JEFF BROOKS, Appellant v. METISCAN TECHNOLOGIES, INC. AND GARTH JAMES, Appellees

AFFIRM; Opinion issued September 29, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01042-CV
............................
JEFF BROOKS, Appellant
V.
METISCAN TECHNOLOGIES, INC. AND GARTH JAMES, Appellees
.............................................................
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 08-08714-K
Severed from Cause No. 07-09920-K
 
.............................................................
MEMORANDUM OPINION
Before Justices Wright, Bridges, and Francis
Opinion By Justice Bridges
        Appellant Jeff Brooks appeals the trial court's denial of his partial motion for summary judgment and the trial court's grant of appellees Metiscan Technologies, Inc. and Garth James's partial motion for summary judgment. We affirm.
 
Background
 
        Metiscan owns and operates independent MRI imaging centers and provides information systems support to other imaging centers and hospitals throughout the country. At one time, James was the sole shareholder of Metiscan and Brooks was an employee of Metiscan. Brooks eventually served as Metiscan's president. Brooks was terminated by Metiscan in April of 2007.         The origination of “Brooks' downfall” was alleged to be Metiscan's decision to hire Athens Consulting Group (“ACG”) to provide Metiscan with consulting services and to help it acquire additional investment money that would be used to fund a large-scale expansion of its business. Isreal Martinez was the president of ACG. Once retained, Martinez and ACG allegedly set about to convince Metiscan that the best means for raising funds was to engage in a reverse merger with a publicly-held shell company. As compensation for shepherding Metiscan through the process, Martinez and ACG allegedly sought a sizeable equity stake in the new company and enlisted Brooks in the efforts to convince Metiscan of their plans. James contends that when he learned Martinez and Brooks were actively plotting against him and Metiscan, he terminated Martinez and Brooks as officers and directors of Metiscan.
        Following his termination, Brooks asserted Metiscan owed him deferred compensation. Metiscan and James retained counsel Michael Robinson to send a letter to Brooks and Martinez demanding return of all of Metiscan's property and confidential information. The letter also rejected Brooks's claim to deferred compensation and his contention that Metiscan owed ACG money for the termination of its consulting contract. The letter closed with an offer to meet with Brooks and Martinez's counsel. Metiscan received a response to its letter from Dan Hartsfield, counsel for Martinez, Brooks and ACG. The parties agreed to meet on April 26, 2006.
        James, Robinson, and Hartsfield attended the April 26 meeting.   See Footnote 1  After meeting for several hours, the parties reached an oral agreement. Brooks contends the parties settled their dispute at the meeting, but James and Metiscan allege the parties agreed on a general “skeletal structure” for a settlement, but left several key issues unresolved and open for future negotiations. Following the April 26 meeting, Hartsfield memorialized the agreement reached during the meeting by creating a “summary term sheet” and forwarded it to Robinson the following day. On April 30, 2007, Robinson responded to the proposed term sheet email and identified three specific objections to the proposed terms outlined by Hartsfield. The following day, Hartsfield responded by addressing the issues raised by Robinson.
        Hartsfield's office then sent a settlement agreement to Robinson for “review and comment.” Brooks alleges Metiscan and James eventually backed out of the April 26 settlement and, therefore, Brooks filed his original petition for declaratory judgment. In his petition, Brooks asked the trial court to declare that the pre-suit agreement made on April 26, 2007 was valid and enforceable and also sought specific performance, actual damages, exemplary damages, and other fees and costs. Metiscan and James filed their verified denial and counterclaims pursuant to the Texas Theft Liability Act and for conversion, money had and received, breach of fiduciary duty, breach of contract, fraud, civil conspiracy and for declaratory relief. James and Metiscan sought actual and exemplary damages for their counterclaims, along with their fees and costs. The parties filed cross partial motions for summary judgment. Brooks moved for partial summary judgment on his requests for declaratory relief and specific performance. Conversely, James and Metiscan moved on the grounds that Brooks was not entitled to declaratory relief and specific performance. The trial court denied Brooks's partial motion for summary judgment and granted James and Metiscan's partial motion for summary judgment. This appeal ensued.
Standard of Review
 
        The standards for reviewing a summary judgment are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether a disputed material fact issue exists, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d at 548-49. Further, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id.
        When both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). We review the summary judgment evidence presented by both parties and determine all questions presented. Id. The reviewing court should render the judgment that the trial court should have rendered or remand if neither party has met its summary judgment burden. Id.; Al's Formal Wear of Houston, Inc. v. Sun, 869 S.W.2d 442, 444 (Tex. App.-Houston [1st Dist.] 1993, writ denied).
Analysis
 
        In four issues, Brooks asks this court to hold that his April 26 agreement with James and Metiscan is a valid and enforceable agreement. In particular, Brooks argues the trial court erred in finding: (1) the April 26 settlement is missing material terms and, therefore, is unenforceable as a matter of law; (2) the April 26 settlement was not sufficiently certain based upon conduct that occurred weeks and even months after the April 26, 2007 meeting; (3) Robinson's April 30, 2007 email did not contain an “electronic signature” such that it was not a written memorandum of the parties' oral agreement for the purpose of satisfying the statute of frauds; and (4) Robinson's April 30, 2007 email acted as a counteroffer to the summary term sheet, rather than memorializing the parties' April 26 settlement for the purpose of satisfying the statute of frauds.
        We first review whether the April 26 settlement is missing material terms and is, therefore, unenforceable as a matter of law. The enforceability of a settlement agreement is determined in the same manner as any other written contract. Anderton v. Schindler, 154 S.W.3d 928, 932 (Tex. App.-Dallas 2005, no pet.). Whether an agreement is legally enforceable or binding is a question of law. Texaco, Inc. v. Penzoil Co., 729 S.W.2d 768, 814 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.). In order for a court to enforce a contract, the parties must agree to the essential terms of the contract. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). An agreement is unenforceable if it is so indefinite that a court cannot fix the legal obligations and liabilities of the parties. Moore v. Dilworth, 179 S.W.2d 940, 942 (Tex. 1944).
        Our court has determined that essential terms for a settlement agreement are the amount of compensation and the liability to be released. Disney v. Gollan, 233 S.W.3d 591, 595 (Tex. App.-Dallas 2007, no pet.). See also Padilla v. LaFrance, 907 S.W.2d 454, 460-61 (Tex. 1995) (agreement was complete where terms included agreement to pay in exchange for settlement); CherCo Properties, Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d 262, 266 (Tex. App.-Fort Worth 1999, no pet.) (holding a settlement agreement that includes the terms of payment, and a statement that the parties would execute releases, contained all material terms). When essential terms are open for future negotiation, there is not a binding contract. T.O. Stanley, 847 S.W.2d at 221.
        In the case before us, the parties reached an oral agreement on April 26. Hartsfield prepared a summary term sheet of the oral agreement and emailed it to Robinson on April 27, 2007. In the email, Hartsfield expressed that he “believe[d] it capture[d] everything” and to “[l]et [him] know if anything ha[d] been omitted.” On April 30, 2007, Robinson responded to the summary term sheet as follows:
 
Margaretta should not really be included on anything accept [sic] the agreement to not interfere and to encourage her to sign a contract with Metiscan. My client has already paid over #3,000.00 [sic] of what is due her for expenses and will discuss with her any other sums due her.
 
 
 
All expenses should be less sums already paid, if any, and must be backed up with expense records normally required.
 
 
 
one year Item: solicit Metiscan's existing customers or those currently in negotiations with Metiscan: i.e. University of Arkansas Medical System for one.
 
(emphasis added).
 
        Hartsfield responded on May 1, 2007 as follows:
 
 
Thanks for your comments. A couple of quick responses:
 
 
 
Margaretta is currently associated with ACG, a party to the settlement agreement. Her claims are derivative of ACG's cliams [sic]. Before ACG can give a corporate release of claims, we need to be assured that she will be paid what she's owed in commissions and expenses.
 
 
 
As for the remaining expenses, I think it's wise for us to agree on exactly what's owed and spell it out in the agreement. No need to leave anything ambiguous or unclear. Expense records have already been submitted.
 
 
 
On the nonsolicitation-we have the list of existing customers. On those currently in negotiations, other than UAMS, what other entities do we need to include?
 
(emphasis added). Following this exchange, the record includes correspondence between Hartsfield and Robinson which reflects a discrepancy in the parties' understanding of which customers should be included in the nonsolicitation list. By the beginning of June 2007, discussions ceased and Brooks later filed his lawsuit to enforce the April 26 agreement.
        Based upon the record before us, we agree that the April 26 agreement left essential terms open for future negotiation, and thus the trial court correctly concluded there is not a binding contract between the parties. T.O. Stanley, 847 S.W.2d at 221. Hartsfield recognizes in his May 1, 2007 email that the amounts owed is not yet clear, but still must be “spell[ed] out in the agreement.” Because, as of May 1, 2007, Brooks's own lawyer recognizes that the compensation under the agreement was not yet clear, the April 26 agreement necessarily lacked an essential term. Disney, 233 S.W.3d at 595. Thus, the summary judgment evidence demonstrates that there is no genuine issue of material fact precluding summary judgment in favor of James and Metiscan. Nixon, 690 S.W.2d at 548-49. We, therefore, conclude James and Metiscan were entitled to partial summary judgment as a matter of law. Tex. R. Civ. P. 166a. We overrule Brooks's first issue on appeal.
        Because Brooks's remaining issues challenge the trial court's finding that the April 26 agreement was not a valid and binding contract, and we agree with the trial court based upon our analysis of the first issue, we need not reach Brooks's remaining issues.
        Therefore, we affirm the judgment of the trial court.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
081042F.P05
 
Footnote 1 Brooks was not present at the meeting.