                                   NO. 12-18-00344-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 THOMAS OILFIELD SERVICES,                         §      APPEAL FROM THE 97TH
 LLC/CROSS-APPELLEE,
 APPELLANT

 V.                                                §      JUDICIAL DISTRICT COURT

 ALBERT CLARK/CROSS-
 APPELLANT,
 APPELLEE                                          §      MONTAGUE COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Thomas Oilfield Services, L.L.C. (TOS) appeals the judgment in favor of Albert Clark. In
eight issues, it challenges the sufficiency of the evidence supporting the judgment. In a single
issue on cross appeal, Clark urges the trial court erred in denying his claim for attorney’s fees. We
reverse and render.


                                          BACKGROUND
       Clark was employed by TOS in May 2015. His duties included overseeing TOS’s
production operations crews. Clark claims that he suffered heat stroke while working for TOS in
July 2015, which lead to the onset of seizures. Clark contacted an attorney to pursue filing a
workers’ compensation incident report. Shortly thereafter, according to Clark, TOS terminated
his employment.
       Clark sued TOS for (1) breaching his employment contract, and (2) violating the Texas
Labor Code by retaliating against him for retaining counsel to pursue a workers’ compensation
claim. Clark later moved for summary judgment, claiming entitlement to judgment as a matter of
law on both his breach of contract and retaliatory discharge claims. TOS responded to the motion.
Clark filed a reply to TOS’s response and objected to TOS’s summary judgment evidence.
Following a hearing, the trial court sustained Clark’s objections to TOS’s evidence and granted
summary judgment for Clark. TOS appealed to this Court and we held that the summary judgment
was improper and fact issues existed on both Clark’s breach of contract and retaliatory discharge
claims. 1 Accordingly, we reversed and remanded to the trial court.
        On remand, Clark amended his petition to include a claim for promissory estoppel. TOS
filed a motion for summary judgment, which the trial court granted in part. The trial court ordered
that Clark could not recover attorney’s fees with respect to his breach of contract and promissory
estoppel claims.
        Subsequently, following presentation of evidence during a jury trial, TOS moved for a
directed verdict on all of Clark’s claims. The trial court granted TOS’s motion with respect to the
malice portion of Clark’s retaliatory discharge claim. The remaining claims were submitted to the
jury. The jury found that (1) no employment contract existed between Clark and TOS, and (2)
TOS did not retaliate against Clark for filing a worker’s compensation claim or hiring an attorney.
However, the jury found in favor of Clark on his promissory estoppel claim and awarded
$81,425.43 in damages to Clark.
        The trial court entered judgment in accordance with the jury’s verdict. TOS filed a motion
to disregard the jury’s findings on the promissory estoppel claims. Following a hearing, the trial
court denied the motion but reduced the amount of prejudgment interest. This appeal and cross
appeal followed.


                                   SUFFICIENCY OF THE EVIDENCE
        In its eight issues, TOS challenges the legal sufficiency of the evidence supporting the
jury’s verdict and the trial court’s judgment. The first and second issues contend the evidence is
legally insufficient to support the damages award for promissory estoppel. Issues three, four, five,
six, seven, and eight urge the evidence is legally insufficient to support the elements of promissory
estoppel. Because they are dispositive, we address issues one and two first.
Standard of Review
        A party who challenges the legal sufficiency of the evidence to support an issue upon
which it did not have the burden of proof at trial must demonstrate on appeal that there is no


        1
          Thomas Oilfield Servs, L.L.C.. v. Clark, No. 12-16-00207-CV, 2017 WL 2265683 (Tex. App.—Tyler May
24, 2017, no pet.) (mem. op.).


                                                    2
evidence to support the adverse finding. G.D. Holdings, Inc. v. H.D.H. Land & Timber, L.P., 407
S.W.3d 856, 860 (Tex. App.—Tyler 2013, no pet.). When reviewing a no evidence issue, we
determine whether the evidence at trial would enable reasonable and fair-minded people to reach
the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making
this determination, we must credit favorable evidence if a reasonable finder of fact could and
disregard contrary evidence unless a reasonable finder of fact could not. Id. If there is any evidence
of probative force to support the finding, i.e., more than a scintilla, we will overrule the
issue. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005).
Applicable Law
        Promissory estoppel is a cause of action recognized in Texas that requires detrimental
reliance on the part of the promisee. See Garcia v. Lucero, 366 S.W.3d 275, 280 (Tex. App.—El
Paso 2012, no pet.). The elements of promissory estoppel are (1) a promise, (2) foreseeability of
reliance thereon, and (3) substantial reliance by the promisee to his detriment. Id.
        In an action for promissory estoppel, the plaintiff can recover only reliance damages. See
Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 734 (Tex. 1981); Wheeler v. White, 398 S.W.2d
93, 97 (Tex. 1965). The plaintiff is limited to the damages required to restore him to his former
position. Fretz Constr. Co. v. S. Nat’l Bank of Houston, 626 S.W.2d 478, 483 (Tex. 1981); Range
v. Calvary Christian Fellowship, 530 S.W.3d 818, 831 (Tex. App.—Houston [14th Dist.] 2017,
pet. denied). Reliance damages are similar to out-of-pocket damages and reimburse a plaintiff for
expenditures made in reliance on the promise. Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 149
(Tex. App.—Dallas 2012, no pet.); Mistletoe Express Serv. of Okla. City, Okla. v. Locke, 762
S.W.2d 637, 638-39 (Tex. App.—Texarkana 1988, no pet.).
Analysis
        TOS contends the evidence is legally insufficient to support the jury’s damages award on
Clark’s promissory estoppel claim because the evidence demonstrates that Clark had no out-of-
pocket expenditures and, as a result, no reliance damages.
        The evidence introduced at trial is undisputed. At trial, Clark urged that he relied on TOS’s
alleged promise of employment when he quit his job with an annual salary of $150,000. He
testified as follows:


        Q: All right. So let’s go down to the employment record at the bottom. This is where you tell who
        you were working for, correct?



                                                       3
       A: Yes, sir.
       Q: And it says reason for leaving: POS, correct?
       A: Yes, sir.
       Q: You could have put anything you wanted to write down there, correct?
       A: Yes, sir.
       Q: And you didn’t write that you were leaving because of a promise of employment by TOS, did
       you?
       A: No, sir.
       Q: Okay. And you wrote -- and you chose to write that down because you were leaving Tank One
       because it was a POS, correct?
       A: Yes.
       Q: Okay. Now, you left in May of 2015, correct?
       A: Correct.
       Q: And you immediately went to work for TOS?
       A: Yes, sir.
       Q: Did you spend any money out of your own pocket in conjunction with your move from Tank
       One to TOS?
       A: No, sir, I don’t believe so. I don’t understand the question.
       Q: So was there any money that you spent moving from Tank One to TOS out of your own pocket?
       A: No, sir.
       Q: No out-of-pocket expenditures in the move?
       A: No, sir.
       Q: You didn’t have to buy uniforms or anything?
       A: I never received uniforms.
       Q: Okay. So there was no money spent by you in reliance on the promise – you’re [sic] alleged
       promise of employment by TOS, correct?
       A: Correct.


No evidence of any expenditures made by Clark in reliance on TOS’s employment offer was
offered or admitted into evidence.
       Nevertheless, Clark urges that an award of the salary he abandoned by quitting his job and
beginning employment with TOS constitutes reliance damages. According to Clark, reliance
damages encompass such “foregone opportunities” and an award of reliance damages is the only
way to restore him to the position he would have been in had he not relied on TOS’s promise.
However, none of the cases cited by Clark mention any such “foregone opportunity” or support
his argument; to the contrary, legal authority makes clear that reliance damages are intended to
compensate a plaintiff for out-of-pocket expenditures made in reliance on a promise. See Quigley
v. Bennett, 227 S.W.3d 51, 56 (Tex. 2007) (“American law has traditionally recognized three
damage measures for breach of contract: expectancy, reliance, and restitution. Expectancy
damages award the benefit of a plaintiff’s bargain; reliance damages compensate for the plaintiff’s
out-of-pocket expenditures; restitution damages restore what the plaintiff has conferred on the
defendant.”); Bechtel Corp. v. CITGO Prods. Pipeline Co., 271 S.W.3d 898, 926 (Tex. App.—
Austin 2008, no pet.) (“Reliance damages, similar to out-of-pocket recovery, reimburse one for



                                                    4
expenditures made toward the execution of the contract in order to restore the status quo before
the contract.”); Frost Crushed Stone Co., Inc. v. Odell Geer Const. Co., Inc., 110 S.W.3d 41, 47
(Tex. App.—Waco 2002, no pet.). We decline to expand the definition of reliance damages to
encompass damages for foregone opportunities.
         As set forth above, the evidence at trial showed, and the jury found, that Clark chose to
leave his prior job to accept at-will employment at TOS. The evidence, particularly Clark’s own
testimony, further demonstrated that Clark had no out-of-pocket expenditures in making that
employment change.          Clark admitted that no such expenditures existed and did not offer any
evidence of such expenditures. Again, no evidence of reliance damages was introduced at trial.
Accordingly, the evidence at trial would not enable reasonable and fair-minded people to reach a
conclusion that Clark is entitled to reliance damages. See Wilson, 168 S.W.3d at 827. Viewing
the evidence in the light most favorable to the verdict, we conclude that the evidence is legally
insufficient to support the jury’s award of reliance damages. See id. at 824. Because the jury’s
award of reliance damages is not supported by legally sufficient evidence, we sustain TOS’s first
and second issues and need not address TOS’s remaining issues or Clark’s sole cross-issue. 2 See
TEX. R. APP. P. 47.1.


                                                  DISPOSITION
         Having sustained TOS’s first and second issues, we reverse the judgment of the trial court
and render a take nothing judgment in favor of TOS.

                                                                           BRIAN HOYLE
                                                                              Justice

Opinion delivered July 10, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)


         2
           In his cross-appeal, Clark urges that the trial court erred in granting summary judgment and barring him
from recovering attorney’s fees. Because we hold that Clark cannot recover on his promissory estoppel claim, he is
no longer a prevailing party and we need not address this issue. See TEX. R. APP. P. 47.1; TEX. CIV. PRAC. & REM.
CODE ANN. § 38.001 (West 2015); Doctors Hosp. 1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 636 (Tex.
App.—Houston [14th Dist.] 2004, pet. abated) (“Section 38.001’s most basic requirement is that the party seeking
attorney’s fees must first prevail on a valid contract claim.”).


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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                            JULY 10, 2019


                                        NO. 12-18-00344-CV


               THOMAS OILFIELD SERVICES, LLC/CROSS-APPELLEE,
                            Appellant/Cross-Appellee
                                       V.
                     ALBERT CLARK/CROSS-APPELLANT,
                            Appellee/Cross-Appellant


                                Appeal from the 97th District Court
                    of Montague County, Texas (Tr.Ct.No. 2015-0316M-CV)

                        THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that the judgment of
the trial court should be reversed and judgment rendered.
                        It is therefore ORDERED, ADJUDGED and DECREED by this court that
the judgment of the trial court in favor of Appellee/Cross-Appellant, ALBERT CLARK, be, and
the same is, hereby reversed and a take nothing judgment in favor of Appellant/Cross-Appellee,
THOMAS OILFIELD SERVICES, LLC is rendered. All costs in this cause expended in this
court be, and the same are, hereby adjudged against the Appellee/Cross-Appellant, ALBERT
CLARK, for which let execution issue; and that this decision be certified to the court below for
observance.
                     Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
