Rebecca Doxey v. CEC-Evans Pipeline International

Affirmed and Memorandum Opinion filed November 10, 2016.

In The

Fourteenth Court of Appeals

NO. 14-14-01009-CV

REBECCA DOXEY, Appellant
V.
CRC-EVANS PIPELINE INTERNATIONAL, INC. AND STANLEY
BLACK & DECKER, INC., Appellees

On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2012-39193

MEMORANDUM OPINION
In this employment dispute, appellant sued her former employer asserting
claims for breach of contract, quantum meruit, and fraud. The claims arose out of
the former employer’s failure to pay an incentive bonus allegedly owed to the
former employee. The trial court granted summary judgment as to the quantum-
meruit claim and the fraud claim, leaving the contract claim for trial by jury.
Asked whether the former employer failed to comply with the contract, the jury
answered “no.” The trial court rendered judgment on the jury’s verdict. On
appeal, the former employee asserts charge error and claims that the trial court
erred in granting summary judgment as to the quantum-meruit and the fraud
claims. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant/plaintiff Rebecca Doxey is a certified public accountant. She
started working as an employee of appellee/defendant CRC-Evans Pipeline
International, Inc. on October 20, 2008, as the director of CRC-Evans’s tax
department. She accepted a written offer of employment. Her employment
contract consisted of an offer letter and attached documents describing a bonus
plan for CRC-Evans’s employees.

Doxey’s base salary was $130,000, which was below the market rate. But,
the bonus plan gave Doxey the potential to earn a significant incentive bonus based
upon the profits of the corporation. Her incentive bonus could be as high as
seventy-five percent of her base salary, raising what her total compensation could
be to around $230,000. Though the purpose of the bonus was to incentivize key
employees to deliver superior economic returns on the invested capital they
controlled, bonuses under the plan were discretionary.1 For two fiscal years, 2008
and 2009, CRC-Evans had record profits. During this time, CRC-Evans paid
Doxey her salary and her maximum incentive bonus.2

1
The bonus year followed CRC-Evans’s fiscal year, which ran from April 1 through March 31
of the following year.
2
Because Doxey was hired in October 2008, she was ineligible to participate in the incentive
bonus plan for the year ending in March 2009; however, to make up for her ineligibility, CRC-
Evans, in Doxey’s employment contract, guaranteed her a payment of $52,000 in March 2009.
This payment was not a discretionary bonus under the plan, but a guaranteed payment that was
part of her contract. For the year ending in March 2010, CRC-Evans paid a full incentive bonus
to all employees, including Doxey.

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 In June 2010, appellee/defendant Stanley Black & Decker, Inc. bought the
stock of CRC-Evans for $451 million. Stanley became the sole shareholder of
CRC-Evans. The purchase price was based in large part on CRC-Evans’s record
profits in fiscal years 2008 and 2009, as well as CRC-Evans’s anticipated future
profitability with the construction of the Keystone Pipeline.

After Stanley’s purchase, CRC-Evans’s business declined. The Keystone
Pipeline project did not move forward. Additionally, operational issues and the
loss of key customers contributed to a sharp decrease in CRC-Evans’s volume of
business. CRC-Evans missed its internal targets by wide margins. For the fiscal
year ending March 2011, Doxey received an incentive bonus, but it was not the
maximum amount. It was about ten percent less than the bonus she had received in
each of the prior two years.

As CRC-Evans’s financial performance deteriorated, Stanley executives
began to replace CRC-Evans’s leadership. In March 2012, after evaluating the
financial results,3 no one in the corporate group of CRC-Evans, including Doxey,
received a bonus. As part of Stanley’s reorganization of CRC-Evans, Stanley
terminated Doxey’s employment. Doxey brought this suit.

Doxey alleged breach of contract for not being paid a full incentive bonus in
2011 or any incentive bonus in 2012.4 She also brought claims for quantum meruit
and fraud. With respect to quantum meruit, Doxey claimed that in the event CRC-
Evans is found not to have a contractual obligation to pay Doxey her bonus, she
would be entitled to compensation for services she provided to Stanley that were in

3
Between year-end 2009 and 2012, CRC-Evans’s operating margin was reduced by half, with
targets missed by two-thirds.
4
Doxey claims for 2011, she was entitled to an incentive bonus of $100,425 and failed to receive
$13,225 of that bonus. For 2012, Doxey maintains she was entitled to an incentive bonus of
$103,425, and did not get paid any bonus at all.

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excess of the work she originally agreed to perform for CRC-Evans. Doxey
further asserted fraud by omission or non-disclosure. According to Doxey, the
company misrepresented that she would receive an incentive bonus if she
continued to work for the company and the financial criteria set forth in the bonus
plan were met.

CRC-Evans and Stanley (collectively the “Stanley Parties”) moved for
summary judgment. The trial court granted summary judgment as to the quantum-
meruit claim and the fraud claim. The parties then tried the breach-of-contract
claim to a jury, which answered “no” in response to a question as to whether CRC-
Evans failed to comply with the written contract. The trial court rendered
judgment on the jury’s verdict. Doxey timely filed this appeal, challenging the trial
court’s judgment in three appellate issues.

II. ISSUES AND ANALYSIS

A. Did Doxey preserve error in the trial court as to her first issue?

In her first issue, Doxey argues that the trial court erred by including an
instruction in the jury charge that “because CRC[-Evans] was acquired by Stanley,
actions taken by Stanley under the contract between Doxey and CRC[-Evans]
(Exhibit 5) are the actions of CRC.” Doxey complains that this instruction
misstates the law because the contract gives the CRC-Evans board of directors —
not Stanley’s officers — discretion to change the incentive bonus plan and, under
Texas law, the actions of a Stanley corporate officer cannot qualify as the actions
of the board of directors. According to Doxey, the trial court’s instruction is
unsupported by the evidence, and the evidence supports a finding that neither
CMC-Evans’s board of directors nor Stanley’s board of directors ever authorized
the elimination of Doxey’s incentive bonus.

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 The trial court added the disputed instruction to the jury charge during the
charge conference. The only complaint that Doxey asserted to this instruction
during the charge conference is the following:

[Doxey’s Counsel]: Your Honor, we — given that there was a change,
we just want to preserve our — I’m not going to argue it, but we do
object to the inclusion of the additional sentence regarding the acts of
Stanley being the acts of CRC-Evans on the basis that the case law
cited by defendants does not talk about situations that specifically
identified actor under a contract and that — and so we do not think it
applicable to these specific circumstances.
THE COURT: Okay.
[Doxey’s Counsel]: We are objecting to the inclusion of that
instruction, but I suspect the Court will overrule it.
THE COURT: Yes. All right. Off the record.
Presuming for the sake of argument that Doxey obtained an adverse ruling on this
objection, her objection was not sufficient to make the trial court aware of any of
the complaints she now asserts on appeal under her first issue. See Tex. R. Civ. P.
274; Vu v. Rosen, No. 14-02-00809-CV, 2004 WL 612832, at *6 (Tex. App.—
Houston [14th Dist.] Mar. 30, 2004, pet. denied) (concluding that appellant failed
to preserve charge error as to appellate complaints because appellant’s charge
objections were insufficient to make the trial court aware of appellant’s appellate
complaints) (mem. op.). During the charge conference, Doxey did not voice any of
the complaints regarding this instruction that she raises on appeal. Doxey thus
failed to preserve error on these points. See Tex. R. App. P. 33.1(a); Tex. R. Civ.
P. 274; Vu, 2004 WL 612832, at *6. And, even if Doxey had preserved error as to
these complaints, we still would not conclude that the trial court reversibly erred in
submitting the challenged instruction to the jury. We overrule the first issue.

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 B. Did Doxey adequately brief and preserve error as to her second issue?

In her second issue, Doxey asks whether “the trial court commit[ted]
reversible error when it implicitly ruled that the contract at issue was unambiguous
and bonus payments were subject to the complete discretion of the CRC[-Evans]
Board of directors?” Under this issue, Doxey argues that the contract is ambiguous
as to whether the contract allows CRC-Evans or Stanley to unilaterally eliminate
an incentive bonus even if the company met the financial criteria set forth in the
contract.

Even construing Doxey’s appellate brief liberally, we cannot conclude that
she adequately briefed any argument in support of these assertions. See San Saba
Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.]
2005, no pet.). Therefore, we find briefing waiver. See id.; see also Deutsch v.
Hoover, Bax & Slovacek, L.L.P, 97 S.W.3d 179, 198–99 (Tex. App.—Houston
[14th Dist.] 2002, no. pet.). But, even in the absence of briefing waiver, Doxey
could not prevail because the record does not reflect that she timely voiced in the
trial court any of the appellate complaints that she asserts under her second issue.
See Tex. R. App. P. 33.1(a); In re A.V., 113 S.W.3d S.W.2d 355, 358 (Tex. 2003);
Bostow v. Bank of America, No. 14-04-00256-CV, 2006 WL 89446, at *6–7 (Tex.
App.—Houston [14th Dist.] Jan. 17, 2006, no pet.) (mem. op.). Doxey did not
raise any of these complaints during the charge conference, nor did she request that
the trial court submit a question to the jury regarding any allegedly ambiguous
contract. Doxey did seek a new trial on the grounds that the contract was
ambiguous; but, because Doxey did not raise this complaint during the charge
conference and the trial court did not submit any ambiguity question to the jury,
raising the ambiguity complaint in the motion for new trial was untimely and did
not preserve error. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 272; In re N.A.L.,

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No. 04-13-00159-CV, 2013 WL 4500633, at *4 (Tex. App.—San Antonio Aug.
21, 2013, no pet.) (mem. op.).

Additionally, to the extent Doxey asserts that the incentive bonus plan
amounted to an illusory promise, Doxey never raised this argument in the trial
court. Rather, all parties stipulated that Exhibit 5 constituted a binding contract,
and Doxey never requested a jury question as to whether there was a binding
contract between the parties. Hence, Doxey waived any complaint that the
incentive bonus plan is illusory. See Tex. R. App. P. 33.1(a); In re A.V., 113
S.W.3d S.W.2d at 358; Bostow, 2006 WL 89446, at *6–7. We overrule the
second issue.

C. Did the trial court err in granting summary judgment as to the
quantum-meruit claim?
In her third issue, Doxey asserts that the trial court erred in granting
summary judgment as to the quantum-meruit claim. According to Doxey, after
Stanley took over CRC-Evans, she performed additional work that was outside of
what was envisioned in her employment contract. Doxey maintains she was
entitled to recover equitable compensation for the additional services. The trial
court impliedly granted summary judgment as to the quantum-meruit claim on the
ground that a valid contract governs the subject matter of the quantum-meruit
claim.

In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of
law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court's
summary judgment, we consider all the evidence in the light most favorable to the

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nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence
raises a genuine issue of fact if reasonable and fair-minded jurors could differ in
their conclusions in light of all of the summary-judgment evidence. Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). When, as in this case,
the order granting summary judgment does not specify the grounds upon which the
trial court relied, we must affirm the summary judgment if any of the independent
summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 872 (Tex. 2000).

Quantum meruit is an equitable theory of recovery based on an implied
agreement to pay for benefits received. Heldenfels Bros., Inc. v. City of Corpus
Christi, 832 S.W.2d 39, 41 (Tex. 1992). Under Texas law, the general rule is that a
plaintiff who seeks to recover the reasonable value of services rendered or
materials supplied through a quantum-meruit claim may do so only when there is
no express contract covering those services or materials. Truly v. Austin, 744
S.W.2d 934, 936 (Tex. 1988). Doxey has not asserted in her issues, nor has she
presented this court with argument, that the facts of this case fall within one of the
exceptions to the general rule the Supreme Court of Texas set forth in Truly. See
id. (mentioning exceptions to general rule if (1) plaintiff partially performs an
express contract but, because of defendant’s breach, is prevented from completing
the contract, (2) plaintiff partially performs an express contract that is unilateral in
nature, or (3) plaintiff provides labor or materials under a construction contract and
satisfies certain requirements).

On appeal, Doxey asserts the Stanley Parties’ argument that the contract
covers the services provided in her quantum-meruit claim is “specious” because

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the Stanley Parties maintain that the incentive bonus is wholly discretionary. But,
the Stanley Parties’ contention that payment of the incentive bonus to Doxey was
discretionary does not speak to the scope of the services covered by the contract,
which is the basis of this summary-judgment ground. See Truly, 744 S.W.2d at
936; Borrell v. Vital Weight Control, Inc., No. 14–07–00390–CV, 2009 WL
783342, at *3–4 (Tex. App.—Houston [14th Dist.] Mar. 26, 2009, no pet.).

Doxey also asserts that she worked extra hours in her job after Stanley
bought CRC-Evans and did so based on the expectation of receiving the maximum
incentive bonus. Doxey asserts that this extra work is not covered by the contract.
But, a dispute between the parties as to whether additional compensation is due for
services under a contract does not change the scope of the contract.

The summary-judgment evidence conclusively proves that the services for
which Doxey seeks compensation are covered by an express contract, and thus
Doxey’s quantum-meruit claim fails as a matter of law. See Borrell, 2009 WL
783342, at *3–4; Ramirez Co. v. Hous. Auth. of City of Houston, 777 S.W.2d 167,
173 & n. 12 (Tex. App.—Houston [14th Dist.] 1989, no writ). The trial court did
not err in granting summary judgment as to Doxey’s quantum-meruit claim, and
we overrule the third issue to the extent it addresses this claim.

D. Did the trial court err in granting summary judgment as to the fraud
claims?
In her third issue, Doxey also asserts that the trial court erred in granting
summary judgment as to the following alleged fraud: (1) a claim based on material
misrepresentations made to Doxey that she would receive an incentive bonus if she
continued to work for the Stanley Parties and the financial criteria set forth in the
contract were met; (2) a claim based on the Stanley Parties’ failure to fulfill a
promise to Doxey that she would be compensated appropriately and fairly in

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exchange for continuing to work for the Stanley Parties; and (3) if it is true that the
Stanley Parties were aware that Doxey would not be receiving an incentive bonus
because of the company’s poor financial performance, a claim based on a duty to
reveal this information that arose when the Stanley Parties assured Doxey that she
would be treated fairly and appropriately compensated in exchange for taking on
new duties and responsibilities.

The trial court granted summary judgment without specifying the grounds
upon which it relied, so, on appeal, Doxey must show that each independent
summary-judgment ground asserted against Doxey’s fraud claims does not provide
a basis for affirming the trial court’s summary judgment. See Ramco Oil & Gas
Ltd. v. Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 826 (Tex. App.—Houston
[14th Dist.] 2006, pet. denied). The Stanley Parties asserted the following
summary-judgment grounds against Doxey’s fraud claims: (1) the “at-will
employment doctrine” bars Doxey’s fraud claims; (2) the alleged statements that
Doxey would be treated fairly are too vague to constitute material representations;
(3) there is no evidence that any representation was knowingly false when made;
(4) to the extent Doxey asserts fraud claims based on non-disclosure, the Stanley
Parties had no duty to disclose; and (5) to the extent Doxey asserts fraud claims
based on failure to disclose to her that she would not receive an incentive bonus,
there is no evidence that the Stanley Parties knew Doxey would not receive the
bonus and failed to disclose this information to her.

In her appellant’s brief, Doxey does not address the “at-will employment
doctrine” or the Stanley Parties’ argument that the alleged representations are too
vague to constitute material representations. Doxey does not sufficiently brief the
legal basis for the Stanley Parties’ alleged duty to disclose, nor does she brief any
evidence that arguably might raise a fact issue as to when the Stanley Parties knew

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that Doxey would not receive an incentive bonus and failed to disclose this
information to Doxey.

Even construing Doxey’s appellate brief liberally, we cannot conclude that
she has briefed arguments challenging each of the independent grounds on which
the trial court granted summary judgment on the fraud claims. See Navarro v.
Grant Thornton, LLP, 316 S.W.3d 715, 719–20 (Tex. App.—Houston [14th Dist.]
2010, no pet.). Therefore, to the extent Doxey argues under the third issue that the
trial court erred in granting summary judgment on her fraud claims, we overrule
her challenge and affirm the trial court’s summary judgment as to these claims.
See id.

III. CONCLUSION

Doxey has not preserved error in the trial court as to the alleged error she
asserts regarding the breach-of-contract claim. The summary-judgment evidence
conclusively proves that the services for which Doxey seeks compensation in her
quantum-meruit claim are covered by an express contract, and thus the Stanley
Parties were entitled to summary judgment on this claim. Doxey has not briefed
arguments challenging each of the independent grounds on which the trial court
granted summary judgment on the fraud claims, and therefore Doxey has not
shown error in this ruling. Having overruled all of Doxey’s appellate issues, we
affirm the trial court’s judgment.

/s/ Kem Thompson Frost
Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Brown.

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