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Manning v. Branum

Court of Appeals of Texas, Seventh District, Amarillo

September 18, 2017


         On Appeal from the 251st District Court Potter County, Texas Trial Court No. 102984-C, Honorable Ana Estevez, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.



         Appellant Dale Manning appeals a take-nothing summary judgment in favor of appellee Melody Branum. We will reverse the judgment of the trial court and remand the case for further proceedings.


         Manning had an agreement with Tascosa Tortilla Factory under which he made wholesale sales of chips and hot sauce. The written agreement was dated May 3, 1999, and entitled "Exclusive Sales Agreement." It identified Tascosa Tortilla Factory as "Company."

         Under the agreement the Company promised to "make available to [Manning] an adequate supply of chips and hot sauce" and "to assist [Manning] by advice, instruction and full cooperation in every possible way." Manning in turn agreed to "work diligently and with [his] best efforts to sell chips and hot sauce . . . and otherwise promote the business of Company in serving the public to the end that each of the parties may derive the greatest profit possible."

         The agreement provided Manning would be allowed a profit on sales to certain businesses and paid weekly commissions on sales to other businesses. The duration of the agreement was "for so long as this Company remains in business." The agreement further provided if "the Company is sold" Manning would have an option to purchase or a right of first refusal. The agreement was signed by "Tascosa Tortilla Factory, Company by: Jeff White" and Manning d/b/a Heritage Foods.

         At the time of the agreement, White was married to Branum. They divorced in 2003. According to their decree, Branum's employer was "Tascosa Tortilla Company" located at 1110 S. Johnson, Amarillo, Texas. The decree awarded Branum as her sole and separate property the "business known as Tascosa Tortilla Company, including but not limited to all furniture, equipment, inventory, cash, receivables, accounts, goods, and supplies; all personal property used in connection with the operation of the business; and all rights and privileges, past, present, or future, arising out of or in connection with the operation of the business." When Branum took over the business Manning provided her a copy of the agreement. She told Manning she would honor the agreement and expressed no objection to its terms and conditions.

         Prior to her divorce and acquisition of Tascosa Tortilla Company Branum, then Melody White, filed an assumed name certificate as a sole proprietor doing business as Tascosa Hot Sauce. The stated duration of the assumed name was from June 8, 2002, until June 8, 2012. In August 2007, a certificate of formation of a limited liability company known as Tascosa Hot Sauce, LLC, was filed. It listed Branum and Stefanie Orick as managers. In September 2011, Branum filed an assumed name certificate continuing her use of the name Tascosa Hot Sauce.

         The summary judgment record also contains copies of internet advertisements for a product known as "Tascosa Hot Sauce." One ad, dated July 30, 2015, and bearing Branum's name as "president, " states among other things: "A small tortilla factory developed the original Tascosa Hot Sauce has been a small town business for more than 50 years." The text continues, "The Original Tascosa Hot Sauce originated in a small, family owned tortilla factory, Tascosa Tortilla Company in 1957 in Amarillo, Texas. Melody Branum the founder of Tascosa Hot Sauce refined the original family recipe and developed a Mild and Extra Hot recipe. Tascosa Hot Sauce began commercial wholesale distribution in the mid-90's and we've been Tascosa-ing' taste buds all over the country ever since. . . . 50 years of sales and service is evidence of the consistent quality and taste."

         By email dated April 4, 2013, Branum notified Manning their business relationship was terminated. Manning filed suit against Branum in August 2014 alleging breach of contract and that she engaged in fraudulent transfers.[1] Branum answered and brought a counterclaim seeking declaratory relief.

         Manning responded to Branum's traditional motion for summary judgment with evidence. Neither party objected to the other's summary judgment evidence and the trial court's order indicates it considered the evidence. Without specifying a basis, the trial court granted summary judgment in Branum's favor on her defensive grounds but denied summary judgment on her declaratory-judgment counterclaim. The court severed Branum's counterclaim and rendered final judgment that Manning take nothing. This appeal followed.


         Through one issue containing multiple subparts Manning argues the trial court erred in granting summary judgment for Branum.[2]

         An appellate court reviews a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper if the record presents no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Knott, 128 S.W.3d at 215-16. When reviewing a summary judgment, a court takes as true all evidence favorable to the nonmovant, and indulges every reasonable inference and resolves any doubt in favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. If the trial court did not specify a basis for granting summary judgment, the judgment will be affirmed if any ground asserted in the motion has ...

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