
Opinion issued May 22, 2008 














In The
Court of Appeals
For The
First District of Texas



NO. 01-07-00362-CV
__________

EDASCIO, L.L.C., Appellant

V.

NEXTIRAONE L.L.C., Appellee



On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2003-37301



O P I N I O N
	Appellant, Edascio, L.L.C. ("Edascio"), challenges the trial court's entry of a
judgment notwithstanding the verdict in favor of appellee, NextiraOne L.L.C.
("NextiraOne"), in Edascio's suit against NextiraOne for breach of contract.  In a
single issue, Edascio contends that the trial court erred in rendering the judgment
notwithstanding the verdict on the ground that "the profits that Edascio would have
earned under a sales outsourcing agreement, but for NextiraOne's breach of that very
agreement, were 'indirect, special, or consequential damages' and thus barred under
the limitation of liability clause in the contract."  In four cross-issues, NextiraOne
contends that the parol evidence rule barred evidence of a purported oral agreement
on which Edascio based its breach of contract claim, there was no evidence to support
the jury's damages award, the trial court impermissibly commented on the weight of
the evidence in question one of the jury charge, and the trial court erred in submitting
questions two and four of the jury charge.
	We conclude that the parol evidence rule barred the introduction of the
evidence on which Edascio based its breach of contract claim and on which the jury
awarded Edascio damages and, thus, that the trial court did not err in granting
NextiraOne judgment notwithstanding the verdict.   We therefore affirm the trial
court's second corrected final judgment ("final judgment") that Edascio take nothing
by its suit against NextiraOne.  
Factual and Procedural Background

	As alleged in its fourth amended counterclaim, Edascio entered into
negotiations to provide sales outsourcing services to NextiraOne, a provider of voice
and data telecommunication services.  NextiraOne allegedly represented that it would
assign to Edascio all of its customer accounts "having fewer than 200 telephone/data
ports" on an exclusive basis and that the commissions earned on sales to these
accounts would be sufficient to allow Edascio to make a profit.  On September 26,
2002, in reliance upon these representations, Edascio entered into a Sales Outsourcing
Agreement ("SOA") with NextiraOne.  
	Edascio asserted that NextiraOne breached the SOA by, among other things,
failing to assign all of its customer accounts with fewer than 200 ports, not assigning
Edascio any accounts until two months after the required date, and assigning "less
than half of the customer accounts" that NextiraOne represented it would assign.
	Edascio tried its breach of contract claim to a jury. (1)  The SOA, which was
introduced into evidence at trial, provided that NextiraOne "desire[d] to engage
Edascio to solicit orders for NextiraOne's products and services through an
outsourced sales force pursuant to the terms and conditions of the SOA."  During
trial, and on appeal, the parties focused on certain provisions of the SOA, which we
set forth below.
	In regard to the accounts that were to be serviced by Edascio pursuant to the
SOA, the SOA did not identify any specific accounts by name or category, but instead
the SOA generally provided,
	1.1	"Account(s)" or "Customers" shall mean those pre-existing
NextiraOne accounts or customers to which Edascio shall be
assigned or which Edascio shall procure pursuant to this
Agreement.  NextiraOne reserves the right to provide only such
Account information to Edascio that is directly related to
Customers assigned to Edascio in the Territory (as defined
below). 

	1.2	"Authorized Products and Services" shall mean those NextiraOne
products and services which NextiraOne grants Edascio the right
to market and sell to Accounts in the Territory (as defined below). 
The Authorized Products and Services shall include, but not be
limited to, the list of products and services attached to this
Agreement as Appendix 1.

	. . . . 

	1.15	"Territory" shall mean the NextiraOne Accounts indicated on the
attached Appendix 5.  The Territory shall not include any of the
NextiraOne customers, sites, locations, or those of their affiliates
and subsidiaries (the "Excluded Accounts") attached to this
Agreement as Appendix 5.  The Territory may be expanded or
reduced after the Effective Date by mutual agreement of the
parties.

(Emphasis added).
	Appendix 5, attached to the SOA, did not identify any specific customer
accounts and was largely blank.  Appendix 5 stated only, 
 Appendix 5
	Excluded Accounts

	The attached list of NextiraOne customers are excluded from
Edascio Territory.  Any branch, subsidiary or affiliated company
of any account on this list is also excluded from Edascio.   This
list will be updated quarterly to reflect new account additions.

No additional lists were attached to Appendix 5 or to the SOA.  However, as
discussed in more detail below, the parties agreed at trial that certain accounts were
in fact transferred electronically and assigned by NextiraOne to Edascio in December
2002, several months after the effective date of the SOA.  
	Paragraph 5.1 of the SOA required Edascio to "employ and retain Sales
Representatives to solicit and market the Authorized Products and Services in the
Territory."  More specifically, paragraph 5.2 required Edascio "to employ a minimum
of twelve (12) Sales Representatives within (90) days of the Effective Date" of the
SOA.  
	Section 9 of the SOA set forth detailed commission terms.  Paragraph 9.1
provided that "[a]s compensation for soliciting and procuring Orders pursuant to this
Agreement, NextiraOne shall pay Edascio a commission for the sale of Authorized
Products and Services."  Paragraph 9.2 provided that NextiraOne shall pay Edascio
a percentage of the pricing margin "for all sales of Authorized Products and Services
to Customers and Net New Customers in the Territory."
	Paragraph 15.3 of the SOA contained a limitation of liability clause, which
provided,
	15.3	Limitation of Liability.  IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE,
OR COMMISSIONS OR ANTICIPATED COMMISSIONS, OR
EXPENDITURES, INVESTMENTS, OR COMMITMENTS
MADE IN CONNECTION WITH THIS AGREEMENT, WHICH
ARISE OUT OF ANY ACTION, WHETHER SOUNDING IN
TORT OR IN CONTRACT, BECAUSE OF ANY
PERFORMANCE OR FAILURE TO PERFORM, ANY
OBLIGATION UNDER THIS AGREEMENT, OR FOR
TERMINATION OF THIS AGREEMENT FOR ANY REASON. 
This Section 15.3 shall survive termination of this Agreement for
any reason.

	Finally, Paragraphs 18.2 and 18.12 of the SOA provided,
	18.2	Agreement Prevails.  The terms and conditions of this Agreement
shall govern all transactions between the Parties and, to the extent
of any conflicts or inconsistencies between this Agreement and its
Exhibits, Appendices and Attachments, this Agreement shall
control.

	18.12	Entire Agreement.  This Agreement represents the entire
agreement between the parties and supersedes all prior written
and oral representations.  No amendment to this Agreement shall
be effective unless it is in writing, dated subsequent hereto, refers
explicitly to this Agreement and is signed on behalf of
NextiraOne and Edascio by their duly authorized representatives.
	The SOA did not expressly provide that NextiraOne was assigning all of its
customers with fewer than 200 ports to Edascio.  Rather, as stated in its pleadings,
Edascio's suit against NextiraOne was based on Edascio's contention that the SOA
"was not a fully integrated contract" as the SOA did "not address one of the most
important aspects of the deal--the identity of the customers that NextiraOne was
obligated to assign to Edascio."  Edascio asserted that it was "necessary to look
outside the [SOA] to determine which customers were subject to the [SOA], i.e., it
[was] necessary to refer to the parties' oral agreement, consistent with NextiraOne's
representations, that NextiraOne would promptly assign to Edascio all accounts for
customers having telecommunications systems with fewer than 200 ports." (2) 
	At trial, James Button, Edascio's owner, testified that he had previously been
employed as the Chief Operating Officer of TIC Enterprises, another sales
outsourcing business, and that NextiraOne had initially contacted TIC about
outsourcing its sales operations to TIC for its customers who had fewer than 200
ports.  In the course of its negotiations, NextiraOne represented that the total number
of these accounts to be assigned numbered approximately 45,000.  On April 26, 2002,
Button learned that TIC's parent company intended to sell TIC, and Button
immediately called NextiraOne's president, Rick Snyder, with whom Button had been
working on behalf of TIC regarding the proposed sales outsourcing agreement. 
Button informed Snyder that, although TIC might be sold, he intended to acquire the
assets of TIC, form a new company, and continue discussions with NextiraOne
regarding the proposed sales outsourcing agreement.  Button contended that, from
this point forward, he was negotiating on behalf of a newly formed business that he
would subsequently incorporate in September 2002 and name Edascio.   
	Button stated that at a meeting in May 2002, NextiraOne showed him a hard
copy of a list of "small and medium sized customers having fewer than 200 ports"
that NextiraOne intended to assign to Edascio. Button did not recall the number of
customers identified on this hard copy list, but he maintained that the volume "was
consistent with what we had been told before that meeting."  Button agreed that he
did not receive a copy of this list and that, to his knowledge, no one at Edascio had
ever seen that list again.  However, Button maintained that during the course of his
negotiations, Snyder had represented that NextiraOne would assign Edascio "all of
[its] customers with fewer than 200 ports," except for "major and national account
groups that [it] would put on Exhibit 5 [to the SOA] as exclusions to the electronic
data that they would give us."  Button stated that Edascio had relied on these
representations in planning its business operations.  
	Button further testified that, on September 20, 2002, Snyder sent two originals
of the SOA to Button for execution.  Snyder told Button that Appendix 5, as well as
other appendices, were not completed yet.  Snyder also stated that he would attach the
appendices after he executed the originals of the SOA and would send one of the
originals with the appendices back to Button.  Pursuant to Snyder's instructions,
Button executed the originals of the SOA and returned them to Snyder, but when
Snyder returned a fully executed original of the SOA to Button, the appendices were
still not complete and Appendix 5 "was blank."  Button stated that he did not have
any concerns about this because, despite the plain terms of Paragraph 1.15 of the
SOA, it was his understanding that Appendix 5 was to provide only the "exclusions
from the list" of assigned customers that NextiraOne was "going to electronically
transfer to [Edascio]."  
	When asked if Snyder had told him when NextiraOne was going to actually
assign the customer base to Edascio, Button said that Snyder told him that "the GBS
customers would be coming in a couple of days" and that it was his impression that
"the Staples customers" would be assigned in a few weeks. (3)  When asked whether
Edascio and NextiraOne had any discussions about whether the assigned accounts
would be listed in the appendix to the SOA, Button stated that it would not have been
practical to attach this information in Appendix 5 because it involved tens of
thousands of customers and their contact information.  Rather, Button stated that
"[w]hat ended up happening was [NextiraOne] electronically transferred that data of
the accounts that [NextiraOne] did assign to us . . . on a [computer disc]."   Although
Button agreed that NextiraOne did send the "accounts that they eventually assigned
to [Edascio] electronically," Edascio argued that NextiraOne had not complied with
the SOA because the electronically transferred accounts did not reflect the quantity
or quality of the accounts that NextiraOne had previously represented would be
assigned.  However, these representations did not appear within the four corners of
the SOA.
	In regard to the accounts that were actually assigned, Button stated that he had
first learned, in a November 2002 e-mail from NextiraOne employee Gary Bartkus,
that Edascio would be receiving approximately 23,000 accounts, which he contended
"was half the number [of 45,000 accounts] that [Edascio] had been told [it was] going
to get."  Button stated that he was "very concerned" after receiving this e-mail. 
Although NextiraOne, on December 2, 2002, provided Edascio with a list of 22,368
accounts, Button explained that Edascio could only sell to 18,477 of these accounts
because the remaining accounts were identified as major and national accounts. 
Button also complained that, of these accounts, only 10,228 included phone numbers
and only 11,880 had "port counts."  Button agreed that NextiraOne had subsequently
assigned Edascio another 4,000 accounts, and thus, during the course of the SOA,
NextiraOne actually had assigned Edascio approximately 22,000 accounts.  	
	Button testified that NextiraOne had breached the SOA in a number of ways. 
For example, Button asserted that NextiraOne had assigned Edascio accounts of poor
quality, retained the higher quality accounts for its own internal sales force, (4)  failed
to assign Edascio the accounts on an exclusive basis, failed to provide Edascio with
the necessary support and customer information, failed to timely pay Edascio
commissions, and, most importantly, failed to assign Edascio all of its small and
medium sized customers with less than 200 ports. (5)  
	Button also testified that no one at NextiraOne had communicated to him
NextiraOne's position that the SOA did not obligate NextiraOne to assign Edascio
any accounts.  However, on cross-examination, Button conceded that during
negotiations he had suggested including that the approximate number of accounts to
be assigned was 45,000, but this term was not included in the final draft of the SOA. (6) 
	In contrast to Button's testimony, Rick Snyder testified that, by July 2002, the
proposed sales outsourcing deal (initially between NextiraOne and TIC) had died, but
that Button had subsequently approached him regarding the proposed sales
outsourcing agreement on behalf of Button's new company.  Snyder explained that
the SOA was structured to allow NextiraOne the flexibility of reviewing its customer
database and assigning a list of any accounts it desired to Edascio.   Although Snyder
agreed that "all along" the parties had discussed a line of demarcation between an
Edascio account and a direct NextiraOne account as being "200 phones,"  Snyder
stated that the distinguishing of accounts was later made on a product-by-product
basis. He explained that NextiraOne had retained complete discretion to carve out any
customers it wanted to keep for itself.
	Gary Bartkus, the NextiraOne employee responsible for the administration of
the SOA, testified that NextiraOne entered into the SOA "to fill holes in
[NextiraOne's] distribution and provide [Edascio] with accounts to work where
[NextiraOne] did not have people on the accounts."  Bartkus explained that at the
time NextiraOne entered into the SOA, it knew it was "going to give Edascio
customers," but "not exactly every single customer to the detail."  Bartkus further
explained that, under the SOA, NextiraOne could have elected to assign zero
customer accounts to Edascio and that the SOA allowed NextiraOne to scrub its small
to medium sized customer accounts and to retain certain of those accounts internally. 
Bartkus agreed that, at the time the SOA was executed, NextiraOne was aware that
Appendix 5 was blank and NextiraOne intended to "finalize and actually list some
customer accounts on Appendix 5," but he agreed that NextiraOne never did.  On
May 19, 2003, NextiraOne terminated the SOA after informing Edascio that it was
not meeting its sales expectations.
	At the conclusion of trial, the trial court submitted question number one to the
jury, which provided,
	Did NextiraOne and Edascio agree that Edascio's "Territory"
under the Sales Outsourcing Agreement included the following
customer accounts?

	. . . .

	A.	All GBS customer account sites with fewer than 200 ports,
except those listed on Appendix 5?

	B.	All Staples customer account sites with fewer than 200
ports, except those listed on Appendix 5?

In deciding whether the parties reached an agreement, you may consider
what they said and did in light of the surrounding circumstances,
including any earlier course of dealing. You may not consider the
parties' unexpressed thoughts or intentions.

To find that an agreement exists, you must find that the parties agreed
on all essential terms of the agreement.  The essential terms of the
agreement are the parties' most important considerations without which
the parties would not intend to have an agreement.

	 The jury found that NextiraOne and Edascio had agreed that Edascio's
Territory under the SOA included all GBS and Staples "customer account sites with
fewer than 200 ports, except for those listed on Appendix 5."  The jury further found
that NextiraOne had failed to comply with the SOA, including the terms as found by
the jury to have existed in question number one, i.e., the terms that NextiraOne had
agreed to assign all customer account sites with fewer than 200 ports.  The trial court
then asked the jury to consider Edascio's damages, and the trial court instructed the
jury to consider only "[t]he amount of commissions NextiraOne agreed to pay
Edascio, if any, resulting from the below referenced sales, less any expenses that
would have been incurred by Edascio in performing its obligations under the [SOA]." 
The jury found, "with a reasonable degree of certainty," that NextiraOne had agreed
to pay Edascio $3,155,052 in commissions (less expenses) from sales to GBS
customers, $771,638 in commissions (less expenses) from sales to Staples customers,
and $516,170 in commissions (less expenses) for "self-generated" sales, for a total
of $4,442,860 in damages.
	The jury necessarily based its damages award on the testimony of Edascio's
damages expert John Camp.  Camp stated that he was retained by Edascio to calculate
"the commissions that were due Edascio under the [SOA] with NextiraOne,"
assuming that "NextiraOne performed under the contract and assigned all the
customers that Edascio believe[d] should have been assigned," which were
NextiraOne's "customers [with] less than 200 [ports]."  Camp then deducted
Edascio's expenses that he calculated  would have been associated with the enlarged,
assigned customer base.  From these numbers, he determined the amount of Edascio's
"lost profit."  Camp agreed that he could not determine exactly what would have been
paid to Edascio under the SOA and that his calculations assumed that NextiraOne had
assigned all of its customers with less than 200 ports to Edascio.  Camp stated that
"quite a bit [of the] commission calculation" was based on "actual sales by
NextiraOne to their [sic] customer base" that Edascio believed should have been
assigned to it and that, in producing his calculations, he relied "most heavily" on
NextiraOne's actual sales data.  However, Camp's calculations also included an
amount for "self-generated" sales, which consisted of sales that could have been
achieved by Edascio had NextiraOne assigned Edascio the accounts to which Edascio
believed it was entitled. These commissions were not tied to actual sales made by
NextiraOne.   Camp concluded that Edascio had been damaged in the amount of $4.6
million based on commissions (less expenses) that Edascio would have earned had
NextiraOne assigned Edascio the customer base to which Edascio believed it was
entitled. (7)
	NextiraOne moved for a judgment notwithstanding the verdict, arguing that
Edascio's damages were barred by the SOA's limitation of liability clause in the SOA
because the recovery of commissions, anticipated commissions, and lost profits were
barred by the SOA.  NextiraOne also asserted that Edascio's damages were based on
a legally incorrect measure of damages, Edascio provided no evidence of damages,
and the parol evidence rule barred consideration of the parties' alleged oral agreement
regarding the customer base to be assigned.  In its second corrected final judgment,
the trial court granted NextiraOne judgment notwithstanding the verdict "solely on
the ground[] that Edascio's damages proved at trial [were] indirect, special, or
consequential damages barred by Section 15.3 of the [SOA]."  The trial court denied
NextiraOne's judgment notwithstanding the verdict on all other grounds.
Standard of Review
	A trial court may grant a motion for judgment notwithstanding the verdict if a
directed verdict would have been proper.  Tex. R. Civ. P. 301. We review a trial
court's granting of a judgment notwithstanding the verdict under a legal sufficiency
standard, viewing the evidence and inferences in the light most favorable to the jury's
finding.  City of Keller v. Wilson, 168 S.W.3d 802, 807, 823 (Tex. 2005) (stating that
"the test for legal sufficiency should be the same for summary judgments, directed
verdicts, judgments notwithstanding the verdict, and appellate no-evidence review"). 
We will sustain the granting of a judgment notwithstanding the verdict based on "no
evidence" when the record discloses one of the following: (1) a complete absence of
evidence of a vital fact; (2) the trial court is barred by the rules of law or evidence
from giving weight to the only evidence offered to prove a vital fact; (3) the evidence
offered to prove a vital fact is not more than a scintilla; or (4) the evidence establishes
conclusively the opposite of a vital fact.  Id. at 810.
 When a trial court specifies the ground upon which it is granting a judgment
notwithstanding the verdict, an appellant need only challenge the ground relied upon
by the trial court.  Voskamp v. Arnoldy, 749 S.W.2d 113, 118 (Tex. App.--Houston
[1st Dist.] 1987, writ denied); see also Swink v. Alesi, 999 S.W.2d 107, 111-12 (Tex.
App.--Houston [14th Dist.] 1999, no pet.). (8)   However, the appellee may assert on
appeal the grounds that it alleged in its motion for judgment notwithstanding the
verdict, but not relied upon by the trial court, to attempt to vitiate the jury's verdict. 
Voskamp, 749 S.W.2d at 118; Tex. R. App.  P. 38.2(b) (providing that when trial court
renders judgment notwithstanding the verdict "the appellee must bring forward by
cross-point any issue or point that would have vitiated the verdict or that would have
prevented an affirmance of the judgment if the trial court had rendered judgment on
the verdict."); Tex. R.  Civ.  P. 324(c) (stating that when judgment notwithstanding
verdict is rendered, appellee "may bring forward by cross-point contained in his brief
filed in the Court of Appeals any ground which would have vitiated the verdict or
would have prevented an affirmance of the judgment had one been rendered by the
trial court in harmony with the verdict, including although not limited to the ground
that one or more of the jury's findings have insufficient support in the evidence or are
against the overwhelming preponderance of the evidence as a matter of fact. . . .").
Parol Evidence
	In its first cross-issue, NextiraOne contends that the parol evidence rule barred
evidence of the purported oral agreement on which Edascio based its breach of
contract claim.  NextiraOne asserts that the oral agreement Edascio sought to enforce
at trial, which obligated NextiraOne to assign Edascio a specific category and number
of accounts (approximately 45,000 accounts described during trial as NextiraOne's
small and medium sized customers with fewer than 200 ports and the GBS and
Staples accounts) on the effective date of the SOA, contradicted, varied, and
supplemented the express terms of the SOA.  NextiraOne further asserts that the
alleged oral agreement violated the SOA's merger clause, in which the parties
objectively manifested their intent to conclude a complete agreement and to bar any
oral agreements.  Edascio responds that the term "Territory" in the SOA was
ambiguous, and it argues that the SOA was incomplete because it failed to identify
the customers to be assigned.  Thus, Edascio asserts that parol evidence was
permissible to resolve the ambiguity and complete the SOA.  Edascio also asserts that
the existence of a merger clause does not eliminate the "facial ambiguity and
incompleteness exceptions to the parol evidence rule."
	The parol evidence rule is a rule of substantive contract law, and we review
parol evidence questions de novo.  Baroid Equip., Inc. v. Odeco Drilling, Inc., 184
S.W.3d 1, 13 (Tex. App.--Houston [1st Dist.] 2005, pet. denied); City of Pasadena
v. Gennedy, 125 S.W.3d 687, 691 (Tex. App.--Houston [1st Dist.] 2003, pet. denied).
 When the parties have concluded a valid, integrated agreement, the parol evidence
rule precludes enforcement of a prior or contemporaneous inconsistent agreement. 
Ledig v. Duke Energy Corp., 193 S.W.3d 167, 178 (Tex. App.--Houston [1st Dist.]
2006, pet. denied); Baroid Equip., Inc.,184 S.W.3d at 13.  A written instrument
presumes that all prior agreements relating to the transaction have been merged into
it and will be enforced as written and cannot be added to, varied, or contradicted by
parol testimony.  Baroid Equip.,184 S.W.3d at 13.  The parol evidence rule "is
particularly applicable when the written contract contains a recital that it contains the
entire agreement between the parties or a similarly-worded merger provision."  Id. 
When parol evidence is determined to be inadmissible, it has no legal effect and
merely constitutes proof of facts that are immaterial and inoperative.  Id.
	However, parol evidence is admissible to show the parties' true intentions if
the writing is ambiguous.  Ledig, 193 S.W.3d at 178-79; Gonzalez v. United Bhd. of
Carpenters and Joiners of America, Local 551, 93 S.W.3d 208, 211 (Tex.
App.--Houston [14th Dist.] 2002, no pet.). The determination of whether the terms
of a contract are ambiguous is a question of law, which we review de novo.  Bowden
v. Phillips Petroleum Co., 247 S.W.3d 690, 705 (Tex. 2008); Standard Constructors,
Inc. v. Chevron Chemical Co., 101 S.W.3d 619, 622 (Tex. App.--Houston [1st Dist.]
2003, pet. denied).  To determine whether a contract is ambiguous, we look at the
agreement as a whole in light of the circumstances present when the parties entered
into the contract.  Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549
(Tex. 2004).  We examine and consider the entire writing in an effort to harmonize
and to give effect to all the provisions of the contract so that none will be rendered
meaningless.  Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345
(Tex. 2006). 
	Our primary concern in construing a written contract is to ascertain the true
intent of the parties as expressed in the instrument.  Id.  If a written contract is worded
in such a way that it can be given a definite or certain legal meaning, then the contract
is not ambiguous.  SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005). 
A contract will become ambiguous only if its meaning is uncertain or if it is subject
to two or more reasonable interpretations.  Seagull Energy, 207 S.W.3d at 345.  An
ambiguity does not arise simply because the parties advance conflicting
interpretations of the contract.  Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 146
S.W.3d 123, 126 (Tex. 2004).  Moreover, we may not consider extrinsic evidence to
contradict or to vary the meaning of unambiguous language in a written contract in
order to create an ambiguity.  See Fiess v. State Farm Lloyds, 202 S.W.3d 744, 747
(Tex. 2006).  
	Here, the SOA required NextiraOne to pay Edascio a commission on certain
sales to "Customers" in the "Territory."  The SOA provided that Edascio's "Territory"
included the "NextiraOne Accounts indicated on the attached Appendix 5," but would
also "not include any of the NextiraOne customers, sites, locations, or those of their
affiliates and subsidiaries (the "Excluded Accounts") attached to this Agreement as
Appendix 5."  The SOA futher provided that the "Territory" could be  "expanded or
reduced after the Effective Date by mutual agreement of the parties."  At the time the
parties executed the SOA, Appendix 5 was largely blank and referenced only an
"attached list" of customers that would be excluded from the "Territory."  Although
there was no list attached to the Appendix at the time the SOA was executed,
Appendix 5 further stated that the list would "be updated quarterly to reflect new
account additions."
	Edascio argues that the definition of Territory was ambiguous because the SOA
stated that Appendix 5 listed both the included and excluded accounts to be assigned
by NextiraOne.  Edascio also seizes on the fact that Appendix 5 was blank, referred
to an attached list that did not exist (at least at the time the SOA was executed), and
referred only to a list of excluded accounts.  Because of this alleged ambiguity,
Edascio argues that the trial court correctly permitted it to introduce parol evidence
to show that it had reached an oral agreement with NextiraOne that NextiraOne would
assign to Edascio all of NextiraOne's small to medium sized customers with less than
200 ports and, even more specifically, all of its GBS and Staples customers with
fewer than 200 ports.
	We conclude that the definition of Territory in the SOA was neither internally
inconsistent nor ambiguous.  Rather, the SOA expressly stated that Appendix 5 would
identify the accounts to be assigned by NextiraOne and included Edascio's Territory
as well as the "customers, sites, locations, or those of their affiliates and subsidiaries"
to be excluded from Edascio's Territory. (9)  The facts that Appendix 5 was left largely
blank on the effective date of the SOA and that it referred to excluded accounts did
not create an ambiguity.  In fact, the SOA itself expressly envisioned that Edascio's
"Territory" would be "expanded or reduced after the Effective Date by mutual
agreement of the parties," and Appendix 5 also provided for quarterly updates to
reflect new account additions.
	The SOA plainly provided the parties with flexibility both as to the identity and
number of accounts to be assigned as well as the dates on which the accounts could
be assigned.  For example, although Edascio contends that this preexisting, agreed
upon assigned customer base was effective from "day one" of the SOA, nothing in
the SOA obligated Edascio to have employed or hired sales representatives on the
effective date of the SOA.  Rather, Paragraph 5.2 of the SOA required Edascio only 
"to employ a minimum of twelve (12) Sales Representatives within ninety (90) days
of the Effective Date," and also generally required Edascio to employ and retain an
adequate number of sales representatives.  Nothing in the SOA indicates that,
immediately on or shortly after the effective date of the SOA, NextiraOne was
required to assign to Edascio all of its small and medium sized customers with less
than 200 ports, which allegedly numbered approximately 45,000.  A requirement for
NextiraOne to assign this category and number of accounts would seem at odds with
the SOA and with the undisputed fact that Edascio, which was a newly formed
company, continued to hire its sales representatives well after the SOA's effective
date.
	Enabled by parol evidence, Edascio sought to enforce an agreement that
significantly varied and contradicted the SOA.  Edascio's purported agreement was
much more favorable to Edascio than the actual deal negotiated by the parties as
evidenced by the SOA.  As noted by NextiraOne, the agreement Edascio alleges to
have made would have required NextiraOne to assign "a specific category and
number of accounts," when the SOA contained no such obligation. Contrary to
Edascio's parol evidence, the SOA simply indicated that NextiraOne would assign
Edascio accounts and that these accounts would be identified in writing in the
attached Appendix 5.  On the effective date of the SOA there was no list of identified,
assigned accounts.  Rather, the SOA expressly contemplated that such a list could be
provided and updated at various times in the future throughout the parties' business
relationship.  Furthermore, the SOA expressly provided that expanding or reducing
the Territory in the future could only be accomplished by "mutual agreement" and
that any amendments to the SOA had to be in writing. 
	It is undisputed that NextiraOne did, pursuant to the SOA, electronically
forward to Edascio a list of approximately 18,000 accounts within three months of the
execution of the SOA.  NextiraOne subsequently forwarded Edascio another 4,000
accounts, for a total of 22,000 accounts assigned under the SOA.  In fact, Button
testified that it was his understanding that the list of assigned accounts would be
"electronically transferred to [Edascio]," that attaching a hard copy of all of the
accounts to be assigned to Appendix 5 would not have been practical because of the
bulk of the information, and that "[w]hat ended up happening was [NextiraOne]
electronically transferred that data of the accounts that they did assign to us . . . on a
[computer disc]."  
	It is also undisputed that, even with all of its concerns about the quality and
quantity of the accounts assigned, Edascio attempted to make sales to the customers
identified in the electronically transferred accounts.  In fact, Edascio earned, and was
paid, commissions under the terms of the SOA on at least some of the sales it made
to these assigned customers. (10)  Thus, Edascio's position is not that NextiraOne wholly
failed to provide it with a list of assigned accounts, which might have been a violation
of the plain terms of the SOA.  Rather, Edascio asserts that it was entitled to all
NextiraOne accounts that fell within a specific category.  However, none of these
terms appear anywhere in the SOA or in any agreed upon lists or amendments
provided after the effective date of the SOA.
	Other provisions in the SOA further support the conclusion that the SOA was
neither internally inconsistent nor ambiguous.  See Seagull Energy, 207 S.W.3d at
345 (noting that Court must examine and consider entire writing in effort to
harmonize and give effect to all provisions of contract).    First, Paragraph 15.3, the
Limitation of Liability Clause, precludes the parties' recovery of indirect, special, or
consequential damages, including "anticipated commissions."  This language plainly
prohibits Edascio from seeking damages for commissions it may have anticipated in
entering into the SOA.  Although Edascio may have expected the assignment of a
specific number or category of accounts and, thus, may have anticipated commissions
on these accounts, the preclusion of recovery for anticipated commissions in the
limitation of liability clause is consistent with the plain language of the SOA
providing NextiraOne with discretion in assigning specific accounts under the SOA. 
Allowing Edascio to introduce parol evidence to greatly expand the type and number
of accounts to be assigned, and then allowing Edascio to recover as damages
commissions it anticipated earning on the accounts it expected to be assigned would
eviscerate the protections provided NextiraOne in the Limitation of Liability Clause. 
Second, Paragraph 18.12 provided that the SOA represented the parties' entire
agreement and superseded all prior written and oral representations.  Paragraph 18.12
also required that any amendments to the SOA be in writing, refer explicitly to the
SOA, and be signed on behalf of NextiraOne and Edascio by their duly authorized
representatives.  See Baroid Equip.,184 S.W.3d at 13 (noting that parol evidence rule
"is particularly applicable" when contract has merger clause). 
 Edascio also contends that the SOA is not only ambiguous, but is also
incomplete.  In support of its argument that parol evidence may be used to
supplement the SOA, Edascio cites Magnolia Warehouse & Storage Co. v. Davis &
Blackwell, 108 Tex. 422, 195 S.W. 184 (1917) and Bob Robertson, Inc. v. Webster,
679 S.W.2d 683 (Tex. App.--Houston [1st Dist.] 1984, no writ).  In Magnolia
Warehouse & Storage, a contract to excavate and transport dirt provided that the
contractor agreed to "furnish the tools, appliances and labor necessary to excavate the
earth . . . and transport the same to points that have been indicated."  108 Tex. at 425,
195 S.W. at 185  (emphasis added).  Noting that this contract "clearly indicate[d] that
the parties had agreed upon the points to which the earth should be carried," and that
"such points were not named in the written contract," the court concluded that "parol
testimony was admissible to locate these points which had been agreed upon as
indicated."   Id.  Unlike the contract in Magnolia Warehouse & Storage, the SOA did
not clearly indicate that the parties had agreed to the specific accounts to be assigned. 
	Bob Robertson is also substantively distinguishable because it involved a claim
brought by a consumer against an auto dealership under the Texas Deceptive Trade
Practices Act specifically for the dealership's representations that a purchase
agreement conferred or involved rights, remedies, or obligations which it did not have
or involve, namely a delivery date of a truck.  679 S.W.2d at 686-87.  In allowing the
consumer to introduce evidence that he was to have the truck delivered in ten weeks,
the court noted that the Texas Business and Commerce Code provided that "[d]elivery
under a contract, where no time has been agreed upon, must be within a reasonable
time" and that the contract referred to delivery numerous times, but contained no
delivery date.  Id. at 687.   
	Here, although the SOA referred to accounts and customers, the SOA plainly
stated that the assigned accounts would be those indicated in Appendix 5.  As all
parties were aware, Appendix 5 was largely blank at the time of the execution of the
SOA, and the SOA expressly contemplated that Edascio's Territory could be
expanded or reduced by mutual agreement in the future.  The fact that the SOA
granted the parties flexibility as to the identity and number of accounts to be assigned
as well as the dates on which those accounts could be assigned did not allow Edascio
to introduce evidence, contrary to the SOA, that the parties had orally agreed, both
before and after the execution of the SOA, to a specific customer base, which appears
nowhere in the SOA or in any amendments thereto.		
	Accordingly, we hold that the parol evidence rule barred evidence that
NextiraOne agreed to assign Edascio all of its GBS and Staples customer accounts
with less than 200 ports.  Because Edascio sought damages solely on the basis that
NextiraOne breached the SOA by failing to assign all of its GBS and Staples
customers with fewer than 200 ports, we further hold that there is no evidence to
support the jury's verdict and damages award and, thus, that the trial court did not err
in granting NextiraOne judgment notwithstanding the verdict.  We affirm the trial
court's final judgment that Edascio take nothing by its suit against NextiraOne. 
	We sustain NextiraOne's first cross-issue.













 Conclusion

	Having sustained NextiraOne's first cross issue, we need not consider
Edascio's single issue in which it contends that the trial court erred in rendering the
judgment notwithstanding the verdict on the ground that "the profits that Edascio
would have earned under a sales outsourcing agreement, but for NextiraOne's breach
of that very agreement, were 'indirect, special, or consequential damages' and thus
barred under the limitation of liability clause in the contract."  We also need not
consider NextiraOne's three remaining cross-issues.  We affirm the trial court's final
judgment that Edascio take nothing by its suit against NextiraOne.  
 

							Terry Jennings
							Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.
1. 	The jury found that NextiraOne did not commit fraud, and Edascio does not appeal
the jury's finding on its fraud claim.
2. 	This quotation is taken from Edascio's pleading, but, on appeal, Edascio stresses that
it was not "seeking to enforce the terms of an oral agreement."  Edascio now argues
that  the SOA was "not fully integrated because it [was] incomplete" and that
"because the SOA is facially ambiguous and incomplete, it cannot be completely
integrated."  Edascio further argues that the SOA is incomplete and ambiguous
because the term "Territory" is susceptible to several reasonable, contradictory
interpretations.  NextiraOne replies that Edsacio has taken "a decidedly different
position" on appeal and that, at trial, Edascio's position was that the parties reached
an oral agreement outside the four corners of the SOA.
3. 	The "GBS" and "Staples" accounts were identified as the two categories of the small
and medium sized accounts held by NextiraOne. Edascio contended at trial that
NextiraOne had represented that it would assign both of these categories, consisting
of approximately 45,000 customers, to Edascio. However, Button conceded that,
around the time that the SOA was executed, he was made aware that NextiraOne was
experiencing contractual problems with the Staples customers and that NextiraOne
could not immediately assign these customers.
4. 	Edascio claimed that the accounts it received were "unassigned accounts," which
constituted the accounts remaining after NextiraOne had "scrubbed" and "cherry
picked" the list of its small and medium sized customers that were originally to be
assigned to Edascio and retained the higher quality accounts for its internal sales
force.
5. 	Edascio took the position at trial that, under the SOA, NextiraOne had agreed to pay
Edascio commissions from "day one on all sales to [the assigned] customer base," i.e.,
all of NextiraOne's customers with less than 200 ports.   Thus, Button contended that,
from the inception of the SOA, Edascio was entitled to receive a commission for any
sales made to a small to medium sized customer with less than 200 ports, even if the
sale was made by a NextiraOne representative.
6. 	In its reply brief, Edascio makes the distinction that Button did not attempt to insert
the number of accounts to be assigned--45,000--into the definition of "Territory" in
Paragraph 1.15 of the SOA, but rather attempted to insert this number into Section 5
of the SOA, which concerned the number of sales representatives to be hired by
Edascio.  Edascio concedes that the specific number of accounts to be assigned was
deleted from the SOA, but asserts that the record does not reflect why the number was
deleted.  Edascio contends that the deletion of this term did not affect the definition
of Territory in the SOA.  Despite Edascio's assertion that the record does not reflect
why the number was deleted, Rick Snyder specifically testified at trial that
NextiraOne would not accept that term in the SOA.
7. 	Camp noted that Edascio was not seeking as damages the commissions that Edascio
contended were due it under the SOA for sales that Edascio actually made under the
SOA. Rather, Camp's calculations were based on his projection that Edascio could
have made approximately 43 million in sales to the assigned customer base that
included all of NextiraOne's accounts with less than 200 ports.  Camp explained that
this amount was based on the assumption that these sales were "reasonable" and
"achievable" by Edascio (as opposed to the $747,000 in actual sales made by Edascio
under the SOA).  Camp agreed that the amount of 43 million in sales was a
combination of NextiraOne's actual sales plus what he assumed Edascio would have
sold to the assigned customer base and to new customers. 
8. 	See also Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.
1991) (noting that when party moves for judgment notwithstanding verdict on
multiple grounds and trial court grants judgment notwithstanding verdict without
specifying which ground it found decisive, appellant has burden of showing that
judgment notwithstanding verdict was not proper on any of asserted grounds). 
9. 	The SOA plainly indicated that Appendix 5 would list, in the general sense, both
included and excluded accounts.  NextiraOne notes that paragraph 1.15 can be
"harmonized quite easily" because the first sentence referred to the NextiraOne
accounts to be assigned and the second sentence referred to NextiraOne customers,
sites, and locations to be excluded.  As noted by NextiraOne, simply indicating that
a document "will accomplish two purposes" does not create an ambiguity. 
10. 	Edascio is not pursuing, as damages, the small amount of commissions that it claims
were due and owing on sales that it actually made under the SOA.
