Sullivan, Glenn v. Jani-King of New York

• Court: Court of Appeals of Texas
• Decided: July 11, 2013
• Docket: 05-11-01546-CV
• Status: Published

Opinion

AFFiRM; and Opinion Filed July II, 2013.

In The DI peaLe !iftt tliritrirt nf exai ti ThiIlu

No, OS-i 1-01546-CV

GLENN SULLIVAN, Appellant V. .JANI-KING OF NEW YORK, INC., Appellee

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. 05-12092

MEMORANDUM OPINION Before Justices Lang-Miers and Fillmore’ Opinion by Justice Lang-Miers Jani-King of New York, Inc. sued Glenn Sullivan for breach of contract and fraudulent

inducement. Sullivan counterclaimed for breach of contract and fraudulent inducement. A jury

found in favor of Jani-King on all issues. Sullivan raises nine issues on appeal. For the following

reasons, we affirm the trial court’s judgment. We issue this memorandum opinion pursuant to

Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

BACKGROUN D

Jani-King operates and franchises commercial cleaning businesses. In 1998, Sullivan

purchased a Jani-King franchise and signed a franchise agreement. The franchise agreement

allowed Sullivan to solicit cleaning contracts, but those contracts had to be approved by Jani

The Honorable Mary Murphy, retired Justice. Court of Appeals for the Fifth District of Texas at Dallas. sat on the panel on submission but did not participate in this decision. King. The franchise agreement required Sullivan to pay JaniKing a 1(Yk royalty fee and a 05%

advertising fee calculated on Sullivan’s gross revenue. JaniKing in return provided advertising

services and hmlled and collected payments I ruin the clients. The franchise agreement prohibited

Sullivan Ironi engaging or having a lmnancial interest in a competing business.

In 2002, Sullivan sued JaniKing in New iork alleging that JaniKing breached the

franchise agreement. As part of its investigation of Sullivan’s lawsuit, JaniKing learned that

Sullivan had started his own cleaiiing company separate from Jani-King and had live accounts he

serviced outside the JaniKing franchise. In 2003. JaniKing sued Sullivan in Dallas County

alleging that Sullivan breached the franchise agreement by, among other things, operating a

competing business, The parties settled their disputes in both lawsuits and executed a settlement

agreement dated May 1, 2004.

In the settlement agreement, Sullivan acknowledged that he had operated a competing

business. He agreed to “immediately and permanently cease operation” of the competing

business “and to immediately take all steps necessary to assign or transfer all competing

contracts. accounts and/or customers to Jani-King.” For its part, Jani-King agreed to offer

Sullivan in good faith, within twelve months of the date of the settlement agreement, accounts

with monthly gross billings of at least $18,000, and, if it failed to do so, to pay Sullivan 25% of

the difference between $18,000 and the actual gross monthly billings of the contracts offered to

Sullivan. In the settlement agreement, the parties agreed that the franchise agreement continued

in full force and effect.

In 2005, Jani-King sued Sullivan for fraudulent inducement and breach of the franchise

and settlement agreements. Jani-King alleged, among other things, that Sullivan did not comply

with the provisions in the settlement agreement to “immediately and permanently cease

operation” of the competing business and to transfer the outside accounts to Jani-King and did

—2— not comply with the ftanchise agreement to pay royalty and advertising fees to JaniKing.

Sullivan counterclaimed for fraudulent inducement and breach of the settlement agreement

illcging Ihdi I mi king did not of h him on1r Lets with monthly gloss billings of it k ist

Si ,UOO. Before trial. Jaiii-King dropped its claim of fraudulent inducement.

The jury found that Sullivan failed to comply with both the settlement agreement and the

franchise agreement and awarded Jani-King 5223,075 in damages and 580,000 in attorney’s fees

for representation at trial. The jury found that Jani-King did not commit fraud against Sullivan.

On appeal, Sullivan argues that the evidence is legally and factually insufficient to

support the jury’s findings, and the trial court erred by allowing testimony about Jani-King’s

damages and attorney’s fees and by not reforming the judgment to assess damages in favor of

him and against Jani- King.

SUFFICIENCY OF THE EVIDENCE

Sullivan challenges the legal and factual sufficiency of the evidence supporting several of

the jury’s answers. Jani-King argues that Sullivan’s factual sufficiency complaints are not

preserved for appellate review.

A party complaining that evidence is factually insufficient to support the jury’s findings

must file a motion for new trial to preserve the complaint for appellate review. TEX. R. CIV. P.

324(b)(2), (3). Sullivan did not file a motion for new trial, but he argues that his motion to

disregard the jury’s findings or for judgment notwithstanding the verdict suffices as a motion for

new trial and that we should look to the substance of his motion rather than its form. At oral

argument, Sullivan contended that the general request for relief in his motion—”[flor any further

relief to which Sullivan may be entitled”—was sufficient to preserve the issue for our review.

And he argues that our opinion in PopCap Gaines, Inc. v. Miunbofumbo, LLC, 350 S.W.3d 699

—3— ([cx. App. Dullas 201 pet. denied) suppurts his argument that he preserved the factual

sulliciencv complaints br appellate review. \Ve do Hot agree.

A motion for new trial asks the trial court to vacate the juthmient and order a new trial on

the issues. See in re BroaksJiire Grocery (. 25() S.W.3d 66, 73 (Tex. 2008) (orig. proceeding)

(stating “fundamental nature of a new trial motion ...seeks not to reborm, but to lcwule the

court’s judgment): Mercer v. Band, 454 S.W.2d 833, 836 (Tex. App.—Houston 114th Dist.}

1970, no writ) (stating motion for new trial must “seek to have an existing judgment set aside

and request a relitigat ion of the issues”), Sullivan’s motion to disregard the jury’s findings or for

judgment notwithstanding the verdict did not ask the trial court to vacate the judgment and order

a new trial. Instead, it asked the trial court to strike the jury’s answers and render a judgment in

his ftivor because “the evidence conclusively proves facts that establish Sullivan’s right to

judgment as a matter of law:’

We also do not agree that our opinion in PopQap Gaines controls the outcome in this

case. In PopCap Games, we had to determine whether a motion for new trial on the sole issue of

damages sufficed as a motion for new trial so as to extend the deadline for filing a notice of

appeal. 350 S.W.3d at 715. We said it did because MumboJumbo “expressly sought to relitigate

some of the issues in the case.” Id. at 716. We also noted that if the trial court granted

MumboJumbo’s motion, a new trial would have resulted. Id. at 716—17. Unlike in PopCap

Games, however, Sullivan’s motion did not seek to relitigate any of the issues in the case. And if

the trial court had granted Sullivan’s motion, it would not have resulted in a new trial but in a

judgment rendered in Sullivan’s favor. We conclude that FopCap Games does not apply here.

Because Sullivan did not ask for a new trial on any of the issues, we conclude that his

motion to disregard the jury’s findings or for judgment notwithstanding the verdict does not

satisfy the requirements of a motion for new trial and was not sufficient to preserve his factual

-4- sufficiency complaints for our review, See Brookshire Grocery Co., 250 S.W.3d at 73; Mercer,

454 S.W.2d at 836. Consequently, only his legal sufficiency challenges are properly before us.

Standard of Review

An appellant challenging the legal sufficiency of the evidence supporting an adverse

finding on an issue for which the appellant did not have the burden of proof must show that there

is no evidence to support the jury’s adverse finding. Exxon Corp. v. Emerald Oil & Gas ‘o,,

LC.. 348 S.W.3d 194, 215 (Tex. 201 1). We will sustain a no-evidence challenge on appeal if the

record shows (1) a complete absence of evidence of a vital fact, (2) the court is barred by the

rules of law or evidence from giving weight to the only evidence offered to prove a vital fact,

(3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence

conclusively establishes the opposite of a vital fact. Set-v. corp. Int’l v. Guerra, 348 S.W.3d 221,

228 (Tex. 2011). “Evidence is legally sufficient if it ‘would enable reasonable and fair-minded

people to reach the verdict under review.” Exxon Corp., 348 S.W.3d at 215 (quoting City qf

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).

In conducting our review, we examine the evidence in the light most favorable to the

jury’s finding. City f Keller, 168 S.W.3d at 822. We must assume that the jury resolved

conflicting evidence and made reasonable inferences from the evidence in favor of the prevailing

party. Guerra, 348 S.W.3d at 228; City of Keller, 168 S.W.3d at 821.

When the appellant challenges the legal sufficiency of the evidence supporting an adverse

finding on an issue for which the appellant had the burden of proof, the appellant must show that

the evidence establishes as a matter of law all vital facts to support the issue. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In our review, we first examine the

record for evidence supporting the adverse finding. Id. If there is no evidence to support the

adverse finding, we next examine the record to determine if the contrary finding is established as

—5— a matter of law. Id. “Evidence is conclusive only if reasonable people could not differ in their

conclusions11” City of Keller, 168 S.W3d at 816.

Sullivan challenges the sufficiency of the evidence to support the jury’s findings in

answer to questions one, three, four, six, eight, nine, ten, and eleven, Because his factual

sufficiency complaints are not preserved, we construe his arguments as legal sufficiency

challenges.

Question 1: Sullivan failed to comply with the settlement agreement

In issue one, Sullivan argues that there is legally insufficient evidence to support the

jury’s finding that he failed to comply with the settlement agreement. It is undisputed that

Sullivan obtained five professional cleaning accounts outside the Jani-King franchise. The

settlement agreement required Sullivan “to immediately and permanently cease operation of”

those accounts “and to immediately take all steps necessary to assign or transfer all contracts,

accounts andlor customers” for those five accounts to Jani-King. At trial, Sullivan admitted that

he did not immediately cease operation of the competing business after signing the settlement

agreement and that he did not transfer those accounts to Jani-King. Based on Sullivan’s own

admission, reasonable and fair-minded people could have concluded that Sullivan failed to

comply with the settlement agreement. See Guerra, 348 S.W.3d at 228; City of Keller, 168

S.W.3d at 815, 827. We resolve issue one against Sullivan.

Question 3: Sullivan failed to comply with the settlement agreementfirst

In issue two, Sullivan challenges the legal sufficiency of the evidence to support the

jury’s finding that he was the first to fail to comply with the settlement agreement. Sullivan

argues that his failure to comply with the settlement agreement was excused because he “could

not transfer any accounts to Jani-King without documents and approval from Jani-King” and that

Jani-King did not give him the “proposals and contracts” for those accounts. He also argues that

—6— .laniKing tailed to oiler turn the business promised in the settlement i reement and. as a result.

his iailure to comply was excused. But the question suhrnittcd to the jury was which party failed

to comply with the settlement agreement first, not whether Sullivan’s breach was excused.

The settlement agreement required Sullivan to immediately stop operating the competing

business and to immediately take steps to transfer those accounts to JaniKing, and it is

undisputed that he (lid not do so. JaniKing argues that the settlement agreement did not require

it to draft contracts for Sullivan, hut, even if it did. Sullivan (lid not provide the detailed

iniormation necessary to prepare the contracts. JaniKing presented evidence that it needed

information about the size of the account, how much carpet or tile, the number of clays a week

service was to he provided, and the client’s daily, weekly, monthly, and quarterly cleaning

schedule before a contract could be prepared. The evidence showed that Sullivan did not provide

this intormation to JaniKing, did not ask for Jani—King’s assistance in transferring the accounts.

and refused Jani-King’s assistance when it was offered.

Additionally, unlike Sullivan’s obligations tinder the settlement agreement. which were to

“immediately” stop the competing business, Jani—King had twelve months in which to provide a

certain level of business to Sullivan. The evidence showed that a month or two after the

settlement agreement was signed, Jani-King offered Sullivan an account with the Cheesecake

Factory in New York with gross monthly billings of over $16,000 and he refused it.

Having reviewed the record, we conclude that the evidence is legally sufficient to support

the jury’s finding that Sullivan was the first party to fail to comply with the settlement

agreement. We resolve issue two against Sullivan.

—7— Question 4: juni-!mg ‘sfiuilure to comply with the settlement agreement wax excused

In issue three. Sullivan challenges the legal sufficiency of the evidence to support the

jury’s finding that J aniKing’ s failure to comply with the settlement agreement was excused. The

trial court instructed the jury that

JaniKing’s failure to comply with the Settlement Agreement is excused by Mr. Sullivan’s prior repudiation of the Settlement Agreement. A party repudiates an agreement when he indicates, by his words or actions, that he is [lot going to pertorm his obligations tinder the agreement in the future, showing a fixed intention to abandon. renounce, and refuse to perform the agreement.

When one party to a contract commits a material breach of the contract, the other party is

excused from further performance under the contract. Mustang Pipeline Co. i’. Driver Pipeline

Co., 134 S.W3d 195, 196 (Tex. 2004).

Sullivan argues that there was no reasonable basis for the jury’s finding because Jani

King “admitted that it never complied with the Settlement Agreement at any point in time” and

because he tried to transfer his outside accounts to Jani-King but Jani-King would not provide

the documents he needed to transfer the accounts. But the question is not whether Jani-King

“admitted that it never complied with the Settlement Agreement,” but whether its noncompliance

was excused.

In the settlement agreement, Jani-King stated that Sullivan’s agreement to immediately

and permanently cease operation of his competing business was “an essential inducement to the

agreement of Jani-King to settle” the lawsuits and that breach of this provision. . . may result in

uTeparable injury to Jani-King.” Sullivan admitted that he did not immediately cease operation of

his competing business and did not transfer the accounts. And we previously concluded that the

evidence is sufficient to show that Sullivan breached the settlement agreement first.

Consequently, we further conclude that the evidence is sufficient to support a finding that Jani

King’s breach was excused. See Id. We resolve issue three against appellant.

—8— Question. .6 J .ni-Jing did ru:t co•.•..it fr aj.adn. si fr

In. iissue ftmr, Sullivan argues th.t Trial Court erred whert it d.eci.ded. that. Jani King

di.d not commit fraud against Mr. Sullivan.,” W construe th .5 15SU to ch iH.enge die legal .. . .

sufficiency of the evidence to support the jury’ s finding that JaniKing did not commit fraud

against Sullivan:

QUESTION NO.6:

Did JaniKing commit fraud against Mr. Sullivan?

Fraud occurs when —

a. a party makes a material misrepresentation, and

b. the misrepresentation is made with the knowledge of its falsity or made recklessly without knowledge of the truth and as a positive assertion, and

c. the misrepresentation is made with the intention that it should be acted on by the other party, and

d. the other party relies on the misrepresentation and thereby suffers injury.

Misrepresentation means —

a, a false statement, or

b. a promise of future performance made with an intent, at the time the promise was made, not to perform as promised, or

c. a statement of opinion that the maker knows to be false, or

d. an expression of opinion that is false, made by one claiming or implying to have special knowledge of the subject matter of the opinion.

“Special knowledge” means knowledge or information superior to that possessed by the other party and to which the other party did not have equal access.

Answer “Yes” or “No.”

Answer: NO

Sullivan contends that he “clearly proved all elements of his fraud claim against Jani

King” and cites evidence that Jani-King did not respond to his “dozens of phone calls or written —9— ct)!flIfliLIica1 iofl ahuLit trauslcrring the accouut, “ pmcurernent of new business.’’ and hiilure to

make payments to him pursuant to the settlement agreement. Sullivan contends that Garry Clark.

then the president of Jani King. represented that he would l)ersolllhllY assist Sullivan in

transferring the accounts to Jani—Kin and would he Sullivan’s sole contact at JaniKing.

We first examine the record to determine if there is some evidence to support the jury’s

hnding. Dow Chew. Co., 46 S.W.3d at 241. The settlement agreement stated that JaniKing

would “make reasonable efforts to persuade Sullivan’s client Alcan to transfer its business to

Jani-King” including “an in-person sales call by Mr. Garry Clark, accompanied by Sullivan” if

necessary. But it did not state that Clark would he Sullivan’s sole contact at Jani-King. Clark

testified that he offered to go with Sullivan to talk to Alcan about transferring the account to

Jani—King and Sullivan refused Clark’s assistance. Clark also testified that he would not have

agreed to be the only person to work directly with Sullivan in transferring the accounts because

the accounts were in New York and Clark worked in the Dallas area.

Sullivan does not cite any evidence to support the other elements of his fraud claim, such

as whether Clark made any misrepresentations with the intent not to perform as promised. And to

the extent the evidence conflicted about whether Jani-King or Clark made misrepresentations to

Sullivan before the settlement agreement was signed, the jury resolved the conflict in favor of

Jani-King. Consequently, we conclude that there is more than a scintilla of evidence to support

the jury’s finding that Jani-King did not commit fraud against Sullivan, and we do not need to

consider whether Sullivan established his fraud claim as a matter of law .See id. We resolve

issue four against Sullivan.

Question 8: Sullivan breached the franchise agreement

In issue five, Sullivan challenges the jury’s finding that he breached the franchise

agreement. Sullivan initially argues that any disputes about the franchise agreement were

—10— resolved in the settlement agreement and that by raising this issue Jani-King sought “to re-litigate

matters that were resolved and dismissed with prejudice.” He states that “the Trial Court should

have barred that claim by waiver,” but he does not explain that argument or cite authority or the

record to support the argument.

Sullivan next argues that Jani-King failed to provide him written notice and an

opportunity to cure any noncompliance with the franchise agreement. The franchise agreement

required Sullivan to pay Jani-King certain fees based on Sullivan’s gross revenues, and Sullivan

admitted that he had not paid Jani-King any fees since he signed the settlement agreement. [Ic

contends, however, that “Jani-King failed to give Sullivan mandatory, specific written notice per

its own policies and procedures, [andj it was harmful error to find and enter a judgment against

Sullivan as to this issue.” Jani-King argues that the notice provision upon which Sullivan relies

applied only if Jani-King chose to terminate the franchise agreement because of Sullivan’s

default and did not apply if Jani-King chose instead to sue Sullivan for breach of the franchise

agreement.

Sullivan moved for directed verdict on the notice issue, and the trial court overruled the

motion, stating, “You can raise it again before we send the — if the [sicj we send a Charge to the

Jury.” But Sullivan did not request a jury charge on the notice issue and, consequently, did not

obtain a jury finding about whether Jani-King failed to comply with the notice provision. See

TEX. R. Civ. p. 278, 279; see also Cadillac Bar West End Real Estate v. Landry’s Restaurants,

Inc., No. 05-1 1-01540-CV, 2013 WL 1721954, at *4 (Tex. App.—Dallas Apr. 22, 2013, no pet.

h.) (stating that failure to give notice as required by agreement is affirmative defense that must

be proved); Forney 921 Lot Dcv. Partners I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258,

268 (Tex. App.—Dallas 2011, pet. denied). As a result, we may not reverse the judgment on this

basis. See TEX. R. Civ. P. 278, 279; see also Cadillac Bar West End, 2013 WL 1721954, at *4

—11— To the extent this issue challenged the legal sufficiency oh the evidence to support the

jury’s answer, we conclude that the evidence is legally sufficieni, In the settlement agreement,

the parties agreed that their franchise agreement remained in full force and effect. The franchise

agreement required Sullivan to pay certain fees, and Sullivan admitted he had not paid those fees

since May 2004 when he signed the settlement agreement. Based on Sullivan’s admission,

reasonable and fairminded people could conclu(le that Sullivan breached the franchise

agreement. See Guerra, 34l S.W.3d at. 228: City of Keller, 168 S.W.3d at 821. We resolve issue

five against appellant.

Question 10: Sullivan engaged in a competing business

In issue six. Sullivan argues that the jury’s finding that he continued to engage in or have

a financial interest in a competing business after the date of the settlement agreement is against

the great weight of the evidence.” This is a complaint about the factual sufficiency of the

evidence which was not preserved for our review. To the extent the argument could be construed

to also challenge the legal sufficiency of the evidence, we conclude that the evidence was legally

sufficient. Sullivan testified that he continued to operate his business outside the Jani—King

franchise and continued to service the accounts he was supposed to transfer to Jani-King after he

signed the settlement agreement “all the way up through today,” the date of trial. We conclude

that the evidence is legally sufficient to support the jury’s finding. We resolve issue six against

appellant.

Question 11: Jani-King ‘s attorney ‘sfees

The jury awarded Jani-King $80,000 in attorney’s fees for representation at trial. In issue

seven, Sullivan contends that the evidence was “overwhelmingly insufficient” to support the

jury’s award. To the extent this argument challenges the legal sufficiency of the evidence to

—12— support the jury’s award of attorney’s ices, we first must consider Suit ivan’s contention that the

trial court erred by admitting the testimony of iani—King’s expert on attorney s fees.

We review a trial courts decision to admit or exclude evidence for an abuse of discretion.

(Juerra. 348 S,W.3d at 235. We will alhrm the trial court’s ruling unless the court acted

unreasonably or in an arbitrary manner, without relerence to guidmg rules or principles. Buinaru

r. Ford Motor Co., 84 S.W3d 198, 211 (Tex. 2001).

JaniKing called expert witness attorney David Cabrales to testify about the

reasonableness of attorney’s fees. Sullivan objected to Cabrales’s testimony on two grounds:

Cabrales was not identified as an expert witness in Jani-King’s pretrial filings and Jani-King did

not produce the documents Cabrales reviewed to prepare for his testimony as required by civil

procedure rule l94.2(f)(1 ( A).

The trial court overruled the first objection because the issue had been resolved in a

pretrial hearing. The appellate record does not contain a transcript of that hearing; however, it

does contain a document dated February 2007, four years before trial, identifying Cabrales as a

testifying expert on the issue of attorney’s fees. The trial court also overruled the second

objection because it was premature. During his actual testimony, Cabrales said he did not review

any legal bills to prepare for his testimony and Sullivan did not renew his objection based on rule

194.2(f)(4)(A). We conclude that the trial court did not abuse its discretion by overruling the

objections.

Cabrales testified that reasonable and necessary attorney’s fees through trial for this case

were $150,000 to $175,000. He based his opinion on the age of the case, the novelty and

difficulty of the questions involved, the skill required to render proper legal services, the

likelihood that accepting the case would preclude other employment, the fees customarily

charged for similar services, the amount of time involved and any time limitations imposed by

—13— the client or circumstances, the nature and length of the relationship with the client, and the

experience, reputation, and ability of the lawyers. He also testified that the work on this case

involved events that happened in New York and required the lawyers to “go through particular

procedures that are unique to state law” to be able to get information from witnesses who lived in

New York. We conclude that there is more than a scintilla of evidence to support the jury’s

award of $80,000 in attorney’s fees. We resolve issue seven against appellant.

Question 9: Jani-King’s damages

JaniKing presented evidence of the damages it incurred when Sullivan failed to pay the

royalty and advertising fees as required by the franchise agreement. In issue eight, Sullivan

complains that Jani-King did not present any evidence that it incurred advertising expenses on

Sullivan’s behalf. He also contends that the trial court erroneously overruled his objection to the

testimony of Jani-King’s witness on damages, Jill Bean, because Bean based her opinion and

calculation of Jani-King’s damages on documents Jani-King did not produce in discovery and

because Jani-King did not plead these damages. The trial court overruled the objections. We

address Sullivan’s evidentiary complaints first.

Bean testified that she calculated the fees Sullivan owed but did not pay using an invoice

log already admitted into evidence and that Sullivan agreed accurately stated the gross revenue

he received from the accounts he serviced outside the Jani-King franchise. She testified that she

totaled the gross revenue from the invoice log and, after discounting the total by the sales tax

amount, multiplied the gross revenue by 10% to arrive at the royalty fees owed and by 0.5% to

arrive at the advertising fees owed. She also calculated a $25 per day non-reported business fee

using the same invoice log. Additionally, Jani-King’s live pleading included an allegation that

Sullivan owed these fees. Because Bean performed mathematical calculations based on an

exhibit already in evidence, and because Jani-King did plead for recovery of these damages, we

-14- conclude that the trial court did not abuse its discretion by overruling Sullivan’s objections to

Bean’s testimony.

Soil ivan also complains that the award for advertising fees must be reversed because

JaniKing did not present evidence that it incurred any advertising expenses for Sullivan after

January 1, 2005. The jury was asked a broadform damages question taking into consideration

the unpaid royalty fees, advertising fees, and nonrepoi1ed business fees. Sullivan did not ask the

jury for separate damages findings. As a result, Sullivan’s challenge on appeal is limited to the

legal sufficiency of the evidence supporting the entire award. Tex. Youth Comm ‘ii .‘.

Koustoubardis, 378 S.W.3d 497, 501—02 (Tex. App.—Dallas 2012, no pet). But Sullivan does

not challenge the entire damages award. See’ Id. Additionally, the franchise agreement requires

Sullivan to pay the fees “for the remainder of the terni’ of the agreement—payment of the

advertising fee was not based on whether Jani-King provided advertising services specifically to

Sullivan during a certain period. We resolve issue eight against appellant.

REFORM JUI)GMENT

In issue nine. Sullivan argues that, based on the analysis of issues one through eight, the

trial court erred by not reforming the judgment to assess damages against Jani-King and in his

favor. Because we have resolved issues one through eight against Sullivan. we also resolve issue

nine against him.

CoNcLusioN

We affirm the trial court’s judgment.

/Elizaheth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE

11 1546F.P05

—15— øitrt øf Apicata FiftI! Oi!tritt ni xa at Dat1a JUDGMENT

GLENN SULLE VAN, Appellant On Appeal from the 160th Judicial District Court. Dallas County, Texas No. 05-I 1-01546-CV V. Trial Court Cause No. 05-1 2092. Opinion delivered by Justice Lang-Miers, JANI-KING OF NEW YORK, INC., Justice Fillmore participating. Appellee

In accordance with this Court’s opinion of this date. the judgment of the trial court is AFFIRMED. It is OR1)EREI) that appellee Jani-King of New York, Inc. recover its costs of this appeal from appellant Glenn Sullivan.

Judgment entered this 11th day of July, 2013.

—16—