Affirm and Opinion Filed October 23, 2019




                                                        In The
                                       Court of Appeals
                                Fifth District of Texas at Dallas
                                               No. 05-18-00813-CV

                    BODUM USA, INC. AND BODUM HOLDING AG, Appellants
                                          V.
                        J.C. PENNEY CORPORATION, INC., Appellee

                             On Appeal from the 199th Judicial District Court
                                          Collin County, Texas
                                 Trial Court Cause No. 199-04943-2013

                                     MEMORANDUM OPINION
                            Before Chief Justice Burns, O’Neill1, and Rosenberg2
                                        Opinion by Justice O’Neill
           This dispute arises out of a failed business relationship between Bodum USA, Inc. (Bodum

USA) and J.C. Penny Corporation (JCP). Bodum USA and its parent company, Bodum Holdings

AG, (Bodum AG)3 appeal the trial court’s summary judgment in favor of JCP contending the trial

court erred by (1) denying Bodum’s motion for partial summary judgment regarding their breach

of contract claim against JCP; (2) granting summary judgment in JCP’s favor on all of Bodum’s

claims; and (3) overruling Bodum’s objections to JCP’s summary judgment evidence. Concluding

no error exists with respect to JCP’s motion, and its disposition further disposes of any issue with

respect to Bodum’s partial motion, we affirm.


1
 The Hon. Michael O’Neill, Justice of the Court of Appeals for the Fifth District of Texas at Dallas, Retired, sitting
by assignment.
2
    The Hon. Barbara Rosenberg, Justice, sitting by assignment.
3
    Unless context requires specificity, both Bodum entities are referenced collectively as “Bodum.”
                              I.     FACTUAL BACKGROUND

       Pursuant to a Trading Partners’ Agreement (TPA) executed in 2010, Bodum USA and JCP

defined the terms of their nascent commercial relationship. The TPA’s first paragraph specified

that it applied to all purchase and sales transactions between the parties, defined each party as an

independent contractor, and negated the existence of any other type of relationship, including a

joint venture or partnership. The TPA authorized JCP to purchase Bodum merchandise but did not

require it to do so; required a separate purchase order to create a contract regarding any purchase;

negated JCP’s liability for any special, incidental, exemplary, or consequential damages arising

from JCP’s breach of the TPA or “any other agreement or dealings between the parties”; and

created a two year limitations period for any cause of action asserted by Bodum against JCP. The

TPA also provided that:

       “No modification of, supplement to, or release or discharge from, this TPA, any
       Purchase Contract or other Transaction, the Terms and Conditions or any other
       agreement between the parties shall be valid unless it is offered or accepted in
       writing by the responsible Penney Divisional Merchandise Manager or one of
       his/her superiors and accepted by Seller in writing or through shipment of
       Merchandise.”

       Bodum AG was not identified as a party to the TPA and it did not sign the TPA, but the

agreement stated it was binding upon and inured to the benefit of, “the parties and their respective

successors, permitted assigns, and any parent, subsidiary or affiliated company effectively

controlling, or controlled by, any of them.”

       A few years later, Bodum, which also sells Ordning & Reda (O&R) branded products,

submitted a proposal to JCP seeking inclusion in a new “shops” concept, by which JCP would

dedicate space in JCP stores for certain branded or concept merchandise. After negotiations, in

November 2012, Bodum USA and JCP entered into a “Shops Agreement.” The Shops Agreement

specified the number of Bodum USA and O&R shops JCP would install, included details such as

the square footage for each shop, and required Bodum to contribute up to $5 million towards the
                                                 2
Bodum shops and up to $5 million to fully fund the fixtures for the O&R shops. JCP agreed to

invest in a Bodum “brand experience” on jcp.com. JCP also promised to consider “in good faith”

Bodum’s product suggestions for the shops and to purchase merchandise for the shops from

Bodum or its licensees, but JCP retained the final discretion as to the merchandise placed in the

shops. March 2013 was specified as the launch date, although delineation of responsibilities to

accomplish the launch was not.

       The Shops Agreement also provided:

       Subject to jcpenny’s rights to relocate or otherwise change or alter the shops
       as specified below, the parties agree that the Bodum and O&R Shops will be
       featured in the designated jcpenny stores for a period of 4 years from the opening
       date (the “Term”). Before March 1, 2016, the parties will negotiate in good faith
       to extend the agreement for an additional 3 years . . . (emphasis added) (the Term
       Provision).

       On a separate page, the Shops Agreement included this provision:

       jcpenny may remove, alter, or relocate any and all Bodum or O&R Shops or
       any portion of a Bodum or O&R Shop and a Bodum or O&R Shop may be relocated
       to other location within the jcpenny store in which it is installed or to and within
       another jcpenny store (provided, however, that in the event jcpenney removes or
       significantly alters the square footage of a shop, jcpenney shall refund to Bodum
       the pro-rata portion of the cost for such Bodum or O & R Shop (based on the
       number of the years left in the Term and the date of such shop change) (emphasis
       added) (the Removal Provision).


In the event of a conflict between the TPA and the Shops Agreement, the parties agreed the Shops

Agreement controlled.

       The shops concept expired quickly. In one large order, JCP ordered Bodum and O&R

merchandise for all 683 shops projected by the Shops Agreement and payed Bodum more than

$20 million for that merchandise. An unidentified number of shops began opening on a rolling

basis in April 2013. During the same time period, the parties’ relationship began deteriorating. The

JCP executive who created the program resigned in April 2013, and both parties blamed the other

for disappointing sales of the Bodum and O&R merchandise.

                                                 3
          In August 2013, approximately four months after the launch, Bodum USA sued JCP in a

New York state court. 4 After the New York lawsuit was dismissed, in December 2013, Bodum

USA filed suit in Texas. Bodum AG, Bodum USA’s Swiss parent company, was added as a new

plaintiff in Bodum USA’s First Amended Petition, filed in August 2017. Bodum AG pleaded it

was a party within the scope of the TPA and therefore also a party to the Shops Agreement. 5

          Bodum asserted claims for breach of contract, promissory estoppel, breach of the implied

covenant of good faith and fair dealing, and sought a declaratory judgment regarding any

continuing obligation to fund costs related to the shops. Bodum alleged JCP materially breached

its contracts with Bodum by terminating the Shops Agreement before the expiration of four years,

as well as through numerous other acts and omissions. Bodum’s claim for promissory estoppel

rested on JCP’s alleged promises regarding shop location, the look of the shops, a professional

launch consistent with the parties’ discussions, purchasing “safety stock,” and JCP’s failure to

advertise Bodum and O&R products. Relying on a contention that the parties’ relationship was a

“massive joint effort,” Bodum asserted a claim for breach of the implied covenant of good faith

and fair dealing. Bodum also sought a declaratory judgment that it was not required to contribute

any further amounts to fund fixtures for any shops. Bodum complained their damages included

more than $4.8 million in development costs, program inventory worth $5.3 million, and over $1.6

million in shipping, fixture and display costs.

          After considerable discovery, JCP filed no-evidence and traditional motions for summary

judgment on all of Bodum’s claims. Bodum objected to some of JCP’s summary judgment

evidence and also filed a traditional motion for summary judgment seeking a determination that



4
    The Bodum and O&R shops program was formally terminated in November 2013 by JCP.
5
  In the alternative to the claim for breach premised on Bodum AG’s alleged capacity as a party to the Shops
Agreement and the TPA, Bodum AG asserted a claim for breach of contract premised on its contention that it was a
third-party beneficiary of both agreements.
                                                       4
JCP’s early termination breached the Shops Agreement. Bodum’s motion, however, was never set

for hearing. After hearing arguments on JCP’s motions, the trial court overruled Bodum’s

objections and “granted Defendant’s Motion for Summary Judgment.” No grounds for the

judgment were specified, but the judgment recited that it was final and disposed of all claims and

all parties.

                                       II.     DISCUSSION

A. Standard of review for summary judgments.

        Orders granting summary judgment are reviewed de novo. Lujan v. Navistar, Inc., 555

S.W.3d 79, 84 (Tex. 2018); De La Cruz v. Kailer, 526 S.W.3d 588, 592 (Tex. App.—Dallas 2017,

pet denied). If no grounds are specified for the ruling, we must affirm on any meritorious grounds

on which judgment was requested. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.

2013). If the appellant does not challenge all possible grounds on which summary judgment could

have been granted, we must accept the validity of the unchallenged grounds and affirm the adverse

ruling. Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 423 (Tex. App.—Dallas 2009, no pet.);

see also St. John Missionary Baptist Church v. Flakes, 547 S.W.3d 311, 312 (Tex. App.—Dallas

2018, pet. pending) (en banc).

        The legal sufficiency standard that governs directed verdicts also governs no-evidence

summary judgment motions. RTLC AG Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d 824, 829

(Tex. App.—Dallas 2006, no pet.). To defeat a no-evidence motion for summary judgment, the

nonmovant must produce evidence regarding each challenged element of each challenged claim

that “would enable reasonable and fair-minded people to differ in their conclusions.” Ford Motor

Co. v Ridgeway, 135 S.W.3d 598, 601 (Tex. 2004); see also King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003) (“A no evidence point will be sustained when (a) there is a complete

absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving

                                                  5
weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital

fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of

the vital fact.”) (internal quotation omitted). In reviewing a no-evidence summary judgment, we

consider evidence in the light most favorable to the non-movant, crediting evidence a reasonable

jury could credit and disregarding contrary evidence and inferences unless a reasonable jury could

not. De La Cruz, 526 S.W.3d at 592.

       With respect to a traditional motion for summary judgment, we require the movant to

demonstrate the absence of a genuine issue of material fact and its entitlement to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211,

215–16 (Tex. 2003). If the movant satisfies this burden, to avoid summary judgment the

nonmovant then bears the burden of demonstrating a genuine issue of material fact. Lujan, 555

S.W.3d at 84. We credit all evidence favoring the nonmovant, indulging every reasonable

inference and resolving all doubts in its favor. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d

193, 208 (Tex. 2002).

A.     Summary judgment regarding Bodum’s breach of contract claims was proper.

       JCP moved for traditional summary judgment on all claims asserted by both plaintiffs, and

also asserted a no-evidence motion regarding the breach of contract and promissory estoppel

claims. JCP asserted it conclusively established it did not breach the Shops Agreement by

terminating it before the expiration of four years because the agreement unambiguously permitted

termination by removal of all shops at any time. Bodum argued the Shops Agreement

unambiguously required performance by both parties for four-years, but in the alternative, argued

ambiguity existed regarding whether early termination was permissible.




                                                 6
       1. Rules of construction.

       Mere disagreement by the parties regarding contractual interpretation does not prove

ambiguity. URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 763 (Tex. 2018). Instead, contracts to which

we can give definite or certain legal meaning are unambiguous and we construe them as a matter

of law. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.

1995) (“If a written contract is so worded that it can be given a definite or certain legal meaning,

then it is not ambiguous.”); Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d

587, 591 (Tex. 1996) (“The failure to include more express language of the parties intent does not

create an ambiguity when only one reasonable interpretation exists.”). We ascertain the parties’

intentions by examining the entire writing, and give effect to all provisions so none are rendered

meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Green Meadow Oil & Gas Corp.

v. EOG Res., Inc., 390 S.W.3d 625, 627 (Tex. App.—Dallas 2012, no pet.). We “presume parties

intend what the words of their contract say” and interpret contract language according to its “plain,

ordinary, and generally accepted meaning” unless the instrument directs otherwise. URI, Inc., 543

S.W.3d at 764. We also ignore parol evidence that varies or contradicts the contract. Id. at 757

(“[E]xtrinsic evidence may only be used to aid the understanding of an unambiguous contract’s

language, not change it or “create ambiguity.”).

       2. Bodum failed to raise a question of fact in support of their breach claim premised
          on early termination.

       Bodum argued JCP’s right to “remove, alter, or relocate any and all” shops in the Removal

Provision addressed JCP’s rights with respect to individual shops during the four-year term, but

did not alter the unambiguous four-year term provided by the Term Provision. Bodum asserted

JCP as the drafter demonstrated the parties’ intent to allow relocation or other changes or

alterations of the shops during the term, but the omission of “remove” from the Term Provision

demonstrated JCP was not contractually permitted to terminate the agreement by removing all
                                                   7
shops until after the expiration of four years. According to Bodum, the cost refund became payable

if JCP removed or significantly altered the square footage of a shop, but was not indicative of a

refund due upon removal of all shops. Bodum also claimed JCP’s interpretation added “remove”

to the Term Provision. We disagree.

       Only ambiguous contracts are construed against their drafters, and only as a last resort.

Lewis v. Foxworth, 170 S.W.3d 900, 903 (Tex. App.—Dallas 2005, no pet.) (“[D]octrine of contra

proferentem is applied only when construing an ambiguous contract.”); Evergreen Nat. Indem. Co.

v. Tan It All, Inc., 111 S.W.3d 669, 676 (Tex. App.—Austin 2003, no pet.) (“[D]octrine of contra

proferentem is a device of last resort employed by courts when construing ambiguous contractual

provisions.”). As explained below, we conclude the Shops Agreement lacks ambiguity, and thus

also reject application of contra proferentem.

       Bodum’s interpretation—that during the term JCP was permitted to remove shops only if

placed within a new store or otherwise relocated or altered within any given JCP store—rewrites

the Term Provision. “Remove” and “relocate” mean different things, and restricting a right to

remove by requiring relocation ignores the distinction. Bodum also ignores JCP’s further

obligation to refund Bodum the pro-rata portion of the cost of any removed shop during the term,

a provision with no meaning if every removed shop must be relocated, or if removal occurs only

after the expiration of four years. Moreover, Bodum’s argument fails to acknowledge that the Term

Provision is “subject to” the Removal Provision. And, Bodum disregards the scope of the Removal

Provision, which permits removal of “any and all” shops. We find no room for an interpretation

other than the plain language to which the parties agreed, giving meaning to all words and phrases.

See TX. C.C., Inc. v. Wilson/Barnes Gen. Contractors, Inc., 233 S.W.3d 562, 567 (Tex. App.—

Dallas 2007, pet. denied) (giving effect to two different paragraphs by “simply reading them

together and giving them their plain meaning”); Nicol v. Gonzales, 127 S.W.3d 390, 395 (Tex.

                                                 8
App.—Dallas 2004, no pet.) (although term “garage” could include “out-building,” construing

phrase “a garage or out-building” to refer to two different structures provides meaning to both

terms).

          The Shops Agreement included a four-year term, but the plain language of the agreement

unambiguously qualified the term as subject to JCP’s “rights to relocate or otherwise change or

alter the shops as specified below”.6 Those subsequent rights unequivocally allow JCP to

          remove, alter, or relocate any and all Bodum or O&R Shops or any portion of a
          Bodum or O&R Shop. . .

The Termination Provision allowed JCP to remove any and all shops and thereby negate all other

performance obligations. By construing all of the provisions of the Shops Agreement and giving

each word and phrase its plain meaning, we conclude the Shops Agreement permitted JCP to

terminate by removing all shops. In demonstrating the unambiguous meaning of the contract from

its four corners, JCP demonstrated, as a matter of law, that it did not breach the Shops Agreement

by terminating it.

          We also reject the parol evidence relied upon by Bodum in support of its argument, since

the proffered evidence seeks to define the parties’ expressed intent, rather than provide context as

an aid to determining the parties’ intent. See URI, Inc., 543 S.W.3d at 765 (parol evidence rule

does not “prohibit courts from considering extrinsic evidence of the facts and circumstances

surrounding the contract’s execution as an aid in the construction of the contract’s language, but

the evidence may only give the words of a contract a meaning consistent with that to which they

are reasonably susceptible, i.e., to ‘interpret’ contractual terms.”) (internal quotation omitted).




6
  “Subject to jcpenny’s rights to relocate or otherwise change or alter the shops as specified below, the parties agree
that the Bodum and O&R Shops will be featured in the designated jcpenny stores for a period of 4 years from the
opening date . . .”

                                                          9
       Finally, we reject Bodum’s contention that Texas disfavors implied termination provisions.

In support of this argument, Bodum cites Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232, 233-34

(Tex.1982), Escondido Res. II, LLC v. Justapor Ranch Co, LC, 04-14-00905-CV, 2016 WL

2936411, at * 3 (Tex. App.—San Antonio May 18, 2016, no pet.), and Vinson Minerals, Ltd. v.

XTO Energy, Inc., 335 S.W.3d 344, 358 (Tex. App.—Fort Worth 2010, pet. denied). We find

these cases inapplicable. Ogden does not speak to implied termination—it addresses acceleration

of a promissory note following default and the notices required by equitable concerns. Id.

Likewise, Vinson deals with “the drastic remedy of forfeiture” and the sufficiency of notice by the

lessor describing the lessee’s breach and default; the conduct triggering the right of forfeiture.

Vinson Minerals, Ltd., 335 S.W.3d at 334-335. Escondido Resources was similar to Vinson

Minerals in interpreting a provision whereby an oil and gas lease was forfeited—terminated

according to its own express terms—due to the lessee’s breach in failing to pay “true-up”

production payments. Forfeiture of property or contractual rights arising from one party’s breach

is not the equivalent of a contractual agreement authorizing one party to terminate a contract

without cause. And Texas jurisprudence fully embraces parties’ rights to agree that contracts may

be terminated without cause. See Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d

671, 682 (Tex. 2017) (contracts may stipulate permissibility of termination without cause).

Bodum provides no authorities supporting its sweeping contention that we disfavor termination

provisions and we decline to provide any support for that principle here.

       3. Bodum failed to raise a fact issue regarding breach premised on the refund
          amount paid by JCP.

       JCP submitted evidence of the refund paid to Bodum following termination. Bodum claims

a fact issue exists regarding whether JCP paid the entirety of the refund due Bodum—their pro-

rata portion of Bodum’s costs for the removed shops. Bodum, however, did not argue in either

their response to JCP’s motions for summary judgment or in their opening brief to this Court that
                                                10
JCP breached the Shops Agreement by failing to fully refund Bodum’s pro-rata costs. Instead,

Bodum argued they were entitled to recover the entirety of their out of pocket losses for their claim

for breach, and asserted the trial court erred in failing to grant their partial motion for summary

judgment and award those damages. But entitlement to all out of pocket losses if Bodum prevailed

on their own claim for breach falls far short of an argument contending the amount of the refund

paid by JCP created a genuine issue of material fact regarding JCP’s alleged breach. See, e.g.,

Dallas Cty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 56 (Tex. App.—Dallas 2012, pet.

denied) (differentiating between argument regarding error in admitting evidence and omitted

argument challenging evidence as legally insufficient).

        As an argument not raised below and not raised in this Court until Bodum’s reply brief,

we decline to find a fact issue regarding Bodum’s entitlement to a refund exceeding the amount

paid by JCP. TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by written

motion, answer or other response shall not be considered on appeal as grounds for reversal.”);

Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 803 (Tex. App.—Dallas 2013,

no pet.) (declining to consider argument raised for the first time in a reply brief, which was “wholly

different” from arguments raised in opening brief). We overrule Bodum’s second issue.

        4. Bodum’s breach claim premised on conduct other than early termination also
           fails.

        In addition to pleading that JCP breached the Shops Agreement by terminating during the

four-year term, Bodum asserted JCP breached in numerous other ways. In their opening brief,

Bodum presents arguments only with respect to four of those alleged wrongful acts or omissions:

(1) failing to purchase merchandise for the shops; (2) failing to continue selling Bodum and O&R

merchandise on-line; (3) failing to open 683 shops; and (4) failing to launch any shops in March

2013.



                                                 11
         JCP attacked the breach claims premised on these issues in several ways. It asserted a

breach claim premised on the first two omissions was foreclosed by JCP’s entitlement to terminate

the Shops Agreement, which necessarily also terminated all continuing performance obligations.

We agree. Any continuing obligation to purchase or sell merchandise was governed not only by

the predicate viability of the Shops Agreement, but also by the provision of the TPA which allowed

JCP to purchase and sell Bodum merchandise but did not obligate it to do so.

         In its no-evidence motion, JCP also argued Bodum lacked evidence supporting three of

the four elements of its breach claim, including resulting damages.7 Although Bodum argues JCP’s

breach with respect to early termination caused damages, it fails to assert that failing to open all

683 shops or launch in March 2013 caused either Bodum entity specific damages.8 We decline to

scour the summary judgment record for arguments and evidence by Bodum in support of these

arguments. See De La Cruz, 526 S.W.3d at 595 (nonmovant responding to no-evidence summary

judgment motion must “do more than itemize the evidence and then, in a section totally separate

from the recitation of the evidence, offer general conclusions that the above evidence conclusively

establishes each element of the plaintiff’s claims.”); Crestview Corners Car Wash, 370 S.W.3d at

57 (appellate court may not consider issues absent from appellate briefing which are waived by

their omission). We conclude the trial court correctly granted summary judgment in favor of JCP

on Bodum’s breach of contract claim, including breaches premised on acts or omissions other than

early termination. We therefore affirm judgment in favor of JCP with respect to Bodum’s breach

of contract claims and overrule Bodum’s third issue.



7
 Bodum raised no objection or argument regarding whether JCP had complied with rule 166a(i) in stating the elements
of each claim challenged in the no-evidence motion.
8
 Bodum alleges it incurred costs for air freight necessary to have the merchandise on hand for the March 2013 opening.
It fails, however, to provide any evidence as to which Bodum entity sustained those damages, provide any evidence
that the same costs would not have been incurred for the April launch, or even demonstrate that the late launch was
caused by JCP.
                                                         12
B.       Summary judgment was properly granted on the remainder of Bodum’s claims.

         JCP also requested and obtained summary judgment dismissing Bodum’s promissory

estoppel, breach of the implied covenant of good faith and fair dealing, and declaratory judgment

claims, as well as all claims asserted by Bodum AG. We conclude judgment on these claims was

also correct.9

         1. The Shops Agreement bars the promissory estoppel claim

         JCP argued numerous grounds for dismissing Bodum’s promissory estoppel claim. We rely

on one, which we find sufficient to support the trial court’s decision and thus renders consideration

of the remaining arguments unnecessary.

         Bodum contends JCP made various promises “outside of” the Shops Agreement, the breach

of which Bodum alleges caused it damages. Specifically, Bodum contends JCP promised it would:

(1) advertise Bodum and O&R branded products in print advertising and on the internet; (2) create

a “360-degree advertising campaign” that would feature Bodum, including monthly promotions

featuring Bodum, with additional advertising in magazine inserts, TV, giveaways and holiday

promotions; (3) advertisements regarding Bodum shops were part of JCP’s reinvention, about

which Bodum expected JCP to make a “big splash”; (4) the shops’ design would follow model

shops; and (5) the shops would be installed in “high-traffic” locations.

         JCP counters that each of the promises on which Bodum relies for their estoppel claim

relates to the subject matter of either the TPA or the Shops Agreement. The TPA governed JCP’s

obligations to purchase Bodum and O&R products, while the Shops Agreement outlined the

parties’ agreement regarding installation, opening, merchandise content, and JCP’s agreement to

invest in creation of a “Bodum ‘brand experience on jcp.com.’”


9
 Bodum does not challenge JCP’s judgment regarding its declaratory judgment claim. Any complaint regarding
dismissal of that claim, which we would find mooted by judgment in favor of JCP regarding its entitlement to terminate
the Shops Agreement, is thus waived. Crestview Corners Car Wash, 370 S.W.3d at 56.
                                                         13
       As a matter of law, a promissory-estoppel claim lacks viability in the face of a written

contract encompassing the same subject. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684

(Tex. 2000) (“Generally speaking, when a valid, express contract covers the subject matter of the

parties’ dispute, there can be no recovery under a quasi-contract theory”); Lake v. Cravens, 488

S.W.3d 867, 907 (Tex. App.—Fort Worth 2016, no pet.) (“Promissory estoppel and unjust

enrichment are equitable remedies that are unavailable when an express contract covers the subject

matter of the dispute.”). Promises regarding the installation and design of the shops, the

merchandise included, and the manner and location of its display fall squarely within the terms of

the Shops Agreement.

       Likewise, we find the scope of the Shops Agreement sufficiently broad to encompass the

promises regarding advertising on which Bodum also relies for their promissory estoppel claim.

While neither contract provides express terms regarding advertising, the Shops Agreement

addresses JCP’s promise to create a “Bodum ‘brand experience on jcp.com’” and the TPA, which

remained in full force and effect and into which the Shops Agreement was incorporated as an

ancillary agreement, provided that it governed “all purchase and sale transactions” between the

parties. The TPA thus encompassed the entirety of the parties’ commercial transactions, including

advertising or a lack thereof. See Fortune Prod. Co., 52 S.W.3d at 684 (absence of contractual

reference to “field liquids” in pricing formula did not exclude such liquids from the scope of the

parties’ contract, where the contract “governs the parties’ respective rights and obligations with

regard to the entire stream of gas”); Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 470 S.W.3d

636, 656 (Tex. App.—Dallas 2015, no pet.) (promissory estoppel doctrine presumes no contract

exists). The omission of specific references to advertising in no way diminishes the parties’

expressed intent that the TPA and the Shops Agreement govern all aspects of their commercial

relationship, including advertising —a natural component of a commercial relationship between a

                                                14
retailer and a supplier. Accordingly, as a matter of law, the Shops Agreement and the TPA bar

Bodum’s claim for promissory estoppel. We overrule Bodum’s fourth issue.

         2. Bodum failed to raise a genuine issue of material fact regarding their breach of
            the implied covenant of good faith and fair dealing.

         In its no-evidence motion for summary judgment, JCP attacked every element of Bodum’s

breach of the implied covenant of good faith and fair dealing claim. On appeal as in the trial court,

Bodum was required to provide evidence creating a fact issue as to each element. De La Cruz, 526

S.W.3d at 595. In this court, Bodum argues only that the trial court overlooked evidence of a

special relationship necessary to create an implied duty10 of good faith and fair dealing, but does

not argue or direct us to evidence supporting any of the remaining elements of their claim, such as

damages. “To impose an informal fiduciary duty in a business transaction, the special relationship

of trust and confidence must exist prior to, and apart from, the agreement made the basis of the

suit.” Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex. 2005) (quoting Associated Indem. Corp. v.


10
  We observe that Texas does not recognize a common law contract claim premised on breach of the implied covenant
of good faith and fair dealing. Arnold v. Nat’l Cty. Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987), holding
modified on other grounds by Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990) (“While this court has
declined to impose an implied covenant of good faith and fair dealing in every contract, we have recognized that a
duty of good faith and fair dealing may arise as a result of a special relationship between the parties governed or
created by a contract”) (emphasis added); Godfrey v. Sec. Serv. Fed. Credit Union, 356 S.W.3d 720, 726–27 (Tex.
App.—El Paso 2011, no pet.) (“Texas does not recognize an implied covenant of good faith and fair dealing.”). While
breach of the duty of good faith and fair dealing creates a tort where a special relationship gives rise to the duty, Texas
recognizes such a duty only in very narrow circumstances that do not encompass a bare commercial relationship. See
Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 596 (Tex. 1992), superseded by statute
on other grounds as stated in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex.2002)
(refusing to find fiduciary duty in franchise relationship); Tatum v. Nationsbank of Texas, N.A., No. 05-94-01998-CV,
1995 WL 437413, at *4 (Tex. App.—Dallas July 25, 1995, writ denied) (mem. op.) (recognizing that although
“special relationships” exist between insurers and insureds, principals and agents, joint venturers, and partners, no
such relationship exists in ordinary commercial contract between lender and borrower); Central Sav. & Loan Ass’n v.
Stemmons Nw. Bank, N.A., 848 S.W.2d 232, 239 (Tex. App.—Dallas 1992, no pet.) (The “special relationship” cause
of action in tort for breach of the duty of good faith and fair dealing does not extend to ordinary commercial
contractual relationships); Adolph Coors v. Rodriguez, 780 S.W.2d 477, 480 (Tex. App.—Corpus Christi-Edinburg
1989, writ denied) (refusing to recognize special relationship between supplier and distributor).




                                                           15
CAT Contracting, Inc., 964 S.W.2d 276, 288 (Tex. 1998)). Bodum's evidence consisted of issues

arising pursuant to the Shops Agreement rather than prior to it, and they do not suggest the TPA

was a sufficient pre-existing and independent basis for such a relationship. No evidence of such a

preexisting relationship was presented. And even if Bodum had provided some basis to disregard

the TPA’s express declaration that each party was an independent contractor and nothing more, an

issue Bodum does not address, we would nonetheless affirm summary judgment on the claim based

on Bodum’s failure to raise a genuine issue of material fact with respect to each element of this

claim. Lowe v. Townview Watersong, L.L.C., 155 S.W.3d 445, 447 (Tex. App.—Dallas 2004, no

pet.) (“Because summary judgment may have been granted on the unchallenged no-evidence

grounds, we must affirm the trial court’s summary judgment.”). We overrule Bodum’s fifth issue.

       3. Bodum AG failed to raise a genuine issue of material fact regarding dismissal of
          the claims it asserted.

       Bodum AG joined in every claim asserted by Bodum USA, and in the alternative to the

breach of contract claim asserted jointly with Bodum USA, asserted an identical claim premised

on its contention that Bodum AG was a third-party beneficiary of both the Shops Agreement and

the TPA. The claim asserted only by Bodum AG relies on the same facts and contractual

interpretation as the breach claim asserted jointly, and thus fails on the same grounds described

above. Moreover, even assuming Bodum AG qualified as a third-party beneficiary, a question we

need not decide, in both the trial court and this court, Bodum AG, as an entity distinct from Bodum

USA, failed to identify facts demonstrating a genuine issue of material fact regarding each element

of its claims, for instance the damages Bodum AG sustained. De La Cruz, 526 S.W.3d at 594

(nonmovant responding to no evidence summary judgment was “required to bring forth evidence

of more than just the existence of damages but that the injury was caused by the alleged wrongful

conduct”); see also Valero S. Texas Processing Co. v. Starr Cty. Appraisal Dist., 954 S.W.2d 863,

866 (Tex. App.—San Antonio 1997, pet. denied) (“[F]or the purpose of legal proceedings,
                                                16
subsidiary corporations and parent corporations are separate and distinct “persons” as a matter of

law”). Because JCP’s no evidence motion challenged every element of Bodum AG’s third-party

beneficiary breach claim and Bodum AG failed to demonstrate a genuine issue of fact regarding

each element of the claim, see MaximusAlliance Partners, LLC v. Faber, No. 05-13-01688-CV,

2015 WL 707033, at *8 (Tex. App.—Dallas Feb. 17, 2015, no pet.) (mem. op.) (where no-evidence

motion for summary judgment challenges all elements of a claim, nonmovant was required to

identify “more than a scintilla of probative evidence concerning each element”), we affirm the trial

court’s summary judgment in favor of JCP regarding Bodum AG’s breach claim premised on

Bodum AG’s alleged status as a third-party beneficiary. We overrule Bodum’s sixth issue.

C.      Bodum fails to argue how any overruled evidentiary objection was an abuse of
        discretion or likely caused the rendition of an improper judgment.

        In response to JCP’s motions for summary judgment, Bodum also objected to various

deposition excerpts submitted by JCP in support of their traditional motion for summary

judgment.11 The trial court overruled each objection. On appeal, Bodum omits any argument as

to how the trial court abused its discretion in admitting any evidence, and moreover, fails to argue

that the admission of any of the challenged evidence probably caused the rendition of an improper

judgment. Because Bodum failed to carry their burden with respect to any potential error regarding

JCP’s evidence, we decline to examine admission of the challenged evidence for an abuse of

discretion. TEX. R. APP. P. 44.1; see also KMS Retail Rowlett, L.P. v. City of Rowlett, 559 S.W.3d

192, 197-198 n.5 (Tex. App.—Dallas 2017), aff’d, 2019 WL 2147205 (Tex. May 17, 2019)

(declining to address the merits of evidentiary objections to summary judgment evidence where

appellant failed to allege the evidence probably resulted in the rendition of an improper judgment);

see also Kasper v. Meadowwood Ranch Estates, Inc. Prop. Owners Ass'n, No. 05-07-00982-CV,


11
  Bodum objected to the various excerpts asserting each was inadmissible as hearsay, a conclusion, an impermissible
legal opinion, speculation, or, lacked relevance.
                                                        17
2008 WL 3579379, at *2 (Tex. App.—Dallas Aug. 15, 2008, no pet.) (mem. op.) (affirming

judgment because appellants inadequately briefed their challenge to one independent basis). We

overrule Bodum’s seventh and final issue.

        Finding no error in the trial court’s judgment in favor of JCP on each claim asserted by

Bodum USA and Bodum AG, we accordingly affirm.12


                                                    /s/ Michael O’Neill
                                                    MICHAEL O’NEILL, JUSTICE




180813f.p05




12
  In affirming judgment in favor of JCP, we necessarily dispose of all issues regarding Bodum’s motion for partial
summary judgment, a motion which was never set for hearing nor ruled upon.
                                                       18
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 BODUM USA, INC. AND BODUM                          On Appeal from the 199th Judicial District
 HOLDING AG, Appellant                              Court, Collin County, Texas
                                                    Trial Court Cause No. 199-04943-2013.
 No. 05-18-00813-CV          V.                     Opinion delivered by Justice O’Neill. Chief
                                                    Justice Burns and Justice Rosenberg
 J.C. PENNEY CORPORATION, INC.,                     participating.
 Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 23rd day of October 2019.




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