EMCOM CORPORATION OF FROM A DISTRICT COURT DELAWARE, APPELLANT, v. NORMAN ST. CLAIR, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00295-CV
 
EMCOM CORPORATION OF                         FROM A DISTRICT COURT
DELAWARE,
 
 
        APPELLANT,
 
 
v.
 
 
NORMAN ST. CLAIR,
 
 
        APPELLEE.                                          OF COLLIN COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, KINKEADE AND OVARD
FN:1
OPINION BY JUSTICE KINKEADE
JULY 26, 1989
        This case involves an employment contract dispute. Based upon a jury verdict, the trial court entered judgment in favor of Norman St. Clair against Emcom Corporation of Delaware (Emcom). Emcom appeals, and St. Clair asserts four cross-points. We reverse and render judgment in favor of Emcom.
        On February 25, 1985, Emcom International, Inc. (Emcom International), sent a letter to St. Clair offering him the position of vice president of international operations. On March 1, 1985, Emcom Corporation of Texas (Emcom Texas), not Emcom International, and St. Clair entered into a seven-page, single-spaced employment agreement. Pursuant to this March 1985 agreement, St. Clair moved to Amsterdam, Holland. Although the March 1985 agreement was for two years, Emcom Texas terminated St. Clair's employment six months later on August 31, 1985. Pursuant to a September 13, 1985, severance agreement, Mocme Corporation of Texas, formerly Emcom Texas, paid St. Clair $75,000 in exchange for St. Clair's release of "any further rights, benefits, duties, liabilities, or obligations" under the March 1985 agreement.
        Later that same month, in September 1985, St. Clair met with Stephen Emly regarding the possibility of working for a new Emcom corporation to be called Emcom Corporation of Delaware. Emly referred St. Clair to George McIntyre. FN:2 McIntyre, in turn, referred St. Clair to Arthur Mulligan. FN:3 Although St. Clair and McIntyre had not reached a final agreement, on September 27, 1985, St. Clair presented to Mulligan the terms of his employment and represented to Mulligan that McIntyre had already approved those terms. St. Clair, Mulligan, and a secretary drafted the following letter:
        Dear Mr. St. Clair:
 
        We would like to extend to you the position of Vice President of International Operations and Managing Director for the Belgium location FN:4 effective September 15, 1985. Emcom International Corporation has been tentatively "shelved", should this Company be reactivated your position and this letter of agreement will be transferred therein.
 
        Your responsibilities will be to oversee operations in marketing, technical support and administrative support. Your primary coverage is Beleux FN:5 as well as the territory covered by the German distributor and negotiations outside of North America.
 
        The renumeration [sic] will be a base of $4,250 per month and expenses of $1,750 per month, based upon the exchange rate being four guilders to one dollar paid into the Belgium location. A bonus of $36,000 will be paid based upon an annualized sales projection of $1,600,000 or better.
 
        We would like to take this opportunity to express our confidence in your abilities to solidify international sales for us and obtaining the sales projections we envision. We welcome you to Emcom Corporation.
 
                                                   Sincerely,
                Accepted by:                 /s/ George Macintyre
                /s/ Norman St. Clair [by] /s/ AJM [Mulligan]
                Norman St. Clair         George Macintyre                                                                           Executive Vice President
The letter was antedated September 15, 1985. Pursuant to this one-page letter agreement, St. Clair returned to Europe.
        Emcom accepted St. Clair's services and paid him through October 31, 1985, after which Emcom stopped sending St. Clair paychecks. Despite not being paid, St. Clair continued to perform services on behalf of Emcom. However, in January l986, not having been paid in over two months, St. Clair went to London to meet with Emly and Mulligan. Mulligan testified that he terminated St. Clair's employment as a vice president while St. Clair was in London, but retained St. Clair in a salesman's capacity. Mulligan said that on February 11, 1986, he terminated St. Clair entirely, pursuant to a telephone conversation; St. Clair denied being terminated on February 11, 1986. The jury found that Emcom fired St. Clair on February 11, 1986.
        On April 11, 1986, St. Clair sued Emcom International, Emcom, O'Neil Design Manufacturing, Inc. (formerly Emcom Corporation of Iowa), and Emly individually on the basis of (1) breach of contract, (2) wrongful termination, (3) "the equitable doctrines of estoppel and equitable relief from mistake" (equitable estoppel), (4) quantum meruit, and (5) fraud. Additionally, St. Clair sought exemplary damages and sought to hold all the defendants liable under the theories of alter ego and piercing the corporate veil. St. Clair alleged that the contract was for three years. St. Clair based his contract claims upon the terminated March 1985 agreement and the September 1985 letter agreement which, according to St. Clair, "amended or reinstated" the March 1985 agreement.
        The defendants asserted a general denial and also alleged that St. Clair fraudulently obtained the September 1985 letter agreement. The defendants also alleged that the September 1985 letter agreement was terminable at will by either party as a matter of law.
        Approximately five weeks before trial, Emcom paid St. Clair his $4,250 per month salary and $1,750 per month flat- expense allowance for the period from November 15, 1985, through February 15, 1986. Emcom also paid six percent interest on those sums. Despite this partial settlement, St. Clair did not amend his petition.
        At trial, St. Clair abandoned his claim of quantum meruit. St. Clair also abandoned his claim for damages on the basis of equitable estoppel. We address these claims no further.
        The jury found against St. Clair on the theories of fraud, alter ego, and piercing the corporate veil, and St. Clair has not appealed those findings. We do not address any of those issues. The jury found that St. Clair fraudulently obtained the September 1985 letter agreement. However, the jury also found that Emcom's subsequent conduct ratified the contract. The jury additionally found that Emcom authorized Mulligan to sign the September 1985 letter agreement. The jury found that Emcom terminated St. Clair's employment with malice and without good cause and awarded St. Clair $6,000 in punitive damages. St. Clair did not submit an actual damage issue on his wrongful termination cause of action. Finally, the jury found that Emcom agreed to reimburse St. Clair for expenses over and above the flat expense found in the September 1985 letter agreement and awarded St. Clair $10,500 in expenses. The jury also found that St. Clair and Emcom agreed to an exchange rate of four Dutch guilders to one American dollar; however, St. Clair did not submit an exchange rate differential damage issue in conjunction with this jury finding.
        The trial court rendered judgment that St. Clair recover $10,500 in reimbursable expenses, prejudgment interest at the rate of six percent, and attorney's fees in the amount of $54,000. Both St. Clair and Emcom filed motions for new trial. Both appeal the judgment of the trial court.
EMCOM POINTS OF ERROR ONE THROUGH THREE
        
        In points of error one through three, Emcom argues that the trial court erred in submitting jury question 1(a) and in rendering judgment based upon the jury's answer to that issue. This question asked the jury whether Emcom agreed to reimburse St. Clair for expenses over and above the $1,750 flat expense, to which the jury answered yes. In point of error three, Emcom argues that the trial court erred in submitting jury question 1(a) -- whether the parties agreed to expenses above the flat rate -- because St. Clair's pleadings do not support the submission of that issue. For the reasons given below, we agree.
        St. Clair has neither pleaded nor argued that the September 1985 letter agreement is ambiguous. Whether a contract is ambiguous is a matter that must be pleaded. F.M. Stigler, Inc. v. H.N.C. Realty Co., 595 S.W.2d 158, 161 (Tex. Civ. App.--Dallas), rev'd on other grounds, 609 S.W.2d 754 (Tex. 1980). Where a contract is not ambiguous, its construction is a question of law for the court. Westwind Exploration v. Homestate Sav. Ass'n, 696 S.W.2d 378, 381 (Tex. 1985). Because St. Clair did not plead ambiguity and because the September 1985 letter agreement did not, as a matter of law, entitle St. Clair to expenses over and above the flat rate, the pleadings do not support the submission of jury question 1(a).
        St. Clair argues that he has never limited his agreement with Emcom to the September 1985 letter agreement. St. Clair's pleadings allege that the September 1985 letter agreement "amended or reinstated" the March 1985 agreement. As discussed earlier, Mocme Corporation of Texas (formerly Emcom Texas) terminated the March 1985 employment agreement and paid St. Clair $75,000 pursuant to a severance agreement. Paragraph 3 of the severance agreement states:
            Termination of Employment Agreement. St. Clair and MOCME acknowledge and agree that all of the terms and conditions of that certain Employment Agreement dated March 1, 1985, by and between St. Clair and MOCME (the "employment Agreement") were terminated as of August 31, 1985, and neither party has any further rights, benefits, duties, liabilities or obligations thereunder.
Accordingly, the March 1985 employment agreement was terminated pursuant to the severance agreement. Nothing in the September 1985 letter agreement indicated that the March 1985 employment agreement was "amended or reinstated" by the September 1985 letter agreement. St. Clair may not rely upon the March 1985 employment agreement.
        St. Clair argues that Emcom's conduct "conclusively" shows that it recognized his right to out-of-pocket expenses above the flat rate. We first note that St. Clair's breach of contract pleadings rely expressly upon the September 1985 letter agreement and the March 1985 agreement and do not rely upon a course of conduct. Consequently, St. Clair's pleadings do not support this theory, at least in conjunction with St. Clair's breach of contract cause of action, which is the only claim to which jury question 1(a) relates. Regarding Emcom's conduct, after the parties entered the September 1985 letter agreement, there is no evidence that Emcom ever paid St. Clair out-of-pocket expenses above the flat rate; this conduct does not "conclusively" show that Emcom recognized St. Clair's right to out-of-pocket expenses above the flat rate. Cf. TEX. BUS. & COM. CODE ANN. § 1.205(a) (Tex. UCC) (Vernon 1968) ("A course of dealing is a sequence of previous conduct between the parties to a particular transaction. . . ." (emphasis added)).
        St. Clair argues that Emcom reimbursed other employees' out-of-pocket expenses; therefore, this conduct "conclusively" shows that Emcom intended to reimburse his out-of-pocket expenses. We have already held that St. Clair had no contractual right to these expenses. Without a showing that Emcom was under no contractual duty to pay these other employees' out-of-pocket expenses, St. Clair cannot rely on Emcom's reimbursement of these expenses to them as proof of Emcom's intent to similarly reimburse him. The contracts of Emcom's other employees were not introduced into evidence. Consequently, St. Clair has failed to show that Emcom did not make the payments at issue pursuant to its contracts with the other employees.
        St. Clair asserts that the flat expenses were only intended to cover in-territory expenses and not out-of-territory expenses. St. Clair further asserts that his trips to Sweden, Munich, and London were out-of-territory expenses. The September 1985 letter agreement provides that St. Clair was to receive "expenses of $1,750 per month," not "expenses of $1,750 per month for in-territory expenses and all reasonable and necessary out-of-territory out-of-pocket expenses." For example, the March 1985 agreement has the following provision regarding expenses: "Employer shall pay or reimburse Employee, within thirty (30) days of submission of vouchers by him, for all reasonable and necessary out-of-pocket expenses incurred by him in the performance of his services and duties hereunder which are payable in accordance with the general expense policies of Employer. . . ." Where a contract contains an express covenant upon a subject, the law is well settled that no implied covenant can exist as to the same subject. Kingsley v. Western Nat'l Gas Co., 393 S.W.2d 345, 350 (Tex. Civ. App.--Houston [1st Dist.] 1965, writ ref'd n.r.e.). The Texas Supreme Court explained:
            [W]hen parties reduce their agreements to writing, the written instrument is presumed to embody their entire contract, and the court should not read into the instrument additional provisions unless this be necessary in order to effectuate the intention of the parties as disclosed by the contract as a whole. . . . It is not enough to say that an implied covenant is necessary in order to make the contract fair, or that without such a covenant it would be improvident or unwise, or that the contract would operate unjustly. It must arise from the presumed intention of the parties as gathered from the instrument as a whole.
Danciger Oil & Refining Co. of Texas v. Powell, 137 Tex. 484, 490, 154 S.W.2d 632, 635 (1941). Because the September 1985 letter agreement contained an express covenant regarding expenses, St. Clair may not rely upon a implied covenant regarding expenses.
        Because St. Clair's pleadings do not support the submission of jury question 1(a), we sustain Emcom's point of error three. Since we agree with point of error three, we need not address points of error one and two.
EMCOM'S POINT OF ERROR FOUR
        In point of error four, Emcom contends that the trial court erred in rendering judgment for St. Clair for additional expenses of $10,500 because the evidence was legally and factually insufficient to support the jury's response to jury question 4(a), which asked the jury to determine the dollar amount that would reasonably reimburse St. Clair for his expenses over and above the flat rate of $1,750. Because we earlier held that St. Clair was not entitled to such expenses on the basis of his breach of contract cause of action, the issue of the amount of expenses St. Clair incurred is now moot. Accordingly, we do not address the merits of Emcom's point of error four.
 
EMCOM'S POINTS OF ERROR FIVE THROUGH SEVEN
        In point of error five, Emcom argues that the trial court erred in rendering judgment in favor of St. Clair for attorney's fees because, as a matter of law, St. Clair was not entitled to recover judgment for such fees. In point of error six, Emcom asserts that the award of attorney's fees is excessive, and in point of error seven, Emcom contends that the evidence is legally and factually insufficient to support the amount of the award.
        In this suit, St. Clair asserted several different causes of action against Emcom, but the only cause of action by which he could recover attorney's fees under section 38.001 of the Civil Practice and Remedies Code is breach of written contract. Where there are multiple causes of action alleged by a plaintiff and only one or some of such causes permit the recovery of attorney's fees, the creditor's evidence as to attorney's fees must allocate the attorney's time and fees that pertain to the causes of action upon which attorney's fees are recoverable. The evidence must also segregate the hours of attorney's time and fees dealing with those causes of action upon which fees are not recoverable. Failure to segregate the evidence results in the conclusion that there is no evidence to support a finding of reasonable attorney's fees for the specific work performed in the category where attorney's fees are recoverable. See American Nat'l Bank & Trust Co. v. First Wisconsin Mortg. Trust, 577 S.W.2d 312, 320 (Tex. Civ. App.--Beaumont 1979, writ ref'd n.r.e.); Bray v. Curtis, 544 S.W.2d 816, 819-20 (Tex. Civ. App.--Corpus Christi 1976, writ ref'd n.r.e.).
        The record reflects that St. Clair's evidence regarding attorney's fees was in the form of a summary. The summary did not segregate the attorney's time as to each cause of action, nor allocate a reasonable attorney's fee for the specific work done in each category represented by an asserted cause of action. There is no specific evidence in the record of how much time St. Clair's attorneys spent on his breach of contract claim, the only claim for which he would have been entitled to collect attorney's fees. Emcom's attorney pointed out this deficiency in the evidence in his cross-examination of St. Clair's attorney.
        The record further reflects that Emcom objected to the form of the jury question regarding attorney's fees on no evidence grounds, and stated that St. Clair failed to segregate the time spent by the attorneys among the various causes of action. Emcom also brought this complaint to the trial court's attention in its motion for judgment n.o.v. and in its motion for new trial. These objections should have been sustained by the trial court. See Bray, 544 S.W.2d at 819. This record reflects that there was no evidence of what a reasonable attorney's fee would be for the specific work performed on each cause of action. The trial court should have disregarded the jury's answer to the question on attorney's fees and should not have awarded any attorney's fees to St. Clair in the judgment. We hold that there is no evidence to support the award of attorney's fees to St. Clair. We sustain Emcom's seventh point of error; therefore, we need not address the fifth and sixth points of error. We reverse the trial court's judment and render judgment that St. Clair take nothing by his claim for attorney's fees.
EMCOM'S POINTS OF ERROR EIGHT AND NINE
        In points of error eight and nine, Emcom argues that the trial court erred in rendering judgment in favor of St. Clair for costs of court. Rule 131 of the Texas Rules of Civil Procedure states: "The successful party to a suit shall recover of his adversary all costs incurred herein..." We have reversed all of the trial court's awards to St. Clair, leaving Emcom as the "successful party" in this suit. Therefore, Emcom is entitled, as a matter of law, to receive its costs from St. Clair. Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 152 (Tex. 1988). Therefore, we do not reach Emcom's eighth and ninth points of error. We render judgment that St. Clair take nothing on his claim for costs and that Emcom recover its costs from St. Clair.
 
ST. CLAIR'S CROSS-POINTS
        At this juncture, we address St. Clair's cross-points. A preliminary issue is whether this Court has jurisdiction to entertain St. Clair's cross-points. Our review of the record reveals that Emcom did not serve a notice of limitation of appeal upon St. Clair. TEX. R. APP. P. 40(a)(4). Therefore, St. Clair may complain by cross-point in his brief in this Court of any error in the trial court as between Emcom and St. Clair without perfecting an independent appeal. Donwerth v. Preston II Chrysler-Dodge, Inc., 32 Tex. Sup. Ct. J. 517, 520 (July 5, 1989).
ST. CLAIR'S CROSS-POINT ONE
        In cross-point one, St. Clair argues that the trial court erred in denying his motion for leave to reopen the case. St. Clair argues that the September 1985 letter agreement entitled him to an exchange rate of four guilders per dollar. St. Clair contends that because the dollar was weak between September 1985 and February 1986, he received less than four guilders per dollar. St. Clair seeks the exchange rate differential between four guilders per dollar and the actual guilders per dollar he received, which was less than four guilders per dollar. At trial, St. Clair produced evidence of the March 14, 1986, and September 12, 1987, exchange rates but produced no evidence whatsoever of the exchange rates during his period of employment between September 1985 and February 1986. Three weeks after the jury had been discharged and after the trial court had rendered judgment orally, St. Clair filed his motion for leave to reopen the case under rule 270 of the Texas Rules of Civil Procedure. The trial court denied St. Clair's motion.
        Rule 270 provides:
            Rule 270. Additional Testimony
 
                    When it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.
TEX. R. CIV. P. 270. An appellate court will not disturb the trial court's ruling unless the record shows that the trial court clearly abused its discretion. Word of Faith World Outreach Center Church, Inc. v. Oechsner, 669 S.W.2d 364, 366 (Tex. App.--Dallas 1984, no writ).
        For the reasons given below, we hold that the trial court did not abuse its discretion by overruling St. Clair's motion for leave to reopen the case. The present case was tried before a jury; therefore, for the evidence to be admitted, it must not relate to a controversial matter. TEX. R. CIV. P. 270. St. Clair's brief lists October 15, 1985; November 15, 1985; December 15, 1985; January 15, 1986; and February 15, 1986, as relevant exchange rate dates. St. Clair lists the exchange rates quoted by two publications, and although the quotes in the publications are close, the fact remains that both quote different exchange rates on all the given dates, thus creating a fact question for the jury to resolve. We hold that St. Clair's evidence pertains to a controversial matter. St. Clair's first cross-point is overruled.
        To the extent St. Clair relies upon Word of Faith, in which this Court held that the trial court abused its discretion in denying the motion to reopen the case, we find Word of Faith distinguishable. In Word of Faith, the case was tried before the court. Word of Faith, 669 S.W.2d at 366. In the present instance, the case was tried before a jury. St. Clair's reliance upon Word of Faith is misplaced.
 
 
ST. CLAIR'S CROSS-POINT TWO
        In cross-point two, St. Clair argues that the trial court erred in failing to grant exchange rate differential damages based upon the March 1986 exchange rate. In this cross-point, St. Clair seeks the same damages as in cross-point one, except St. Clair seeks to use the March 1986 exchange rate, which is in evidence, and not the exchange rates from October 1985 through February 1986. Emcom argues that the jury found that the relevant exchange rate was at the time the payments became due and that all of St. Clair's payments became due before March 1986; therefore, the March 1986 exchange rate is irrelevant. We agree. Cf. David McDavid Pontiac, Inc. v. Nix, 681 S.W.2d 831, 838-39 (Tex. App.--Dallas 1984, writ ref'd n.r.e.) (rate of attorney's fees charged in 1983 was not probative evidence of rate of attorney's fees charged from 1980 through 1982). St. Clair's second cross-point is overruled.
 
 
ST. CLAIR'S CROSS-POINT THREE
        In cross-point three, St. Clair argues that the trial court erred in failing to award him punitive damages. The jury question regarding punitive damages was expressly linked to a finding of wrongful termination of contract. The jury found in question nine that St. Clair's discharge was not for good cause, in question ten the jury found that Emcom acted with malice in discharging St. Clair, and in question eleven they further found that St. Clair should be awarded punitive damages of $6,000, based upon its finding in question ten. St. Clair failed to submit any issue regarding actual damages for wrongful termination of contract.
        "The party seeking punitive damages must obtain at least one finding of an independent tort with accompanying actual damages." Texas Nat'l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex. 1986) (per curiam). Accordingly, because St. Clair recovered no actual damages for wrongful termination of contract, St. Clair is not entitled to punitive damages. We overrule St. Clair's third cross-point.
 
ST. CLAIR'S CROSS-POINT FOUR
        In cross-point four, St. Clair maintains that the trial court erred in awarding prejudgment interest at the rate of six percent instead of ten percent on the damages he recovered at trial. Because we hold that St. Clair is not entitled to any damages, St. Clair's fourth cross-point is moot. Accordingly, we do not address the merits of St. Clair's cross-point four.
SUMMARY
        We reverse the judgment of the trial court awarding St. Clair $10,500 in expense damages and render judgment that St. Clair take nothing. We reverse the award of attorney's fees and render judgment that St. Clair take nothing. We reverse the award of costs and render judgment that Emcom recover its costs from St. Clair.
 
 
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00295.F
 
FN:1 The Honorable John D. Ovard, Justice, succeeded The Honorable Joseph A. Devany, Justice, at the expiration of Justice Devany's term effective December 31, 1988.
FN:2 The name "McIntyre" is also spelled "Macintyre" in the record. We are unable to determine the correct spelling.
FN:3 The parties disagree on what occurred between St. Clair and McIntyre and Mulligan. Our recitation of the facts is in accord with the jury findings.
FN:4 Emcom has never had a Belgium location.
FN:5 St. Clair explained that "Beleux" should read "Benelux," which refers to the area of Belgium, the Netherlands, and Luxembourg.
File Date[01-02-89]
File Name[880295]