                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00123-CV


JOHN HAWKINS                                                       APPELLANT

V.

ANGELA MYERS                                                         APPELLEE


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         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. 2012-20790-158

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                       MEMORANDUM OPINION1

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                                  I. Introduction

     In four issues, Appellant John Hawkins asserts that the trial court erred by

granting summary judgment to Appellee Angela Myers, denying Hawkins’s

summary judgment, entering sanctions against Hawkins, and denying Hawkins’s



     1
      See Tex. R. App. P. 47.4.
motion for new trial. We affirm the trial court’s summary judgment and vacate the

order of sanctions.

                                 II. Background

      Myers owns a company called Axis Meeting Group, LLC, which performs

event planning. One of Myers’s largest clients is Yum! Restaurants International

(YRI). Until 2009, Myers also worked for Fusion Performance Marketing. In late

2009, Myers left Fusion; around the same time, Frito-Lay’s event planner passed

away—leaving a vacancy at the company.

      Paul Zmigrosky, the senior vice president of procurement for PepsiCo

Worldwide at the time, was a friend of Hawkins. Hawkins told Zmigrosky about

Myers, who he had known for over twenty years and worked with in the past, and

indicated that she would be a perfect fit for the position at Frito-Lay.2 The two

began to exchange emails concerning Myers in September 2009.            In early

October, Zmigrosky confirmed that he had received approval to hire Myers and

that an offer should be forthcoming within twenty-four hours.     Hawkins then

forwarded this email to Myers.




      2
       Frito-Lay is a wholly owned subsidiary of PepsiCo.

                                       2
      Myers and Hawkins then began to exchange emails discussing the hiring

process,3 the details of the Frito-Lay job offer,4 and Myers’s continued work with

YRI.5 Hawkins asserts that he and Myers agreed to split the proceeds from a

2011 YRI event in exchange for Hawkins’s helping Myers get an interview with

Frito-Lay and negotiating her salary, bonuses, signing bonuses, start date, and

permission to be able to operate the YRI program in 2011 and going forward.

      Myers accepted an offer from Frito-Lay at the end of October 2009 that

allowed her to continue her work with YRI. After Myers began working for Frito-

Lay, Hawkins continued to email her about their “agreement,” inquiring as to

when he could expect to receive payment.         Myers responded a few times,

indicating that the final billing had not been completed and that she would send

money to Hawkins once everything was completed.

      In 2011, Hawkins hired counsel, who sent a demand letter to Myers.

Myers responded by emailing Hawkins’s counsel asserting that there was no

agreement between herself and Hawkins and that any money she would have



      3
       In early October, Myers expressed concern about the length of time it was
taking to finalize the offer. Hawkins indicated that he had talked with Zmigrosky
and that everything was still on track.
      4
       Myers received an offer from Frito-Lay that was below what she was
expecting; she and Hawkins discussed the possibility of a counteroffer.
      5
       In an October 11 email, Hawkins gave his “thoughts” regarding Myers’s
continued work with YRI, advising her to insist on being “paid [her] salary for the
next 6 months [so it would be] . . . a win win for [her] also.”

                                        3
given Hawkins “would have been a ‘gesture of kindness’ nothing else.” Hawkins

ultimately sued Myers for breach of contract.

      After filing suit, Hawkins issued a notice of deposition by written questions

and subpoena to Myers’s client, YRI.        Attached to these questions was a

document that contained alleged misstatements of fact and allegations of fraud

that Myers allegedly committed upon YRI.         Following the receipt of these

documents, Myers filed a “Defendant’s Motion to Quash the Notice for Deposition

on Written Questions and Motion for Emergency Protective Order” and attached

to this motion the document containing the alleged allegations of fraud she was

seeking to quash. The trial court granted the motion and quashed the subpoena.

      Myers then filed a motion for Rule 13 sanctions. In this motion, Myers also

asked for sanctions under Rule 215. Attached to the motion was the subpoena

and deposition on written questions issued to YRI. Myers also attached her

affidavit setting forth the misstatements of fact contained in the subpoena and the

alleged irreversible harm this subpoena would cause if served on YRI. After a

hearing, the trial court granted the motion and awarded sanctions. The court

found that Hawkins had violated Rule 215.3 and awarded Myers “$5,000.00 as

reasonable and necessary attorney’s fees pursuant to Tex. R. Civ. P. 215.3.”

      In August 2013, Hawkins filed a traditional motion for summary judgment.

Myers responded and then filed her own motion for partial summary judgment.

Hawkins responded to Myers’s summary judgment motion and objected to her

supporting evidence. On October 31, 2013, after hearing the parties’ motions on

                                        4
October 28, 2013, the trial court signed an order granting Myers’s motion and

denying Hawkins’s motion without specifying on what grounds.             The court

overruled Hawkins’s objections to Myers’s summary judgment evidence.

      Hawkins and Myers each later dismissed all other claims so that the

summary judgment order could become final and appealable. Hawkins filed a

motion for new trial, which was overruled by operation of law.

                             III. Standard of Review

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

      The summary judgment will be affirmed only if the record establishes that

the movant has conclusively proved all essential elements of the movant’s cause

of action or defense as a matter of law. City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex. 1979). Once the defendant produces sufficient

evidence to establish the right to summary judgment, the burden shifts to the

plaintiff to come forward with competent controverting evidence that raises a fact

issue. Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999).

      A defendant is entitled to summary judgment on an affirmative defense if the

defendant conclusively proves all the elements of the affirmative defense. Chau v.

                                         5
Riddle, 254 S.W.3d 453, 455 (Tex. 2008); see Tex. R. Civ. P. 166a(b), (c). To

accomplish this, the defendant-movant must present summary judgment evidence

that establishes each element of the affirmative defense as a matter of law. Chau,

254 S.W.3d at 455; Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).

         When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented.                Mann

Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,

300 S.W.3d 746, 753 (Tex. 2009).           The reviewing court should render the

judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d

at 848.

                                    IV. Discussion

A. Summary Judgment

         In his first and second issues, Hawkins asserts that the trial court erred in

granting Myers’s motion for summary judgment and denying his motion for

summary judgment because the parties formed a valid contract and because the

statute of frauds is inapplicable. In part of his fourth issue, he argues that the

trial court abused its discretion by denying his motion for new trial on the same

basis.

         Before a plaintiff can prove a breach of contract, an enforceable contract

must exist. Coleman v. Reich, 417 S.W.3d 488, 491 (Tex. App.—Houston [14th

Dist.] 2013, no pet.). The plaintiff must prove that there was (1) an offer, (2) an

                                           6
acceptance, (3) a meeting of the minds, (4) consent to the terms of the contract

by each party, (5) execution and delivery of the contract with the intent by both

parties that it become mutual and binding on each, and (6) consideration.6 Id.;

Hubbard, 138 S.W.3d at 481.

      One of the most fundamental elements of an enforceable contract is

consideration.   Hubbard, 138 S.W.3d at 481.      In order for a contract to be

enforceable, it must be based on valid consideration.          Consideration is

“[s]omething (such as an act, a forbearance, or a return promise) bargained for

and received by a promisor from a promisee.” Black’s Law Dictionary 347 (9th

ed. 2009) (emphasis added). It is a contemporaneous exchange between parties

that serves as an inducement by which the parties are moved to bind themselves

to an agreement. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496

(Tex. 1991) (noting that “consideration is a present exchange bargained for in

return for a promise”) (emphasis added). In other words, there must be some

kind of quid pro quo between the parties. See Iacono v. Lyons, 16 S.W.3d 92, 94

(Tex. App.—Houston [1st Dist.] 2000, no pet.) (noting that consideration is a

bargained-for exchange of promises).

      Consideration can be in the form of performance. See Tex. Bus. & Com.

Code Ann. § 3.303(1) (West 2002) (“An instrument is issued or transferred for


      6
       The elements of a written contract and an oral contract are the same and
must be present in order for it to be binding. Hubbard v. Shankle, 138 S.W.3d
474, 481 (Tex. App.—Fort Worth 2004, pet. denied).

                                       7
value if . . . the instrument is issued or transferred for a promise of performance,

to the extent the promise has been performed.”); see also Restatement (Second)

of Contracts § 71 (1981) (explaining the types of exchange that constitute

consideration, including performance).       However, that performance must be

bargained-for. See TCA Bldg. Co. v. Entech, Inc., 86 S.W.3d 667, 672 (Tex.

App.—Austin 2002, no pet.) (noting that “it is essential . . . that the consideration

be bargained for”).     A promise given after performance has already been

completed is not valid consideration. See Alex Sheshunoff Mgmt. Servs., L.P. v.

Johnson, 209 S.W.3d 644, 660 (Tex. 2006) (noting that past consideration is not

consideration); see also Cent. Tex. Micrographics v. Leal, 908 S.W.2d 292, 296

(Tex. App.—San Antonio 1995, no writ) (holding that an employer’s promise to

take an employee on a trip for a job well done was “nothing more than a

gratuitous promise unsupported by consideration”).

      Here, Hawkins asserts that the evidence supporting his breach of contract

claim is uncontroverted; however it is Hawkins’s deposition that provides

evidence that his performance was not sufficient to establish valid consideration.

Hawkins’s testimony indicates that the offer of money made by Myers was in

response to the help Hawkins gave her in trying to obtain the job with Frito-Lay.

Hawkins stated in his deposition that he “got [Myers’s] permission from Frito-Lay

to allow her to be able to take the job at Frito-Lay and still do the program for YRI

and—for another corporation in 2011 . . . . [and] those were [Hawkins’s]

obligations that put [him] in the spot where [Myers] made the offer, and [Hawkins]

                                         8
accepted.” Moreover, the email referenced by Hawkins that he asserts is proof

of an agreement between the parties is only further evidence of the offer coming

after the promise by Hawkins to help Myers get the job:

      October 15, 2009
      Myers:      I spoke with Donna Defferding yesterday about the
      position . . . she thought I would hear from HR yesterday or this
      morning at the very latest . . . but still not a peep. I’m not worried
      about the offer . . . what I am worried about is if this is typical of what
      it takes to get something done in their corporation its [sic] certainly
      not impressive.

      October 16, 2009
      Hawkins: Thanks for keeping me in the loop on what is going on.
      The real issue behind that is there is a hiring freeze in place. . . . You
      mention[ed] to me how I would be your partner in 2011 on YRI? I
      accept if you really meant it.

      Myers: . . . And yes on YRI 2011 . . . since you brokered the
      arrangement with FL. [emphasis added]

      According to the record, Hawkins began communications with Frito-Lay

concerning a job for Myers in September 2009 with approval for the job coming

October 12, 2009. Myers’s and Hawkins’s emails concerning the Frito-Lay job

and even YRI never mentioned an agreement to split any money. It was not until

October 15, 2009, when the above exchange took place, that there was any

mention of an agreement. By this point Hawkins had already been in the midst of

performing the “obligations” he asserts were the basis for the contract with

Myers. As such, according to Hawkins’s testimony, his performance was not a




                                          9
bargained-for exchange and thus was not sufficient to form the basis of a valid

and enforceable contract.7

      Because Hawkins did not establish sufficient consideration in order to form

a valid contract, we overrule Hawkins’s first issue and the part of his fourth issue

that pertains to this argument.8

B. Sanctions

      In his third issue, Hawkins argues that the trial court abused its discretion

by ordering sanctions “under Tex. R. Civ. P. 215.3 without a motion for such

relief, without an evidentiary hearing, without the admission of any exhibits,



      7
        Hawkins argues that under Rule 54 his performance is established as a
matter of law. See Tex. R. Civ. P. 54 (providing that a plaintiff’s assertion that all
conditions precedent have occurred is sufficient to overcome a defendant’s
general denial, and unless specifically denied by the defendant, the plaintiff does
not have to prove the satisfaction of such conditions). In his First Amended
Petition, Hawkins pled that all conditions precedent occurred. In response,
Myers generally denied all claims and then made several further specific denials.
Among those denials, Myers included the following: “Plaintiff’s claims are barred,
in whole or in part, because the alleged contract lacked the essential element of
consideration for [sic] form a legally binding contract upon Defendant.” This
statement specifically denies one of the foundational elements of a valid
contract—consideration. As such, the burden of proof then shifted to Hawkins to
prove that he had indeed performed in a manner that was sufficient to form a
legally binding contract (and, in the alternative, remove the claim out of the
statute of frauds) and thus avoid summary judgment. See “Moore” Burger, Inc. v.
Phillips Petroleum Co., 492 S.W.2d 934, 936–37 (Tex. 1972) (holding that in
order to avoid summary judgment against the plaintiff, plaintiff had the burden to
raise a fact issue concerning its defense to the statute of frauds).
      8
       Because we overrule Hawkins’s first issue on the basis of an invalid
contract, we do not consider his second issue as to the statute of frauds. See
Tex. R. App. P. 47.1.

                                         10
without any evidence of any wrongdoing, without taking judicial notice of any

matter, and without any evidence of attorneys’ fees.”

       We review a trial court's ruling on a motion for sanctions for abuse of

discretion. Humphreys v. Meadows, 938 S.W.2d 750, 751–52 (Tex. App.—Fort

Worth 1996, writ denied). A trial court abuses its discretion if it acts without

reference to any guiding rules and principles to the extent the act was arbitrary or

unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). We review the entire

record to determine whether the imposition of sanctions constitutes an abuse of

discretion. Law Offices of Windle Turley, P.C., 164 S.W.3d 487, 490–91 (Tex.

App.—Dallas 2005, no pet.). We may not substitute our judgment for that of the

trial court. Id. at 491.

       When a trial court finds a party has abused the discovery process, the

court is authorized to impose a sanction that is just under the circumstances.

Tex. R. Civ. P. 215.3. When determining whether a sanction is just, a court first

considers whether there is a reasonable relationship between the abusive

conduct and the sanction imposed. TransAm. Natural Gas Corp. v. Powell, 811

S.W.2d 913, 917 (Tex. 1991) (stating that “the sanctions the trial court imposes

must relate directly to the abuse found”); Hanley v. Hanley, 813 S.W.2d 511, 523

(Tex. App.—Dallas 1991, no writ) (holding that an award of attorney’s fees in

excess of what is reasonable and not related to harm suffered as a result of

discovery abuse is unjust and not authorized by rule 215).        Second, a court

                                        11
considers whether the sanction is excessive. TransAm. Natural Gas Corp., 811

S.W.2d at 917; Hanley, 813 S.W.2d at 522–23.

      A sanctions order that awards the moving party attorney’s fees is unjust if

the record is void of any evidence as to the amount of attorney’s fees reasonably

incurred as a result of the allegedly violative conduct. See Estrello v. Eloboar,

965 S.W.2d 754, 759 (Tex. App.—Fort Worth 1998, no pet.) (stating the general

rule that a party seeking attorney’s fees must put on evidence of such fees); see

also Werley v. Cannon, 344 S.W.3d 527, 532 (Tex. App.—El Paso 2011, no pet.)

(same).

      The record contains no such evidence here.         Myers’s counsel had an

opportunity at the hearing to offer evidence of attorney’s fees and court costs but

did not.   Although both parties’ counsel discussed attorney’s fees at the

sanctions hearing, Myers’s counsel did not submit an affidavit or testify regarding

the reasonableness, necessity, or amount of the fees.9 Likewise, there is no

other evidence in the record that would allow this court to determine what the trial

court based the fees award on, if there was a reasonable relationship between

the conduct and sanction imposed, or whether the sanction was excessive. See

In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998) (stating the factors to

consider when determining whether the sanctions a trial court imposes are just:


      9
       While Myers’s counsel tendered an exhibit to the court containing
information regarding his attorney’s fees and swore to its contents, it was never
offered or filed with the clerk and thus is not part of the record.

                                        12
(1) a direct relationship between the offensive conduct and the sanction and

(2) excessiveness). Therefore, the trial court abused its discretion by awarding

$5,000 in attorney’s fees as a sanction. See Estrello, 965 S.W.2d at 759 (holding

that a party seeking attorney’s fees must put on evidence of such fees).

      We sustain Hawkins’s third issue.10

                                     V. Conclusion

      Having overruled Hawkins’s first and part of his fourth issue, and having

determined we need not address his second, we affirm the trial court’s order

granting Myers’s partial summary judgment motion and denying Hawkins’s

summary judgment motion. Having sustained Hawkins’s third issue, we vacate

the trial court’s sanctions order.




                                                     /s/ Bob McCoy

                                                     BOB MCCOY
                                                     JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: December 31, 2014




      10
       We need not address the remainder of Hawkins’s arguments regarding
the sanctions award. See Tex. R. App. P. 47.1.

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