Reversed and Remanded and Memorandum Opinion filed February 7, 2012.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-11-00120-CV

                           ZIAD ELAAZAMI, Appellant

                                         V.

                        LAWLER FOODS, LTD., Appellee

                      On Appeal from the 151st District Court
                              Harris County, Texas
                        Trial Court Cause No. 2007-68080



                       MEMORANDUM OPINION

      After Lawler Foods, Ltd. fired Ziad Elaazami in 2006, he sued to recover an
unpaid bonus allegedly due to him for work performed in 2005. The jury returned a
verdict for Elaazami on his breach of contract claim; the trial court granted Lawler
Foods‘ motion for judgment notwithstanding the verdict. We reverse and remand.

                                   BACKGROUND

      Lawler Foods was established in 1976 by Bill and Carol Lawler. Their son, Mike
Lawler, began working for the company in 1989 and has worked for the company full-
time since 1997. When Elaazami worked for the company, Bill was the president, Carol
was the executive vice president, and Mike was the vice president of operations and
Elaazami‘s direct supervisor. Elaazami testified that Lawler Foods is a ―family-run
business, everything is done on a handshake and a word.‖

        The company hired Elaazami in 2002 as the director of accounting, finance, and
information technology.1 Elaazami testified that he had a conversation with Bill and
Carol in late 2002 or early 2003. They told him he would begin receiving a non-
discretionary annual bonus as a member of the ―senior management bonus pool.‖ Carol
said that Elaazami would be phased into the bonus pool with a 33 percent bonus the first
year, a 66 percent bonus the second year, and a 100 percent bonus each year after that.

        Lawler Foods allocated 15 percent of the company‘s post-tax net income each year
for senior management bonuses. Kristi Smith, the company‘s comptroller, created a
spreadsheet each year to calculate the bonuses based on the senior management bonus
percentages provided to her by Bill or Carol. Lawler Foods paid the bonuses in March
following the year in which they were earned.

        Smith was promoted in 2003 and began reporting directly to Mike; some of
Elaazami‘s job functions were assigned to Smith at that time. Bill and Mike told Smith
that she would be eligible for a senior management bonus as well. Elaazami testified that
he learned about the reorganization in 2003 from a meeting with Bill, Mike, and Steve
Kempa, the vice president of sales. Elaazami testified that he was told he and Smith each
would receive a 25 percent bonus in 2003 and a 50 percent bonus every year after that.

        Lawler Foods paid Elaazami a 25 percent bonus in 2004 for work performed in
2003 and a 50 percent bonus in 2005 for work performed in 2004.2 Elaazami testified
that in early 2005 and again in late 2005, Mike promised him a 2006 bonus for work he

        1
          When Elaazami first started at Lawler Foods, Mike asked Elaazami what title Elaazami wanted
to have because Mike said that he ―wasn‘t really big on titles . . . it‘s a family-owned business and, you
know, it‘s ultimately about the responsibilities that you have.‖
        2
          The 2004 bonus was $50,996.97 and the 2005 bonus was $85,887.27. Elaazami‘s gross wages
for those years were $94,433.40 and $135,662.06, respectively.
                                                    2
performed in 2005. Mike fired Elaazami on February 14, 2006. Lawler Foods paid
senior management bonuses to Mike, Bill, Kempa, Smith, and four other employees in
March 2006. Lawler Foods did not pay Elaazami a bonus in 2006 for work he performed
in 2005.

       Elaazami sued for breach of contract, promissory estoppel, and quantum meruit;
he also sought attorney‘s fees. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon
2008). The trial court signed a partial summary judgment in favor of Lawler Foods on
Elaazami‘s promissory estoppel and quantum meruit claims, but it allowed the contract
claim to go to trial. The jury answered ―yes‖ to Question 1 in the charge: ―Did Ziad
Elaazami and Lawyer [sic] Foods, Ltd. agree that Lawler Foods, Ltd. would pay Ziad
Elaazami a bonus in 2006 based on net profits of Lawler Foods, Ltd. for the year 2005?‖
The jury was charged on the law of actual and apparent authority, and it awarded
Elaazami $42,500 in damages.

       Lawler Foods filed a motion for judgment notwithstanding the verdict under Texas
Rule of Civil Procedure 301, arguing that (1) there was no evidence of a promise to
support a unilateral contract; (2) there was no evidence of a binding or enforceable
agreement; (3) the statute of frauds bars any oral contract made in early 2003; and (4) any
promises for a bonus were illusory. The trial court granted the motion, specifically
finding that the evidence was legally insufficient to support the jury‘s verdict and that any
promises for a bonus were illusory. Regarding the sufficiency of the evidence, the trial
court explained, ―There is no statement in the record of an actual definite promise
actually stated orally or in writing in 2005 by anyone at Lawler Foods, Inc. that Plaintiff
would, in fact, receive such a bonus in exchange for some performance.‖

                                         ANALYSIS

       Elaazami argues that the trial court erred by granting judgment notwithstanding
the verdict because (1) there is more than a mere scintilla of evidence to support the
jury‘s finding that Lawler Foods promised in late 2005 to pay Elaazami a bonus in 2006
                                             3
for work he performed in 2005; and (2) the promise for a bonus was not illusory. Lawler
Foods contends that the trial court correctly granted judgment notwithstanding the verdict
because (1) there is no evidence that anyone with authority to speak for Lawler Foods
promised Elaazami a bonus; and (2) any promise to pay Elaazami a bonus is barred by
the statute of frauds.3

       We reverse the trial court‘s judgment because (1) there is some evidence that Mike
made a promise to Elaazami in late 2005; (2) there is some evidence that Mike had
apparent authority to make this promise on behalf of Lawler Foods; and (3) a contract
predicated on an oral promise in late 2005 to pay a bonus in March 2006 is not barred by
the statute of frauds.

I. Standard of Review for Judgment Notwithstanding the Verdict

       We will affirm a trial court‘s decision to grant a judgment notwithstanding the
verdict if there is no evidence to support the jury‘s findings on an issue necessary to
liability. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). We apply
the standards for ―no evidence‖ embodied in a legal sufficiency review. Hartland v.
Progressive Cnty. Mut. Ins. Co., 290 S.W.3d 318, 321 (Tex. App.—Houston [14th Dist.]
2009, no pet.); see City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). Thus, we
will affirm a judgment notwithstanding the verdict if (1) there is a complete absence of
evidence of a vital fact; (2) rules of law or evidence preclude according weight to the
only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is
no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of
the vital fact. Hartland, 290 S.W.3d at 321 (citing City of Keller, 168 S.W.3d at 810).



       3
           On appeal, Lawler Foods no longer relies on a contention that the bonus promise is not
enforceable because it is illusory. See Vanegas v. Am. Energy Servs., 302 S.W.3d 299 (Tex. 2009).
Therefore, we do not address this contention. Elaazami argues that if we uphold judgment
notwithstanding the verdict, we should reverse the trial court‘s granting of summary judgment to Lawler
Foods on Elaazami‘s claims for quantum meruit and promissory estoppel. We do not reach this issue in
light of our disposition of the appeal.
                                                  4
      We must review the evidence in the light most favorable to the verdict and assume
that the jury resolved all conflicts in accordance with the verdict. City of Keller, 168
S.W.3d at 820. We credit evidence favorable to the jury‘s verdict if reasonable jurors
could, and we disregard contrary evidence unless reasonable jurors could not. Id. at 827.
The final test is whether the evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review. Id.

II.   Evidence of a Promise Made in Late 2005

      Elaazami contends there is legally sufficient evidence of a promise made in late
2005 to pay him a bonus in March 2006. He points to his testimony about a conversation
with Mike in late 2005:

      Q.     Okay. Now, so did Mike Lawler discuss your bonuses at one of
      those Thursday meetings near the end of 2005, or at the beginning of 2006?

      A.    They were always discussed, but there was one specific incident
      where he discussed my bonus and Kristi‘s bonus specifically.

      Q.     When did that take place?

      A.     It was towards the end of 2005.

      Q.    And did also these discussions occur in 2006, around February of
      2006?

      A.     Yes. They were ongoing. I mean, they were on everybody‘s mind,
      so they happened more than once.

      Q.     All right. Tell us what you can recall about these discussions
      regarding the bonus with Mike Lawler first.

      A.     It was — I think everybody was kind of drifting out of meetings.
      And Kristi had a set of financials. Must have been towards the beginning
      of the month or something like that.

              So she had her financials and Mike was looking at the net income
      numbers. And he was kind of eyeballing what his bonus was going to be
      for that year and he said that means that you guys are probably going to be
      half of that.
                                            5
            Which I mean, it was not — it was not a surprise. It was nothing
      shocking about it or any surprise. I mean, it was — it wasn‘t news because
      I knew that that was going to be the case.

                        *                   *                    *

      Q.      Okay. Now, with respect to the meeting in late 2005, you said a
      definitive promise was made in late 2005?

      A.     Correct.

      Q.     Please tell me what definitive promise was made to you in late 2005.

      A.     That we would be getting half a senior management bonus for the
      year 2005.

                        *                   *                    *

      Q.     Okay. What definitively was said to you?

      A.   That — basically that we would be getting a half a senior
      management bonus, Kristi and I.

                        *                   *                    *

      Q.     And who made the comment?

      A.     Mike.

Lawler Foods argues that this testimony from Elaazami is no evidence that Mike
promised a bonus in late 2005. Lawler characterizes this testimony as ―evidence that
Elaazami might get a bonus, and therefore not evidence of a promise to pay him a
bonus.‖ For this argument, Lawler Foods relies on Samoheyl v. Bearden, 448 S.W.2d
850, 853 (Tex. Civ. App.—Houston [1st Dist.] 1969, writ ref‘d n.r.e.).

      Samoheyl involved the predecessor to Texas‘s ―guest statute.‖ Id. at 851. The
guest statute relaxed the standard of care a driver owed to his or her passenger who was a
gratuitous guest. See Whitworth v. Bynum, 699 S.W.2d 194, 195 (Tex. 1985) (declaring a
subsequent version of the statute unconstitutional); see also Tex. Civ. Prac. & Rem. Code


                                            6
Ann. § 72.001 (Vernon 2008) (current version declared unconstitutional by Colvin v.
Colvin, 291 S.W.3d 508, 512 (Tex. App.—Tyler 2009, no pet.)).

        In Samoheyl, The First Court of Appeals held there was no evidence that the
plaintiff was a ―passenger for hire rather than a gratuitous guest‖ so as to convey a
―tangible benefit‖ to the driver. 448 S.W.2d at 853. The evidence in Samoheyl was
speculative because it would have required multiple possible inferences regarding the
―tangible benefit‖ to the driver, a construction foreman, for transporting a ―largely
inexperienced boy‖ to Galveston County. Id. There was no evidence that the plaintiff
had been hired by the driver to do construction work at the destination or that the driver
would have hired the plaintiff upon reaching the destination, though it was a possibility.
Id. at 852. There was testimony that the driver ―might have benefited a little‖ from
driving the plaintiff because extra workmen ―might‖ have helped the driver get a raise or
―might‖ have helped the driver get a bonus ―if the job was completed early and
satisfactorily.‖ Id. at 853.

        Samoheyl is inapposite, and Elaazami‘s testimony is not so speculative that it
amounts to a mere surmise or suspicion.                  A reasonable jury could conclude from
Elaazami‘s testimony that Mike made a definitive promise in late 2005 to pay half of a
senior management bonus to him in 2006. Accordingly, we hold there is some evidence
that Elaazami was promised a bonus to be paid in 2006 for work he performed in 2005.4

III.    Mike Lawler’s Apparent Authority to Promise a Bonus

        Lawler Foods contends there is no evidence that anyone other than Carol or Bill
had authority to promise a bonus on behalf of Lawler Foods in 2005. Elaazami concedes




        4
         Elaazami also pointed to other statements in 2002, 2003, and early 2005 that he attributed to
Mike Lawler, Carol Lawler, Bill Lawler, and Steve Kempa. We need not address these other statements
because the evidence recited in the text of this opinion is legally sufficient to establish that Mike made an
independent promise in late 2005.
                                                     7
that Mike did not have actual authority5 but argues that Mike had apparent authority. The
jury was charged on this issue as follows:

        Apparent authority exists if a party (1) knowingly permits another to hold
        himself out as having authority or, (2) through lack of ordinary care,
        bestows on another such indications of authority that lead a reasonably
        prudent person to rely on the apparent existence of authority to his
        detriment. Only the acts of the party sought to be charged with
        responsibility for the conduct of another may be considered in determining
        whether apparent authority exists.

See Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex. 2007). Elaazami contends that Lawler
Foods‘ conduct would lead a reasonable person in Elaazami‘s position to believe that
Lawler Foods bestowed upon Mike indications of authority to promise a bonus.

        Lawler Foods placed Mike, the son of the two top-ranking officers of a ―family-
run business,‖ in the position of vice president of operations as Elaazami‘s direct
supervisor. The mere appointment of a person as a ―vice president‖ does not by itself
establish apparent authority as a matter of law for the person to execute employment
contracts on behalf of the company. See Mo., Kan. & Tex. Ry. Co. v. Faulkner, 88 Tex.
649, 651–52, 32 S.W. 883, 884 (1895) (by nature of his office alone, the vice president of
a railroad company had no apparent authority to bind the company in an employment
agreement with another employee for a one-year term).6 But when a company appoints a

        5
          See, e.g., Douglass v. Panama, Inc., 487 S.W.2d 228, 233 (Tex. App.—Houston [14th Dist.]
1972) (finding no actual authority of the president of a corporation to promise employees bonuses
because under Texas statutes ―the business and affairs of a corporation are managed by the board of
directors and not by . . . anyone else in the absence of an agreement or, as to third parties, apparent
authority‖), aff’d 504 S.W.2d 776 (Tex. 1974).
        6
          See also RESTATEMENT (THIRD) OF AGENCY § 3.03 cmt. e(4) (2006) (―The office of vice
president by itself does not carry actual or apparent authority to bind the corporation. The designation of
a person as vice president does not have a standardized or customary meaning associating particular
functions or authority with the position.‖); 20A Robert W. Hamilton et al., Texas Practice Series:
Business Organizations § 36.6 (2d ed. 2004) (―[T]he vice-president normally has no inherent authority
merely by virtue of his office . . . .‖); cf. Ennis Bus. Forms, Inc. v. Todd, 523 S.W.2d 83, 85 (Tex. Civ.
App.—Waco 1975, no writ) (―[I]t is the settled rule in this state that the president of a corporation is not
invested with actual or apparent authority to bind his company by contract merely because of his
position.‖).
                                                     8
person as a vice president with a defined managerial scope, such as ―vice president for
operations,‖ the Restatement suggests this person ―has a customary level of authority
over the specified functional area analogous to that of a branch manager over the affairs
of a branch.‖    RESTATEMENT (THIRD) OF AGENCY § 3.03 cmt. e(4) (2006) (―If a
corporation permits a vice president to exercise significant transactional functions and to
make or appear to be in control of operational decisions, it creates a basis on which actual
or apparent authority may arise.‖).

       Texas law recognizes that a company‘s placement of an officer or employee in a
certain position will provide the agent with apparent authority to bind the company in
usual, customary, or ordinary contracts that a reasonable person would view as being
consistent with an agent‘s scope of authority in that position. See Shahan-Taylor Co. v.
Foremost Dairies, 233 S.W.2d 885, 890–891 (Tex. Civ. App.—San Antonio 1950, writ
ref‘d n.r.e.) (local branch manager had apparent authority to bind corporation in contracts
incident to the ―ordinary and usual business‖ of the corporation); Campbell Paint &
Varnish Co. v. Ladd Furniture & Carpet Co., 83 S.W.2d 1095, 1096 (Tex. Civ. App.—
Fort Worth 1935, writ dism‘d) (manager of the local store ―had apparent authority to do
for his master those things which are in the usual course of the business‖); cf. Nelms v. A
& A Liquor Stores, Inc., 445 S.W.2d 256, 258–59 (Tex. Civ. App.—Eastland 1969, writ
ref‘d n.r.e.) (president of a family-owned corporation had no apparent authority to bind
corporation in contract with another officer for lifetime employment; the president of a
corporation who also acts as a general manager has apparent authority to employ others
but not to make a contract for services of an unusual and extraordinary nature); Brown v.
Grayson Enters., Inc., 401 S.W.2d 653, 656–57 (Tex. Civ. App.—Dallas 1966, writ ref‘d
n.r.e.) (general manager and chief executive officer lacked apparent authority as a matter
of law to promise an employee lifetime employment because such a contract was not
―usually made by such officers in the ordinary course of the corporation‘s business. . .
[T]he general authority of such officers to employ embodies only the right to make
contracts of a usual and reasonable sort[, and] an ordinary competent person, familiar
                                             9
with the situation and with the ordinary methods of business, considering the matter in
the light of everyday experience, [could not believe] this contract . . . formed a natural
and ordinary part of the management of the corporation‘s affairs.‖).7

        Here, Carol told Elaazami that he would be placed in the ―senior management
bonus pool,‖ and Lawler Foods paid Elaazami a ―senior management bonus‖ in 2003 and
2004 in addition to his salary.            Mike‘s late 2005 promise of a 50 percent senior
management bonus was the same percentage of a senior management bonus that Lawler
Foods paid Elaazami for his work during the prior year. Thus, it was not unusual or
extraordinary for Mike to promise a 50 percent senior management bonus in 2005 given
the prior course of dealing between the parties. See Tex. Wine & Liquor Co. v. Willis,
239 S.W.2d 695, 696 (Tex. Civ. App.—Fort Worth 1951, no writ) (some evidence
established that a company‘s agent had apparent authority to promise an employee a
bonus equal to one-third of his normal salary because the bonus was not ―so ‗unusual or
unreasonable‘ that the trial court would be compelled to conclude that such a raise was,
as a matter of law, not within the apparent scope of the agent‘s authority;‖ company had
paid the same bonus to the employee the previous year); see also Southline Equip. Co. v.
Nat’l Marine Serv. Inc., 598 S.W.2d 340, 342–43 (Tex. App.—Houston [14th Dist.]
1980, no writ) (affirming trial court‘s implied finding of apparent authority of the shop

        7
          See generally RESTATEMENT (THIRD) OF AGENCY § 1.03 cmt. b (2006) (―[A]n agent is
sometimes placed in a position in an industry or setting in which holders of the position customarily have
authority of a specific scope. Absent notice to third parties to the contrary, placing the agent in such a
position constitutes a manifestation that the principal assents to be bound by actions by the agent that fall
within that scope. A third party who interacts with the person, believing the manifestation to be true,
need not establish a communication made directly to the third party by the principal to establish the
presence of apparent authority . . . .‖); RESTATEMENT (THIRD) OF AGENCY § 3.03 cmts. b-d (2006) (―A
principal may also make a manifestation by placing an agent in a defined position in an organization . . . .
Third parties who interact with the principal through the agent will naturally and reasonably assume that
the agent has authority to do acts consistent with the agent‘s position or role unless they have notice of
facts suggesting this may not be so. . . . Apparent authority in an organizational setting may also arise
from the fact that a person occupies a type of position that customarily carries specific authority although
the organization has withheld such authority from that agent.‖); 20A Hamilton et al., supra, § 36.6
(―Much implied and apparent authority is based on the power of position. When the corporation appoints
someone to an office, the very fact of appointment is a representation on which . . . reasonable third
persons may rely in determining the extent of apparent authority.‖).
                                                    10
foreman of a company to enter into a contract with a third party for repairs to the
company‘s equipment; ―course of dealing‖ showed that the company had contracted for
similar repairs from the same third party on prior occasions so that the third party would
be reasonable in believing the agent had authority to contract for the recent repairs).

       Another indication of authority comes from evidence that Lawler Foods increased
Elaazami‘s salary in 2003, 2004, and 2005 after Mike told Elaazami in one-on-one
meetings that Elaazami would receive raises.        The jury could conclude that Lawler
Foods‘ conduct would indicate to a reasonable person in Elaazami‘s position that Mike
had authority to promise additional compensation to a subordinate employee within his
department. See Carter Grocer Co. v. Day, 144 S.W. 365, 366–67 (Tex. Civ. App.—Fort
Worth 1912, writ dism‘d w.o.j.) (vice president with direct supervision over salespersons
had apparent authority to enter into a one-year employment contract with a current
salesperson; employee dealt with the agent frequently on matters of employment, and the
company had on prior occasions paid the employee the salary promised to him by the
agent); see also Elliot v. Great Nat’l Life Ins. Co., 611 S.W.2d 620, 621–22 (Tex. 1981)
(senior vice president of marketing had apparent authority to contract on behalf of the
corporation for a subordinate employee‘s one-year employment agreement; employee
made trips to meet with corporation‘s other employees at the request of the agent, and the
corporation paid for the trips; the agent‘s communications with the employee facilitated
the hiring of the employee).

       Finally, Elaazami testified that Bill and Carol frequently were absent from the
business and lived most of the time in Colorado. Elaazami explained that he had little
interaction with Bill and Carol, and he saw them maybe once or twice while he worked at
Lawler Foods. Elaazami further testified that Mike was ―the highest-ranking person there
. . . in 2005 that [he] dealt with on a frequent basis.‖ Taken in conjunction with other
evidence described above, this testimony provides some support for a finding of apparent
authority. See A. J. Anderson Co. v. Citizens’ Hotel Co., 8 S.W.2d 702, 703, 705 (Tex.

                                             11
Civ. App.—Fort Worth 1928, writ ref‘d) (affirming trial court‘s finding of implied
authority for vice president and general manager of a company to bind the company in
contract for stock subscriptions; evidence showed that board of directors conducted
minimal business, the president of the company spent most of the time at a resort, and the
vice president had primary management of the company); see also Willis, 239 S.W.2d at
696 (finding some evidence that a company‘s agent had apparent authority to promise an
employee a bonus in part because the employee dealt only with the agent and only met
the president of the company one time at a sales conference).

      Accordingly, when viewed cumulatively and in the light most favorable to
Elaazami, the evidence at trial is sufficient for the jury to have concluded that Mike had
apparent authority to promise Elaazami a bonus on behalf of Lawler Foods in late 2005.

IV.   Statute of Frauds

      Lawler Foods also contends that the trial court‘s judgment notwithstanding the
verdict should be affirmed because the statute of frauds bars any promise made to
Elaazami in this case as the agreement was not performable within one year. See Tex.
Bus. & Com. Code Ann. § 26.01(b)(6) (Vernon 2009). Pointing to Elaazami‘s testimony
about his discussion with Bill and Carol in 2003, Lawler Foods argues that ―[t]he
evidence conclusively proved that any oral promise for a bonus was specifically a three-
year period bonus agreement.‖

      As explained above, however, the record contains sufficient evidence of an
independent promise by Lawler Foods made in late 2005 to pay Elaazami a bonus in
March 2006 for work he performed in 2005. This agreement was performable within one
year and is not barred by the statute of frauds. See Miller v. Riata Cadillac Co., 517
S.W.2d 773, 775–76 (Tex. 1974).




                                           12
V.      Remand for Attorney’s Fees

        Elaazami requested in his opening brief on appeal that we remand this case to the
trial court for a determination of attorney‘s fees if we reverse the trial court‘s judgment
notwithstanding the verdict. Lawler Foods argues that Elaazami has waived a remand for
a determination of his attorney‘s fees because Elaazami cited no authority in his opening
brief to support the request.

        Rule 38.1(i) requires an appellant‘s brief to ―contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record.‖
Tex. R. App. P. 38.1(i). Appellate courts have held that we possess discretion to deem a
point of error waived on appeal due to inadequate briefing. See, e.g., Russell v. City of
Bryan, 919 S.W.2d 698, 707 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (citing
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994)).

        Elaazami requested a remand for attorney‘s fees in its opening brief as part of its
prayer for relief. See Tex. R. App. P. 38.1(j) (―The brief must contain a short conclusion
that clearly states the nature of the relief sought.‖). After Lawler Foods raised the
briefing waiver issue, Elaazami provided substantive argument with citation to authorities
for why we should remand for attorney‘s fees. Lawler Foods has made no substantive
argument in its response or subsequent letter brief, other than briefing waiver, for why we
should render judgment rather than remand.8

        Under the facts of this case, we decline to hold that Elaazami ―waived‖ his
statutory right to attorney‘s fees by failing to cite authority in his opening brief. When
we reverse a trial court‘s judgment, we ―must render the judgment that the trial court
        8
          Furthermore, before trial, there was concern about the evidence of attorney‘s fees that would be
placed before the jury, and counsel for Lawler Foods said, ―Your Honor, I think I can help resolve this for
efficiency sake and to avoid confusion. We‘d be happy to try that issue to the Bench.‖ Counsel clarified,
―If necessary.‖ After the trial court signed the judgment notwithstanding the verdict, counsel for
Elaazami asked for the opportunity to put on evidence of attorney‘s fees. The trial court correctly
explained there was no basis for attorney‘s fees so long as the judgment notwithstanding the verdict
remained; the trial court further suggested that the court of appeals would remand for a hearing on
attorney‘s fees if it reversed the judgment notwithstanding the verdict.
                                                    13
should have rendered, except when: (a) a remand is necessary for further proceedings; or
(b) the interests of justice require a remand for another trial.‖ Tex. R. App. P. 43.3.
Elaazami has a statutory right to attorney‘s fees under Section 38.001 of the Civil
Practice and Remedies Code if he is able to provide the trial court with evidence of a
reasonable fee. See Hassell Constr. Co. v. Stature Commercial Co., 162 S.W.3d 664, 668
(Tex. App.—Houston [14th Dist.] 2005, no pet.).         Thus, remand is the appropriate
disposition. See MasTec N. Am., Inc. v. El Paso Field Servs., L.P., 317 S.W.3d 431, 456
(Tex. App.—Houston [1st Dist.] 2010, pet. granted) (remanding for determination of
attorney‘s fees after reversing the trial court‘s judgment notwithstanding the verdict on
the plaintiff‘s breach of contract claim); McGuire, Craddock, Strother & Hale, P.C. v.
Transcon. Realty Investors, Inc., 251 S.W.3d 890, 899 (Tex. App.—Dallas 2008, pet.
denied) (same).

                                      CONCLUSION

       We sustain Elaazami‘s first issue and overrule Lawler Foods‘ cross-points. We
reverse the trial court‘s judgment notwithstanding the verdict and remand for the entry of
a judgment consistent with the jury‘s verdict and for a determination of attorney‘s fees.




                                          /s/    William J. Boyce
                                                 Justice



Panel consists of Justices Brown, Boyce, and McCally.




                                            14
