                                                                                     ACCEPTED
                                                                                 06-16-00035-CV
                                                                      SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                            10/6/2016 4:58:17 PM
                                                                                DEBBIE AUTREY
                                                                                          CLERK

                          No. 06-16-00035-CV

                     In the Court of Appeals for the           FILED IN
                                                        6th COURT OF APPEALS
                Sixth Court of Appeals District of Texas TEXARKANA, TEXAS
                            Texarkana, Texas            10/7/2016 9:06:00 AM
             ______________________________________ DEBBIE AUTREY
                                                              Clerk
               EAST TEXAS COPY SYSTEMS, INC.
                         Appellant,

                                  v.

                         JASON PLAYER
                             Appellee.
             _______________________________________

              On Appeal from the County Court at Law #2
                        Gregg County, Texas
             _______________________________________



                          BRIEF OF APPELLEE




                                            Eric M. Albritton
                                            Texas State Bar No. 00790215
                                            ema@emafirm.com
                                            ALBRITTON LAW FIRM
                                            P.O. Box 2649
                                            Longview, Texas 75606
                                            Telephone: (903) 757-8449
                                            Facsimile: (903) 758-7397




ORAL ARGUMENT REQUESTED
                       IDENTITY OF PARTIES AND COUNSEL

      The undersigned counsel certifies that the following persons have an interest

in the outcome of this case.

Appellant                                         Counsel for Appellant

East Texas Copy Systems, Inc.                     Michael E. Starr
                                                  Texas Bar No. 1907840
                                                  mstarr@ccfww.com
                                                  COGHLAN, CROWSON, LLP
                                                  1127 Judson Road, Suite 211
                                                  P.O. Box 2665
                                                  Longview, Texas 75606-2665

Appellee                                          Counsel for Appellee

Jason Player                                      Eric M. Albritton
                                                  Texas State Bar No. 00790215
                                                  ema@emafirm.com
                                                  Shawn A. Latchford
                                                  Texas State Bar No. 24066603
                                                  sal@emafirm.com
                                                  ALBRITTON LAW FIRM
                                                  P.O. Box 2649
                                                  Longview, Texas 75606




                                        i
                                           TABLE OF CONTENTS

I.      STATEMENT OF THE CASE .................................................................... viii

II.     STATEMENT REGARDING ORAL ARGUMENT .................................. viii

III.    ISSUES PRESENTED .................................................................................. ix

IV.     INTRODUCTION ...........................................................................................1

V.      STATEMENT OF FACTS ..............................................................................2

VI.     SUMMARY OF ARGUMENT .......................................................................6

VII. ARGUMENT ...................................................................................................7

        A.       Standard of Review on Appeal..............................................................7

        B.       General Legal Principles of Contract Construction ..............................7

                 1.       The primary goal of contract construction is to ascertain the
                          objective intent of the parties as expressed in the agreement. ....7

                 2.       Courts should interpret contracts using plain and ordinary
                          meaning. ......................................................................................8

                 3.       Texas law prohibits rewriting a contract under the guise of
                          interpretation. ..............................................................................9

                 4.       A contract is only ambiguous when it is reasonably
                          susceptible to more than one interpretation. .............................10

        C.       The trial court properly found the plain language of the parties’
                 Agreements was unambiguous. ...........................................................10

                 1.       The Agreements unambiguously state they are no longer
                          binding if Player’s employment is terminated for any
                          reason other than cause within two years of the date of the
                          Agreements. ..............................................................................11

                 2.       The plain and ordinary meaning of the Disputed Clause
                          gives meaning to the parties’ Agreements. ...............................13


                                                          ii
        D.       The trial court properly rejected ETCS’s request to rewrite the
                 Disputed Clause under the guise of harmonizing the Agreements. ....14

                 1.       It is unnecessary to harmonize the Agreements because
                          there are no inconsistent or discordant parts. ............................15

                 2.       The plain and ordinary meaning of the Disputed Clause
                          does not render Player’s promise illusory.................................18

                 3.       ETCS’s request to harmonize the Agreements is really a
                          request to rewrite the Agreements contrary to Texas law. .......19

                 4.       The use of the passive voice in the Disputed Clause supports
                          the plain and ordinary meaning adopted by the trial court. ......23

        E.       ETCS’s attempt to rewrite the Disputed Clause cannot create
                 ambiguity. ............................................................................................24

VIII. CONCLUSION..............................................................................................25

IX.     PRAYER........................................................................................................26




                                                          iii
                                    TABLE OF AUTHORITIES
Cases

Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154 (Tex. 2003) .....................9, 10

Anderson v. Twin City Rapid Transit Co., 84 N.W.2d 593 (Minn. 1957)...............23

Anglo-Dutch Petroleum v. Greenberg Peden, P.C., 352 S.W.3d 445 (Tex. 2011) ...8

Cleveland Constr., Inc. v. Levco Constr. Inc., 359 S.W.3d 843
      (Tex. App.—Houston [1st Dist.] 2012, pet. dism’d) .....................................19

Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) .........................................................10

Craig Sessions, M.D., P.A. v. TH Healthcare, Ltd.,
      412 S.W.3d 738 (Tex. App.—Texarkana 2013, no pet.) ...................... passim

El Paso Field Servs. v. Mastec N.A., 389 S.W.3d 802 (Tex. 2012) ......... 7, 9, 10, 16

Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011) ...........................................................7

Fletcher v. Energy Res. Tech. GOM, Inc., 2012 Tex. App. LEXIS 7034
      (Tex. App.—Houston [1st Dist.] Aug. 23, 2012, no pet.) .............................18

FPL Energy v. TXU Portfolio Mgt. Co., 426 S.W.3d 59 (Tex. 2014) .................7, 16

Hamblin v. Lamont, 433 S.W.3d 51
    (Tex. App.—San Antonio 2013, pet. denied)............................................8, 21

Heritage Res. v. Nationsbank, 939 S.W.2d 118 (Tex. 1996) ..............................8, 22

Hoffman v. Am. Soc’y for Technion-Israel Inst. of Tech., Inc.,
     2013 U.S. Dist. LEXIS 9921 (S.D. Cal. Jan. 23, 2013) ................................23

In re 21st Century Grp., LLC, 2012 Tex. App. LEXIS 5701
       (Tex. App.—Texarkana 2012, pet. denied) .................................................8, 9

In re Serv. Corp. Int’l, 355 S.W.3d 655 (Tex. 2011).................................................7

InterPay, Inc. v. Bigham,
      2002 U.S. Dist. LEXIS 16202 (D. Mass. Aug. 15, 2002) .............................23



                                                  iv
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) ................................25

Karen Corp. v. Burlington Northern & Santa Fe Ry.,
     107 S.W.3d 118 (Tex. App.—Fort Worth 2003, pet. denied) .........................8

LG Ins. Mgmt. Servs., L.P. v. Leick,
      378 S.W.3d 632 (Tex. App.—Dallas 2012, pet. denied) ....................... 10, 21

MCI Telecomms. Corp. v. Tex. Utils. Elec. Co.,
     995 S.W.2d 647 (Tex. 1999) ...........................................................................7

McLane Foodservice, Inc. v. Table Rock Rests., L.L.C.,
    736 F.3d 375 (5th Cir. 2013) .....................................................................9, 22

Meckes v. Cina, 75 A.D.2d 470 (N.Y. App.—4th Div. July 10, 1980) ...................23

Natural Gas Clearinghouse v. Midgard Energy Co.,
     113 S.W.3d 400 (Tex. App.—Amarillo 2003, pet. denied) ............................9

Providence Land Servs., LLC v. Jones,
      353 S.W.3d 538 (Tex. App.—Eastland 2011, no pet.)....................................8

Provident Life & Accident Ins. Co. v. Knott,
      128 S.W.3d 211 (Tex. 2003) ...........................................................................7

R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc.,
     596 S.W.2d 517 (Tex. 1980) ...........................................................................7

Smith v. Carter & Burgess, Inc., 2005 Tex. App. LEXIS 1140
      (Tex. App.—Fort Worth Feb. 10, 2005, no pet.) ..........................................18

Solar Applications Eng’g, Inc. v. T.A. Operating Corp.,
      327 S.W.3d 104 (Tex. 2010) .........................................................................13

Sun Oil Co. v. Madeley, 626 S.W.2d 726 (Tex. 1981) ............................................10

Vincent v. Bank of Am., N.A.,
      109 S.W.3d 856 (Tex. App.—Dallas 2003, pet. denied) ................................8

Walden v. Affiliated Computer Servs.,
     97 S.W.3d 303 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)..........24


                                                     v
Willenson v. Miner, Barnhill & Galland, P.C., 998 N.E.2d 984,
      2011 Ill. App. Unpub. LEXIS 579 (Ill. App. [1st Dist.] April 14, 2011) ......22

Treatises

Restatement (Second) of Contracts § 224 (1981) ....................................................19

Other

BRYAN A. GARNER, THE REDBOOK: A MANUAL ON LEGAL STYLE
(Thompson/West 2006) (2002) ................................................................................24




                                                     vi
                              No. 06-16-00035-CV

                         In the Court of Appeals for the
                    Sixth Court of Appeals District of Texas
                                Texarkana, Texas
                 ______________________________________

                    EAST TEXAS COPY SYSTEMS, INC.
                              Appellant,

                                       v.

                             JASON PLAYER
                                 Appellee.
                 _______________________________________

                  On Appeal from the County Court at Law #2
                            Gregg County, Texas
                 _______________________________________

TO THE HONORABLE SIXTH COURT OF APPEALS:

      Appellee in the above-captioned appeal, Jason Player, hereby files his brief

respectfully requesting this Honorable Sixth Court of Appeals overrule the issues

presented by Appellant, East Texas Copy Systems, Inc., and affirm the judgment of

the trial court, County Court at Law #2 of Gregg County, Texas.




                                       vii
                           I.   STATEMENT OF THE CASE

      Appellee, Jason Player (“Player”), sued Appellant, East Texas Copy Systems,

Inc. (“ETCS”), for a declaratory judgment that non-compete clauses were no longer

binding under the express terms of the parties’ agreements. CR 4-25.1 Player moved

for summary judgment that the non-compete clauses were no longer binding under

the express terms of the parties’ agreements based on their plain and ordinary

meaning. CR 28-69. ETCS filed a cross-motion for summary judgment that the

non-compete clauses were still binding. CR 75-99. After full briefing on both

motions and oral argument (RR, Vol. 1, 1-37)2 the trial court granted Player’s motion

for summary judgment and denied ETCS’s motion for summary judgment (RR,

Vol. 1, 35-36). The trial court issued Final Judgment in favor of Player (CR 177-

178). ETCS filed this appeal. CR 179-180 (Notice of Appeal).

                 II.   STATEMENT REGARDING ORAL ARGUMENT

      Player agrees with ETCS that oral argument may aid the Court’s consideration

of the issues in this appeal and respectfully requests oral argument.




1
  References to “CR [page number]” refer to the page number of the Clerk’s Record
in this appeal.
2
  References to “RR, Vol. [number], [number]” refer to the volume and page number
of the Reporter’s Record in this appeal.

                                         viii
                          III.   ISSUES PRESENTED

Issue 1:   Did the trial court properly find the parties’ unambiguous agreements
           were no longer binding based on the plain language of those agreements
           when Player’s employment with ETCS was terminated for a reason
           other than cause within two years of the date of the agreements?

Issue 2:   Did the trial court properly reject ETCS’s argument that its attempt to
           rewrite the parties’ agreements rendered those agreements ambiguous?




                                       ix
                               IV.     INTRODUCTION

      Appellant, East Texas Copy Systems, Inc. (“ETCS”), has buyer’s remorse.

ETCS asks the Court to rewrite multiple agreements it freely and voluntarily entered

into with Appellee, Jason Player (“Player”), in hopes that this Court will give ETCS

a better deal than it bargained for.       Player and ETCS entered into multiple

agreements creating a working relationship between them to provide computer

services to customers in the East Texas area, including former customers of Player.

The agreements between ETCS and Player included covenants not to compete. The

covenants not to compete state that they are no longer binding on Player if his

employment is terminated within two years of the date of the parties’ agreements for

any reason other than cause.         Player voluntarily resigned and terminated his

employment with ETCS prior to two years after the agreements, as expressly

provided by the agreements. Since Player did not work for ETCS for more than two

years, the covenants not to compete are no longer binding on Player by their own

terms. ETCS now asks this Court to rewrite the parties’ agreements under the guise

of harmonizing those documents. The trial court properly rejected ETCS’s request

as contrary to the plain language of the agreements, the intentions of the parties as

expressed in those agreements, and Texas law. This Court should reject ETCS’s

request to rewrite the parties’ agreements for all the same reasons, overrule ETCS’s

issues on appeal, and affirm the trial court’s Final Judgment.



                                           1
                           V.    STATEMENT OF FACTS

      Prior to July 1, 2013, Player was providing computer services to customers in

Longview, Texas and throughout the East Texas area. CR 42. ETCS wanted to work

with Player to provide service to Player’s customers. See CR 9 (requiring Player’s

employment with ETCS). To that end, Player and ETCS negotiated and entered into

a series of agreements whereby ETCS would acquire Player’s customer list and

Player would work for ETCS to provide service to those customers. CR 9-24. Player

and ETCS effectively entered into those agreements on July 1, 2013 and went into

business together on that date. CR 9-24.

      Section A of the parties’ agreement titled “Asset Purchase Agreement”

(“APA”) contains a clause titled “Consideration” which states that ETCS shall pay

Player $300,000. CR 9. The Consideration clause also states that Player and ETCS

entered into an employment contract which is part of the consideration for the APA.

CR 9. Section A of the APA also contains a clause titled “Payment” which states

that $50,000 will be paid to Player by ETCS upon the execution of the APA and

ETCS will pay Player 10 monthly payments of $25,000 after the execution of the

APA to make up the remaining $250,000 of the monetary consideration. CR 9.

Section B of the APA contains a clause titled “Non-Compete” (the “Non-Compete

Clause”). CR 11. The Non-Complete Clause of the APA states in relevant part:




                                           2
            If Jason Player’s employment with Buyer is terminated
            prior to two year [sic] from the date of this Agreement for
            any reason other than a for cause termination, this Non-
            Compete clause will no longer be binding.

CR 11.

      An employment agreement titled “Employment Contract” is attached to the

APA as Exhibit B. CR 16-20. Paragraph 4 of the Employment Contract states that

Player will be paid an annual salary of $93,000. CR 17. Paragraph 8 of the

Employment Contract states that either party may terminate Player’s employment

with ETCS. CR 18.       Specifically, the Employment Contract provides Player’s

employment with ETCS “may be terminated by ETCS upon 60 days written notice,

and by Jason Player upon 60 days written notice.” CR 18 (emphasis added).

      ETCS and Player also executed an agreement titled “NonCompete [sic]

Agreement” (the “Non-Compete Agreement”). CR 21-24. The Non-Compete

Agreement states in relevant part:

            If Jason Player’s employment with Buyer is terminated
            prior to two years from the date of this Agreement for any
            reason other than a for cause termination, this Non-
            Compete Agreement will no longer be binding.

CR 22.

      On April 29, 2015, Jason Player gave 60 days of written notice to ETCS that

he was voluntarily resigning from his position at ETCS, pursuant to his right to do




                                        3
so under ¶ 8 of the Employment Contract. CR 67-68. On June 30, 2015, Player’s

employment with ETCS was terminated by Player’s voluntarily resignation. CR 43.

      On July 8, 2015, Player received a letter from Michael C. Coker, an attorney

representing ETCS. CR 54. ETCS, through Mr. Coker, made a demand that Player

“immediately cease any” “business that competes with ETCS accounts.” CR 54.

ETCS, through Mr. Coker, also threatened that if Player did not cease conducting

business, that ETCS would take “additional action” against him and that he would

be responsible for damages “and all attorneys’ fees and related expenses.” CR 54.

      On July 10, 2015, Player filed a petition in the trial court seeking a declaratory

judgment that the Non-Compete Clause and the Non-Compete Agreement are no

longer binding on Player. CR 4-25. On August 7, 2015, ETCS answered by filing

a general denial. CR 26-27. On September 18, 2015, ETCS’s counsel sent Player a

demand letter seeking payment of $199,142.85 based on twelve months of revenue

from some of Player’s former customers. CR 65-66.

      On November 12, 2015, Player filed a Motion for Summary Judgment

(“Player’s MSJ”) seeking a declaratory judgment that the Non-Compete Agreement

and Non-Compete Clause were no longer binding on Player based on the clear and

unambiguous language of those agreements. CR 28-69.

      On November 23, 2015, ETCS filed a counterclaim against Player based on

Player’s alleged breach of a covenant not to compete. CR 70-74.



                                          4
      On November 30, 2015, ETCS filed a cross-motion for partial summary

judgment (“ETCS’s MSJ”) asking the Court to hold as a matter of law that “a

noncompetition agreement (‘NCA’) between ETCS and [Player], prevents Player

from competing with ETCS in an area within a 60 mile radius of Longview, Texas

for one year from the end of Player’s employment with ETCS. In the alternative,

ETCS ask[ed] the Court to hold as a matter of law that the language of the NCA is

ambiguous and set for trial the question of the intent of the parties.” CR 78.

      On December 14, 2015, Player answered ETCS’s counterclaims generally

denying and asserting defenses to ETCS’s breach of contract claim. CR 158-161.

      On December 21, 2015, after briefing and oral argument, the trial court

granted Player’s MSJ and denied ETCS’s MSJ. RR, Vol. 1, 35-36. When the trial

court granted Player’s MSJ from the bench the trial judge specifically noted he was

considering the parties’ agreements as a whole, stating “the way ‘termination’ is

used throughout all the agreements tied in, it anticipates termination by either the

plaintiff or the defendant.”     RR, Vol. 1, 35-36.      ETCS filed a Motion for

Reconsideration which was denied by the trial court. CR 162-166, 176. On April

1, 2016, the trial court entered Final Judgment for Player. CR 177-78.

      On May 6, 2016, ETCS filed its notice of appeal. CR 179-180. On August 4,

2016, ETCS filed its brief in this appeal.




                                             5
                         VI.    SUMMARY OF ARGUMENT

      Appellant, East Texas Copy Systems, Inc. (“ETCS”), has buyer’s remorse.

ETCS asks this Court to rewrite the plain terms of multiple agreements it freely and

voluntarily entered into with Appellee, Jason Player (“Player”), in hopes that this

Court will give it a better deal. Player and ETCS entered into Agreements to form

a working relationship. CR 9-24. Their Agreements include covenants not to

compete that are conditioned on Player’s employment with ETCS for more than two

years after the date of the agreements. CR 11, 22. Prior to two years after the date

of the agreements, Player terminated his employment with ETCS, as expressly

provided by the agreements, and went back to work for himself, as expressly

provided by the agreements. Since Player did not work for ETCS for more than two

years, the covenants not to compete are no longer binding, by their own terms. ETCS

now asks this Court to rewrite the parties’ agreements so that Player cannot return

to work for himself under the guise of “harmonizing” the agreements as a whole.

The trial court properly rejected ETCS’s unreasonable attempt to rewrite the parties’

agreements as contrary to the plain language of the agreements, the intentions of the

parties, and Texas law. This Court should reject ETCS’s request to rewrite the

parties’ agreements, overrule ETCS’s issues on appeal, and affirm the trial court’s

Final Judgment in favor of Player.




                                         6
                                VII.    ARGUMENT

A.    Standard of Review on Appeal

      “When a contract is not ambiguous, the construction of the written instrument

is a question of law for the court.” MCI Telecomms. Corp. v. Tex. Utils. Elec. Co.,

995 S.W.2d 647, 650 (Tex. 1999); R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc.,

596 S.W.2d 517, 518 (Tex. 1980). Thus, a trial court’s legal conclusions regarding

an unambiguous written instrument are reviewed de novo. MCI Telecomms., 995

S.W.2d at 651. An appellate court “must affirm the summary judgment if any of the

theories presented to the trial court and preserved for appellate review are

meritorious.” Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216

(Tex. 2003).

B.    Legal Principles of Contract Construction

      1.       The primary goal of contract construction is to ascertain the objective
               intent of the parties as expressed in the agreement.

      The primary concern of a court interpreting a contract is to ascertain, and to

give effect to, the intentions of the parties as expressed in the contract. See, e.g.,

FPL Energy v. TXU Portfolio Mgt. Co., 426 S.W.3d 59, 63 (Tex. 2014); El Paso

Field Servs. v. Mastec N.A., 389 S.W.3d 802, 805 (Tex. 2012); In re Serv. Corp.

Int’l, 355 S.W.3d 655, 661 (Tex. 2011); Epps v. Fowler, 351 S.W.3d 862, 865 (Tex.

2011). It is the parties’ intent “as expressed in the agreement” that Texas courts



                                           7
seek to determine. Anglo-Dutch Petroleum v. Greenberg Peden, P.C., 352 S.W.3d

445, 451 (Tex. 2011) (emphasis in original). The “intentions” in question are

objective as expressed in the agreement, rather than the subjective intentions not

stated in the agreement. Hamblin v. Lamont, 433 S.W.3d 51, 54 (Tex. App.—San

Antonio 2013, pet. denied); Providence Land Servs., LLC v. Jones, 353 S.W.3d 538,

541 (Tex. App.—Eastland 2011, no pet.); Vincent v. Bank of Am., N.A., 109 S.W.3d

856, 866 (Tex. App.—Dallas 2003, pet. denied); Karen Corp. v. Burlington

Northern & Santa Fe Ry., 107 S.W.3d 118, 122 (Tex. App.—Fort Worth 2003, pet.

denied). Extrinsic evidence cannot be used to show that the parties could have meant

or probably meant something other than what their agreement stated. Anglo-Dutch

Petroleum, 352 S.W.3d at 451. Thus, what the parties objectively expressed in the

contract governs the meaning of the contract, not subsequently claimed or

unexpressed opinions about what was intended. Craig Sessions, M.D., P.A. v. TH

Healthcare, Ltd., 412 S.W.3d 738, 742–743 (Tex. App.—Texarkana 2013, no pet.).

      2.    Courts should interpret contracts using plain and ordinary meaning.

      When construing a contract, Texas courts “give terms their plain, ordinary,

and generally accepted meaning unless the instrument shows that the parties used

them in a technical or different sense.” Heritage Res. v. Nationsbank, 939 S.W.2d

118, 121 (Tex. 1996); In re 21st Century Grp., LLC, No. 06-12-00064-CV, 2012

Tex. App. LEXIS 5701, at *6 (Tex. App.—Texarkana 2012, pet. denied) (“we give



                                         8
terms their plain, ordinary, and generally accepted meaning unless the instrument

shows that the parties used them in a technical or different sense”); see also McLane

Foodservice, Inc. v. Table Rock Rests., L.L.C., 736 F.3d 375, 378 (5th Cir. 2013)

(“Under Texas law, words not defined in a contract are to be given their ‘plain and

ordinary meaning.’”).

      3.     Texas law prohibits rewriting a contract under the guise of
             interpretation.

      In discerning the parties’ intent, Texas courts “must examine and consider the

entire writing in an effort to harmonize and give effect to all the provisions of the

contract so that none will be rendered meaningless.” El Paso Field Servs., 389

S.W.3d at 805. However, a court may not rewrite the parties’ contract or add to its

language under the guise of interpretation. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124

S.W.3d 154, 162 (Tex. 2003); In re 21st Century Grp., LLC, 2012 Tex. App. LEXIS

5701, at *6. “Unless the contract is ambiguous, the court will enforce it as written.”

In re 21st Century Grp., LLC, 2012 Tex. App. LEXIS 5701, at *6. For a court to

change the parties’ contract merely because it does not like the contract, or because

one party subsequently finds it distasteful, undermines the sanctity afforded a

contract and the expectations of the persons who created and relied on it. Natural

Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 407 (Tex. App.—

Amarillo 2003, pet. denied). A court will not rewrite a contract to insert provisions

that the parties could have included, nor will a court imply a restraint for which the

                                          9
parties did not bargain. LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 638

(Tex. App.—Dallas 2012, pet. denied). Likewise, a court may not imply a term

merely to make a contract fair, wise, or just. Id. “The role of the courts is not to

protect parties from their own agreements, but to enforce contracts that parties enter

into freely and voluntarily.” El Paso Field Servs., 389 S.W.3d at 810–11.

      4.       A contract is only ambiguous when it is reasonably susceptible to
               more than one interpretation.

      A contract is only ambiguous when its meaning is uncertain and doubtful or

is reasonably susceptible to more than one interpretation. Coker v. Coker, 650

S.W.2d 391, 393 (Tex. 1983). When a written contract is worded so that it can be

given a certain or definite legal meaning or interpretation, it is unambiguous, and a

court should construe the contract as a matter of law. Am. Mfrs. Mut. Ins., 124

S.W.3d at 157. In the absence of fraud or mistake, the writing alone is deemed to

express the parties’ intention, and courts will enforce an unambiguous instrument as

written. Craig Sessions, 412 S.W.3d at 743–744; see also Sun Oil Co. v. Madeley,

626 S.W.2d 726, 728 (Tex. 1981) (Texas courts enforce unambiguous agreements

as written).

C.    The trial court properly found the plain language of the parties’
      agreements was unambiguous.

      The Non-Compete Clause of the Asset Purchase Agreement and Non-

Compete Agreement (collectively, the “Agreements”) unambiguously state that if


                                          10
Player’s employment with ETCS is terminated for any reason other than cause, prior

to two years from the date of those agreements, they are no longer binding. The

plain and ordinary meaning is the only reasonable interpretation of the Agreements,

consistent with the parties’ intent as expressed in the Agreements and Texas law.

      1.      The Agreements unambiguously state they are no longer binding if
              Player’s employment is terminated for any reason other than cause
              within two years of the date of the Agreements.

      The Non-Compete Clause and Non-Compete Agreement both unambiguously

state that they do not bind Player if his employment with ETCS is terminated for any

reason other than cause less than two years after the execution of the Agreements.

The Non-Complete Clause of the APA states in full:

           Non-Compete: See Non-Compete Agreement for full details.
           Upon finalizing this transaction, the Seller will not directly or
           indirectly engage in any business competitive with the type of
           business Jason Player is engaged in prior to this Agreement other
           than his employment with Buyer for a period of two years. This
           covenant shall apply to the geographical area that includes the
           area within a 60 miles-mile [sic] radius of Longview, Texas.
           Directly or indirectly engaging in any competitive business
           includes, but is not limited to: (i) engaging in a business as
           owner, partner, or agent, (ii) becoming an employee of any third
           party that is engaged in such business, (iii) becoming interested
           directly or indirectly in any such business, or (iv) soliciting any
           customer or current Executive or Employee of Jason Player for
           the benefit of a third party that is engaged in such business. East
           Texas Copy Systems agrees that this non-compete provision will
           not adversely affect East Texas Copy Systems’ livelihood. If
           Jason Player’s employment with Buyer is terminated prior to
           two year [sic] from the date of this Agreement for any reason
           other than a for cause termination, this Non-Compete clause
           will no longer be binding.

                                           11
CR 11 (emphasis added). The Non-Compete Agreement contains the same language

with respect to the conditional nature of the agreement not to compete:

           1. NONCOMPETE COVENANT. For a period of 2 years after
           the effective date of this Agreement, or 1 year after the
           termination of Jason Player as an employee of ETCS, Jason
           Player will not directly or indirectly engage in any business that
           competes with ETCS accounts. This covenant shall apply to the
           geographical area that includes the area within a 60 mile radius
           of Longview.

           2. NON-SOLICITATION COVENANT. For a period of 2
           years after the effective date of this Agreement, or 1 years after
           the termination of Jason Player as an employee of ETCS, Jason
           Player will not directly or indirectly solicit business from, or
           attempt to sell, license or provide the same or similar products or
           services as are now provided to, any customer or client of ETCS.
           Further, for a period of 2 years after the effective date of this
           Agreement, or 2 years after the termination of Jason Player,
           Jason Player will not directly or indirectly solicit, induce or
           attempt to induce any employee of ETCS to terminate his or her
           employment with ETCS. If Jason Player’s employment with
           Buyer is terminated prior to two years from the date of this
           Agreement for any reason other than a for cause termination,
           this Non-Compete Agreement will no longer be binding.

CR 22 (emphasis added). The conditional clauses at the end of the Non-Compete

Agreement and the Non-Compete Clause are referred to in this brief as the “Disputed

Clause.”

      The restrictions against competition in the Agreements were plainly

conditioned on Player’s continued employment with ETCS for more than two years.

The term “if” is used to “make performance specifically conditional” in an

                                           12
agreement. Solar Applications Eng’g, Inc. v. T.A. Operating Corp., 327 S.W.3d

104, 109 (Tex. 2010) (“In order to make performance specifically conditional, a term

such as if, provided that, on condition that, or some similar phrase of conditional

language must normally be included.”) (quotations omitted). The Disputed Clause

states in relevant part “[i]f Jason Player’s employment with [ETCS] is terminated”

prior to two years from the date of the Agreements for any reason other than cause,

the Agreements are no longer binding. CR 11, 22. Thus, the Disputed Clause creates

a condition on Player’s covenants not to compete in the Agreements that is satisfied

by Player’s employment with ETCS for at least two years. Since the condition never

occurred, the Disputed Clause is not binding by its own terms.

      2.    The plain and ordinary meaning of the Disputed Clause gives meaning
            to the parties’ Agreements.

      The two-years of employment condition for the covenant not to compete was

a meaningful and negotiated part of the Agreements. The parties anticipated—and

expressed in the Agreements—that Player and ETCS would have a working

relationship after the Agreements. CR 9 (“The Employment Contract was an

essential piece of the compensation in the Agreement and Seller would not have

agreed to this Agreement without the Employment Contract”). Yet, either party

could terminate the employment relationship at will.      CR 18. If the parties’

relationship was successful for two years, Player agreed not to compete with ETCS

for a period of one year after termination of his employment. CR 11, 22. However,

                                        13
ETCS also agreed that if the relationship was not successful, either Player or ETCS

could terminate Player’s employment with ETCS and Player would be free to return

to work for himself. CR 18. Player’s work with ETCS for nearly two years, Player’s

customer list, and Player’s non-competition for two years after the date of the

Agreements while the parties worked together, is what ETCS bargained for and

received under the Agreements.

      Player and ETCS’s relationship was not successful. Player terminated his

relationship with ETCS, as expressly anticipated by the parties and provided for by

their Agreements. CR 67. When considering the Agreements as a whole, this

interpretation of the parties’ Agreements (not what ETCS now wants them to say) is

the only reasonable interpretation of the Disputed Clause.

D.    The trial court properly rejected ETCS’s request to rewrite the Disputed
      Clause under the guise of harmonizing the Agreements.

      ETCS has buyer’s remorse. After Player terminated his employment with

ETCS, ETCS decided it no longer liked the deal it made with Player. ETCS now

improperly asks the Court to rewrite the parties’ Agreements, under the guise of

harmonization, in hopes of getting a better deal after benefiting from the parties’

Agreements for nearly two years. Tellingly, ETCS previews for the Court that

harmonizing a document is “often co-opted by one or both of the litigants to argue




                                        14
that the contract says what they meant it to say.” Brief, at 9.3 ETCS then goes on to

do exactly that—arguing the Court should rewrite the parties Agreements so the

Agreements will say what ETCS now wants them to say, rather than what ETCS

actually negotiated and agreed to in the Agreements. This Court should reject

ETCS’s request to rewrite the parties’ Agreements under the guise of interpretation.

      1.     It is unnecessary to harmonize the Agreements because there are no
             inconsistent or discordant parts.

      ETCS admits that harmonization is only required when there are “inconsistent

or discordant” parts of an agreement. Brief, at 9. Yet, ETCS fails to identify any

sections or clauses of the Agreements which are allegedly inconsistent or discordant

and require harmonization. When ETCS says the “entire agreement as a whole,”

“entire purpose of the transaction,” what ETCS means is its own current subjective

desires. See, e.g., Brief, at 4, 8. ETCS knows that rewriting the parties’ agreement

is impermissible, so it instead invites the Court to do so under the guise of

harmonizing the Agreements with ETCS’s “business activity.” Brief, 9-10. All of

these characterizations of Agreements, are only different expressions of ETCS’s

efforts to use its subjective desires to rewrite the Agreements.

      The intent of the parties “as expressed by the agreement” shows that there are

no inconsistent or discordant parts of the agreement which requires harmonizing.


3
 References to “Brief, at [page number]” refer to the page number of Appellant’s
Brief in this appeal (filed August 4, 2016).

                                          15
FPL Energy, 426 S.W.3d at 63. The Agreements expressly provide that either Player

or ETCS were permitted to terminate Player’s employment with ETCS upon written

notice. CR 18. Thus, the other portions of the Agreements are consist with the plain

and ordinary meaning of the Disputed Clause, that is, termination of Player’s

employment with ETCS could include termination by either Player or ETCS. The

trial court specifically recognized the same in rejecting ETCS’s arguments. RR, Vol.

1, 35-36 (court stating “the way ‘termination’ is used throughout all the agreements

tied in, it anticipates termination by either the plaintiff or the defendant”).

      The Agreements were specifically negotiated to allocate the risk involved in

the parties’ work together. El Paso Field Servs., 389 S.W.3d at 812 (“Freedom of

contract allows parties to . . . allocate risk as they see fit.”). Specifically, the

Disputed Clause is intended to offset that either ETCS or Player would terminate

Player’s employment earlier than two years after the Agreements because their

working relationship was not successful. The parties’ allocation of risk explains

ETCS’s hypothetical where Player quits immediately after payment from ETCS for

the customer list. Brief, at 11. Under the parties’ Agreement, ETCS bore some risk

that Player would terminate his employment with ETCS immediately after payment

for the customer list. CR 11, 18, 22 (Agreements would no longer be binding after

termination of Player’s employment with ETCS). ETCS balanced against that risk

by putting Player at risk of losing $250,000 in monthly payments (CR 9) and



                                           16
$186,000 in salary payments over two years (CR 17). Player also bore risk that his

employment would not be suitable with ETCS and he would be forced to give up all

of his compensation to return to work for himself. Thus, ETCS’s hypothetical

actually demonstrates that the parties considered and bargained for the risks that one

or the other would not benefit from the transaction as expected and structured their

Agreements around those risks.

      ETCS’s second hypothetical further confirms the parties’ attempted to

allocate risk as part of their Agreements. ETCS argues that, under the plain and

ordinary meaning of the Disputed Clause, ETCS could have terminated Player for

cause on the day before the expiration of two years and Player would be prohibited

from competing, but if Player voluntarily resigned on the same day he would not be

prohibited from competing. Brief, at 16. ETCS is correct. Player bore the risk, that

if he created some cause for his termination by ETCS, ETCS would be permitted to

terminate him and retain the benefit of the non-compete agreement. ETCS bore the

risk that if it did something to encourage Player to resign before two years of

employment, he could do so without being bound by the agreement not to compete.

Weighing the risks and benefits of the parties’ working relationship together after

the agreements was the very purpose of the Disputed Clause.

      Further, the undisputed facts demonstrate ETCS received the benefit of its

bargain with Player. For nearly two years, ETCS benefited from the parties’



                                         17
Agreements by working with Player and Player’s customers.            ETCS received

Player’s customer list. Player worked as ETCS’s employee for nearly two years. It

was Player who permitted ETCS to access his business operations and strategies,

rather than the other way around as suggested by ETCS. Compare CR 18 (requiring

Player to help improve ETCS’s procedures), with Brief, at 16 (arguing Player

benefited from ETCS’s operating procedures and strategies). ETCS also received

sizable payments from Player’s former customers. CR 55. ETCS claims it made

hundreds of thousands of dollars from only some of Player’s customers based on its

relationship with Player. See CR 65 (alleging damages for Player’s breach based on

loss of customers).     ETCS’s claim that the entire transaction was rendered

meaningless by the trial court’s construction is demonstrably false. Brief, at 12.

      2.     The plain and ordinary meaning of the Disputed Clause does not
             render Player’s promise illusory.

      ETCS argues in a single sentence that the conditional nature of the covenant

not to compete would render the promise not to compete illusory. Brief, at 11. This

argument was waived by ETCS’s failing to raise the argument in the court below.

Craig Sessions, 412 S.W.3d at 743 n.3 (appellant waived argument by failing to raise

it with the trial court). ETCS’s argument is contrary to law. Conditional promises

are enforceable in the employment context, and otherwise. Smith v. Carter &

Burgess, Inc., 2005 Tex. App. LEXIS 1140, at *9 (Tex. App.—Fort Worth Feb. 10,

2005, no pet.) (condition did not render employment contract meaningless); Fletcher

                                         18
v. Energy Res. Tech. GOM, Inc., 2012 Tex. App. LEXIS 7034, at **8–10 (Tex.

App.—Houston [1st Dist.] Aug. 23, 2012, no pet.) (same); see also Restatement

(Second) of Contracts § 224 (1981) (“A condition is an event, not certain to occur,

which must occur, unless its non-occurrence is excused, before performance under

a contract becomes due.”). Second, the only case cited by ETCS in support of its

proposition that the clause would be illusory actually supports the opposite

conclusion. The case relied on by ETCS, Cleveland Constr., Inc. v. Levco Constr.

Inc., pointed out that a conditional clause is not rendered illusory because when the

“clause is part of an underlying contract, the rest of the parties’ agreement provides

the consideration.” 359 S.W.3d 843, 853 (Tex. App.—Houston [1st Dist.] 2012, pet.

dism’d). Since the arbitration clause at issue in Cleveland Constr. was part of an

underlying agreement which contained mutual obligations, the clause was not

illusory. Id. at 853–54. The same is true for Player’s promise not to compete. The

promise not to compete is part of an underlying agreement, the APA, which contains

mutual unconditional obligations. CR 9–20. Thus, the promise not to compete is

not rendered illusory. See Cleveland Constr., 359 S.W.3d at 853–54.

      3.     ETCS’s request to harmonize the Agreements is really a request to
             rewrite the Agreements contrary to Texas law.

      As an initial matter, ETCS’s interpretation of the Disputed Clause is

inconsistent with its own interpretation in the trial court. As shown below, ETCS’s




                                         19
proposal in the trial court included much more than ETCS’s proposal on appeal that

“termination” means termination by ETCS.

    Agreements                ETCS in Trial Court                ETCS on Appeal
                                (emphasis added)                 (emphasis added)
 If Jason Player’s       “in the event of termination by        If Jason Player’s
 employment with         ETCS for a reason other than with      employment with
 Buyer is terminated     cause, Player is released from the     Buyer is
 prior to two year[s]    non-competition provision in that      terminated by
 from the date of        event. Otherwise, he is obligated      ETCS prior to two
 this agreement for      not to compete for at least two        years from the
 any reason other        years after the effective date         date of this
 than a for cause        (July 1, 2013) and for at least        agreement for any
 termination, this       one year after the end of his          reason other than a
 Non-Compete             separation from employment             for cause
 Agreement will no       with ETCS should that                  termination, this
 longer be binding.      separation begin more than one         Non-Compete
                         year after July 1, 2013.”              Agreement will no
                                                                longer be binding.


CR 11, 22 (Agreements); CR 82 (ETCS in trial court); Brief, at 13 (ETCS on appeal).

ETCS inability to keep its own interpretation consistent is indicative of the

unreasonableness of its position(s). ETCS likely changed its position because of

multiple problems with its proposed construction as pointed out in the briefing to the

trial court. CR 125–26 (ETCS’s rewrite of the Disputed Clause so that Player is only

released from the non-competition provision, rather than the entire agreement); CR

126 (changing 2 years or 1 year to 2 years and 1 year of non-competition). In any

event, ETCS’s newly proposed construction on appeal is still unreasonable for the

same reasons it was in the trial court.


                                          20
      ETCS’s proposed construction on appeal is nothing more than an attempt to

rewrite the Disputed Clause by inserting the phrase “by ETCS” after the word

termination to limit the condition in the Disputed Clause. Brief, at 13 (“must be

interpreted as a protection for Player against termination by ETCS in less than two

years from July 1, 2013”).      First, this Court should not rewrite the parties’

agreements to insert “by ETCS” into the parties’ Agreements because it is a

provision the parties could have included but did not. LG Ins. Mgmt. Servs., 378

S.W.3d at 638 (courts should not insert provisions the parties could have included).

Second, the fact that the phrase “by ETCS” is not in the parties’ Agreements

demonstrates that it is not what the parties objectively intended under the

Agreements. Hamblin, 433 S.W.3d at 54 (the court should determine the objective

intentions of the parties as expressed in the agreement). Third, ETCS’s proposal is

inconsistent with other portions of the Agreements that specifically anticipate and

expressly state that Player’s employment with ETCS could be terminated by Player

or ETCS. CR 18 (“Player’s employment with ETCS “may be terminated by ETCS

upon 60 days written notice, and by Jason Player upon 60 days written notice”)

(emphasis added). Thus, the parties intended “termination” of Player’s employment

to mean termination by either party, not just termination by ETCS. The parties could

have chosen to specify that termination meant termination “by ETCS” if they had




                                        21
intended something different than “termination” in the parties’ employment

agreement.

      ETCS’s addition of the term “by ETCS” is contrary to the plain language of

the Agreements. Contra Heritage Res., 939 S.W.2d at 121 (court’s interpretation

should be based on plain language); McLane Foodservice, 736 F.3d at 378 (same).

Black’s Law Dictionary definition indicates that “termination” of employment

means the complete severance of an employer-employee relationship by either the

employee or the employer. See CR 44. If the parties had intended termination to

mean anything other than its plain and ordinary meaning, they could have stated

differently by using terms “involuntary termination,” “fired,” or, as ETCS suggests,

“by ETCS” to make clear that termination only meant termination by the employer.

The parties did not. Tellingly, ETCS does not even attempt to explain how the plain

meaning of termination means only termination by the employer. There is no

reasonable basis to add the language ETCS requests into the parties’ Agreements.

      Case law also indicates ETCS’s limitation of termination to termination by

the employer is unreasonable.       Courts around the country have noted that

“termination” does not just refer to termination by the employer. See, e.g., Willenson

v. Miner, Barnhill & Galland, P.C., 998 N.E.2d 984, 2011 Ill. App. Unpub. LEXIS

579, at **7–8 (Ill. App. [1st Dist.] April 14, 2011) (“giving ‘termination’ its plain

and ordinary meaning in an employment context, it means an end to employment



                                         22
and could mean a voluntary resignation, an involuntary termination or both”);

Anderson v. Twin City Rapid Transit Co., 84 N.W.2d 593, 598 (Minn. 1957) (“quit

. . . is defined by the United States Bureau of Labor Statistics as a termination of

employment by the worker because of his desire to leave”) (internal quotations

omitted); Meckes v. Cina, 75 A.D.2d 470, 474 (N.Y. App.—4th Div. July 10, 1980)

(“termination of employment was defined as a voluntary quitting by the employee

or a discharge by the employer”) (internal quotations omitted); Hoffman v. Am. Soc’y

for Technion-Israel Inst. of Tech., Inc., 2013 U.S. Dist. LEXIS 9921, at *10 (S.D.

Cal. Jan. 23, 2013) (resignation constituted termination); InterPay, Inc. v. Bigham,

2002 U.S. Dist. LEXIS 16202, at *11 (D. Mass. Aug. 15, 2002) (“[t]he plain

meaning of voluntary termination is that the employee has freely chosen to cease

employment with the company”). ETCS cites no case law or any other sources in

support of its position that termination of employment means termination only by

the employer.

      4.    The use of the passive voice in the Disputed Clause supports the plain
            and ordinary meaning adopted by the trial court.

      For the first time on appeal, ETCS argues that the Disputed Clause is “more

consistent with a termination by ETCS of Player than voluntary resignation by

Player” because it is written in the passive voice. Brief, at 14. ETCS waived this

argument by failing to raise it in the court below. Craig Sessions, 412 S.W.3d at

743 n.3. Further, ETCS is grammatically and legally incorrect. The Redbook, a

                                        23
manual on legal style, explains that “the passive voice is appropriate in some places,

especially (1) when the emphasis is on the recipient of the action instead of the actor,

and (2) when the actor is unknown or unimportant.” BRYAN A. GARNER, THE

REDBOOK: A MANUAL         ON   LEGAL STYLE 166 (Thompson/West 2006) (2002)

(emphasis added). Texas case law is consistent with the Redbook and suggests the

use of passive voice shifts focus of the clause onto the action when the action taker

is unimportant. See Walden v. Affiliated Computer Servs., 97 S.W.3d 303, 316–17

(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (use of passive voice shifted

focus to the action, away from the actor). Further, and as explained in detail above,

the other portions of Agreements expressly provide that either Player or ETCS may

terminate Player’s employment with ETCS. CR 18. ETCS’s failed attempt to use

grammatical rules to justify rewriting the Disputed Clause demonstrates how

desperately ETCS is searching for any support in favor of rewriting the Agreements.

Contrary to ETCS’s unsupported argument, the parties’ use of the passive voice in

the Disputed Clause demonstrates that the trial court properly adopted the parties’

plain and ordinary meaning.

E.    ETCS’s attempt to rewrite the Disputed Clause cannot create ambiguity.

      ETCS’s argument that the Disputed Clause is ambiguous is just another

recitation of its flawed arguments to rewrite the Disputed Clause. ETCS concedes

that for an agreement to be ambiguous it “must be reasonably susceptible to two or



                                          24
more meanings.” Brief, at 15 (citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d

223, 229, (Tex. 2003)). However, ETCS does not propose a meaning for the

Disputed Clause at all. Instead, ETCS asks the Court to rewrite the parties’

Agreements into something substantially different as explained herein. ETCS

cannot argue that its alternative agreement would have been reasonable for the

parties to make in order to create ambiguity in the agreement that the parties actually

made. See Craig Sessions, 412 S.W.3d at 744 (evidence outside the contract cannot

be used to vary the plain terms of an agreement). The trial court properly found that

the Disputed Clause is not ambiguous because it is only subject to one reasonable

interpretation based on the plain terms of the Agreements.

                              VIII.    CONCLUSION

      The trial court properly found that the plain language of the Disputed Clause

in the Agreements is clear and unambiguous. If Player’s employment with ETCS is

terminated for any reason other than cause prior to two years from the date of the

Agreements, the Non-Compete Agreement and Non-Compete Clause are no longer

binding on Player.     ETCS wants more than what it bargained for under the

Agreement. It asks the Court to rewrite the parties’ Agreements so that ETCS can

prohibit Player from competing as punishment for voluntarily resigning his

employment with ETCS. This Court should reject ETCS’s request to write in new

terms to the Disputed Clause under the guise of interpretation and affirm the trial



                                          25
court’s Final Judgment consistent with the objective intent of the parties, the plain

language of the Agreements, and Texas law.

                                  IX.    PRAYER

      Player respectfully requests that the Court reject ETCS’s request to rewrite

the Agreements, overrule ETCS’s issues on appeal, and affirm the trial court’s

judgment. Player further requests all relief in law and equity to which this Court

determines he is entitled.


                                              Respectfully submitted,



                                              ____________________________
                                              Eric M. Albritton
                                              Texas State Bar No. 00790215
                                              ema@emafirm.com
                                              Shawn A. Latchford
                                              Texas State Bar No. 24066603
                                              sal@emafirm.com
                                              ALBRITTON LAW FIRM
                                              P.O. Box 2649
                                              Longview, Texas 75606
                                              Telephone: (903) 757-8449
                                              Facsimile: (903) 758-7397

                                              Counsel for Appellee
                                              Jason Player




                                         26
                            CERTIFICATE OF COMPLIANCE

      I hereby certify that the above and foregoing Brief of Appellee is 6,407 words

in length in 14pt Times New Roman, a proportional font, and that all footnotes are

in 14pt of the same font.



                                             ______________________________
                                             Eric M. Albritton




                            CERTIFICATE OF SERVICE

      Pursuant to Tex. R. App. P. 9.5, I certify that on October 6, 2016, a copy

of this motion was served on Appellant’s counsel by e-File system and email.



                                             ______________________________
                                             Eric M. Albritton




                                        27
