Joseph Gillespie v. Laura Cline and William Cline D/B/A Cline & Company ( 1993 )

Gillespie v. Cline IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN











NO. 3-92-256-CV







JOSEPH GILLESPIE,

APPELLANT

vs.





LAURA CLINE AND WILLIAM CLINE d/b/a CLINE AND COMPANY,

APPELLEES

FROM THE COUNTY COURT AT LAW OF CALDWELL COUNTY

NO. 3122, HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING

Joseph Gillespie sued Laura Cline and William Cline d/b/a Cline & Company ("the Clines") for breach of an employment contract. The trial court rendered judgment on a jury verdict finding a one-year employment agreement, but finding no breach and awarding no damages. Gillespie appeals this take-nothing judgment. We will reverse the trial court's judgment and remand the cause for a new trial.

FACTS

In December 1989, Gillespie sought employment as a staff accountant with the Clines, who own an accounting firm. After two interviews, the Clines extended an offer of full-time employment to Gillespie, evidenced by a letter dated December 14, 1989 ("the letter"). The trial court determined that the letter constituted a contract of employment. The letter states:

As we discussed today, this offer of employment shall be at the rate of $18,000 per year ($8.65 per hour for calculation of overtime at straight-time rate during the busy season and accumulation of the one-half overtime which will be available to you as compensating time off between April 15th and December 1st).

Gillespie began employment with the Clines on January 8, 1990, but was terminated after the tax season on April 18, 1990.

Because the letter offered him employment "at the rate of $18,000 per year," Gillespie contends that the Clines agreed to employ him for one year. He alleges that the Clines breached this contract by terminating him after four months, causing him damages of $12,470.02. The Clines assert that the letter established only a rate of pay, not a specific term of employment, making Gillespie an employee "at will."

The suit was tried to a jury, which found a one-year employment contract. The jury failed to find a breach of this contract, and awarded Gillespie neither damages nor attorney's fees. Based on the jury verdict, the trial court rendered a take-nothing judgment against Gillespie and denied his motion for new trial. Having perfected his appeal, Gillespie challenges the legal and factual sufficiency of the evidence to support the jury's answers on the breach, damages, and attorney's fees issues. ⁽¹⁾

DISCUSSION

In deciding a legal-sufficiency point of error that attempts to overcome an adverse fact finding, we must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. If no evidence supports the finding, we must then examine the entire record to see if the contrary proposition is conclusively established. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); see generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 523 (1991). When an appellant assails both the legal and factual sufficiency of the evidence, the court must first address the legal-sufficiency arguments. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 369 (1960).

The jury answered Question One ⁽²⁾ affirmatively, finding a one-year employment contract at the rate of $18,000 per year. Because the Clines did not challenge this answer on appeal, we are bound to uphold the jury's finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). With the existence of a one-year contract established, we examine Gillespie's points of error.

Breach of Employment Contract

Gillespie's first and second points of error challenge the legal sufficiency of evidence to support the jury's failure to find a breach of the one-year employment agreement. The record contains no evidence that the Clines complied with the employment agreement. The parties do not dispute that the Clines terminated Gillespie's employment on April 18, 1990, only four months after the one-year term began. The record contains testimony from all three parties confirming this termination date. The record contains no evidence concerning termination for cause. This evidence conclusively establishes a breach of the one-year employment agreement.

Damages

By his first and second points of error, Gillespie also challenges the legal sufficiency of the evidence to support a denial of damages. Because Gillespie testified as to his damages resulting from termination of employment, he asserts that the record contains conclusive evidence that he suffered damages. We disagree. A fact finder may believe or disbelieve all or any part of a witness' testimony. Pendley v. Fite, 602 S.W.2d 560, 565 (Tex. Civ. App.--Amarillo 1980, no writ). For an interested party's testimony to be conclusive, it must meet the following five-part test of credibility: (1) pertain to matters reasonably capable of exact statement; (2) be clear, direct, and positive; (3) be internally devoid of inconsistencies; (4) be of a kind that could be readily controverted if untrue; and (5) be uncontradicted either by the testimony of other witnesses or by circumstances. See Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989); McGalliard v. Kuhlmann, 722 S.W.2d at 697; Gevinson v. Manhattan Constr. Co., 449 S.W.2d 458, 467 (Tex. 1969).

Assuming, without deciding, that Gillespie's testimony satisfies the first four prongs of this test, we believe the testimony is inconclusive because it fails to meet the fifth prong. The Clines contradicted Gillespie's damages testimony by contesting the factors used to calculate the alleged loss in salary. Because Gillespie's testimony does not meet the credibility test, it does not conclusively establish that he suffered damages.

Concluding that the evidence establishes a breach of the employment agreement as a matter of law, we sustain the first two points of error to the extent they bear on the breach issue. However, because the evidence does not conclusively establish Gillespie's damages, we overrule points one and two as they bear on the damages issue.

We turn now to the factual-sufficiency argument in point of error three as it pertains to the denial of damages. In analyzing a factual-sufficiency point, we must weigh all of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.; see also W. St. John Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex. L. Rev. 803 (1952). A jury's failure to find a fact need not be supported by any evidence, but the jury may not refuse to find a fact in the face of overwhelming evidence of the fact's existence. Russell v. Hankerson, 771 S.W.2d 650, 653 (Tex. App.--Corpus Christi 1989, writ denied). A jury is not at liberty to disregard evidence that an injury has occurred and award no damages. Id.; see also Lowery v. Berry, 269 S.W.2d 795, 796-97 (Tex. 1954).

Gillespie testified as to his lost wages resulting from the breach of the employment agreement. To establish the amount of damages suffered, Gillespie subtracted from the $18,000 yearly salary the wages he actually earned during his four-month tenure (excluding payment for overtime). Although the Clines controverted this evidence, their attack focused on Gillespie's calculation of his damages because it excluded money earned from a second job. Because the jury found a one-year contract at $18,000 per year and the evidence conclusively established breach of this contract, the jury's finding of "zero" damages contradicts the overwhelming evidence that some damages exist. Based on our review of all of the record evidence, we hold that the jury's failure to award damages is against the overwhelming weight of the evidence so as to be clearly wrong and unjust. Therefore, we sustain Gillespie's third point of error.

Attorney's Fees

In his fourth, fifth, and sixth points of error, Gillespie challenges the legal and factual sufficiency of evidence to support the jury's denial of attorney's fees. To recover attorney's fees for a claim on a written contract, a party must satisfy two requirements: (1) the party must prevail on a cause of action for which attorney's fees are recoverable; and (2) there must be a recovery of money or at least something of value. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 1986); Rodgers v. RAB Invs., Ltd., 816 S.W.2d 543, 551 (Tex. App.--Dallas 1991, no writ). Because Gillespie has yet to secure a recovery necessary to support an award of attorney's fees, we do not reach points of error four, five, and six.

CONCLUSION

If liability issues are contested, an appellate court may not remand on an unliquidated damages issue alone. See Tex. R. App. P. 81(b)(1). Accordingly, because the Clines contested their liability under the letter agreement and because damages are unliquidated, we must remand the entire case for a new trial. See Lakewood Pipe v. Conveying Techniques, Inc., 814 S.W.2d 553, 557 (Tex. App.--Houston [1st Dist.] 1991, no writ); A.B.F. Freight Sys. v. Austrian Import Serv. Inc., 798 S.W.2d 606, 617 (Tex. App.--Amarillo 1990, writ denied).

Therefore, we reverse the trial court's judgment and remand the cause for a new trial.

Bea Ann Smith, Justice

[Before Justices Powers, Aboussie and B. A. Smith]

Reversed and Remanded

Filed: February 24, 1993

[Do Not Publish]

1. ¹  The Clines, acting pro se on appeal, raise what appear to be several cross-points of error. The issues raised in these "cross-points" were either addressed at trial or are not properly before this court. Because the Clines failed to preserve any error alleged under these points, we do not address these issues.

2. ²  Jury Question One appeared in the charge as follows:

Did Laura Cline and William Cline d/b/a Cline & Company agree to employ Joseph Gillespie for one year at $18,000 per year?

JURY INSTRUCTION NO. 1: Where one is employed to work at a specified amount per year, month, or week, measure of time for the payment of wages is accepted as length of the period of time of the contract of hiring, where time of duration of contract is not specifically stated.