*1 claim) ceipt of the it received her accepted
claim claim her would be rejected or that it needed more time to
make a decision. PLIC breached this
duty by responding to Mrs. Russell’s claim 29, 1999,
for the first on which time June days
was 137 after she submitted her Therefore,
claim. Mrs. Russell was enti- damages
tled to under article 21.55. Those
damages days began to accrue 180 after agent.
she submitted her claim to PLIC’s prejudgment
The accrual of interest be- 27, 1999,
gan February which was thir- death,
ty days after Mr. Russell’s instead April as determined the trial Accordingly, modify
court. we the trial judgment
court’s to award Mrs. Russell $85,972.60.
prejudgment interest of judgment of the trial court is modi-
fied, modified, and as affirmed.
ACADIAN GEOPHYSICAL
SERVICES, INC.,
Appellant, Murrell, CAMERON,
Jack Charles Guidry, Leger, Ray
Richard Kenneth
Freeman, Lyons, Thomas Russell W. George Pee, Douglas
Phillips, Arnold Amis, Nicky Phillips, Terry
E.
Blakeney, Appellees.
No. 10-01-025-CV. Texas, Appeals
Court of
Waco. 9, 2003.
July *3 Pee, Phillips, Arnold George
Thomas W. Amis, Phillips, Terry E. Douglas (“the employees”) dam- Nicky Blakeney Services, Geophysical ages against Acadian (“Acadian”), corpo- Inc. a seismic services ration, employee prof- for its breach of an it-sharing agreement.1 Acadi- against filed suit officers, an, corporate its and Petroleum Geo-Services, (“PGS”), ASA on the *4 grounds employment Acadian breached agreements employees between the and LeBlanc, president, Acadian’s Blaine un- employee der which each was entitled to 3 proceeds of the from Acadian’s 1998 1/2% acquisition by jury PGS. The found in fa- employees vor of the and awarded them damages for Acadian’s breach. Appellant presents appeal. six issues on We will affirm. Zummo, Perry,
Brent C. Patrick Zum- Authority The of Acadian’s President mo, LLP, Perry, Mitchell & Michael D. presents following question Miller, Glover, Miller, Prebeg, & Lewis law, issue one: “As matter of can P.C., Houston, appellant. for president giving Acadian’s bind Acadian to Maddux, Amy Douthitt Michael L. plaintiffs proceeds almost 40% the Brem, Stokes, Macey Reasoner Jacalyn from Acadian shareholders received Botts, Houston, Hollabaugh, Baker ap- for (1) merger of the sale or Acadian when pellees. Acadian itself would never receive these (2) proceeds, there is no evidence that the DAVIS, Before Chief Justice Justice president actual had take such VANCE, and (Sitting Justice RICHARDS (3) action, extraordinary and there was no by Assignment). anything that Acadian did to hold evidence president having apparent out as au- OPINION extraordinary an thority to make such plaintiffs commitment or that of the RICHARDS, DAVID L. Justice scope authority?” investigated the of his (Assigned). issues, appeal determining This is an from a In “no-evidence” we verdict Cameron, in- awarding appellees: only are to consider the evidence and Jack Murrell, support finding Leger, Ray Charles Richard Gui- ferences that tend Freeman, Lyons, all and inferences dry, disregard Kenneth Russell evidence however, (“PGS”); they voluntarily parties appeal. filed withdrew 1. Both notices supersedeas challenge appeal Acadian filed a intended to their after style granting present of the case reflects court’s decision a directed verdict in bond. The Geo-Services, position parties. favor ASA the current of the of Petroleum 294 Vento, contrary.
to the 48 future issuance. Blaine LeBlanc met with Bradford 749, (Tex.2001); Amis, Terry Nicky Blakeney, Ray Guidry, S.W.3d 754 Contl. Coffee Pee, Cazarez, George Murrell and all Prods. Co. v. 450 Charles Est., field, (Tex.1996); King’s experience In re 150 Tex. whom had in an (1951). attempt join Anything to recruit them Acadian as S.W.2d if legally employees. they than a LeBlanc told them that more scintilla of evidence Acadian, Cazarez, they would support finding. sufficient to came to work each 450; Hornsby, profit company receive 3 of the 937 S.W.2d at Leitch v. 1/2% (Tex.1996). sold, 114, 118 was public ever went or S.W.2d being for Ricky another 3 held 1/2% may only “No-evidence” issues be Leger, possible another recruit who was sustained when the record discloses one present meeting. at the LeBlanc told (1) complete absence of following: company’s stock them that 25% (2) fact; evidence of a vital the court is portion would aside to cover the be set barred rules of law evidence Phil- promised group. Doug to the Later giving weight only evidence offered Phillips, Ricky Leger, Kenneth lips, Tom fact; prove a vital the evidence Freeman, Lyons Russell and Jack Camer- *5 prove offered to a vital fact is no more joined Acadian under the same on also evidence; a scintilla of than mere agreement. conclusively the evidence establishes a The record also reflects shareholder’s opposite Uniroyal of a vital fact. Good that all actions taken providing resolution Martinez, 328, rich Tire Co. v. 977 S.W.2d actions taken by LeBlanc “shall be deemed (Tex.1998) Calvert, (citing Robert W. Corporation by the shareholders of this Evi “No Evidence” and “Insufficient if actions were with like effect as such Error, 38 Tex. L. Rev. dence” Points of by taken the shareholders themselves” (1960)). 361, 362-63 There is some evi him indemnify any that Acadian would proof supplies a reason dence when corpora- actions he took on behalf may able basis on which reasonable minds tion. about the exis reach different conclusions Sander,
tence of vital fact. Orozco for the employees agreed The to work (Tex.1992). 555, and, share company believing they would ser- company, provided in begin with a review of Acadian’s sale of We startup its initial corporate history. during Acadian is a Louisiana vices to Acadian paid a regis- period they that is for which were corporation seismic services Norwegian large It a salary. Subsequently tered to do business Texas. was exploration corporation, oil “PGS” incorporated January of 1997 a services Acadian expressed acquiring experienced men2 in the interest group three swap merger. The em- industry. through Each of those men be- stock seismic that an Acadi- ployees presented evidence came shareholders and officers.3 One three, Guidry, subse- attorney, an in-house Eddie Blaine LeBlanc became Acadi- 100,000 corporate quently falsely drafted new president. an’s shares of stock history in- for Acadian in 1998which reflected authorized under the articles of were 32,500 board among things, other a false set of corporation: shares were issued stockholders, 67,500 reflecting Guidry that and Jim leaving shares for minutes officer, McGehee, LeBlanc, Pharr, corporate 3. James 2. Richard and Wal- A fourth Blaine Tilley. joined Acadian a short time later. lace McGhee, nothing. some of Acadian’s chief financial officer Others received When 1997. had been February employees were shareholders as to whom stock They presented Guidry also evidence that quarterly transferred later received finan- prepared falsely PGS, new stock certificates reports they cial understood for suggesting that all Acadian stock had been they the first time that had not received February issued as of 1997. No stock they promised. shares had been 3½ employees. was reserved for the At the against filed suit Acadi- employees The time, same sought to ensure officers and later added Acadian and an’s merger would ob- go through by PGS The case was tried to PGS as defendants. taining agreements key with Acadian em- jury in October of 2000. The ployees they would continue their em- reached a settlement with the individual ployment. Employees Blakeney, Freeman trial, during defendant officers and at the Phillips sign were asked to written close of the evidence the trial court direct- employment agreements again re- which jury ed a verdict favor PGS. The plan ferred to a “profit-sharing” and were employ- found in favor of all of the named they profit handsomely told would appeal.4 The ees on awarded merger through. went $500,000 employees, to each of the an merger July closed in Houston on approximately equal amount to the share $52,000,000 paid 1998. for Acadi- PGS initially pledged LeBlanc had would be set an, $17,000,000 paying off of debt and trad- allowing for them. After for a credit aside $35,000,000 ing of PGS stock for the stock agreed for the settlement amounts merg- of Acadian. Under the terms of the corporate officers sued in their individ- agreement er the PGS stock not avail- capacities, judg- ual the trial court entered *6 ninety days. able for When the stock was employ- ment on The November 2000. period released after that its value had initially appealed ees the directed verdict $21,000,000. fallen to approximately Aca- PGS; however, in they agreed favor of to a merged dian was a wholly as owned PGS appeal that Acadian dismissal of after subsidiary and all of offi- Acadian’s former posted supersedeas bond. employees cers and remained with the company under its In new structure. the Acadian’s “No-Evidence” Claims following merger, months the the officers employees they told the that would receive employees’ Acadian contends the their company shares of the and in the fall of contract claims fail a matter breach as began 1998 the officers contact- because there was no evidence that law ing employees individual to tell them how President, as Acadian’s Blaine LeBlanc they much received. apparent authority had either the actual or Each employee keep profit-sharing agreement was told to to make a with employees. parties agree amount of his shares confidential because Both they receiving agreements were not all the same because the between the em in Louisi employees ployees amounts. Seven of the eleven and LeBlanc were made ana, governing law those many received as little as 600 and as as the substantive 8,000 agreements by in is controlled Louisiana law. shares PGS stock late 1998. against supporting jury’s 4. The found several other em- not detail the evidence ployees plaintiffs who were named in the suit regard verdict with to those appeal in the trial court. Because no party appeal. to this portion taken we from that verdict will 296 corporate by-laws are silent as Corporation Acadian’s President’s Authority express authority provision to the
Actual however, employees; anyone to hire Louisiana, in authority” In “actual anticipate by-laws clearly hiring of em- principal to its manifestation volves employees’ right in ployees, agent that the is authorized en agent corporation in indemnification from the le- Tedesco particular in a transaction. gage gal proceedings, right and the of the cor- Dev., 540 962 Gentry v. Inc. So.2d liability insurance on be- poration to seek (La.1989). To whether the em ascertain employees, rights specifically of its are half than a mere scin ployees presented more at acknowledged length and detailed a manifestation showing tilla of evidence argument apparent- Acadian’s by-laws. him to authorizing to LeBlanc by Acadian the au- ly not that LeBlanc did not have employment agreements ques enter the employment thority general to enter tion, with a review of Acadian’s begin we behalf, but rather that agreements its by Acadian’s corporate by-laws. written Aca- authority did not have the to bind he following President the laws invest its specific employ- terms of the dian to the authority: at issue here. agreements ment shall be the chief exec- The President argument Acadian’s is similar Corporation; he shall utive officer of the corporation Mos- claim advanced preside meetings at the of the share- Co., ley Dairyland Ins. So.2d holders, active general shall have grounds, on other (La.App.), vacated of the cor- of the business management (La.1993). Mosley, In 620 So.2d see that all orders poration, and shall president claimed that its corporation Di- Board of and resolutions of the reject uninsured lacked the (sic), the has not been elected rectors corpora- coverage on behalf of the motorist Director, President, preside at if a shall rejected that reviewing court tion. The meetings all of the Board. analysis: following in the argument fact emphasizes Plaintiff presented is question The central ex- corporate resolution there was no “general grant the Acadian’s whether *7 authorizing chief executive pressly [the the management of the business of active reject coverage. Howev- officer] UM through its writ corporation” to LeBlanc er, corporate apparently there was no to enter by-laws authorized LeBlanc ten procure authorizing him to resolution including profit-sharing agreements, into coverage. employees ownership, with Acadian stock compensation part employment of their as im- express and in had both long [The officer] the law
package. It has been reject coverage plied authority to UM corporate president’s au Louisiana that a corporation]. Decisions involv- depen corporation [the the thority to bind normal, day in arise the ing of the insurance “organic the law dent on either corpo- (here, day operation of a business. As corporate by-laws), corporation” alone, these decisions ration cannot act express implied or delegation of either directors, and directors. made its officers are authority from the board of that the Articles particular, In we note doing or custom of implied from a habit ex- corporation] Incorporation [the Milling Rice & See Jeanerette business. officer] chief executive Durocher, pressly gave [the 123 La. 48 So. v.Co. take authority to (1909). president as necessary corpo- apparent action to maintain had theory that LeBlanc authori- operation. ty- ration’s
Id. at 799-800. additionally suggests, case, In provision our there was no elaboration, without further that LeBlanc corporate by-laws authorizing LeBlanc authority prom could not have had the to bind Acadian to set aside unissued stock proceeds merger ise from the sale or part as of an employee’s compensation Acadian because Acadian never realized however, package; neither was there an any proceeds merger. from the We do express authorization LeBlanc permitting agree. that un The evidence established Instead, employees. to hire as noted acquisition, paid der the terms of the PGS above, by-laws provided grant a broad corporate off Acadian’s and ex debt then general authority to LeBlanc for the changed Acadian’s stock for its own stock. management “active of the business of the employees’ theory case was corporation.” addition, In employees employment, consideration for their presented evidence at trial that LeBlanc Acadian, through president, prom its had had the employees to hire ised that a sufficient amount of Acadian employment, set the terms of their and stock had been set aside for them to each nothing bylaws Acadian’s restricted company, receive a 3 share of the but 1/2% LeBlanc from including part stock as of a agree that Acadian had breached that employee compensation agreement. Fi- ment. The evidence established that Aca- nally, we note that LeBlanc testified he large profits dian shareholders made had the authority to issue stock: merger. We find this evidence to con QUESTION: you Did have written au- stitute more than a mere scintilla of evi thority to issue stock certificates? had, fact, dence that the suf I had authority
[LeBlanc]: as far as the damages fered when Acadian breached the articles, incorporation being presi- agreements employees by made with the dent. LeBlanc compensate and failed to the em QUESTION: president you As ployees pursuant agreements. had au- Is thority to issue stock? sue one is overruled. Yes.5
[LeBlanc]: Expert Testimony Acadian’s Proffered We conclude there is more than a mere Jury Instructions scintilla of evidence showing LeBlanc had actual authority to bind Acadian to In poses em- its second issue Acadian ployment alternative, agreements under which “In following question: shares part stock would be set aside as give its the above facts somehow rise to some *8 employees compensation package.6 president Be- evidence that Acadian’s had the ruling cause of our apparent authority the evidence was actual or to bind Acadi- support sufficient to extraordinary the verdict on the an to such an obligation, did (1) ground that LeBlanc authority, had actual the trial court err in excluding Acadi- we need not decide expert’s testimony, whether the verdict an’s have which would supported can also be jury corpo- on the alternative assisted the in understanding with, testimony during deposition 5. This presented occurred 6. We are not and therefore do question not address the of the extent to subsequently that was introduced as evidence agreements recognized which oral are under at trial. law. Louisiana employees’ motion in limine the scope corporate ing and the of a on the rate structure (2) following exchange occurred: authority, and president’s duties and refusing proper to instructions to submit Okay. [A THE COURT: motion corpora- jury advising it as to when a to what concerning] testimony limine as presi- tion can be liable for the acts of its applies. law assume, dent, jury to allowing thus Your [ACADIAN’S COUNSEL]: law, presi- contrary to Louisiana Honor, to of inquire I’d like Plaintiffs’ authority dent’s is unlimited?” at. counsel what this is aimed [THE COUNSEL]: EMPLOYEES’ response In to a in limine filed motion Honor, they produced Your Professor proffered the by employees, Acadian Ragazzo expert as an witness on Robert testimony Ragazzo, of Robert a Professor legal issues in this case and he testified University at the of Houston Law Law help was going that he was to the—he the trial court argues Center. is and going jury to tell the what law excluding Ragaz- abused its discretion help apply them the law to the facts of pro- he could have testimony zo’s because extensive testi- gave this case and some jurors following relevant in- vided was, mony Louisiana law and about what formation: in Louisi- though even he’s not licensed is way corporation The which a ana. organized; why corporation sepa- will Okay. Everybody THE COURT: shareholders; rate from its how share- up to the Court surely agree that that’s company; holders own the how the guy if this jury. and not the And wants share- company making money and the information, gives he it give us some making money holders are not necessar- Court, right? company’s ily thing; the same that a Your COUNSEL]: [ACADIAN’S president company can to “or- bind Honor, parts to that. there’s two contracts, not dinary” employment but all, it although First seemed “extraordinary,” giv- that are those [opposing counsel] have lost on been difference; examples of the ing deposition, during Ragazzo’s Professor employees] have on [the should been part of Ragazzo’s larger Professor —the on legal notice restrictions simply testimony is Ragazzo’s Professor authority company; officer’s to bind the corporate about structure. plain- it for and that was unreasonable yesterday, picked up As the Court tiffs to believe that LeBlanc had author- And what the Acadian didn’t own itself. ity promise them each 3 1/2% was, fact, asking Plaintiffs are Acadian. Acadian, was received by received but employees respond that Acadian’s by shareholders. be for two rea- argument should overruled what Profes- largest part And the (1) Ragazzo’s testimony was never sons: professor corporate Ragazzo, sor Acadian; properly offered Houston Law University law at the court within its to ex- was testify simple to is going Center is testimony clude the because the (sic) Corporations are owned axiom: *9 competent Ragazzo as as to form equally sold, shareholders; when the shares are on ultimate issues in the case. opinions how all of that works. testimony [op- part The second of his Ragazzo’s deposition was tak- Professor to, is not is close but he During pretrial posing counsel] a hear- prior en to trial. is, going to tell the response what the law but made no to the trial court’s state- speak to, he going people to as in his ment. No further mention of Professor court, position often ques- Ragazzo do mixed until was made Acadian’s counsel pretrial deposition tions of fact and law. Ragazzo’s offered entire exceptions: as a bill of law, question The mixed of fact and that is the application there of fact and have [ACADIAN’S COUNSEL]: We if law is these are the facts and this is offered—the Court has sustained Plain- law, what is the result. tiffs’ motion limine to our offer of the testimony opinions of Professor Ra- (sic) And the result is that the law appreciate I what gazzo. As we’ve authority, didn’t have PGS is not the agreed simply to that we will tender the successor to Acadian. deposition Ragazzo of Professor as—as Those are issues to which we believe testimony the substance of that without they he are questions. mixed We can— having bring to him down here and do that, pre- have—we have briefed arewe this, that and the other. pared present the Court with that brief. Okay. THE I COURT: So have a deposition. I don’t know this is the
Like expert, Plaintiffs’ it seems to me use, you one want to but— that yet doesn’t have to be resolved as because Ragazzo Professor is the last That’s ac- [ACADIAN’S COUNSEL]: witness that plan calling. Defendants on ceptable acceptable [op- to me if it’s
THE posing COURT: Give me a copy counsel]. of his deposition, too. [THE COUNSEL]: EMPLOYEES’
[ACADIAN’S happy Be COUNSEL]: That’s fine. to, Honor, Your and can give you we [ACADIAN’S COUNSEL]: So this is copy of the brief that prepared we bill, proffer suppose, our I is our —this support of that? testimony on the excluded of Professor
THE Right. COURT: Ragazzo, R-a-g-a-z-z-o. Robert which is And far as as reference to Louisi- Okay. right. THE COURT: All course, ana goes, you’re law going agree We with the that; either, to make Texas law for that proffer Ragazzo’s of Professor matter, unless I tell them what it is. deposition testimony was insufficient [ACADIAN’S Of COUNSEL]: properly perfect Acadian’s instant com course, Your Honor. plaint appellate for review. The record is THE you COURT: How do spell however, admittedly confusing; even if we guy’s name? agreed position with Acadian’s [ACADIAN’S Ragazzo, COUNSEL]: limine, court did grant the motion R-a-g-a-z-z-o, Your Honor. Professor the fact remains that Acadian made no Robert. trial, attempt to offer the evidence at Other than the necessary trial court’s statement prerequisite appellate re 103(a)(2). going permit that he was not See the wit- view. An ad Tex.R. Evid. jurors applicable ness to tell the what the ruling verse on a motion in limine does not was, State v. Oil Louisiana and Texas the trial Wood preserve complaint. law Distrib., Inc., (Tex. court never ruled the motion in limine. S.W.2d 1988). Moreover, Moreover, other than responding Supreme “of the Texas course, Honor,” exceptions Your Acadian’s counsel Court has stated that a bill of
300 blindly rely not on the person may A an offer of the evi
does not constitute agent. dealing of an One assertions & See Brown v. Am. dence. Transfer duty to determine (Tex. agent with an has Co., 601 Storage S.W.2d authority purportedly whether the 1980). law, the the Even were that not permit will the granted by principal the that here Acadian tendered Professor fact proposed by agent. act the deposition, con Ragazzo’s entire which pro among things, alleged other tained the actually given by jury The instruction of law that even Acadian’s nouncements trial court stated: only provid agreed counsel should be trial both only arises where agreement An court, provides jurors by to the ed mutually consented to its parties have not why an additional reason the issue was parties must The minds of both terms. At trial properly preserved for review. involved, matters primary meet as object, not only Acadian’s counsel not did or no consent exists. agreement with the trial
but rather voiced parties deciding In whether (the judge) only he court’s statement consid- you may an agreement, reached jurors applicable on the should instruct light of the they said and did er what Now, for appeal, argues law. circumstances, including surrounding Ragazzo time that should have the first may dealing. You any earlier course explain, among other permitted been unexpressed parties’ consider the corporate on a things, legal restrictions or intentions. thoughts company. authority to bind a officer’s the conduct A conduct includes party’s re permitted. See In variance is not Such party’s who acts with of another (Tex. C.Q.T.M., 737-38 authority. apparent or denied). 2000, pet. Because we App.-Waco to act for a Authority for another preserved properly is not hold issue party’s agree- must from the party arise review, need not address appellate we on behalf and that the other act ment argument employees alternative party. party If a of the for the benefit its properly excluded on testimony act, perform an another to so authorizes merits. also authorized to do party that other usual, proper, and nec- whatever else is presented secondary question The au- expressly the act essary perform the trial court two is whether issue thorized. following failing provide erred in require- two authority has Apparent by Acadian: requested instruction (1) must make principal ments: The president only has au- corporation’s A to an inno- manifestation form of some company “day obligate thority to party The third party; and cent third matters, that are “ex- day” not those purported reasonably on the rely must traordinary.” agent as a result authority of the manifestation. principal’s exist, authority to there apparent
For deci a trial court’s existed, We review prior to the time of must have un instruction of, particular or sion to refuse complained a “custom” the act standard of discretion appreci- an der an abuse “holding out” for “usage,” or V.L.K., In re S.W.3d corporation. A review. of time length able (Tex.2000). considera trial court has to create is insufficient single instance necessary and to determine holding ble discretion constitute a usage custom or Id. jury instructions. proper out.
301 management on a of the affairs requested Acadian’s instruction cor- committed the poration president’s very was authority and did not corporation require of the actually provided to the similar instruction authority manag- to party third show for by the court. Both instruc- requested the act). Having determined the trial er’s actually tion and instruction refer- given deny- abuse its discretion in court did not grant enced the rule that a of general instructions, requested jury ing Acadian’s person ato to do an act author- issue two. we overrule person to else ized do whatever is usual, perform to proper, necessary Challenge to Acadian’s “No Evidence” expressly act the authorized. The use of Jury’s the the Determination of “usual” in actually the term the instruction Intent in Acadian’s Profit- Parties’ sufficiently is the given similar to term sharing Plan “ordinary” the instruction. requested the presents following question Acadian perceive not do instruction’s We the “Does the issue three: use of the term provide failure to the converse instruction plan” in “profit-sharing employ- written person that a authorized to act is not do an the ment contracts somehow evince that “extraordinary” authorized to do an act plaintiffs specific per- to receive a were necessary. We also do not conclude centage profits, proceeds of but of not requested the to instruction’s references Acadian, espe- the sale of eventual the need for evidence of “customs” and cially when there was no evidence that the “usages” “appreciable of lengths time” plaintiffs ever told that were this term prohibitions against reliance” “blind anything meant the sort?” A related parties by third of agents the assertions question presented in Acadian’s fourth required charge. were to be included in legally issue: “Is the evidence to sufficient Acadian’s cited Truck authority, Manuel & support jury’s finding that an oral Co., Equipment does not that the require contract existed between Acadian and cer- provide court instructions plaintiffs provide tain to those individual requested. See Equip. Manuel Truck & plaintiffs proceeds 3 with 1/2% Co. v. B.G. Hooker Transport, Petroleum Acadian, when con- alleged sale of Inc., 430 So.2d (La.App.1983). 1367 More- superseded by employ- tract was written over, the trial court to was authorized any- ment contracts did not contain conclude that such inap- were instructions thing resembling such a term?” propriate given instant case that our representations allegedly facts involved challenge legal A sufficien by president corporation made of a to cy party having the evidence prospective employees employment during proof at trial ad the burden of is to be See Bank negotiations. First Interstate “no reviewing dressed court as a Bank, 153, (5th Natl.
First 928 F.2d Co., Sling evidence” Gooch v. Am. issue. Cir.1991) (holding agent’s position as sen- 181, (Tex.App.-Fort 183-84 vice-president ior of bank lent credence writ). Worth no party’s third belief that had authori- agent employment agreements The oral sign purchase bond ty agreement); see Mills, some were later also Cook v. Ruston La. reduced Oil (1930) (stating writing. agree- 353-54 Some of the written very 127 So. term “manager” applied following language: use of when to ments contained officer, corporate agrees pay Employ- to ordi- further conveyed “Employer idea profits mind that nary through Employ- the one had been ee a share named *12 inter- plan.” jurors Another different profit-sharing er’s written The heard three profit- pretations similarly the worded agreement provided that Acadian “does of (1) employees present- agree pay [employee], sharing plans: further to share in The Services, represented that Geophysical profit Inc.’s ed that LeBlanc evidence program.” agreements share Still the term their 3 owner- other referred to 1/2% (2) refer, elaboration, ship evi- company; further there was without to an to profit “executive share the term referred a Christmas program.” dence provided by Acadi- safety and bonus award Exactly what by was meant the 1997, for which each employees an its in plan” “profit-sharing “profit terms share $1,500 and employee received between program” profit and pro “executive share the $15,000, longevity with based on their was gram” hotly contested at trial.7 The the and there was evidence company; jury heard testimony that the first employ 401(k) program to a which term referred agreement ee to whom the written was actually the established. company never presented, Ricky Leger, by was told Le- ambigu agreement is anWhen signed agreement Blanc before he the ous, be submitted question the should profit-sharing plan the referred to the 3 have parties the the jury, whether or not promised share earlier to each em 1/2% pleaded Sage Assoc. ambiguity. See Street ployee orally by LeBlanc and there was 438, Co., Northdale Constr. employees they evidence told were were (Tex.1993) question (holding jury 444-45 “partners” “all if who will be millionaires” ambiguity was in construc presented by goes through.”8 “the deal pre tion the ambiguity That agreement). law, requiring Under Louisiana the inter fact issue legitimate sented made pretation in our case is by of a contract is determined from resolution the Louisiana parties. requirement the common intent of the under by clear the La. (West 1987); resolved, part, in Civ.Code ANN. art. see law ambiguity 2045 be Co., the both parties also Saucier v. 408 looking John-Clai So.2d to the conduct of the con (La.App.1981) (holding 29 the true in the formation before and after 2053. interpretations tent of the ANN. art. parties controls tract. See La. Civ.Code Here, parties in relation agreements parties). between The the the conduct of parties’ objec provision intent is profit-sharing determined pre expressions, subjective agreement hotly disputed tive rather in than by a Trust requiring tent. See Hunt v. Crowell Land & sented an issue resolution Moreover, act 210 La. 28 fact the trial court Corp., Mineral So.2d finder. (1946). Ambiguous permitting are ed terms to be within its discretion in agreements interpreted light the nature of the with written usages, prior agree oral agreement, equity, conduct troduce evidence of their LeBlanc, ments, of Aca- parties after the on behalf before and forma because contract, dian, profit- allegedly represented tion of and of other contracts written parties. plan sharing of a like nature between the referenced La. 1987). (West was, fact, the share agreement Amn. art. 2053 1/2% Civ.Code ac- prerequisite to its key employees is under its as a 7. term not defined Louisiana employees’ Law. quisition ensure the in order to following the continue to work for PGS would 8. There is evidence PGS wanted Acadian to acquisition. employment agreements obtain with written promised Yes, he in his agreement. earlier oral A. it sir does. See Civ.Code Ann. art. 2058 (permitting La. Q. you And at so look Mr. Blake- explanations ambiguous by prior terms ney’s agreement] over here and [written parties conduct of before formation of the compare, everything the same on that contract). Because there was more than a language going way through all the an mere scintilla of supporting evidence equal amount to the following other offi-
jurors’ special affirmative answer to issue *13 corporation except your cers for one,9 number issues three and four are being yours Nicky’s name name overruled. being on his? Another legal sufficiency chal Yes, A. Except sir. for some of the lenge is advanced Acadian in its fifth language top at the of the— issue: “Is the legally evidence sufficient to Q. talking just I’m part about that support jury’s finding that Acadian and profit-share program. Kenneth mutually agreed Freeman Yes, sir, A. stays the same. Freeman would be entitled to 3 1/2% proceeds of a sale or merger of Acadi- Q. youDo any know reason that Mr. an when no witness testified as to the LeBlanc would tell any you crew existence of such an agreement and Free chiefs what that term meant in one reso- man himself admitted that he was never lution and mean it something different promised this?” you? for the rest of Freeman, Kenneth a crew chief of one No, sir, A. I wouldn’t. crews, the seismic testified that he met Q. you meeting When had a with Mr. with LeBlanc in the spring of 1997 LeBlanc where he made the statement Martinville, Louisiana at which time Le- that if the through sale went there —or Blanc offered him employment with Acadi- an your part was offer to sell and would Freeman, an. According to LeBlanc told $500,000 dollars, be to a million which of him that if he agreed to work the other crew you? chiefs was with he part would receive company if it Ricky Leger. A. Mr. ever sold. Freeman initially turned the down; however, offer Q. you And was he talking when LeBlanc later to each of offered him employment under the same when he said that? conditions, higher but with a monthly sala- Yes, A. sir.
ry, accepted. he Freeman testified at Q. There was no difference between length about the profit-sharing language you supposed get what were to and what contained in employment his written Leger supposed Mr. get was accord- agreement: ing to Mr. LeBlanc? Q. And [your does written employ- Yes, A. sir. ment agreement] say that Acadian Geo-
services, Inc., Q. does further agree pay you had When the visit with Mr. Ken Freeman a couple share Acadian Geo- LeBlanc a of weeks later where physical profit- Services Inc.’s probably executive he said that it was going to be program? share your part a sale to PGS and would be 9. required ju- sharing instructions plan' profit-sharing that the ‘executive following question: answer the plan,’ agreements, rors "As to as used in the written was following plaintiffs, plain- each of the percent pro- did that intended to include 3½ mutually agree ‘profit- tiff and Acadian merger ceeds from sale or of Acadian?” $500,000, Rather, case any were there other crew for the court’s actions. you question it is a of whether the trial chiefs with then? court acted without reference to guiding that, Repeat please A. sir? principles. way rules and Id. Another Q. any other chief Was there crew act stating the test is whether the was you with when Mr. LeBlanc said that arbitrary or unreasonable. The mere fact your part, went the sale PGS may that a trial court decide a matter $500,000? through, would be discretionary in a within its dif- Yes, Ricky Leger. A. sir. Mr. appellate judge ferent manner than an in a there, Q. Leger Mr. was similar circumstance does not demonstrate Leger? same statement made to Mr. that an abuse of discretion has occurred. Yes, A. sir. Aquamarine Operators, See Downer v. Q. you supposed (Tex.1985). And get Inc., were *14 Leger got? amount Mr. same non conveniens stat- Texas forum Yes, A. sir. ute states: Q. According to Mr. LeBlanc? respect With to a claimant who is a Yes, A. sir. States, legal resident of the United on testimony hold this to We amounted a claim party, motion of a or written more than a mere of evidence that applies may scintilla this action to which section in profit-sharing language Freeman’s em- or be or in whole in stayed dismissed ployment agreement entitled him to the part under the doctrine of non forum the company promised same share of indi- seeking to party stay conveniens the vidually employees. to the other Issue proves by or claim dismiss the or action five is overruled. preponderance a of the evidence that: (1) in which an alternate forum exists
The Forum Non Conveniens Issue tried; may the claim or action be In its final issue Acadian asks: (2) provides an the alternate forum in “Did the trial court abuse its discretion remedy; adequate refusing to this suit on dismiss based fo (3) in of action the maintenance the when all rum non conveniens defendants a work sub- of this state would courts Louisiana, process in are amenable the moving party; injustice stantial the Louisiana, live witnesses were (4) forum, a result alternate as of the the cause of action submitted the the of or other- parties submission the governed by in arose Louisiana and was over wise, jurisdiction all can exercise Louisiana law?” joined properly the defendants a trial order We review court’s claim; plaintiffs non concerning Texas conve- forum (5) private of interests the balance an abuse of discretion niens statute under interest of parties public of and the See Tex. PRAC. & Rem.Code standard. Civ. in favor of the predominate the state 71.051(b) (Vernon Supp.2003); § Di Ann. an brought in al- being claim action or Servs., rect Inc. v. Eastman Kodak Color forum; and ternate Co., 558, (Tex.App.-Tyler 563 denied). stay of or would writ The test abuse dismissal duplication opinion in unreasonable is not result discretion whether proliferation litigation. appropriate an present this court the facts tions made to Texas residents the offi- Tex. Civ. & Rem.Code Ann. Prac. 71.051(b). § registered cer of a to do busi- corporation Texas, ness be tried Texas. Because Acadian the burden in bore refusing the trial court’s order to dismiss showing trial court of the above factors employees’ grounds claim on forum required in favor dismissal of venue in an non conveniens did not constitute abuse Louisiana. See Van Winkle-Hooker Co. v. discretion, overruled. issue six is Rice, (Tex.Civ.App.- S.W.2d writ). judgment The trial court’s is affirmed. Dallas We say no cannot un der the above test trial court dissenting. Justice VANCE refusing abused its discretion Acadian’s requested say action. Nor can we VANCE, Justice, BILL dissenting. court’s injus decision worked substantial I would sustain Acadian’s second issue tice to meaning Acadian under and hold that the Plaintiffs’ claims based 71.051(b)(3). § agree We with the em “profit fail sharing plans” as matter of ployees appeals’ that our sister court of law. jurisdictional consideration pretrial an acquired through PGS trans- challenge made two Acadian’s share triangular action described as a “reverse holders in case the instant is instructive on merger.” wholly-owned PGS caused this the reviewing issue. There court *15 Acadian, subsidiary to with merge held: Acadian’s received shareholders shares of ... Texas has an interest in resolving in of exchange PGS for their shares Acadi- dispute,
this which involves alleged subsidiary an. Acadian as a survived of promises may that have been made “proceeds.” PGS. Acadian received no Texas residents regarding sharing of Furthermore, plaintiffs’ contracts re- profits corporations that are licensed “profits.” late to that Proceeds Third, to do business in Texas. [Acadi- might have does not received PGS officers], states, an’s residents various translate into profits. Texas, including can obtain as conve- nient and in efficient relief Texas as a issue We sustain no-evidence when the would in any be available other state. (1) following: record reveals one of the [Acadian’s Fourth because officers] complete absence of evidence of a vital Pharr and were the only McGehee two (2) fact; rules of law or rules of evidence jurisdic- the six defendants contest bar appellate giving weight court from tion, proceed Texas, this case is set to only prove offered to evidence regardless of our appeal. decision this (3) fact; prove vital the evidence offered to Thus, it is in the interest of interstate scintilla; a vital fact is no more than a judicial efficiency system require all conclusively the evidence establishes of the to defend their defendants case opposite of a vital fact. Juliette Fowl Texas. Homes, Assoc., Inc., er Inc. v. Welch (Tex.1990) Cameron, 01-00-234-CV, 660, Pharr v. No. (citing S.W.2d 666 n. 9 Calvert, *4 (Tex.App.-Houston “No WL at Evidence” “Insufficient (not 20, 2000, July pet.) of Error, [1st no Evidence” Points 38 Tex. L.Rev. Dist.] (1960)). designated I find no publication). agree We 362-363 evidence to support finding “profit sharing plan” it the interest of interstate indeed, judicial case, the evidence system efficiency “proceeds”; this means representa- conclusively opposite which employment involved establishes Thus, the judgment that fact. See id. part plaintiffs
that the are entitled “proceeds” of the “sale” Acadian majority not stand. Because the
should otherwise, respectfully
holds I dissent.
-- PICKUP, BEARING
ONE 1995 DODGE 2NJ-TM, # PLATE
TEXAS LICENSE 1B7HC16Y9SS379939,
V.I.N., Appel-
lant, Texas, Appellee.
The STATE of
No. 10-02-135-CV. Texas, Appeals
Court of
Waco.
July 2003. *16 Worth, Shaw, appellant.
Jim Ft. Hanna, County District Dale S. Johnson Vernon, Johnson Attorney, David W. Cleburne, Attorney, County Asst. District for appellee. DAVIS, Justice
Before Chief Justice VANCE, and GRAY. Justice