ALPINE INTERNATIONAL CORPORATION, Appellant v. TEXAS HEALTH RESOURCES CORPORATION, Appellee

AFFIRM and Opinion Filed August 21, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00712-CV
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ALPINE INTERNATIONAL CORPORATION, Appellant
V.
TEXAS HEALTH RESOURCES CORPORATION, Appellee
.............................................................
On Appeal from the 101st District Court
Dallas County, Texas
Trial Court Cause No. 03-1129-E
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MEMORANDUM OPINION
Before Justices Wright, Bridges, and O'Neill
Opinion By Justice O'Neill
        Appellant Alpine International Corporation (AIC) appeals the jury's finding of no breach of contract against Texas Health Resources Corporation (THRC). In three issues, AIC alleges (1) the evidence is factually insufficient to support the jury's finding of no breach of contract; (2) the trial court abused its discretion and committed harmful error in admitting certain evidence; and (3) the trial court abused its discretion and committed harmful error by admitting parol evidence. We affirm the trial court's judgment.
Background
        AIC is a corporation that provides desktop support services for computers. AIC and THRC entered into a contract in June 1999 in which AIC provided approximately thirty-four on-site technicians to provide technical support to THRC. These technicians reported daily to a THRC site; however, they were AIC employees.
        Larry Shivers, the vice president and general manager for AIC, worked closely with THRC to insure that all service requests were handled timely. He was essentially the main contact between AIC and THRC. In June of 2000, Shivers prepared a new three year contract on behalf of AIC for THRC. On June 15, 2000 Shivers sent an email to Clarence Ching, AIC's president, informing him that unofficially, THRC had accepted AIC's extended contract.
        On July 11, 2000 Shivers learned AIC was not going to give him a bonus based on his performance on the THRC contract, which he believed he was entitled to. Shivers then decided to leave AIC. Tommy Hoang, AIC's vice president of sales, was unhappy with AIC because his salary was cut, and he was not receiving fair stock distributions. He also decided to leave the company.
        Tommy Hoang and his brother Henry “Nghiep” Hoang then decided to start another computer support services company called Adaptive Technical Services Corporation (ATS). They approached Shivers and offered him a position with ATS and he accepted. Shivers then approached Beverly Kellow, his THRC contact, and told her his plans to leave AIC. He also told her he was joining ATS, which could provide the same services as AIC. Because of her previous positive relationship with Shivers, she was interested in receiving a proposal from the new company.
        Shivers provided her with the same contract on behalf of ATS as he presented on behalf of AIC. THRC decided to contract with ATS because Shivers was “a known commodity” and had done a good job managing THRC's business concerns. The ATS contract went into effect August 1, 2000. On the morning of August 1, 2000, Clarence Ching received over thirty resignation letters from AIC employees who had decided to join ATS. Because almost all of the technicians responsible for the THRC account switched from AIC to ATS, the transition between the two companies was “seamless.” THRC's technical support was not hindered in any way by the change in companies.
        Clarence Ching sent Beverly Kellow an email thanking THRC for its business and wishing them well in the future. She never received any indication AIC felt THRC had breached any contract. THRC did not hear anything further from AIC until over a year later when it filed this lawsuit. AIC specifically alleged THRC violated provision 8, the no hiring provision of the contract. Provision 8 provides the following:
 
For the term of this Agreement (including all renewals hereto) and for a period of one year thereafter, Client [THRC] agrees not to hire, solicit or accept solicitation of, through employment or otherwise, directly or indirectly, any of AIC's employees, agents or independent contractors with whom it has had contact in the course of any of the Services which are the subject of this Agreement, unless Client [THRC] obtains the prior written consent of AIC. Notwithstanding the foregoing, neither party shall solicit or hire an employee of the other without written consent.
 
AIC alleged the contact between Shivers and Bellow around July 11, 2000 was direct or indirect solicitation because Shivers was still an AIC employee; therefore, THRC violated provision 8. The jury concluded THRC did not breach its contract with AIC. This appeal followed.
Sufficiency of the Evidence
        In its first point, AIC contends the jury's finding of no breach of contract is factually insufficient. When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Mayhew v. Dealey, 143 S.W.3d 356, 367 (Tex. App.-Dallas 2004, pet. denied). However, this Court is not a fact finder, and we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. Mayhew, 143 S.W.3d at 367. After reviewing the record, we conclude the evidence is factually sufficient to support the jury's finding of no breach of contract.   See Footnote 1 
        Although AIC argues THRC negotiated the ATS contract with Shivers, who was still an AIC employee, the jury heard contrary evidence. Beverly Kellow testified her negotiations regarding a new service contract were with a new entity called ATS, not Shivers individually or on behalf of AIC. She knew Shivers was leaving AIC, and he told her about the new service company he was associated with. She specifically testified, “as far as the contract itself, Larry acted on behalf of ATS.” She also told other THRC executives that the service arm of AIC was splitting off and forming a new company.
        Shivers specifically testified he negotiated on behalf of ATS. He also stated he was surprised when Kellow asked him for a proposal because he thought his previously submitted contract on behalf of AIC was a “done deal.” The jury could conclude this was further evidence he was not negotiating on behalf of AIC since it would be illogical for Kellow to ask him for another proposal on behalf of AIC when she already had one. He also testified Kellow never tried to solicit or hire him as a former AIC employee; she simply asked for a proposal from ATS. Such evidence supports the jury's finding that THRC did not directly or indirectly solicit business through an AIC employee, agent, or independent contractor but rather negotiated with ATS, a separate company who had former AIC employees.   See Footnote 2 
        AIC also argues that because ATS had not been formed when THRC negotiated with ATS, THRC was in fact soliciting business from Shivers in his capacity as an AIC employee. The jury, however, heard testimony from Tommy Hoang that ATS was formed sometime in June or July of 2000. Its Articles of Incorporation were filed on July 14, 2000. Thus, ATS was formed prior to the date of the THRC/ATS contract, which was effective August 1, 2000.
        Although there was also evidence showing ATS filed Articles of Dissolution on August 11, 2000, which AIC claims indicates ATS was nothing but a sham corporation, the jury heard evidence that the Articles of Dissolution were necessary in order for ATS to merge with another corporation called CyberDyne Systems, Inc. The Articles of Merger for the two corporations was filed on September 28, 2000. The jury also heard evidence that ATS acquired other AIC clients, which indicated the formation of the new company was not about stealing employees from AIC to gain the THRC account. Further, Tommy Hoang specifically testified he was not counting on THRC's business when he decided to leave AIC and start ATS.
        Likewise, AIC's argument that Shivers was negotiating on behalf of AIC because ATS was not fully formed overlooks the concept that a person may act as a promoter and negotiate on behalf of an unformed corporation. See Fish v. Tandy Corp., 948 S.W.2d 886, 898 (Tex. App.-Fort Worth 1997, no writ). However, as noted above, the evidence before the jury indicated ATS was formed before the contract went into effect and then merged into another company. Thus, any argument by AIC that ATS was nothing more than a sham corporation is without merit.
        Having reviewed the record, we conclude the jury's verdict of no breach of contract is not so contrary to the overwhelming weight of evidence as to be manifestly unjust. Thus, we overrule AIC's first issue.
Admission of Evidence
        In its second issue, AIC argues the trial court abused its discretion by admitting evidence of stock claims, stock purchase agreements, and family problems between it and Henry and Tommy Hoang because the evidence was irrelevant to AIC's breach of contract claim.         We review a trial court's admission or exclusion of evidence for abuse of discretion. A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985); Barfield v. SST Truck Co., L.L.C., 220 S.W.3d 206, 210 (Tex. App.-Dallas 2007, no pet.). A person seeking to reverse a judgment based on evidentiary error need not prove that but for the error a different judgment would necessarily have been rendered, but only that the error probably resulted in an improper judgment. Barfield, 220 S.W.3d at 210. A successful challenge to evidentiary rulings usually requires the complaining party to show the judgment turns on the particular evidence excluded or admitted. Id. We determine whether the case turns on the evidence admitted by reviewing the entire record. Id.
        Assuming, without deciding, that the trial court erred in admitting evidence of AIC stock purchase agreements, AIC stock claims, and family problems between the Hoangs, AIC has failed to establish that admission of such evidence probably caused the rendition of an improper judgment. AIC has provided no argument of how the evidence impacted the verdict other than it was highly prejudicial and led to jury confusion. After reviewing the record, we cannot conclude that the ultimate issue of whether THRC breached provision 8 of the contract turned on any erroneously admitted evidence. None of the complained of evidence had anything to do with whether Shivers and THRC breached AIC's contract, and the record does not indicate the admission of such evidence confused or biased the jury.   See Footnote 3  Therefore, AIC has failed to show that the verdict turns on the particular evidence admitted. Likewise, as stated above, the jury had factually sufficient evidence before it supporting its finding of no breach of contract so the outcome of the whole case did not turn on the admission of the particular evidence. See Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 609 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (because the jury's damages finding was supported by sufficient evidence, any error in admission of expert evidence was harmless). As such, we cannot conclude the trial court abused its discretion by admitting the complained of evidence. We overrule AIC's second issue.
Use of Parol Evidence
        In its third issue, AIC alleges the trial court erred in admitting parol evidence of THRC's intent concerning paragraph 8 of the contract after the trial court determined the contract was unambiguous. THRC contends AIC “opened the door” to admission of such evidence by offering similar evidence of the contract's intent and therefore cannot now complain about it on appeal. See Southwestern Elec. Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 473 (Tex. 1998) (noting a party opens the door to admission of otherwise objectionable evidence offered by the other side when it introduces the same evidence or evidence of a similar character); Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 402 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). The admission of such evidence is reviewed under an abuse of discretion standard, and AIC must establish the verdict turns on the particular evidence admitted. Downer, 701 S.W.2d at 242; Barfield, 220 S.W.3d at 210.
        AIC argues Beverly Kellow's testimony in which she explained what provision 8 prohibited THRC from doing injected improper parol evidence into the trial.   See Footnote 4  THRC asserts AIC opened the door for such parol evidence when AIC's attorney questioned Clarence Ching about the provision. We agree with AIC that Ching's testimony did not “open the door” for parol evidence because he simply testified as to why the clause was important to the company and did not provide any testimony of the parties' intent for including the provision. However, after reviewing the record, AIC did in fact offer evidence of intent through another witness, David Muntz, the senior vice president of information and chief information officer of THRC.
        AIC introduced Muntz's testimony through a videotaped deposition. During the deposition AIC's attorney asked him in reference to the no hiring provision, “what is your understanding of that provision?” Muntz answered as follows:
 
Well, I can't give you a legal opinion, but I can tell you how we use those provisions. It is pretty typical, that it is a way to keep from hiring employees in either direction. We don't want them taking our employees, and we don't want to be taking their employees, so that's generally what it is used for. But it is not uncommon that people will come forward and, with permission, move from place to place.
 
We find no difference in this testimony and the testimony of Beverly Kellow. Thus, even if THRC offered parol evidence through Kellow, AIC “opened the door” by offering similar testimony through Muntz. Therefore, the trial court did not abuse its discretion in admitting Kellow's testimony. AIC's third issue is overruled.
        Having overruled all of AIC's issues, we affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
060712F.P05
 
        
        
 
 
Footnote 1 Jury Question Number 1 asked “Did Texas Health Resources fail to comply with Paragraph 8 of Plaintiff's Exhibit 1, the 1999 Master Service Agreement with Alpine International Corporation?” The jury returned a 10-2 verdict of “no.”
Footnote 2 Nothing within provision 8 prohibits THRC from accepting solicitation of business from another company such as ATS because that entity employs former AIC employees.
Footnote 3 During closing argument, AIC's attorney argued the stock evidence and family issues were nothing but “red herrings” to bias and prejudice the jury deliberations. He then referred them to the jury instruction requiring them not to let bias, prejudice, or sympathy determine their decision. We assume the jury followed the trial court's instructions. Phillips v. Phillips, 820 S.W.2d 785, 792 n.2 (Tex. 1991).
Footnote 4 Kellow specifically testified the no hiring provision “prohibited us from hiring any of the AIC employees directly, putting them on our payroll and putting them to work for us; or indirectly by asking them to go to work for a temporary agency and then contracting with us to perhaps. . . .” AIC then objected based on parol evidence and the trial court overruled the objection. She continued by stating “[w]hat it meant was that we could not hire their people directly to work in one of our organizations and putting them on our payroll as a THR employee.” She further stated it meant THRC could not indirectly hire them through a temporary agency, thereby skirting the provision.