Berryman's South Fork, Inc. and Richard Berryman v. J. Baxter Brinkmann Internationial Corporation
418 S.W.3d 172
| Tex. App. | 2013Background
- A written contract (July 2, 2001) hired BSF to provide Berryman as a full-time sales/marketing representative for JBBI and affiliated entities.
- The Agreement fixed five-year term (beginning Aug. 1, 2001) with automatic annual renewals unless 90 days’ written notice; termination could occur if performance ceased due to death/disability or failure to meet industry standards.
- Plaintiffs (JBBI, TBC) sued BSF and Berryman for declaratory judgment, breach of contract, and money had and received; defendants counterclaimed for reimbursement of expenses and asserted third-party claims (defamation, disparagement).
- In May 2008, defense counsel sent a letter alleging constructive termination and seeking severance; plaintiffs thereafter terminated the Agreement in August 2008 and sought damages for paid-but-unperformed periods ($291,666.67) and airplane allowances ($41,999.96).
- Trial court granted traditional and no-evidence summary judgments favoring plaintiffs on breach/declaratory/money had and received claims, and awarded damages, fees, and interest; judgment later appealed.
- Key legal issues centered on (i) whether damages were properly measured, (ii) whether money had and received was barred by voluntary payment, (iii) admissibility of Berryman’s affidavit, (iv) enforceability of an oral expense-reimbursement agreement under the statute of frauds, and (v) redundancy of declaratory relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach damages: proper measure of damages | Berryman/Bsf argue continued payments were damages for non-performance. | Appellees contend continued performance allowed recovery of pre-termination payments. | Appellants prevail; overpayments not recoverable as breach damages. |
| Money had and received: voluntary payment defense | Plaintiffs seek restitution for unjust enrichment; voluntary payment defense not properly raised. | Defendants rely on voluntary payment doctrine as a defense to restitution. | Issue rejected; voluntary payment doctrine not properly raised; no recovery under that theory. |
| Berryman affidavit: evidentiary objection properly sustained | objections to affidavit should be overruled; statements are within personal knowledge. | Affidavit contains sham, hearsay, and lack of personal knowledge; objections should be sustained. | Appellants waived some objections; court did not abuse discretion in sustaining sham/other objections; issue resolved against appellants. |
| Expense-reimbursement contract under statute of frauds | Oral/modified reimbursement agreement valid; partial performance unrelated to Statute of Frauds. | Expense reimbursement is within the statute of frauds; modification not enforceable unless in writing. | Statute of Frauds applies; agreement unenforceable; partial performance not proven. |
| Redundancy of declaratory judgment | Declaratory relief redundant to breach claim; should be barred. | Redundancy defense not properly raised; independent declaratory relief may still be proper. | Issue not preserved for review; no reversal on redundancy. |
Key Cases Cited
- Osage Oil & Ref. Co. v. Lee Farm Oil Co., 230 S.W. 518 (Tex. Civ. App.—Amarillo 1921) (repudiation damages rule for contracts of services discussed)
- Bumb v. Intercomp Tech., L.L.C., 64 S.W.3d 123 (Tex. App.—Houston [14th Dist.] 2001) (anticipatory repudiation and continuing performance; damages notion)
- Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex. 1974) (term employment contract performable within one year; Statute of Frauds)
- Garcia v. Karam, 276 S.W.2d 255 (Tex. 1955) (modification of contract terms; when modification remains within writing)
- Breezevale, Exx. v. Holloway, 82 S.W.3d 439 (Tex. App.—Dallas 2002) (partial performance doctrine in statute of frauds context)