge Christian College
v. Americans United for Separation of Church & State, Inc.,
454 U.S. 464, 472 (1982). The prudential limitations on jus-
ticiability include that “a plaintiff generally may not rest his
claim to relief on the legal rights of third parties even if he has
alleged injury sufficient to satisfy article III.” O'Hair,
675 F.2d at 687.
B.
In asserting that the court erred in failing to grant j.m.l.,
Cody relies on Texas caselaw holding that a shareholder lacks
standing to pursue the corporation's cause of action.7 But Cody
does not actually contest Ensley's injury in fact and neglects to
address the dispositive distinction between constitutional and
prudential limitations on standing.
1.
Ensley suffered a concrete injury sufficient to meet the
constitutional justiciability requirement. Although Cody disputes
that it has conceded Ensley's injury in fact, it has done so, in
7
See, e.g., Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990).
7
essence. Its incantation that a shareholder may not sue for the
corporation's injury does not attack Ensley's injury in fact, and
the cited casesSSstate and federalSSdo not suggest that the
limitation on shareholder suits is based on a lack of injury.
Indeed, Ensley and his wife face a significant diminution in the
value of their sharesSSEPI's only sharesSSwithout the quantum meruit
damages; an award of over $400,000 would redress that injury.8
2.
The real issue is not whether there is jurisdiction, but the
prudential limitation on our exercise of that jurisdiction over a
jus tertii/third party plaintiff. Although the cases Cody cites
refer to lack of standing as a shareholder, not one holds that the
inquiry is jurisdictional or that the objection may not be waived.
Indeed, Congress may alter prudential aspects of standing.9 Cody's
standing objection is a prudential limitation that constitutes an
objection to the real party in interest under FED. R. CIV.
8
See Lewis v. Knutson, 699 F.2d 230, 236 (5th Cir. 1983) (noting that
“[t]he minimal requirements of Article III, or 'pure' standing, affects
significantly fewer cases than the prudential limitation because if plaintiff did
not have the minimal personal involvement and adverseness which Article III
requires, he would not be engaging in the costly pursuit of litigation”)
(quotation omitted); see also Whelan v. Abell, 953 F.2d 663, 672 (D.C. Cir. 1992)
(noting that injury to shareholders of closely held corporation does not present
an article III problem).
9
See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979)
(“Congress may, by legislation, expand standing to the full extent permitted by
Art. III, thus permitting litigation by one 'who otherwise would be barred by
prudential standing rules.'”) (quoting Warth, 422 U.S. at 501).
8
P. 17(a).10 Because the Federal Rules of Civil Procedure address
this prudential standing requirement, they govern our inquiry.
Although precedent indicates that a shareholder lacks
“standing” under this prudential limitation, in our cases
addressing a shareholder's standing, the defendant objected before
trial.11 Here, Cody did not object until after Ensley's case-in-
chief; this is too late, and hence the objection is waived.12
Ensley relies on Whelan, which provides a compelling
analysis.13 On the first day of trial, the defendants claimed that
the plaintiffs could not sue for the lost value of their
investments because the corporation in which they held shares was
the real party in interest; the district court agreed. See Whelan,
953 F.3d at 671. The court of appeals reversed, holding that the
district court had abused its discretion in granting the motion so
late in the proceedings. See id. It also rejected the defendants'
10
See, e.g., Thomas v. N.A. Chase Manhattan Bank, 994 F.2d 236, 247 (5th
Cir. 1993) (addressing, in addition to article III standing, the “capacity”
standing requirement of whether plaintiff is real party in interest under FED.
R. CIV. P. 17(a)); Lewis, 699 F.2d at 236-38 (discussing F ED. R. CIV. P. 23.1's
shareholder derivative “standing requirements” as prudential aspect of standing);
Gregory v. Mitchell, 634 F.2d 199, 202 (5th Cir. Jan. 1981) (addressing FED. R.
CIV. P. 17 and holding that shareholder lacks standing to bring suit for
corporation's injury).
11
See, e.g., Cottingham v. General Motors Corp., 119 F.3d 373, 378-79 (5th
Cir. 1997); Crocker v. FDIC, 826 F.2d 347, 349 (5th Cir. 1987); United States v.
Palmer, 578 F.2d 144, 145-46 (5th Cir. 1978); see also supra note 10.
12
See International Meat Traders, Inc. v. H & M Food Sys., 70 F.3d 836, 840
(5th Cir. 1995); Gogolin & Stelter v. Karn's Auto Imports, 886 F.2d 100, 102 (5th
Cir. 1989) (holding objection raised at end of case-in-chief too late).
13
Tellingly, Cody ignores this case in its reply brief.
9
attempt to recharacterize the issue on appeal as standing to avoid
the timeliness problem. The court held that the cases on
shareholders' lacking standing do not address injury in fact;
indeed, in a closely held corporation the injury is obvious. See
id. at 672. The real objection, rather, was to the real party in
interest under FED. R. CIV. P. 17(a); that objection was waived.
See id. Because this well-reasoned analysis does not conflict with,
but compliments, our jurisprudence, we endorse it, deem the
standing argument waived, and affirm the denial of j.m.l.
3.
Cody attempts to avoid this result by arguing that its
standing/real party in interest objection was timely. Because the
pleadings and arguments unambiguously stated that Ensley was suing
to recover damages allegedly suffered by him, individually, a
rule 17 motion would have been sanctionable under FED. R. CIV. P. 11
if made before Ensley's case established that the injury was to the
corporation.
The district court was appropriately skeptical of this
argument. Cody's cross-examination of Ensley suggests it was
attempting to distinguish Ensley and EPI. Furthermore, if, as Cody
contends, the facts so pellucidly indicate that the cause of action
belongs to EPI, then it should have anticipated Ensley's case and
made the motion. Had it failed, it would have bound Ensley to only
10
individual damages. The idea that an earlier motion would have
been sanctionable is far-fetched.
Cody offers the red-herring that Ensley waived any defense
based on rule 17 by not raising it in the district court. Ensley
presents no such defense. Cody attacks the verdict and judgment on
the standing issue; the district court merely clarified that the
objection properly was a waivable rule 17 objection and rejected
the standing challenge. Ensley may defend that determination on
any groundSSespecially one addressed by the district court.
Cody also contends that rule 17 applies only to honest
mistakes of mis-naming plaintiffs in difficult cases, and here
Ensley should have known to whom the action belonged. But we are
not applying rule 17. Finding the objection to be a waivable
rule 17 objection rather than jurisdictional does not mean we apply
rule 17 to generate a cause of action.
Finally, Cody argues that Ensley should be judicially estopped
from claiming an entitlement to EPI's damages because he expressly
disavowed any intent to recover those damages. Again, it is Cody's
objection that is tardy; without a timely argument to the contrary,
we affirm the verdict.
Furthermore, judicial estoppel generally requires reliance by
the district court. See, e.g., Afram Carriers, Inc. v. Moeykens,
145 F.3d 298, 304 (5th Cir. 1998), cert. denied, 119 S. Ct. 1031
(1999). Here, the court found that the damages belonged to EPI and
11
yet entered judgment for Ensley. It did not rely on Ensley's
argument that the damages belonged to him individually.
IV.
On cross-appeal, Ensley argues that (1) his case merits
prejudgment interest, (2) the district court erred by granting
j.m.l. on the fraudulent inducement claim, and (3) in the
alternative, he deserves a new trial because the court abused its
discretion in (a) denying Ensley's impeachment evidence that Cody
is suing Westerberg, its star witness in absentia, and (b) ad-
mitting an unsigned draft contract into evidence without
foundation. We find no reversible error.
A.
Ensley asserts error in the denial of prejudgment interest.14
Prejudgment interest should be awarded from the date of the injury
or loss “where damages are established as of a definite time and
the amount thereof is definitely determinable.” City of Ingleside
v. Stewart, 554 S.W.2d 939, 946-47 (Tex. Civ. App.SSCorpus Christi
1977, writ ref'd n.r.e.). Neither party disputes that the damages
14
Neither party mentions, and no Fifth Circuit case provides us with, the
standard of review. Texas appellate courts review a denial of prejudgment
interest for abuse of discretion. See Castle v. Harris, 960 S.W.2d 140, 142
(Tex. App.SSCorpus Christi 1997, no writ); Marsh v. Marsh, 949 S.W.2d 734, 744
(Tex. App.SSHouston [14th Dist.] 1997, no writ) (applying abuse of discretion to
grant of interest with limited deference to trial court's application of law to
facts). This comports with our usual standard for reviewing interest awards, and
we apply it here.
12
were established at the definite time of the transaction's
completion; the parties disagree as to whether the amount was
definitely determinable at that time.
Ensley correctly urges that “definitely determinable” requires
that the measure, not an amount, of damages “is fixed by conditions
existing at the time the claim arose.” See id. at 947.15 Although
Ensley provides adequate factual distinctions for the cases on
which the district court relied, he fails to establish a known
measure for his damages. That a commission typically is determined
by a percentage of the transaction price leaves open what
percentage to apply here. Even Ensley's expert presented only a
range, and the jury's damages fall well below the bottom of that
range. Nor do the parties have a history of always following a
certain percentage commission, determinable by presenting evidence.
The jury had to decide what quantum of damages to award, without
the guidance of a “definitely determinable” formula. The court did
not abuse its discretion.
B.
Ensley avers that the court erred in granting j.m.l. on his
fraudulent inducement count. We review de novo a grant of j.m.l.,
15
See also Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1,
950 S.W.2d 371, 373 (Tex. 1997) (per curiam) (holding damages “ascertainable”
even though extrinsic evidence may be needed to quantify the damages if the
contract “fixes a measure by which the sum payable can be ascertained with
reasonable certainty in light of the attending circumstances”).
13
viewing all reasonable inferences in favor of Ensley. See supra
note 4.
At issue is whether Ensley established, as part of his prima
facie case, that Cody made the stock and commission promises with
the intent of never fulfilling them.16 A denial that the promise
ever was made and a failure to perform are factors demonstrating an
intent not to perform. See id.; Spoljaric v. Percival Tours, Inc.,
708 S.W.2d 432, 435 (Tex. 1986). But these alone do not suffice;
some additional “slight circumstantial evidence” of fraud is
required.17 The question is whether the instant case exhibits that
additional circumstantial evidence sufficient to survive j.m.l.18
16
The elements of Ensley's fraud action are (1) that a material
representation was made; (2) that it was false; (3) that the speaker knew it was
false when made; (4) that it was made with the intent of inducing reliance;
(5) that the party relied on it; (6) damages; and, in the case of a promise to
act in the future, (7) that the promisor had no intention of performing when he
made the promise. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218,
222 (Tex. 1992).
17
See Spoljaric, 708 S.W.2d at 435; Hoechst Celanese Corp. v. Arthur Bros.,
Inc., 882 S.W.2d 917, 925 (Tex. App.SSCorpus Christi 1994, writ denied).
18
Ensley asserts that a failure to perform and denial of the promise alone
suffice to survive j.m.l. Although there is dicta to that effect, the Texas
Supreme Court's most recent pronouncement on the subject refutes this contention.
In T.O. Stanley Boot Co., the defendant both failed to perform a promise
to extend credit and denied the promise; in addition, there was a memorandum
indicating that the bank continued investigating sources of finance in lieu of
the credit, which the plaintiff asserted demonstrated an intent never to perform.
See T.O. Stanley Boot Co., 847 S.W.2d at 222. The court found the evidence too
weak to support the verdict. See id. See also, e.g., Spoljaric, 708 S.W.2d at
435 (finding several inquiries into pledged bonus plan, employer's refusal to
enter written employment contract where it did so with others, and insistence on
written bonus plan despite oral employment agreement); Stanfield v. O'Boyle,
462 S.W.2d 270, 272 (Tex. 1971) (pointing to testimony relaying conversation only
a couple of days after promise made where promisor indicated he would not
perform); Hoechst Celanese Corp., 882 S.W.2d at 925 (finding disdain for
(continued...)
14
Ensley relies on the additional evidence that Cody (1) ad-
mitted that someone in Ensley's position would expect
payment,(2) fired Ensley when he inquired about the Stock options,
and (3) did not immediately inform Ensley that he had been
terminated by the board of directors.19 These factors do not defeat
j.m.l. Although the admission that someone in Ensley's position
would expect payment, in the form of a commission or stock,
supports the existence of a promise, it does not support the intent
never to perform.
The timing argument also fails. The board's minutes show that
Cody terminated Ensley well before he inquired about the stock
18
(...continued)
contractee, refusals to meet with its officials, timing of decision not to renew
the contract, and recantation of criticisms during testimony buttressed case for
intent not to perform); see also Beijing Metals & Minerals Import/Export Corp.
v. American Bus. Cent., Inc., 993 F.2d 1178, 1186 (5th Cir. 1993) (applying Texas
law to find sufficient evidence of fraud where, in addition to denial and
failure, the defendant explicitly refused to reduce agreement to writing and
almost immediately repudiated the promise); cf. T.O. Stanley Boot Co., 847 S.W.2d
at 222 (finding no evidence of fraud despite denial, failure, and memorandum that
could imply no intent to perform); Barbouti v. Barchilde Trust, 866 S.W.2d 288,
295 (Tex. App.SSHouston 1993, writ denied) (finding no evidence of fraud where
denial, failure, and related denials raised questions as to intent to perform).
But see Stone v. Williams, 358 S.W.2d 151, 155 (Tex. Civ. App.SSHouston 1962,
writ ref'd n.r.e.) (finding sufficient evidence of fraud from only failure and
denial).
19
Ensley also points to Cody's pleadings alleging fraudulent conduct by
Westerberg that he alleges should have been admitted to show Cody's knowledge
that Westerberg may have lied to Ensley and to establish the intent to commit
this fraud. The record reflects that Ensley did not attempt to introduce this
evidence to substantiate the fraud count, and Ensley has provided no record
citations to show otherwise; the first related discussion appears after the close
of his case-in-chief and focuses solely on its impeachment value. Nonetheless,
the court did not abuse its discretion in excluding the evidence under FED. R.
EVID. 403. It had ample discretion to determine that the pleadings, which were
not redacted but for allegations of sexual harassment, contained too much
extraneous information such that unfair prejudice, jury confusion, and delay
would substantially outweigh their probative value.
15
options. We fail to see how the delay in informing him that he had
been terminated supports his contention that Cody never intended to
perform on the stock promise. Absent any additional evidence
supporting that element, the court did not err in entering j.m.l.
C.
In the alternative, Ensley seeks a new trial on his quantum
meruit and/or oral contract claims, pointing to alleged evidentiary
errors. Because we affirm the quantum meruit judgment, we need not
reach these arguments.
The judgment is AFFIRMED.
16