Opinion By Justice LANG-MIERS.
This appeal arises from a dispute about whether appellee Help Desk NOW, Inc. is required to pay certain commissions to appellant Kaye/Bassman International Corp. After both sides moved for summary judgment, the trial court denied Kaye/Bassman's motion and granted summary judgment in favor of Help Desk NOW. On appeal, Kaye/Bassman argues that the trial court erred when it granted summary judgment in favor of Help Desk NOW and denied summary judgment in favor of Kaye/Bassman. We reverse the trial court's summary judgment in part, affirm in part, and remand this cause to the trial court for further proceedings consistent with this opinion.
Help Desk NOW is in the call-center business and contracts with companies to provide call centers for customer service and technical support relating to a company's products or services. Kaye/Bassman is a recruiting and staffing firm that places sales people and executives with clients in various industries, including the call-center industry. According to Kaye/Bassman, it also brings business to its clients who run call centers by introducing those clients to Kaye/Bassman's industry contacts who are aware of companies that need a call center.
Although the parties apparently disagree about the purpose of the introduction, they agree that Kaye/Bassman introduced Help Desk NOW to a man named Matt Sherman.
Although the parties also apparently disagree about how, exactly, the agreement came about, they agree that in July 2004, around the time that Sherman introduced Help Desk NOW to Synchronoss, Kaye/Bassman and Help Desk NOW entered into a Call Center Business Agreement (the Original Agreement) governing Help Desk NOW's payment of commissions to Kaye/Bassman.
In October 2004, Synchronoss signed a call-center agreement with Help Desk NOW and became Help Desk NOW's biggest client. Pursuant to the terms of the Original Agreement, Help Desk NOW paid Kaye/Bassman 2.5% of the billed revenue from the Synchronoss account.
Over the next sixteen months, Sherman referred three other clients to Help Desk NOW. Help Desk NOW and Kaye/Bassman entered into two addenda to the Original Agreement to address the commissions to be paid to Kaye/Bassman from revenues generated from the first two of those three clients. They disagreed about whether Kaye/Bassman was entitled to any commission from the third client, CapGemini Energy. To resolve that dispute, the parties entered into a third addendum to the Original Agreement, in which Help Desk NOW agreed to pay Kaye/Bassman 1% of the billed revenue from the CapGemini
Six months later, in May 2006, Help Desk NOW and Synchronoss entered into an agreement regarding call center services and pricing that superseded all previous agreements between them (the 2006 Synchronoss Agreement).
In early 2007 Help Desk NOW was sold. The buyers interpreted the Fourth Addendum to mean that it did not owe commissions to Kaye/Bassman for revenues generated from the Synchronoss relationship as of the date of the 2006 Synchronoss Agreement.
In May 2007, Help Desk NOW filed this lawsuit seeking a declaratory judgment "as to its rights and obligations with respect to Kaye/Bassman." In its petition, Help Desk NOW states that because of the Fourth Addendum, Kaye/Bassman is not entitled to any commissions based on the 2006 Synchronoss Agreement. In response, Kaye/Bassman filed (1) an answer asserting a general denial and numerous affirmative defenses, including lack of consideration and (2) a breach-of-contract counterclaim seeking damages for unpaid Synchronoss commissions and attorneys' fees. In its amended answer and counterclaim, Kaye/Bassman alleges that, under the terms of the Original Agreement and the Fourth Addendum, Help Desk NOW is obligated to continue paying Kaye/Bassman 2.5% of all billed revenues generated from the Synchronoss account.
Help Desk NOW filed a traditional motion for summary judgment under rule of civil procedure 166a(c) in which it argued that it is not obligated to pay commissions to Kaye/Bassman for revenue generated as a result of the 2006 Synchronoss Agreement because of the terms of the Fourth Addendum. Help Desk NOW also filed a no-evidence motion for summary judgment under rule of civil procedure 166a(i) in which it asserted that there was no evidence to support Kaye/Bassman's counterclaim or certain elements of its affirmative defenses.
Kaye/Bassman filed a cross-motion for summary judgment under rule of civil procedure 166a(c) in which it asserted the same three grounds for summary judgment to support its affirmative claim for breach of contract and to oppose Help Desk NOW's competing claim for declaratory judgment: (1) Help Desk NOW breached the Original Agreement by failing to pay commissions on the Synchronoss account, (2) there was no consideration for the Fourth Addendum, and (3) the Fourth Addendum is ambiguous and extrinsic evidence conclusively demonstrates that the parties did not intend for it to apply to any commissions on the Synchronoss account.
Help Desk NOW filed and cited summary-judgment evidence to support its motion for summary judgment and filed a written response to Kaye/Bassman's motion. Kaye/Bassman filed a combined response to Help Desk NOW's motions under rules 166a(c) and 166a(i) and also filed and cited summary-judgment evidence to support its response to each motion.
The trial court signed a final judgment granting Help Desk NOW's two motions for summary judgment in their entirety and denying Kaye/Bassman's motion for summary judgment in its entirety. In its final judgment the trial court also (1) declared that, under the terms of the Fourth Addendum, Help Desk NOW is not required to pay Kaye/Bassman any commissions or other compensation relating to Synchronoss on or after the date the 2006 Synchronoss Agreement was executed, and (2) denied Kaye/Bassman's request for attorneys' fees.
On appeal Kaye/Bassman challenges the trial court's summary-judgment order granting Help Desk NOW's two motions for summary judgment and denying Kaye/Bassman's motion for summary judgment.
A party moving for traditional summary judgment under rule of civil procedure 166a(c) is charged with the burden to establish that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Ysasaga v. Nationwide Mut. Ins. Co., 279 S.W.3d 858, 864-65 (Tex.App.-Dallas 2009, pet. denied). If the movant discharges its burden, the burden shifts to the nonmovant to present to the trial court any issues that would preclude summary judgment. Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass'n, 205 S.W.3d 46, 50 (Tex.App.-Dallas 2006, pet. denied). When, as here, both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law; neither party can prevail because of the other's failure to discharge its burden. Id.
We review a traditional summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dallas Cnty. Tax Collector v. Andolina, 303 S.W.3d 926, 929 (Tex. App.-Dallas 2010, no pet.). When both parties move for traditional summary judgment and the trial court grants one motion and denies the other, the non-prevailing party may appeal both of those rulings. See Certain Underwriters at Lloyd's v. LM Ericsson Telefon, AB, 272 S.W.3d 691, 694 (Tex.App.-Dallas 2008, pet. denied). We review the summary-judgment evidence presented by both parties and determine all questions presented. Id. To determine if a genuine issue of material fact precludes summary judgment, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). With respect to each side's motion, we consider all the evidence in the light most favorable to the nonmovant, indulging all reasonable inferences in favor of the nonmovant, and resolve any doubts against the movant. Id. at 756. We may affirm the trial court's summary judgment, reverse and render judgment for the other party if appropriate, or reverse and remand if neither party has met its summary-judgment burden. Certain Underwriters at Lloyd's, 272 S.W.3d at 694.
When a party moves for no-evidence summary judgment and argues that there is no evidence of an essential element of the nonmovant's claim or defense, the burden shifts to the nonmovant to present more than a scintilla of evidence that raises a genuine fact issue on the challenged elements. TEX.R. CIV. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). We review a no-evidence motion for summary judgment under the same legal sufficiency standard used to review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). Our inquiry focuses on whether the nonmovant produced more
In its traditional motion for summary judgment, Help Desk NOW argued that it was entitled to judgment declaring that it is not obligated to pay Kaye/Bassman commissions for billed revenue relating to the 2006 Synchronoss Agreement and that Kaye/Bassman should be denied any relief on its breach-of-contract counterclaim.
In order for Help Desk NOW to be entitled to summary judgment, it was Help Desk NOW's burden to demonstrate that its construction of the Fourth Addendum is the only reasonable interpretation. See Hackberry Creek Country Club, 205 S.W.3d at 56, 62. In its summary-judgment motion, Help Desk NOW argued that, under the terms of paragraph 1 of the Fourth Addendum, Help Desk NOW is not obligated to pay any commissions to Kaye/Bassman for revenue generated from the 2006 Synchronoss Agreement because the parties did not agree in writing that Kaye/Bassman would be entitled to those commissions "in advance of [Help Desk NOW's] entering into" that contract.
When construing a written contract, our primary concern is to ascertain the true intentions of the parties as expressed in the instrument. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). We consider the entire writing and attempt to harmonize and give effect to all the provisions of the contract by analyzing the provisions with reference to the whole agreement. Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex.2005) (per curiam); J.M. Davidson, 128 S.W.3d at 229. When the provisions of a contract appear to conflict, we will attempt to harmonize the provisions and assume the parties intended every provision to have some effect. See United Protective Servs., Inc. v. West Village Ltd. P'ship, 180 S.W.3d 430, 432 (Tex.App.-Dallas 2005, no pet.). In doing so, however, we need not embrace strained rules of interpretation in order to avoid ambiguity at all costs. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987). If we are unable to harmonize the provisions and give effect to all its clauses, the contract is susceptible to more than one reasonable interpretation and is thus ambiguous. Hackberry Creek Country Club, 205 S.W.3d at 56. It is improper to grant a motion for summary judgment when a contract is ambiguous because the interpretation of the contract is a fact issue. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983); Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979).
Help Desk NOW's construction of the Fourth Addendum is based strictly on paragraph 1. But a court cannot consider a single provision in isolation and instead must consider the entire agreement and attempt to harmonize and give effect to all the provisions. See Frost Nat'l Bank, 165 S.W.3d at 312. Among the other provisions of the Fourth Addendum, paragraph 4 purports to reaffirm Help Desk NOW's obligations under the Original Agreement. Although the Original Agreement does not reference Synchronoss by name, it is undisputed that the Original Agreement applied to Synchronoss. And under the terms of the Original Agreement, as quoted above, Help Desk NOW is obligated to pay commissions to Kaye/Bassman for as long as Help Desk NOW continues to collect on billed revenue from Synchronoss. As a result, Help Desk NOW's construction does not avoid an ambiguity. We conclude that Help Desk NOW did not meet its burden to demonstrate
In its motion for summary judgment, Kaye/Bassman generally argued that it was entitled to continue receiving commissions on the Synchronoss account, and it raised three alternative summary-judgment grounds to support that general argument. First, Kaye/Bassman argued that there was no consideration for the Fourth Addendum because the only possible consideration was past consideration. Second, it argued that the Fourth Addendum is ambiguous and should be construed in its favor. And third, it argued that the Fourth Addendum is unambiguous and applies only to the CapGemini account. In its motion, Kaye/Bassman sought a judgment declaring that the Fourth Addendum is unenforceable and that the Original Agreement and the first, second, and third addenda are enforceable. Kaye/Bassman also sought a judgment awarding $429,658.06 in damages, along with interest and attorneys' fees.
Kaye/Bassman's principal argument below and on appeal is that the Fourth Addendum is unenforceable because it lacked consideration. Lack of consideration is an affirmative defense. See TEX.R. CIV. P. 94. And because Kaye/Bassman moved for summary judgment on its own affirmative defense, the burden was on Kaye/Bassman to establish that it was entitled to judgment as a matter of law on that defense. See generally Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919, 922 (Tex.App.-Dallas 2009, no pet.).
Kaye/Bassman argued below that there was no consideration to support the Fourth Addendum because the only consideration was past consideration. To support its argument, Kaye/Bassman relied on the Fourth Addendum itself, which it contended does not reflect any present consideration. It also relied on an excerpt from the deposition of Help Desk NOW's corporate representative, Michael O'Neil, in which he testified that he did not see an additional benefit to Kaye/Bassman reflected in the terms of the Fourth Addendum. In response to Kaye/Bassman's argument, Help Desk NOW argued that the second sentence in the Fourth Addendum's preamble recites the consideration for that agreement:
Help Desk NOW also cited excerpts from the deposition of Kaye/Bassman's President and Chief Executive Officer, Jeffrey Kaye, in which he testified that the dispute over commissions for the CapGemini Energy contract precipitated the Fourth Addendum.
As an alternative to its argument that the Fourth Addendum lacked consideration, Kaye/Bassman argued in its motion for summary judgment that the Fourth Addendum is ambiguous for the following three reasons:
Kaye/Bassman further argued that undisputed parol evidence demonstrates that the Fourth Addendum should be construed in its favor as a matter of law. More specifically, Kaye/Bassman relied upon the following excerpts from O'Neil's deposition to prove that the Fourth Addendum does not apply to commissions generated from the Synchronoss account:
Kaye/Bassman also cited the following excerpt from O'Neil's deposition to prove that Help Desk NOW first questioned the commissions owed on the Synchronoss account after the potential buyers (who ultimately became the new owners) "read through the Addenda and pointed out to Help Desk Now's management that the ambiguous language could be read in a way that the parties had not intended":
In its response, Help Desk NOW argued that the Fourth Addendum should be construed as a matter of law to preclude any further commissions on the Synchronoss account, again relying exclusively on paragraph 1.
Even if the Fourth Addendum is ambiguous, however, the parol evidence relied upon by Kaye/Bassman does not conclusively demonstrate that the Fourth Addendum should be construed in favor of Kaye/Bassman as a matter of law. Based on the summary-judgment arguments and evidence in this case, we conclude that Kaye/Bassman did not meet its burden to demonstrate that it was entitled to summary judgment on the ground that the Fourth Addendum should be construed as a matter of law in favor of Kaye/Bassman. See, e.g., Hackberry Creek Country Club, 205 S.W.3d at 57-64 (on cross-motions for summary judgment concerning interpretation of contract, neither party met its respective burden to demonstrate that it was entitled to judgment as a matter of law); see generally Coker, 650 S.W.2d at 394 ("When a contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument becomes a fact issue.").
Kaye/Bassman primarily relied in the trial court, as it does in this appeal, on its alternative arguments that the Fourth Addendum lacked consideration or is ambiguous and should be construed in its favor. It also argued below, in the alternative, that the Fourth Addendum is unambiguous and applies exclusively to the CapGemini Energy account. Kaye/Bassman does not reassert that alternative argument on appeal. Instead, Kaye/Bassman argues that the Fourth Addendum is unambiguous and could be construed in its favor because paragraphs 1 and 4 can be read in harmony as requiring Help Desk NOW to pay commissions to Kaye/Bassman on revenues generated as a result of the 2006 Synchronoss Agreement. More specifically, Kaye/Bassman notes that paragraph 1 requires an agreement in writing in advance of any agreement with a new or existing client. And it argues that it did have an agreement in writing in advance of the 2006 Synchronoss Agreement —namely, the Original Agreement. In other words, Kaye/Bassman argues on appeal that the Original Agreement is the written agreement required by paragraph 1 of the Fourth Addendum—and that paragraph 4 further confirms that Help Desk NOW would continue to pay commissions to Kaye/Bassman on the Synchronoss account for as long as Help Desk NOW continues to receive revenues on that account, as required by the Original Agreement. This argument cannot be considered on appeal, however, because it was not presented to the trial court as a ground for summary judgment in favor of Kaye/Bassman. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).
On appeal Kaye/Bassman also argues that the Fourth Addendum must be reformed as a matter of law because it contains a mutual mistake. However, Kaye/Bassman did not move for summary judgment in the trial court on its affirmative defense of mutual mistake. Instead, in response to Help Desk NOW's no-evidence motion for summary judgment on Kaye/Bassman's affirmative defense of mutual mistake, Kaye/Bassman cited evidence to support that affirmative defense
On appeal, Kaye/Bassman does not argue that it raised a fact issue on its affirmative defense of mutual mistake. Instead, it essentially asks this Court to grant summary judgment in its favor on its affirmative defense of mutual mistake. But we can address only grounds for summary judgment that were raised in writing in the trial court. See TEX.R. CIV. P. 166a(c); see also McConnell, 858 S.W.2d at 341; Hackberry Creek, 205 S.W.3d at 50 (all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court). As a result, we do not address Kaye/Bassman's argument on appeal that the Fourth Addendum should be reformed as a matter of law due to mutual mistake. See TEX.R. CIV. P. 166a(c).
In its amended answer, Kaye/Bassman pleaded the following "affirmative defenses" to Help Desk NOW's declaratory-judgment claim: lack of consideration, ambiguity, estoppel, fraud, laches, release, waiver, "no meeting of minds," mutual mistake, and breach of contract. In its no-evidence motion for summary judgment, Help Desk NOW argued that there was no evidence to support certain elements of each of those affirmative defenses. After Kaye/Bassman responded to the no-evidence motion and cited to evidence supporting the challenged elements of its affirmative defenses, the trial court granted the no-evidence summary judgment motion in its entirety.
With respect to two of Kaye/Bassman's affirmative defenses—lack of consideration and ambiguity—those defenses were the subject both of Kaye/Bassman's motion for summary judgment under rule 166a(c), and Help Desk NOW's no-evidence motion for summary judgment under rule 166a(i). In the trial court, Kaye/Bassman responded to Help Desk NOW's no-evidence motion for summary judgment on those affirmative defenses and cited evidence to demonstrate that the Fourth Addendum lacked consideration and was ambiguous. On appeal, Kaye/Bassman argues that its summary-judgment evidence proves that the Fourth Addendum lacked consideration or is ambiguous, and it supports those arguments with citations to its summary-judgment evidence. As a result, we conclude that the trial court erred when it granted no-evidence summary judgment in favor of Help Desk NOW on Kaye/Bassman's affirmative defenses of lack of consideration and ambiguity. See generally Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003) (no-evidence summary judgment is improper if nonmovant presents more than scintilla of evidence supporting disputed issue).
With respect to Kaye/Bassman's other affirmative defenses, however, we cannot reverse the trial court's order granting no-evidence summary judgment against Kaye/Bassman on those defenses. Kaye/Bassman argues generally on appeal that the trial court erred in granting the no-evidence motion for summary judgment. But with respect to its other affirmative defenses, Kaye/Bassman does not argue that the trial court erred because Kaye/Bassman's summary-judgment evidence raised a fact issue sufficient to meet its burden under rule 166a(i) and preclude summary judgment on those affirmative defenses. Instead, it argues that its affirmative defenses "defeat[ ] [Help Desk NOW's] deceitful efforts to deny Kaye/Bassman of its contractual right to commissions on the Synchronoss business," and prevent Help Desk NOW "from prevailing on its disingenuous attempt to
We conclude that neither party met its burden to demonstrate that it was entitled to traditional summary judgment on its claim or the other party's claim. We reverse the trial court's summary judgment in favor of Help Desk NOW and affirm the trial court's denial of Kaye/Bassman's motion for summary judgment. We also reverse the no-evidence summary judgment against Kaye/Bassman on its affirmative defenses of lack of consideration and ambiguity, and affirm the no-evidence summary judgment against Kaye/Bassman on its other affirmative defenses. We remand this cause to the trial court for further proceedings consistent with this opinion.
