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Affirmed as
Modified and Memorandum
Opinion filed May 4, 2006.
In
The
Fourteenth
Court of Appeals
____________
NO. 14B05-00115-CV
____________
P
& S CORPORATION,
Appellant
V.
HAN
IL PARK, INDIVIDUALLY AND D/B/A DONG-A VIDEO, AND HAN IL PARK,
INDIVIDUALLY AND D/B/A MIDDLE SOUTH OF
On Appeal from the
61st District Court
Trial Court Cause
No. 2003-16018
M
E M O R A N D U M O P I
N I O N
Appellant
P & S Corporation (AP
& S@)
appeals the granting of a summary judgment in favor of Hal Il Park
individually and d/b/a Dong-A Video and d/b/a Middle South of America
Video Association (Aappellees@). In thirteen points of error, P
& S argues, inter alia, that (1) the alleged settlement
agreement between the parties is unenforceable; (2) the trial
court=s
judgment is defective; (3) the trial court erred in refusing to conduct a
trial on the terms of the alleged settlement agreement; (4) the alleged
settlement agreement is ambiguous, was a counteroffer, and only partially
addresses P & S=s
claims; and (5) the trial court erred in awarding attorney=s
fees to Park. We modify the
judgment to delete the language dismissing P & S=s
claims and affirm the judgment as modified.
Background
P
& S distributes videos of South Korean television programs to various
rental stores in
P
& S sued Park in his individual and professional capacities, alleging
price fixing, tortious interference with contract, and defamation. In August of 2004, Park entered
into a purported settlement agreement with P & S, allegedly negotiated
by Kwang Bok Chae, who is the father-in-law P & S=s
owner. According to Park, the
agreement required Park to issue a public apology, and in exchange, P
& S would dismiss the pending lawsuit. Park drafted an apology statement,
and P & S published it in Korean newspapers shortly thereafter.
Procedural
History
After
Park=s
apology was published, P & S demanded a partial reimbursement of
attorney=s
fees in the amount of $20,000.
According to P & S, Park
responded that if P & S did not dismiss its lawsuit pursuant to
the settlement agreement, he would hold Chae responsible for breach of
contract.
In
a fax dated September 8, 2004, P & S asserted that Park=s
apology constituted an admission of fault and urged Park to withdraw a
prior motion for no-evidence summary judgment. On September 10, P & S filed
its own motion for partial summary judgment, alleging that
Park=s
apology constituted an admission of fault that conclusively proved all of
P & S=s
claims. On September 13, Park
filed the following documents: (1) Defendant=s
Third Amended Answer and Counterclaims, alleging breach of the settlement
agreement and requesting attorney=s
fees; (2) Defendants/Plaintiffs=
Motion for Summary Judgment and Motion to Dismiss Plaintiff=s
Cause of Action; and (3) Defendants/Plaintiffs=
Motion for Sanctions.
On
September 24, P & S filed Plaintiff=s
Response to Motion for Final Summary Judgment and Motion for
Sanctions. On October 1, Park
filed (1) Defendants/Counter-Plaintiffs=
Motion for Leave to File Response to Plaintiff=s
Motion for Partial Summary Judgment and (2)
Defendants/Counter-Plaintiffs=
Response to Plaintiff=s
Motion for Partial Summary Judgment.
The
trial court denied P & S=s
motion for partial summary judgment on October 15, 2004. The same day, the trial court
granted Park=s
motion for summary judgment and motion to dismiss. The trial court awarded $17,500 in
attorney=s
fees as damages, apparently based on the affidavit of Park=s
attorney. On October 19, P
& S filed a Motion for Reconsideration of Defendant=s
Motion for Summary Judgment and Motion to Dismiss on Attorney=s
Fees. Park then filed an
objection and response, alleging a revised sum of attorney=s
fees in the amount of $6,125, calculated from the date of the purported
settlement agreement.
The
trial court signed the final judgment on November 10, denying P &
S=s
motion for reconsideration and awarding Park $6,125 in
attorney=s
fees. P & S filed a
motion for new trial on November 16 and a supplemental motion for new
trial on December 10. The
trial court denied P & S=s
motion for new trial on January 14, 2005, and P & S filed notice of
appeal on January 28.
Standard
of Review
In
a traditional motion for summary judgment, the movant has the burden to
show that no genuine issue of material fact exists and that the movant is
entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG
Peat Marwick v.
The
nonmovant does not have a burden to respond to a motion for summary
judgment unless a movant establishes its right to judgment as a matter of
law. Casso v. Brand,
776 S.W.2d 551, 556 (
Enforceability
of the Purported Settlement Agreement
In
its first and ninth points of error, P & S disputes the enforceability
of the alleged settlement agreement.
We find the settlement agreement to be
enforceable.
In
its first point of error, P & S argues that the agreement is
unenforceable because it was
not filed in compliance with Rule 11 of the Texas Rules of Civil
Procedure. Rule 11 provides that Ano
agreement between attorneys or parties touching any suit pending will be
enforced unless it be in writing, signed and filed with the papers as part
of the record, or unless it be made in open court and entered as of
record.@ Tex. R. Civ. P. 11. Rule 11 does not
require the writing to be filed before consent is withdrawn by one of the
parties, but it does require the agreement to be filed before anyone seeks
to enforce it. Padilla v.
LaFrance, 907 S.W.2d 454, 461 (
In
its first point of error, P & S also argues that the settlement
agreement is unenforceable because it lacks all the essential terms. In its entirety, the purported
settlement agreement attached to appellees=
motion for summary judgment provides:
Middle South of
America Video Association and P&S Mr. Kwang Bok Chae=s settlement
agreement is as follows:
1. P & S (Mr. Kwang Bok Chae)
officially acknowledge Middle South of America Video
Association.
2. When informing new regulations to
existing retail stores and distributing original video tapes to new retail
stores, prior notification of it to the President of Middle South of
America Video Association is the fundamental and general
rule.
3. Deleted. No video tapes
shall be supplied to new retail stores within 3 miles radius.
4. UPS shipping charge shall be
reduced in its normality.
5. The original video tapes shall be
delivered on the date the retail stores desire.
6. All litigation against Mr. Han Il
Park shall be dismissed and [sic] will not sue Mr. Park again in the
future. (Cause No. 2003-160-18; 61-Trial Court)
7. The President of Middle South of
P & S
Representative, Kwang Bok Chae, SIGNED
The President of
Middle South of
P
& S fails to identify which essential terms are missing from the
agreement and cites authority only for the general principle that
agreements must contain essential terms. Because P & S fails to explain
its reasoning, this argument is waived. See Tex. R. App. P. 38.1(h) (stating
that appellant=s
brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record); Bartosh
v. Gulf Health Care Ctr.BGalveston,
178 S.W.3d 434, 445 (Tex. App.CHouston
[14th Dist.] 2005, no pet.)
In
its ninth point of error, P & S argues that the settlement agreement
is not enforceable because Chae, who signed the agreement, had no
authority to bind the corporation.
However, because P & S did not raise this issue in the court
below, it is waived. See
Tex. R. App. P.
33.1(a)(1)(A) (stating that the record must show that the complaint
was made to the trial court by a timely request, objection, or motion that
states grounds for the sought-after ruling with sufficient specificity to
make the trial court aware of the complaint); Atl. Lloyds Ins. Co. v.
Butler, 137 S.W.3d 199, 209 (Tex. App.CHouston
[1st Dist.] 2004, pet denied.)
We overrule P & S=s
first and ninth points of error.
Language
of Final Judgment
In
its second point of error, P & S alleges that the judgment=s
statement that P & S=s
causes of action are Adismissed@
is erroneous because a summary judgment must resolve all issues on the
merits. The relevant
portion of the judgment provides:
On this date, the
Court considered [Appellees=] Motion for Summary
Judgment and Motion to Dismiss [P & S=s] Causes of Action,
and after reviewing the evidence and hearing the arguments, the Court
finds that both motions should be GRANTED.
IT IS THEREFORE
ORDERED, ADJUDGED, AND DECREED THAT [P & S=s] all causes of
action against [Appellees] . . .
is [sic] hereby dismissed and P & S Corporation take nothing
from Han Il Park individually and dba Dong-A Video & dba Middle
South of America Video Association
(emphasis
added).
The
Fourth Court of Appeals addressed a similar situation in Martinez v. S.
Pac. Transp. Co., 951 S.W.2d 824, 830 (Tex. App.CSan
Antonio 1997, no pet.), in which the plaintiff complained that the trial
court erred by dismissing his cause of action. In that case, the judgment
provided:
On this 27 [sic] day
of June, 1996, the court heard Defendant [Southern Pacific=s] Motion for
Summary Judgment, and having considered the motion has determined it
should be granted.
It is therefore
ORDERED that the above-styled and numbered cause be dismissed with
prejudice as to [Southern Pacific] and that the Plaintiff take nothing
from the Defendant. . . .
(emphasis
added). Noting that the trial
court had disposed of the case by granting summary judgment, the court of appeals asserted that
Athe
proper judgment is that plaintiff take nothing@
and stated that the trial court should not have ordered the
dismissal.
The
judgment in the instant case is similar to that in
Failure
to Grant Trial on the Merits
In
its eighth, tenth, eleventh, twelfth, and thirteenth points of error, P
& S alleges that the case should have proceeded to trial. We will address these points in a
different order to facilitate a more logical
discussion.
In
its tenth point of error, P & S alleges that granting summary judgment
was erroneous because the settlement agreement contains several
ambiguities, and therefore a fact issue exists. P & S first raised the issue
of ambiguity in its Motion for Reconsideration of [Appellees=]
Motion for Summary Judgment and Motion to Dismiss on Attorneys Fees. In that motion, P & S alleged
that Athe
agreement fails because the terms are ambiguous and any ambiguity or
uncertainty in an agreement is construed against the party who drafted the
same, which is [Park].@ However, P & S did not
identify which terms were ambiguous or how they were so. Although P & S elaborates on
this argument in its brief, identifying the terms and their alleged
ambiguities, it did not state its grounds with sufficient specificity in
its motion for reconsideration.
See Tex. R. App. P.
33.1(a)(1)(A) (as a prerequisite to presenting a complaint for
appellate review, the record must show that the complaint was made to the
trial court by a timely request, objection, or motion that stated the
grounds for the ruling sought by the complaining party with sufficient
specificity to make the trial court aware of the complaint). We overrule P & S=s
tenth point of error.
In
its eleventh point of error, P & S argues that because the settlement
agreement was a counteroffer, the trial court erroneously granted summary
judgment based on an incomplete contract. To the contrary, the summary
judgment evidence establishes that Park accepted P & S=s
offer by writing the apology letter, which P & S subsequently
published.
It
is well-settled that performance in compliance with the terms of an offer
may constitute valid acceptance.
United Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360,
364 (
Since the year 2000
to present, as the president of Middle South of America Video Association,
my only thought was for profit and progress of the video store owners, and
that caused friction with KBS, MBC, and SBS chief distributors and much
suffering and unproductive pain for Mr. Kwang-Bok Chae, President of
P&S Corporation. . . .
I am responsible for
depriving local Korean-Americans of their right to view the video tapes;
and I again extend my apologies.
P
& S contends that the apology letter did not conform with the terms of
the offer and thus did not constitute a valid acceptance. In support of this argument, P
& S argues that Ait
is not entirely clear what sort of apology was contemplated in the
agreement,@
but that Athe
most reasonable interpretation . . . is that [Park=s]
apology was for the conduct which led to the claims [P & S] filed
against him. According to P
& S, Park=s
apology altered the terms of the agreement and Aamounted
to a new counteroffer which [P & S] did not accept.@ However, P & S does not
explain how Park=s
apology failed to address the conduct that led to its initial claims, nor
does it cite any authority besides general contract principles; therefore,
P & S=s
arguments are unconvincing.
Park accepted the settlement offer by writing the apology letter,
and the settlement agreement thus became a completed contract. We overrule P & S=s
eleventh point of error.
In
its twelfth point of error, P & S argues that the settlement agreement
only partially addressed its claims against appellees, and therefore the
trial court erred by granting summary judgment on all of P &
S=s
claims. In its Motion for Reconsideration of Defendant=s
Motion for Summary Judgment and Motion to Dismiss on Attorney=s
Fees, P & S alleged that neither the settlement agreement nor the
apology letter addressed its price fixing claim. On appeal, however, P & S
merely rehashes its argument that the settlement is ambiguous and asserts
that the apology letter is Aat
best, only partial consideration@
and Ashould
only be considered a release for claims based on conduct addressed in the
letter of apology.@ However, in making these
assertions, P & S makes no reference to the price fixing claim and
fails to assert any authority in support of its argument. Accordingly, it waives this
argument. Tex. R. App. P. 33.1(a); Tex. R. App. P.
38.1(h). We overrule P
& S=s
twelfth point of error.
In
its eighth point of error, P & S argues that the court erred in
granting appellees=
motion for summary judgment because the trial court must construe the
evidence in the light most favorable to the non-movant, and P & S, the
non-movant, disputed the enforceability of the settlement agreement. P & S asserts that the motion
for summary judgment Aon
its face is insufficient to support the Final Judgment.@ Similarly, in its thirteenth point
of error, P & S alleges that the trial court erred in refusing to
grant an evidentiary hearing or a trial on the merits on the terms of the
alleged settlement agreement.[3] As explained above, regarding
points of error one and nine, we find the settlement agreement to be
enforceable. In points of
error eight and thirteen, P & S makes no new substantive arguments
regarding enforceability.
Accordingly, we overrule these points of error.
Attorney=s Fees
In its third, fourth, fifth,
sixth, and seventh points of error, P & S challenges the trial
court=s award of attorney=s fees to appellees. We review a trial
court=s decision to award
attorney=s fees de novo. G.R.A.V.I.T.Y. Enter., Inc. v.
Reece Supply Co., 177 S.W.3d 537, 546 (Tex. App.CDallas 2005, pet. denied). We will consider P &
S=s points of error in a
different order to facilitate a more logical
discussion.
In its fifth point of error, P
& S argues that the trial court erred in awarding attorney=s fees to Park when Park did
not prove actual damages. We
disagree. A party generally
may not recover attorney=s fees incurred in the defense
or prosecution of a lawsuit.
G.R.A.V.I.T.Y. Enter., Inc.,177 S.W.3d at 546; Qwest
Commc=ns Int=l, Inc. v. AT&T
Corp., 114
S.W.3d 15, 32-33 (Tex. App.CAustin 2003, pet. granted),
rev=d in part on other
grounds, 167
S.W.3d 324 (Tex. 2005); Lesikar v. Rappeport, 33 S.W.3d 282, 306
(Tex. App.CTexarkana 2000, pet.
denied). However, recovery of
reasonable attorney=s fees as damages is available
based on equitable grounds if (1) the natural and proximate consequence of
a wrongful act has been to involve a plaintiff in litigation with others
or (2) the defendant has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.
G.R.A.V.I.T.Y. Enter., Inc.,177 S.W.3d at
546.
In his amended counterclaim, Park pled, among other claims, causes of action for fraud and intentional misrepresentation, negligent misrepresentation, promissory estoppel, quantum meruit, and breach of contract. In his motion for summary judgment, Park argued causes of action for breach of contract, false representation, and promissory estoppel. Although the pleadings and motion do not explicitly state that P & S acted vexatiously or wantonly, we can infer this meaning from their substance. Furthermore, P & S appears to have acted in bad faith by attempting to use Park=s apology statement, which was the product of a negotiated settlement, as evidence against him. Therefore, we uphold the award of attorney=s fees to Park. See Nationwide Mut. Ins. Co. v. Holmes, 842 S.W.2d 335, 342 (Tex. App.CSan Antonio 1992, writ denied) (noting that Athere is nothing sacrosanct about attorney=s fees per se that forbids their award as damages@); Guffey v. Clark, No. 05-93-00849-CV, 1997 WL 142750, at *3 (Tex. App.