Appeal from the 240th District Court Fort Bend County, Texas
Trial Court Cause No. 07-DCV-160856
consists of Justices Christopher, Bourliot, and Spain.
Charles A. Spain Justice.
appeal arises from a final judgment rendered after a jury
verdict in favor of appellee Paul Malone on
breach-of-contract and fraud claims. Appellants Altech
Controls Corporation and Richard Alsenz present six issues:
(1) whether the trial court should have rendered judgment in
favor of Altech Controls and Alsenz on Malone's
breach-of-contract claims because a contract was not formed
as a matter of law and Malone did not submit a jury question
on contract formation; (2) whether, in the alternative, a new
trial must be had on Malone's breach-of-contract claims;
(3) whether Malone's fraud claim against Alsenz fails as
a matter of law under the Formosa Plastics line of
authority; (4) whether Malone had standing to bring claims
against Alsenz when the claims were not disclosed, or were
abandoned, in Malone's personal bankruptcy; (5) whether a
new trial is necessary because the trial court struck Altech
Controls's counterclaims; and (6) whether a new trial is
necessary because the trial court granted a directed verdict
on Alsenz's claims for breach of a fiduciary duty.
overrule the first and second issues because there is a
deemed finding on contract formation and evidence supports
the existence of a contract; consequently, we do not disturb
the trial court's final judgment with respect to
Malone's breach-of-contract claims. Because the damages
awarded on Malone's breach-of-contract and fraud claims
were the same, we do not address Alsenz's third issue
that pertains to Malone's fraud claim. See Tex.
R. Civ. P. 47.1. Altech Controls and Alsenz withdraw their
fourth issue in their reply brief. We overrule the fifth issue
because we conclude Altech Controls's counterclaims could
not have been presented at trial when no attorney appeared
for Altech Controls. We overrule the sixth issue because
Alsenz presented no evidence that Malone injured him or
benefitted from any breach of fiduciary duty Malone owed to
affirm the trial court's judgment as appealed.
is the founder and Chief Executive Officer of Altech
Controls, a company that develops, manufactures, and markets
technology for supermarket refrigeration systems. Malone is a
psychologist by training.
finds it difficult to relate to people. In the early 1990s,
his company was having trouble with high employee turnover
and employee conflicts. A student who had worked with Malone
referred Alsenz to Malone to learn about managing people.
Alsenz worked with Malone for several years. Alsenz also had
Malone come to Altech Controls to teach the company's
employees about teambuilding. In 1995, Alsenz asked Malone to
come to work full-time for Altech Controls to serve as
general manager with an emphasis on developing a company
vision. Malone initially declined but Alsenz persisted, and
Malone ultimately agreed to take on the role. Malone's
starting annual salary was set at $150, 000, with 70% paid in
cash and 30% set aside for investment in stock.
time, Altech Controls's business declined, and as a
result, Malone deferred a significant portion of his salary.
Because of the company's financial difficulties, Malone
also charged thousands of dollars in company expenses to his
corporate and personal credit cards. In addition, because no
stock option plan existed during Malone's employment,
Malone did not purchase or receive any stock options with the
portion of his salary that was set aside for this purpose.
Malone did not receive other compensation in lieu of stock.
2006, Malone decided to leave Altech Controls. Malone met
with Alsenz, an attorney, and an Altech Controls accountant
in the attorney's office. At the conclusion of the
meeting, Malone and Alsenz signed a brief agreement; in its
entirety, the agreement is as follows:
AGREEMENT RE: ALTECH TECHNOLOGY INC.
1. Ownership of company, Alsenz 70%, Malone 25%, other 5%
2. Above accounts for all amounts owed to May 1, 2004
3. Deferred salaries for Malone from that point to June 1,
2006 estimated at $234, 000.
Deferred salaries and Royalty for Alsenz estimated at $95,
000 for same period. Above accure [sic] interest from date
incurred at same rate at [sic] bank rate and subject to
4. Company obligated on Malone and Alsenz credit cards used
for legitimate company use.
5. Company will give Malone note for deferred salary from May
1, 2004 to date plus any future deferred salary.
6. Malone will receive ½ salary and agrees to stay at
least through July, 2006. Unpaid salary added to note
balance. Once he leaves Malone will be paid at least $4, 000
per month on note.
7. Company will receive assignment of all Malone stock if
note plus $408, 545 with interest paid not later than
6/01/08. If not, Malone keeps stock and Company obligated on
[/s/Richard Alsenz] [/s/Paul ...