      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00054-CV



                John H. Spangle and Partners Rental Purchase, Inc., Appellants

                                                 v.

                                   Patrick L. McGee, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
     NO. D-1-GN-06-001595, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                            MEMORANDUM OPINION


                Appellants John H. Spangle and Partners Rental Purchase, Inc. appeal the district

court’s judgment against them in this breach of contract action. Appellants challenge the sufficiency

of the evidence to support the district court’s award of damages to appellee Patrick L. McGee,

and also challenge the district court’s award of attorneys’ fees. Appellants also contend that the

district court erred in denying their counterclaim for injunctive relief. We affirm the judgment of

the district court.

                Spangle and McGee were owners and employees of Partners, which operated

furniture and appliance stores at several locations in Texas. The parties entered into an “Agreement

of Sale and Purchase” on October 31, 2005, under which McGee terminated his interest in Partners,

and Spangle and Partners transferred ownership of the company’s Waco and Gonzales stores to

McGee and his new company, Your Way Rental Purchase.
               On May 9, 2006, McGee filed suit for amounts allegedly owed under the Agreement

and for an amount allegedly withheld from his final paycheck. Appellants asserted a counterclaim

seeking injunctive relief, in accordance with the Agreement, barring McGee’s continued use of

the Partners business name and requiring McGee to return proprietary documents. Following a

September 11, 2007 bench trial, the district court awarded McGee the unreimbursed cost of furniture

delivered to Your Way’s stores prior to November 1, 2005, and McGee’s employee bonus for

October 2005. The court also denied the injunctive relief sought by appellants.

               In their first point on appeal, appellants contend that the evidence is legally and

factually insufficient to support the district court’s award of $5,212.39 for furniture purchased for

the Waco and Gonzales stores. In reviewing a legal sufficiency challenge, we review the evidence

in the light favorable to the judgment, crediting favorable evidence if reasonable jurors could

and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson,

168 S.W.3d 802, 807 (Tex. 2005). We will sustain appellants’ complaint if the record reveals:

(1) the complete absence of a vital fact; (2) the court is barred by 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 no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite

of the vital fact. See id. at 810. More than a scintilla of evidence exists if the evidence rises to a

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

Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). In reviewing a factual sufficiency challenge, we

must consider and weigh all the evidence in the record, both in support of and against the finding,

to decide whether the judgment should be set aside. Pool v. Ford Motor Co., 715 S.W.2d 629, 635



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(Tex. 1986). We will set aside the judgment for factual insufficiency only if the evidence that

supports it is so against the great weight and preponderance of the evidence as to be clearly wrong

and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

               Under the Agreement, appellants were required to pay for furniture purchased for the

Waco and Gonzales stores if the furniture was delivered to those locations before November 1, 2005.

Appellants challenge the sufficiency of the evidence that the furniture at issue was delivered

before that date.

               Appellants assert that McGee had no personal knowledge of or documentary evidence

conclusively establishing the exact date on which the furniture in question—“Cross Creek” furniture

purchased for $3,371.76 and “Ashley” furniture purchased for $1,840.63—was delivered. However,

the invoice for the Cross Creek furniture showed a “ship date” of October 27, 2005, and McGee

testified that the manufacturer was located thirty miles from the Waco store, where the furniture was

delivered. He also testified that there was “no question in my mind” that the Cross Creek furniture

was delivered prior to November 1. Similarly, the invoices for the Ashley furniture had “invoice

dates” of October 27 and October 28, and McGee testified that the furniture was delivered to

the Waco and Gonzales stores prior to November 1. Although appellants introduced into evidence

an “Inventory Receiving Report” dated November 1, 2005, which included $566.79 worth of the

Ashley furniture, McGee testified that it was the store’s standard practice to log in furniture “a day

or two later” than the date of actual receipt because of lack of necessary information on that date.

Although Spangle testified that a furniture’s inclusion on an inventory receiving report occurs on

the date of delivery “to the best that it could be followed,” he admitted that the packing slips



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included with furniture on delivery do not always include the information necessary for immediate

entry on the report. We hold that there was legally and factually sufficient evidence to support the

trial court’s finding that the furniture at issue was delivered on or before November 1, 2005.

               Appellants also argue that they are not obligated to pay for the Cross Creek furniture

because the invoice states that the furniture was billed to Your Way rather than Partners. However,

the Agreement does not limit appellants’ liability for inventory based on which entity is named

on the invoice. The Agreement states that McGee is responsible for expenses “of the Waco and

Gonzales stores,” but that appellants remain liable for such expenses prior to November 1, 2005,

including furniture delivered before that date. Moreover, contrary to appellants’ argument that there

is no evidence they ordered or authorized the Cross Creek purchase, McGee testified that he ordered

the Cross Creek furniture on October 26, 2005, and—prior to the termination of his interest in

Partners—his authority over Partners included “full inventory controls” for the Waco and Gonzales

stores. In fact, Spangle agreed that, according to the Agreement, any furniture delivered prior to

November 1 into the Waco or Gonzales store was the responsibility of Partners.

               Spangle testified that Partners paid for all furniture received by the Waco and

Gonzales stores in October 2005. McGee testified, in turn, that appellants did not reimburse him

for the cost of either the Cross Creek furniture or the Ashley furniture. It is within the purview of

the trial court, when acting as the fact-finder, to make credibility determinations as to conflicting

witness testimony. See Kendall Builders, Inc. v. Chesson, 149 S.W.3d 796, 810 (Tex. App.—Austin

2004, pet. denied). We conclude that the evidence is legally and factually sufficient to support

the trial court’s finding that appellants had not reimbursed McGee for the furniture as they were



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obligated to do in accordance with the Agreement and, therefore, that McGee was entitled to

$5,212.39 in damages.

               In their second point on appeal, appellants challenge the district court’s award to

McGee of $1,500 for his monthly bonus payment for October 2005. The Agreement states: “No

prior or contemporaneous oral agreements, representations, understandings or otherwise shall have

any legal or equitable force or effect, evidentiary, contractually, or otherwise, unless expressed

and included in this Agreement and the documents contemplated by this Agreement.” The parties

agree that the monthly bonus payments were pursuant to a prior oral agreement. Appellants contend,

therefore, that they were not obligated to pay McGee the October 2005 bonus amount.

               However, it is “expressed and included” in the Agreement that Partners is responsible

for liabilities from operations arising prior to November 1, 2005, including payroll obligations.

According to McGee, his salary package included a base salary, a monthly car allowance, and

the non-discretionary monthly bonus. During October 2005, McGee was an employee of Partners,

and he received his monthly salary and car allowance for that month, but not the bonus. Spangle

testified that the bonus payments were a form of equity distribution and not part of McGee’s salary.

Thus, there was conflicting testimony over the nature of the bonus payment. The trial court is the

sole judge of the credibility of the witnesses. See id. We conclude that the evidence is sufficient to

support the trial court’s finding that appellants were liable for McGee’s October bonus payment.

               In their third point on appeal, appellants contend that the district court erred in

denying their counterclaim for injunctive relief. The standard of review when a trial court denies

a permanent injunction is abuse of discretion. Capital Senior Mgmt. 1, Inc. v. Texas Dep’t of Human



                                                  5
Servs., 132 S.W.3d 71, 74 (Tex. App.—Austin 2004, pet. denied). An abuse of discretion in denying

an injunction occurs when the trial court’s findings are not supported by some evidence of

substantial and probative character. Envoy Med. Sys., L.L.C. v. State, 108 S.W.3d 333, 335

(Tex. App.—Austin 2003, no pet.).

               Appellants sought an injunction against McGee’s use of the business name of Partners

Rental Purchase. Under the Agreement, McGee was required to cease and desist from any use

of Partners’s business name, and to have removed all signage containing the business name,

by January 1, 2006. McGee admitted that the signage at the Waco store was not replaced until

February 2006, and there was a dispute at trial regarding whether the removal of Partners signage

from a Your Way delivery truck occurred on or before October 25, 2006. McGee further testified,

however, that no Partners signage remained as of the time of trial and that there was no risk of any

future use of Partners’s business name by McGee or Your Way. Moreover, Spangle admitted that

he had no knowledge of any continued use of Partners Rental Purchase signage by McGee, but had

only “somewhat of a small concern that he will use his background with Partners to benefit him.”

               Appellants also sought an injunction requiring McGee to deliver all of Partners’s

proprietary documents to Partners. The Agreement required McGee to return any such documents

by November 15, 2005. McGee admitted that he failed to comply with this requirement, but testified

that he had instead destroyed all such documents and, therefore, no longer had any of Partners’s

proprietary documents to return. Spangle testified that the proprietary information on the documents

“could be useful to someone in a competitive position,” but that he had no personal knowledge

whether McGee did or did not possess any such documents.



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                To obtain an injunction, appellants had to show risk of imminent harm, not

injury that is purely conjectural or speculative. See Morris v. Collins, 881 S.W.2d 138, 140

(Tex. App.—Houston [1st Dist.] 1994, writ denied). The record does not demonstrate risk of

imminent harm from McGee’s use of Partners’s business name or possession of Partners’s

proprietary documents. We conclude that the district court did not abuse its discretion in denying

appellants’ request for injunctive relief.

                In their fourth point on appeal, appellants contend that the district court erred in

awarding attorneys’ fees to McGee and denying appellants’ request for attorneys’ fees. Appellants

base their contention on the court’s award of damages to McGee and the court’s denial of appellants’

request for injunctive relief being error. Since we hold that the district court did not err in awarding

damages to McGee or in denying the injunctive relief sought by appellants, we hold that the

trial court’s award of attorneys’ fees was not error and overrule appellants’ fourth point on appeal.

                Having overruled each of appellants’ points on appeal, we affirm the judgment of

the district court.




                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: January 15, 2009



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