*1 672 State,

sent, it. May and no otherwise. Fur- their search of v. 582 argues one thermore, indisputably the record illus- S.W.2d at 851-52. Shorty trates that asked officers we hold Consequently, that vehicle; consent to search the never was discretion in denying ap- abused its appellant permission asked for to search suppress. And, given to pellant’s motion purse. unquestionable Similarly her is search improper that the resulted in the appellant only that female in discovery underlying of the contraband her truck, that purse atop was located conviction, beyond say, we are unable to sat, of which she that the seat on doubt, that reasonable the trial court’s de- suggests Shorty no evidence of record car- So, denying cision was harmless. its order purse garb, or feminine ried wore that appellant’s suppress to its motion Shorty evidence suggests exerted or judgment manifesting appellant’s convic- aspect claimed exert some control reversed, tion are the cause is re- purse, over or an interest in the and that proceedings. manded for further appellant ownership purse. claimed circumstances,

Under these we cannot but that

say purse the search of was im-

proper. parties may

It is true that third

give property consent to search the But, valid,

another. for the consent to be party standing the third must have to dis BREITENFELD, Appellant, John W. search; and, pute something is v. State, prove. May the State must v. words, at 851. In other S.W.2d State INSTITUTE, INC., Appellee. party

must establish that third had a No. 05-04-00131-CV. expectation privacy in legitimate or had authority jointly use the item searched. Appeals Texas, Court of Id.; State, accord v. Maxwell Dallas. (Tex.Crim.App.2002) (stating 281-82 28, 2004. Oct. persons may give that third valid consent they equal to search when exercise control premis and have to use the authority

over State, searched); being Boyle

es (Tex.Crim.App.1989), cert.

denied, U.S. S.Ct. (1992) (holding

L.Ed.2d same and

recognizing applicable the rule well). vehicle as If it

motor searches fails regard, search then the cannot be And,

justified on the basis consent. to prove

since the State failed here that in,

Shorty privacy legitimate had a interest over, or equal

exercised control had the

authority purse, jointly use the offi justify

cers could not use his consent to *2 below,

judgment. For the reasons set out part, we reverse and render in affirm trial part, judgment. court’s *3 History 1. Procedural of the Case Breitenfeld, SAS sued its former sales representative, pursuant to a sales com- pensation plan for the return of “bonus paid monies” to Breitenfeld for sales that were by cancelled the customer. Breiten- against feld counterclaimed seeking SAS declaratory judgment attorney’s and his Chapter fees under 37 of the Texas Civil Practice and Remedies It Code. was plan Breitenfeld’s that the contention sales require did not him to return the sales Rather, bonuses. he claimed he could re- payments tain the since bonus employ- were cancelled before he left his ment at claimed that SAS. Breitenfeld only recovery method for bonuses on in the plan sales described that SAS could deduct monies from Breit- paycheck. enfeld’s Durham, Jr., Collins, F. Colin Norman summary Both in their asserted P.C., Dallas, Basinger, & for appellant. gen- motions that there were fact, uine issues of material and that the Herms, Nancy Curtis Dean L. Patter- upon resolution of the case turned son, Hostetler, LP, Houston, Baker & for interpretation court’s of an appellee. granted contract. The trial court SAS’s FITZGERALD, Before Justices summary judgment cross-motion for and

RICHTER, and LANG. summary denied Breitenfeld’s motion for judgment. OPINION 2. Factual Content Opinion By Justice LANG. action, SAS, ap- being this John Breitenfeld employed W. Soon after peals summary judgment Bo- signed rendered Breitenfeld the Self-Directed against Institute, him favor of SAS nus Plan Form which Acknowledgment Inc., read, employer, received, his former which required stated he and understood $49,443.50 him to refund of sales bonus the terms and conditions of the 2001 Self- payments. Specifically, appeal, Rep- on Breit- Directed Bonus Plan for Field Sales (1) Institute, enfeld claims that: the trial court erred resentatives SAS SAS Americas. later, in granting summary year signed SAS’s motion for Almost a (2) judgment; Compensation Acknowledgment the trial court erred in 2002 Plan received, read, denying Breitenfeld’s motion for Form which stated he conditions of the will be back SAS understood terms and Compensation paid Plan Solu- that was 2002 Sales Institute, Representatives tions SAS upon Sales cancelled sales. provided Americas. Both Plans 5(c) Plan, entitled Section earn sales representatives may bo- states: Employment,” “Termination of on new nuses based sales of SAS’s soft- will be deducted Cancellations products.

ware The bonuses were or- sales credit. If invoices for sales quarterly calculated basis. der(s) part of the calcu- that were superceded prior Plan “all The 2002 *4 days lation are not within plans programs, or and all compensation termination, rep’s cred- sales those sales previous agreements oral or or written be and no bonus will be its will forfeited 1, January 2002. representations” effective for owed those sales. 2001, In December Breitenfeld made a the Plan and Plan con- Both 2001 2002 sale to million Methodist Healthcare $1 language general regarding tain similar (“Methodist”) Houston, System in Texas. the crediting of sales effect of 2002, February and he was paid March cancellation sales bonus payments. on $49,443.50 totaling bonuses based on sales 3(a) in The 2001 Plan states sections and 16, 2002, April the Methodist sale. On (b) that the is based on new sales “bonus notice SAS received from Methodist that it and credit be re- credit” that “sales will cancelling the sale for which Breiten- 3(b) duced for cancellations.” Section payments. received feld had says specific. the 2002 Plan is more It resigned employment from is that the “sales bonus based on sales 7, 24, with on June June SAS 2002. On products resulting credit for software new 2002, SAS demanded that Breitenfeld re- Also, in new software revenue SAS.” payments. turn the bonus SAS claimed its 3(h) provides Plan that section of the 2002 (1) made demand was in accordance with: “cancellations, credits, and refunds will be 5(b) 5(c) sections of the 2001 and 2002 (2) deducted credit for the sales from sales Plans; the cancellation rep” and that “sales credit will reduced be within the 2001 and Acknowledgment original for cancellations based Forms to each Plan. Breitenfeld refused to Finally, sales credit issued.” the 2001 make repayment. Forms this Acknowledgment contain Plan, 5(b) The 2001 section states: language: rep employment If a sales terminates terminates, my If employment with SAS subsequently, with SAS Institute and agree I authorize to deduct SAS order(s) of the part sales that were bo- my any overpay- paycheck bonus cancelled, nus calculation are the sales I ment amount owe under subsection rep back to will SAS 5(b) as a result of cancelled sales. of the that was paid upon the cancelled sales. argument between the Plan language The 2002 contains similar at clear. claim the fairly They resolution 5(b) which states: agreements case do this turns on what say. First, rep If a sales terminates Breitenfeld contends not ad- subsequently, agreements Institute and are silent and do with. order(s) represen- part that were dress situation where sales bo- cancelled, refunded, payments, the sale is nus calculation are tative receives bonus credited, representa- the sales rep or the invoice is then cancelled before SAS, tive leaves employment at and no case or prove each element of an affirma- deduction repre- was made from the sales Perez, Siegler, tive defense. Lear Inc. v. compensation sentative’s (Tex.1991). for the cancelled sale before company. he left the He ar- Further, on cross-motions for gues if did not address judgment, party each bears the burden of particular situation in language the clear establishing that it is entitled to agreements, the court cannot as a matter of Guynes law. See v. Galves change or add to the terms. On the other (Tex. County, ton 861 S.W.2d hand, SAS contends that there is no lan- 1993). trial grants When the court one guage agreements stating that a other, motion and denies the reviewing representative may retain a bonus questions pre should determine all Rather, for a cancelled sale. says it sented. See Comm’rs Court Titus acceptance of Breitenfeld’s “narrow con- County Agan, 940 S.W.2d interpretation” tract would render mean- 1997); Strauss, Jones v. ingless many parts agreements (Tex.1988). The reviewing court *5 which make it parties’ clear that the rea- judgment should render the that the trial sonable intent was that bonuses would be court should Agan, have rendered. See based upon actual sales which were not 81; 940 at S.W.2d Members Mut. Ins. Co. cancelled, regardless of the time of cancel- 325, Hosp., v. Hermann 664 S.W.2d 328 lation. (Tex.1984).

3. Standard of Review 4. Refund of Sales Bonuses This Court a summary judg reviews ment de novo to determine par whether a a. Applicable Law ty’s right prevail to is established as a law, if Under Texas there is no matter Dickey of law. v. Corp. Club contract, in ambiguity a written “its con Am., 172, 12 (Tex.App.-Dallas S.W.3d 175 meaning struction and question become a denied). 2000, pet. The standards for re of law for the court to determine.” Dedier viewing a traditional summary judgment Grossman, 231, v. 454 S.W.2d 234 are well-established. See Nixon v. Mr. n.r.e.). 1970, Civ.App.-Dallas writ ref'd Co., Prop. Mgmt. 546, 690 S.W.2d 548-49 interpreting When an con (Tex.1985). A party moving for traditional tract, pri it is well established that “the summary judgment carries the burden of mary concern of court is to ascertain establishing that no material fact issue ex the true of the parties intentions as ex ists and that it is entitled to as a pressed in the instrument.” Coker v. Cok 166a(c); matter of law. Tex.R. Civ. P. er, (Tex.1983). 391, 650 In S.W.2d 393 M.D. Hosp. Anderson & Tumor Inst. v. Willrich, (Tex.2000) objective, order to achieve this 22, “courts (per 28 S.W.3d 23 curiam). should examine and consider entire reviewing When a motion for writing in an effort to give harmonize and judgment, the court takes the effect true, provisions nonmovant’s to all the of a contract evidence as so indulges ev ery meaningless.” reasonable in none will be rendered inference favor of the nonmovant, Furthermore, single Id. “no resolves all doubts in fa instrument Willrich, effect; given controlling vor of the taken alone will be nonmovant. rather, at 23-24. provisions S.W.3d To establish it is entitled all the must be consid summary judgment, a defendant must ered with reference the whole instru disprove Thus, either an plaintiffs element of the ment.” Id. the court should consid- was “intent must er that the of the be upon the sales. itself, cancelled agreement not from the from taken parties’ present interpretation, added.) argues (Emphasis n writ it is must be enforced as agreement 5(b) not a sales compel that section does Sens., Indus. Corp. ten.” Parts v. A.V.A. bonuses for sales representative to refund Inc., 671, (Tex.App.-Cor at 104 S.W.3d leaves employment cancelled before he 5(b) 2003, pus pet.). This is often that under section Christi SAS. He asserts re- representative only as the would referred to “Four Corners Rule” if the sales quired the bonuses par means that the intention of to-refund which to his subsequent contracts were from the ties is be ascertained instru with employment termination of SAS. as a whole and not from isolated ment vein, that since See, Breitenfeld contends Stewart, parts e.g., thereof. Stine curiam);the contract was cancelled be- Methodist (Tex.2002) 586, (per terminated, he is fore his Hein, Mills, ns Inc. v. Bur obligated pay- not to return (Tex.Civ.App.-Dallas ments he sale under received Wood, dism’d); Ervay, writ Inc. v. 5(b) Moreover, 2002 Plan. of the (Tex.Civ.App.-Dallas, says specific situation here is he that the n.r.e.). Moreover, ref 'd writ agree- anywhere not addressed change merely will the contract be Breitenfeld, oth- According ments. cause it or one of comes to provisions agreements simply er dislike its or thinks that some *6 where a of address situations cancellation thing else is needed. Natural Gas Clear agreed it is that a “de- sale occurs and Co., Midgard inghouse Energy v. made from future com- may duction” 400, 407 (Tex.App.-Amarillo representative is pensation while a sales denied) pet. (citing Exploration HECI Co. employed by still Since the cancella- SAS. Neel, v. 888-89 place tion took rather than subse- before 1998)). The court will not “ask about the “deduc- quent to his termination no subjective intent of parties the to the con to tion” was made for the bonus related A, Am., tract.” N. Vincent Bank of SAS, he there the cancelled sale before left 867 (Tex.App.-Dallas in the simply language agreements is denied). pet. When the contract is unam requires that him to refund the bonuses. biguous, perti the court the apply should “no in the language SAS turns the construction, apply nent rules of the plain agreements” argument around on Breiten- meaning language, of contract and en by provision in the arguing feld that no force the contract as written. Id. that a agreements provides salesperson payments can ever retain for can- bonus Facts Application b. Law to of Rather, celled sales. SAS claims that the argument on Breitenfeld’s focuses of clear that parties intent 5(b) 5(b) contract. Section section retained cancelled payments may not be on Plan provides: of the 2002 SAS, may According sales. to that intent rep If a sales terminates provisions of the by reading be inferred subsequently, with SAS Institute and agreements refer to “deductions” which order(s) part that were the bo- Specifi- for cancelled sales. bonuses cancelled, 5(b) 5(c) refunded, calculation nus are cally, sections credited, rep Acknowledg- or the invoice is in the Plan expressly will be back to the ment Forms authorize SAS SAS deduct “bonus monies” due to raised either side. damage claims were 3(a) (b) Additionally, sales. agreement sections concluded that the does Having the 2001 Breitenfeld, Plan state “sales credit require repayment by will be 3(b) reduced for cancellations.” Section summary judgment motion for SAS’s the 2002 Plan states that denied, “bonus is have and the motion should been based on new sales credit” and that Breitenfeld, summary judgment for “sales bonus is based on sales credit for point, granted. Ac- should have been products new software resulting in new cordingly, point, on that we reverse software revenue for SAS.” Finally, sec- summary judgment trial in favor of court’s 3(h) tion of the 2002 Plan expressly ad- Additional- against SAS and Breitenfeld. dresses SAS’s intent for cancellations to be ly, in favor of Breit- we render deducted from sales credit for the sales nothing. enfeld that take SAS representatives. Attorney’s 5. Fees persuaded by

We are not intention of the in must be One issue remains. ferred from agreements the terms of the seeking a declar brought his counterclaim so that Breitenfeld cannot retain the bo Chapter 37 of atory judgment pursuant nus. The intention of the is ex Practice and Remedies Texas Civil pressed in terms of the thereto, claimed enti Code. Pursuant he agreement. SAS and Breitenfeld made an attorney’s fees under section tlement express agreement which addressed sever Thus, case, we must also 37.009. in this ways al SAS would recover bonuses for propriety of an address the issue of cancelled sales. All except provision one in a suit for de attorney’s award of fees 5(b) agreement, of the 2002 Declaratory claratory judgment. Plan, address deductions from future com Judgments provides Act pensation 5(b) of a salesperson. Section necessary court may reasonable and award applies 2002 Plan only where the can PRAg Rem. *7 attorney’s fees. See Tex. Civ. & transpires cellation subsequent to a sales (Vernon 1997). § 37.009 How Code Ann. person’s simply termination. That did not ever, declaratory relief is when a claim for happen here. In an unambiguous con hand, merely at incidental to the issue tract, we imply language, will not add to attorney’s are not See fees recoverable. language, interpret or it pursu other than Kenedy John & Marie Stella Mem’l G. plain ant to its meaning. See Natural Gas Dewhurst, Found. v. S.W.3d Clearinghouse, 113 at S.W.3d 407. We (Tex.2002) (holding legislative claim for en decide Breitenfeld’s issue in his favor. actment was incidental title issue

When all issues are submitted to attorney’s not authorized under fees were the trial court on summary Act); a motion for Declaratory Judgments Hawk judgment Inc., judgment, court renders E.K. Arledge, denied) we questions determine all presented App.-Eastland 2003, pet. (finding render the judgment that the trial declaratory relief incidental to title issue recoverable). should have Agan, rendered. attorney’s S.W.2d and fees were not at pivotal 81. The issue for determination “A declaratory judgment may action of both parties’ summary judgment solely attorney’s mo fees used to obtain tions was whether repay by Breitenfeld must that are not otherwise authorized stat the bonus agreements under the disputes already pending the ute or to settle undisputed presented. facts No other before a court.” S.W. Guar. Trust Co. v. Venture, of majority sets forth the The Road Joint Hardy 13.4 Plan and 2002 Plan the 2001 both (Tex.App.-Houston [1st S.W.2d denied). these sales. In each of address cancelled pet. Dist.] bo- provisions, the value the unearned 37.009, Under In the employer. to the nus is returned attorney’s fees is within awarding events, if a contract course of sales normal Agan, discretion of court. cancelled, for the then “sales credit were However, attorney’s 77. fees at be deducted [would] are not authorized where a counterclaim rep’s current sales credit.” the sales declaratory judgment requests Thus, received representative a sales who image already of a assert the mirror claim would an unearned bonus reimburse adversary in S.W. by ed an the suit. See his future the value of bonus from Co., 981 at The Guar. Trust 956. oc- compensation. Once cancellation requested by is such relief Breitenfeld curred, representative owed SAS attorney’s may claim. No fees be award amount of the unearned bonus. Accordingly, we the court’s ed. affirm Similarly, employee in the case of an denial of Breitenfeld’s motion for receiving a company after who left attorney’s judgment request as to his cancelled, bonus, both if the contract were fees. “to employee Plans former pay back SAS Institute 6. Conclusion upon that was upon the foregoing, Based we reverse Again, the cancella- cancelled sales.” once summary judgment in favor of SAS occurred, former representa- tion against part Breitenfeld in and render the amount of the unearned tive owed SAS favor Breitenfeld that SAS employee, of a bonus. In the case former nothing take on its claim for refund no future com- because he would receive part sales bonuses. We affirm that pensation could be from which the bonus summary judgment denying Breitenfeld’s deducted, obligation simply his attorney’s prayer for fees. back the amount of bonus. majority that Breiten- concludes FITZGERALD, dissenting. J. by is not covered either feld’s situation FITZGERALD, Opinion Justice and, there- provisions, these contractual dissenting. fore, his is entitled to retain *8 disagree I I Breiten- agree majority concerning with unearned bonus. this in- two applicable law case. we covered When feld’s situation contract, an terpret pri- unquestionably an our Plans. Breitenfeld in- can- mary concern is to the true the sales contract was employee ascertain when time, point At that he owed SAS tentions as those intentions celled. bonus, in the expressed are instrument. Coker the value of his unearned (Tex.1983). Coker, right deduct company had case, compensation. I to the em- from his this believe amount future ployment attempted oper- contracts at intended to this issue thwart by re- prohibit employee retaining provision an a bo- ation of the contractual signing nus he received on sales contract that is from his with SAS compensation adjustment was Accordingly, respectful- later cancelled. I before the ly to be made. dissent. scheduled majority’s decision allows Breiten- the parties’ agreements fundamentally inequitable, respectfully

feld to I manipulate the dissent. mandates by focusing Plans resig- the time of his cancellation,

nation —after the but before quarterly payment

his next than —rather parties’

on the clear intent that unearned

bonuses must company. be returned to the I

Because find such a contrary result