Joyce C. and Louie J. Cordova v. Joel C. Osborn, M.D.

Opinion

NO. 07-01-0505-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 29, 2002

______________________________

JOYCE C. AND LOUIE J. CORDOVA,

Appellants

v.

JOEL C. OSBORN, M.D.,

Appellee _________________________________

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

NO. 89,189-A; HON. DAVID L. GLEASON, PRESIDING _______________________________ ON MOTION FOR REHEARING _______________________________

Before QUINN and JOHNSON, JJ., and BOYD, SJ. ⁽¹⁾

Pending before the court is the motion of Joyce C. and Louie J. Cordova for rehearing. Through the motion, they request that, instead of dismissing the appeal for want of jurisdiction, we "simply abate the appeal and remand the cause to the trial court, allowing enough time for the signing of a new judgment, the preparation and filing of a new motion for new trial, and the conducting of a hearing on such motion for new trial." We overrule the motion.

As support for the relief requested, the Cordovas cite to Disco Machine of Liberal Co. v. Payton, 900 S.W.2d 71 (Tex. App.-Amarillo 1995, no writ). There, like here, the appellants attempted to appeal from an order simply granting a motion for summary judgment. We concluded there that the record before us failed to illustrate that a final, appealable judgment had been entered. However, instead of dismissing the cause, we abated and remanded it to the trial court "to supplement the record to show whether or not a final judgment was rendered." Id. at 74. If such a judgment had been rendered, then the trial court was to reduce same to writing, date it as of the date of rendition, and forward it to us. Id. On the other hand, if judgment had not been rendered, the trial court was to inform us of that and forego rendering one. In choosing this course, we merely attempted to obtain an accurate and complete record of what occurred below. Id. at 74. So too did we caution the litigants against creating a new record as evinced by our statement that "if judgment was never rendered the parties cannot cause it to now be rendered and included within the supplement." Id. at 75.

Here, however, the Cordovas do not argue that the trial court actually entered a final judgment or somehow rendered one but failed to reduce it to writing. Rather, they want an opportunity to 1) obtain a "new judgment," 2) file a "new motion for new trial," and 3) receive a hearing on their new motion for new trial. That is nothing short of attempting to create a new record and continue the trial court proceeding. Those are acts which we expressly refused to condone in Disco Machine.

Moreover, we have before us a transcript of the hearing from which this appeal emanated. Therein, the trial court simply granted Dr. Joel C. Osborn's motion for summary judgment, queried about a severance, and "presume[d] then that [the Cordovas] will take whatever steps . . . consider[ed] necessary." Nothing was said about entering a final judgment or declaring a decision of the law upon the matters at issue. Given this, the record shows that the court did not purport to render a final judgment. So, there existed no need for a remand to develop that subject or reduce to writing that which did not happen. In short, Disco Machine would require dismissal.

Per Curiam

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2002).

ONG>

Whether or not the jury's answer to question one enjoys the support of legally and factually sufficient evidence depends upon the rights and obligations imposed by the contract. Simply put, the Daniels contend that the agreement obligated Box to remain in the employ of Western Truck. Because he did not, Box purportedly breached the agreement which, in turn, relieved the Daniels of having to pay Box anything. To determine whether the Daniels are correct, we must construe the accord to see if it required Box to remain in the employ of Western Trucking.

Before proceeding to construe the agreement, however, we briefly review the rules guiding our interpretation of the contract. The first mandates that construing an unambiguous contract involves a question of law. Borders v. KRLB, Inc., 727 S.W.2d 357, 359 (Tex. App.--Amarillo 1987, writ ref'd n.r.e.). Thus, we need not defer to any interpretation afforded by the trial court. Secondly, when interpreting an instrument, we strive to give effect to its parties' intent. Id. Furthermore, that intent is garnered from the language of the contract, which language is considered in its entirety. Id. That is, we peruse the complete document to understand, harmonize, and effectuate all its provisions. Questa Energy Corp. v. Vantage Point Energy, Inc., 887 S.W.2d 217, 221 (Tex. App.--Amarillo 1994, writ denied). So too must we afford the words contained in the agreement their plain, ordinary, and generally accepted meaning, unless the instrument requires otherwise. Sun Operating, Ltd. v. Holt, 984 S.W.2d 277, 285 (Tex. App.--Amarillo 1998, no pet.); Phillips Petroleum Co. v. Gillman, 593 S.W.2d 152, 154 (Tex. Civ. App.--Amarillo 1980, writ ref'd. n.r.e.).

Finally, in applying the foregoing rules of construction, we may not rewrite the agreement to mean something it did not say. Borders v. KRLB, Inc., 727 S.W.2d at 359. Simply put, we cannot change the contract merely because we or one of the parties comes to dislike its provisions or think that something else is needed in it. HECI Explor. Co. v. Neel, 982 S.W.2d 881, 888-89 (Tex. 1998). This is so because parties to the contract are considered masters of their own choices. They are entitled to select what terms and provisions to include in the agreement before executing it. And, in so choosing, each is entitled to rely upon the words selected to demarcate their respective obligations and rights. In short, the parties strike the deal they choose to strike and, thus, voluntarily bind themselves in the manner they choose. Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26-27 (Tex. App.-Amarillo 2000, no pet.). And, that is why parties are bound by their agreement as written. Emmer v. Phillips Petroleum Co., 668 S.W.2d 487, 490 (Tex. App.--Amarillo 1984, no writ). For a court to change the agreement merely because it did not like same, or because one of the parties subsequently found it distasteful, would be to undermine not only the sanctity afforded the contract but also the expectations of those who created and relied upon it. With this said, we now turn to the accord at bar.

Under the agreement, the Daniels "grant[ed]" Box the right to acquire one-third of the business in exchange for "payment of . . . $75,000" plus interest until the $75,000 was paid. (Emphasis added). Nothing in that "grant" expressly conditioned his acquisition of the interest upon his continued employment with the business. ⁽²⁾ And, to the extent that reference was made to his utilization of his "best efforts, knowledge and work in making the business grow and profit," the words were used in the context of his earning credit towards the $75,000 payment of the acquisition price. In other words, the Daniels agreed to "grant" him a credit of 5% of the gross sales per year against the $75,000 purchase price as long as he used his best efforts, knowledge and work to make the business grow and profit. Simply put, if he did not use his best efforts to further the business, he would not earn the 5% credit.

Furthermore, the parties mentioned only one way in which Box could forfeit his interest or credit accumulated in the business, and it involved the commission of "willful misconduct." And, as defined by the parties themselves, that phrase encompassed embezzlement, theft, and the "operation of the business contrary to the criminal laws of" Texas. Nothing was said about simply leaving the employ of the company.

Moreover, in addressing the various ways in which the agreement would terminate, the parties again omitted reference to Box's mere departure from the employ of Western Truck. Rather, they stated that the contract would terminate upon his commission of "willful misconduct" (as defined in the contract), the sale of the business, and "the death, determination of incompetence or filing of bankruptcy" by any of the parties. And, unless the agreement was terminated because of his willful misconduct, the parties also agree that he would receive his pro rata share of the accumulated credit out of the proceeds from any sale of the business.

Stating in the contract that 1) Box could buy his interest in exchange for $75,000, 2) he could gain credit against the $75,000 purchase price by using his best effort to further the business, 3) he would forfeit his interest solely by committing willful misconduct as defined in the contract, and 4) he would receive his pro rata share of the business once sold unless the agreement was terminated because of his willful misconduct, while saying nothing about his supposed need to work at Western Truck, does not reasonably evince an intent to require him to work at the company in order to buy his interest in the business. Nor does it reasonably evince an intent to require him to work at the company in order to receive his pro rata share of the sale of the company. Thus, we cannot read such an obligation into the accord.

In short, the parties structured the rights and obligations of those involved through the words they selected. Having selected them, they are bound by them. We cannot change or add to them. And, because the words they selected imposed no obligation on Box to work at Western Truck to reap the benefits of the agreement, the jury's finding that Box did not fail to comply with the contract by terminating his employment with Western Truck is not legally nor factually insufficient.

Accordingly, we affirm the judgment entered below.

Brian Quinn

Justice

Do Not Publish.

1. The jury was not asked to decide if the Daniels breached the agreement by failing to pay Box his supposed pro rata share. Instead they were simply asked to determine what sum of money would reasonably compensate Box for his damages.

2.

Nor can we say that such a condition was necessarily implied because one need not be an employee of a partnership to own an interest in the partnership.