text:
    Joe Ed BUNTON, Petitioner, v. Bascom W. BENTLEY III, Respondent.
    No. 03-0974.
    Supreme Court of Texas.
    Dec. 17, 2004.

      Joe Ed Bunton, pro se.
    George Chandler, Mike A. Hatchell, Molly H. Hatchell, Tyler, Reich Chandler, Darrin M. Walker, Law Office of Darrin Walker, Kingwood, for respondent.
   PER CURIAM.

The primary issue in this case is whether the petitioner waived his right to complain that the exemplary damages awarded by the trial court were unconstitutionally excessive. Even though the petitioner did not complain about the exemplary damages until the court of appeals issued its judgment, we conclude that he did not waive that claim. In this case, the court of appeals’ judgment reduced the trial court’s award of compensatory damages but left the exemplary damages intact. After the reduction of compensatory damages, the court of appeals had an obligation to review whether the exemplary damages were “reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003); see also Tatum v. Preston Carter Co., 702 S.W.2d 186, 187-88 (Tex.1986). The petitioner’s claim that the exemplary damages were excessive in light of the actual harm thus arose only after the court of appeals reduced the compensatory-damage award. Consequently, we conclude that the claim is not waived, and we remand this ease to the court of appeals for reconsideration of the exemplary damages.

This is the second time that this Court has considered this defamation case. The case arose in the 1990s, when Joe Ed Bunton, a public-access television host in Palestine, Texas, repeatedly accused Bas-com Bentley III, a local district judge, of being “corrupt” and a “criminal” who “oughta be in jail.” Bunton also accused Bentley of engaging in judicial misconduct, making improper campaign contributions, and various other misdeeds. Bentley requested that Bunton cease making .such allegations, but Bunton refused, stating on his program that he welcomed a defamation suit from Bentley because “the facts are with us and this is the truth, and therefore it is not slander.” Bentley subsequently sued Bunton and his television co-host for defamation.

At trial, the court directed a verdict that Bunton’s allegations of corruption and criminality were defamatory per se, and the jury then found that Bunton had made those statements with actual malice. The trial court’s judgment ordered Bunton to pay Bentley $150,000 for past and future loss of character and reputation, $7 million for past mental anguish, and $1 million in exemplary damages. After the court of appeals initially affirmed the judgment against Bunton, this Court remanded the case back to the court of appeals “to reconsider the excessiveness of the jury’s award of mental anguish damages against Bun-ton.” 94 S.W.3d 561, 607. On remand, the court of appeals concluded that “[a]n award of $7,000,000.00 in mental anguish damages is unsupported by the evidence and is so large as to be contrary to reason,” and suggested a remittitur that would reduce the mental anguish damages to $150,000. - S.W.3d -, 2003 WL 21831533. The court of appeals did not adjust the exemplary damages because Bunton “did not complain on appeal of the award of exemplary damages.” Id. at - n. 1. • Nevertheless, the court did note that “the ratio between the actual damage award, after remittitur, and the award for exemplary damages falls within the parameters set by the United States Supreme Court.” Id. (citing Campbell, 538 U.S. at 424, 123 S.Ct. 1513). In this Court, Bunton now challenges the awards of both compensatory and exemplary damages.

We first conclude that there is legally sufficient evidence to support the court of appeals’ judgment with regard to the compensatory damages. When this case was before this Court for the first time, a four-judge plurality of the Court held that there was “no evidence that Bentley suffered mental anguish damages in the amount of $7 million,” and remanded the case to the court of appeals to reconsider the mental anguish damages. 94 S.W.3d 561, 607-08. A majority of the Court agreed, however, that Bentley had provided legally sufficient evidence of some amount of mental anguish, stating that “[t]he record leaves no doubt that Bentley suffered mental anguish.” Id. at 606; see also id. at 623-24 (Baker, J., dissenting). A majority of the Court also agreed that “[t]he other amounts of actual damages found by the jury are well within a range that the evidence supports.” Id. at 607; id. at 624 (Baker, J., dissenting). On remand, the court of appeals concluded that the $7 million mental anguish award was “unsupported by the evidence” and “so large as to be contrary to reason.” — S.W.3d-. The court determined that $150,000 would be “reasonable compensation” based on the evidence Bentley presented at trial, and suggested a $6,850,000 remittitur. Id.

Consequently, the only compensatory-damages question before this Court is whether legally sufficient evidence supports a mental anguish award of $150,000. We conclude that it does. As we noted in our prior opinion, there was evidence that “the ordeal had cost [Bentley] time, deprived him of sleep, caused him embarrassment in the community in which he had spent almost all of his life, disrupted his family, and distressed his children at school,” and that “[fjriends testified that he had been depressed, that his honor and integrity had been impugned, that his family had suffered, too, adding to his own distress, and that he would never be the same.” 94 S.W.3d 561, 606-07. We therefore hold that legally sufficient evidence supports the court of appeals’ judgment as to the compensatory damages.

Although the court of appeals suggested a significant remittitur of compensatory damages, it did not reevaluate the exemplary damages; instead, the court held that Bunton had waived any claim as to exemplary damages when he failed to “complain on appeal of the award of exemplary damages.” — S.W.3d - n. 1. We agree that, ordinarily, an appellant waives any complaint about the trial court’s judgment that is not raised in the court of appeals. See Johnson v. Lynaugh, 796 S.W.2d 705, 707 (Tex.1990); Tex.R.App. P. 53.2(f) (“If the matter complained of originated in the trial court, it should have been preserved for appellate review in the trial court and assigned as error in the court of appeals.”). A complaint that arises from the court of appeals’ judgment itself, however, may be raised either in a motion for rehearing in the court of appeals or in a petition for review in this Court. See Larsen v. FDIC/Manager Fund, 835 S.W.2d 66, 74 n. 12 (Tex.1992); Tex.R.App. P. 49.9. Under this standard, we conclude that Bunton’s complaint that the exemplary damages were unconstitutionally excessive arose from the court of appeals’ judgment and may therefore be raised in this Court for the first time.

We have held that exemplary damages must be reasonably proportionate to compensatory damages, and that adjustment of compensatory damages therefore requires reevaluation of the factors supporting an award of exemplary damages. See Tatum v. Preston Carter Co., 702 S.W.2d 186, 188 (Tex.1986). Exemplary damages should not be adjusted by a mathematical formula; instead, each of the factors supporting the exemplary damages should be reevaluated in light of the actual harm suffered by the plaintiff. See id.

The United States Constitution similarly requires an analysis of the relationship between the actual harm suffered and the exemplary damages awarded. Campbell, 538 U.S. at 416-18, 123 S.Ct. 1513. This requirement is based on the Due Process Clause of the Fourteenth Amendment, which “prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” Id. In order to avoid the imposition of grossly excessive or arbitrary exemplary damages, the United States Supreme Court requires courts reviewing exemplary damages to consider three factors: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Id. at 418, 123 S.Ct. 1513 (citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). Each of these factors must be reviewed de novo to ensure that exemplary damages are not “grossly disproportional” to the gravity of the defendant’s conduct. Cooper Indus. v. Leatheman Tool Group, Inc., 532 U.S. 424, 434-36, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001).

All three factors work together to ensure that exemplary damages are “reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.” See Campbell, 538 U.S. at 426, 123 S.Ct. 1513. These factors are intertwined with each other and cannot be viewed in isolation; specifically, a reviewing court cannot conclude that a particular ratio is consistent with due process requirements unless that court examines the ratio in light of the other factors and in light of the actual harm to the plaintiff. Id. at 425-26, 123 S.Ct. 1513 (noting that the Constitution’s “due process guarantee” requires the reviewing court to consider the egregiousness of the defendant’s act, the actual harm to the plaintiff, and the amount of compensatory damages awarded in determining whether the ratio is appropriate). Consequently, while the court of appeals correctly noted that the 3:1 damage ratio in this case is in line with ratios upheld by the Supreme Court, the analysis cannot end there. Instead, the “principles set forth in Gore must be implemented with care, to ensure both reasonableness and proportionality,” and the analysis must be done “in light of the ... compensatory damages awarded.” Id. at 428-29, 123 S.Ct. 1513.

Because the exemplary damages must bear a reasonable relation to the defendant’s conduct and to the actual harm suffered, a claim that the exemplary damages are grossly disproportionate may therefore arise any time the compensatory damages are significantly adjusted. Ideally, the court of appeals should automatically reevaluate exemplary damages whenever compensatory damages are reduced. See Preston Carter Co., 702 S.W.2d at 187-88. In this case, the court of appeals reduced the mental anguish damages from $7 million to $150,000. Even though Bunton did not initially appeal the award of exemplary damages, we conclude that he is entitled to raise a claim that those damages are excessive in light of the court of appeals’ reduction of the compensatory-damage award. We therefore affirm the portion of the court of appeals’ judgment dealing with compensatory damages, reverse the portion of the judgment dealing with exemplary damages, and remand this case to the court of appeals for further proceedings consistent with this opinion.

Justice O’NEILL did not participate in the decision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Bill Martin SANDERS.
    No. 04-0243.
    Supreme Court of Texas.
    Dec. 17, 2004.
    Rehearing Denied Jan. 14, 2005.

      Mary D. McKnight, Dallas, Lisa E. McRnight, Neal E. Young, for relator.

      Julie H. Quaid, Charles J. Quaid, Quiad & Quaid, LLC, Dallas, for real party in interest.
    Brad M. Lamorgese, Cooper & Scully, P.C., Dallas, for amicus curiae.
   PER CURIAM.

When a lawyer is or may be a witness necessary to establish an essential fact, Texas Disciplinary Rule of Professional Conduct 3.08 prohibits the lawyer from acting as both an advocate and a witness in an adjudicatory proceeding. In this divorce and child-custody dispute, the relator husband could not afford to pay his attorney and agreed to perform carpentry work on her law office to help defray his legal costs. Relator’s wife moved to disqualify his attorney, claiming that, as the husband’s employer, she had become a material fact witness in the case. We must decide whether the trial court abused its discretion in denying the wife’s disqualification motion. We hold that it did not. Accordingly, we conditionally grant mandamus relief and direct the court of appeals to vacate its order directing the trial court to disqualify the husband’s attorney.

Bill Sanders hired Mary McKnight to represent him in this divorce and child-custody proceeding. Because he could not afford to pay her fees based on his income as a land surveyor, Bill agreed to partially pay by performing remodeling work, after hours, on McKnight’s law office. By letter dated April 14, 2003, McKnight informed Bill’s wife, Joyce, of the arrangement whereby McKnight’s billing was offset by the work that Bill performed. On August 29, 2003, one month before the scheduled trial date, Joyce filed a motion to disqualify McKnight, claiming that, “like all employers of parties in custody cases,” she would be a material witness. The trial court denied Joyce’s motion, but a divided court of appeals conditionally granted a writ of mandamus ordering McKnight’s disqualification. 151 S.W.3d 211, 212. The court reasoned that the trial court abused its discretion in denying the motion to disqualify because McKnight’s dual roles might confuse or mislead the fact-finder. Id. at 212. Bill now seeks mandamus relief in this Court.

Mandamus is appropriate to correct an erroneous order disqualifying counsel because there is no adequate remedy by appeal. See In re Epic Holdings, Inc., 985 S.W.2d 41, 52 (Tex.1998) (citing Nat’l Med. Enters. v. Godbey, 924 S.W.2d 123, 133 (Tex.1996)). In reviewing the court of appeals’ decision, we focus on the trial court’s ruling. In re Meador, 968 S.W.2d 346, 350 (Tex.1998). If the trial court did not abuse its discretion, it is error for the court of appeals to grant mandamus relief. See id. at 348. In determining whether the trial court abused its discretion with respect to resolution of factual matters, we may not substitute our judgment for that of the trial court and may not disturb the trial court’s decision unless it is shown to be arbitrary and imreasonable. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Id. at 840.

Disciplinary Rule 3.08 was promulgated as a disciplinary standard rather than one of procedural disqualification, but we have recognized that the rule provides guidelines relevant to a disqualification determination. Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex.1996) (citing Ayres v. Canales, 790 S.W.2d 554, 556 n. 2 (Tex.1990)). The rule states in part:

(a) Á lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.

Tex. DisciplinaRY R. Prof’l Conduct 3.08(a), reprtnted in Tex. Gov’t Code, tit. 2, subtit. G app. A (Tex. State BáR R. art. X, § 9).

We have said that “[disqualification is a severe remedy.” Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex.1990). Disqualification is a measure that can cause immediate harm by depriving a party of its chosen counsel and disrupting court proceedings. In re Nitla SA. de C.V., 92 S.W.3d 419, 423 (Tex.2002). Thus, “[m]ere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice” to merit disqualification. Spears, 797 S.W.2d at 656. The fact that a lawyer serves as both an advocate and a witness does not in itself compel disqualification. See Ayres, 790 S.W.2d at 557-58; In re Chu, 134 S.W.3d 459, 464 (Tex.App.-Waco 2004, orig. proceeding); May v. Crofts, 868 S.W.2d 397, 399 (Tex.App.-Texarkana 1993, orig. proceeding). Disqualification is only appropriate if the lawyer’s testimony is “necessary to establish an essential fact.” Tex. DisciplinaRY R. PROf’l Conduct 3.08(a). Consequently, the party requesting disqualification must demonstrate that the opposing lawyer’s dual roles as attorney and witness will cause the party actual prejudice. Ayres, 790 S.W.2d at 558. Without these limitations, the rule could be improperly employed “as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice.” Tex. Disciplinary R. Prof’l Conduct 3.08 cmt. 10 (stating that a lawyer “should not seek to disqualify an opposing lawyer by unnecessarily calling that lawyer as a witness”).

Joyce asserts that McKnight’s testimony is necessary to establish two essential facts. First, Joyce contends McKnight’s testimony is needed to establish the extent of Bill’s obligation to furnish handyman services to McKnight in the future. Joyce claims she plans to call McKnight to testify about Bill’s employment schedule and whether it will affect his ability to care for the minor child or pay child support. Because she has sought disqualification, Joyce bears the burden of showing that McKnight’s testimony is necessary. Spears, 797 S.W.2d at 656. Assuming such facts are “essential,” as Joyce claims, she fails to explain why other sources revealed in the record, such as Bill’s own testimony or McKnight’s billing records, are insufficient to establish the nature and extent of Bill’s obligation. Joyce has thus failed to show how McKnight’s testimony is necessary, and we cannot say that the trial court abused its discretion in declining to disqualify McKnight on this basis. Joyce also claims that McKnight’s testimony is necessary to establish whether Bill perjured himself in a temporary orders hearing in November 2002, when he testified that no barter arrangement existed. McKnight testified that the arrangement commenced sometime in October 2002, although in a later hearing she claimed that it began “sometime close to Christmas [2002].” Joyce asserts that, if the earlier date is correct, Bill perjured himself at the temporary orders hearing and McKnight’s testimony may be necessary to impeach him at trial. There was evidence, however, indicating that Bill's testimony reflected forgetfulness and uncertainty rather than intentional deception. Specifically, there was evidence that McKnight’s offset arrangement was informal and evolved over time; at first, Bill paid McKnight cash, but as his funds waned he power-washed her residence in exchange for a one-time credit. Then, the record reflects, sometime in the fall of 2002, Bill entered into a more formal, verbal agreement to work off McKnight’s fees. Both Bill and McKnight voiced uncertainty over precisely when the arrangement began. Indeed, McKnight’s recollection of these events is so cloudy that any impeachment' value her future testimony might provide is speculative at best.

We have stated that Rule 3.08 should not be used tactically to deprive the opposing party of the right to be represented by the lawyer of his or her choice, Ayres, 790 S.W.2d at 557, and have condemned disqualifications based upon “speculative and contingent allegation[s].” Spears, 797 S.W.2d at 658. In this case, Joyce failed to demonstrate that any testimony McKnight might provide is necessary to establish an essential fact, as the rule requires. We agree with the dissenting justice in the court of appeals that, “[i]n this bitterly contested divorce and custody case, the trial judge was in a much better position than the appellate court to evaluate the evidence, balance the competing interests, apply the law, and reach a decision.” 151 S.W.3d at 213 (Whittington, J., dissenting). We cannot say, based on the record presented, that the trial court clearly abused its discretion in denying Joyce’s disqualification motion.

Accordingly, without hearing oral argument, Tex.R.App. P. 52.8(c), we conditionally grant the writ of mandamus and order the court of appeals to vacate its order directing the trial court to disqualify the relator’s attorney. The writ will issue only if the court of appeals does not comply.


author: SANDEE BRYAN MARION, Justice.

text:
    UNIVERSITY OF TEXAS AT SAN ANTONIO, Appellant, v. Adam W. TREVINO and Jennifer Trevino, Individually and On Behalf of the Estate of Marissa Rose Trevino, Deceased, a Minor, Appellees.
    No. 04-02-00412-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 27, 2002.

      M. Lynn Taylor, Asst. Atty. Gen., Austin, for appellant.
    J. Thomas Rhodes, III, Lyons & Rhodes, P.C., Sean Lyons, Law Office of Sean Lyons, San Antonio, for appellees.
    Cathleen M. Stryker, Ball & Weed, P.C., San Antonio, David E. Chamberlain, Chamberlain McHaney, for other.
    Sitting: PHIL HARDBERGER, Chief Justice, CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice.
   Opinion by

SANDEE BRYAN MARION, Justice.

This is an appeal from the trial court’s denial of a plea to the jurisdiction filed by appellant, the University of Texas at San Antonio (“UTSA”). We hold that the ap-pellees’ (“the Trevinos”) petition sufficiently alleged claims for non-discretionary acts by UTSA within the scope of the Texas Tort Claims Act’s (“the Act”) waiver of sovereign immunity; therefore, we affirm the trial court’s order.

BACKGROUND

In August 1999, the Trevino family, including three-year-old Marissa Rose, attended a fundraising activity held by the Rotary Club on the UTSA campus. While inside UTSA’s Convocation Center, Marissa fell through the railings on the side of the bleachers. She later died from her injuries. The Trevinos sued several defendants, including UTSA. UTSA filed a plea to the jurisdiction, claiming it was immune from suit under the Act because its “design decisions” with regard to the bleacher railings were discretionary acts. The trial court denied the plea and this appeal by UTSA ensued.

STANDARD OF REVIEW

Subject matter jurisdiction is essential to the trial court’s authority to decide a case. See Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). To prevail, the party asserting the plea to the jurisdiction must show that even if all the allegations in the plaintiffs pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiffs petition to confer jurisdiction on the trial court. Texas State Employees Union/CWA Local 6184 v. Texas Workforce Comm’n, 16 S.W.3d 61, 65 (Tex.App.-Austin 2000, no pet.). Because subject matter jurisdiction presents a question of law, we review the trial court’s decision under a de novo standard of review. Id. A court deciding a plea to the jurisdiction is not required to look solely to the pleadings, but may consider evidence relevant to the jurisdictional issue and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Disk v. Blue, 34 S.W.3d 547, 554-55 (Tex.2000). We construe the plaintiffs pleadings in the plaintiffs- favor and look to the plaintiffs intent. Texas Ass’n of Business, 852 S.W.2d at 446. We do not address the merits of the ease; instead, the defendant must establish why the merits of the plaintiff’s claims should not be reached. Bland Indep. Sch. Dist., 34 S.W.3d at 554.

In them petition, the Trevinos alleged claims against UTSA based on negligence and premises liability. In its plea to the jurisdiction, UTSA characterized the Tre-vinos’ complaints as “design defects,” and argued it was entitled to immunity because “design decisions” are discretionary. UTSA did not dispute the Trevinos’ premises liability claim, except to argue that claims arising from the negligent design and construction of the bleachers and the railing system did not waive immunity. UTSA also alleges the Trevinos were licensees, and not invitees, for the purposes of their premise liability claim. Although UTSA filed a motion for summary judgment challenging the Trevinos’ alleged status as invitees, UTSA’s plea to the jurisdiction did not raise a similar challenge. Therefore, we do not consider this argument on appeal. Also, because UTSA’s plea to the jurisdiction was based entirely on its discretionary “design decision” argument, the only issue before this court is whether the Trevinos’ pleadings adequately allege a claim based on non-discretionary actions sufficient to fall within the Act’s waiver of immunity.

DISCRETIONARY ACTS

Under the doctrine of sovereign immunity, a governmental entity is liable for negligence only if a constitutional or statutory provision waives immunity from liability. University of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994). Section 101.021 of the Act sets forth the extent to which Texas has waived its immunity. Under that section, the State or a governmental unit of the State is liable for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. PRAC. & RemlCode § 101.021(2) (Vernon 1997). The Act also waives sovereign immunity for premise defects. Id. § 101.022(a).

However, even if a waiver of immunity may be established under section 101.021, the Act sets forth certain exemptions that will maintain the governmental unit’s sovereign immunity. See Delaney v. University of Houston, 835 S.W.2d 56, 59 (Tex.1992). For example, section 101.056 excepts claims based on the State’s discretionary policy decisions. See Tex Civ. Prac. & Rem.Code § 101.056. The purpose of the exception to the waiver of immunity contained in section 101.056 is to avoid judicial review of governmental policy decisions. Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.App.-Dallas 1993), aff'd, 870 S.W.2d 21 (Tex.1994). Thus, if the injury results from the formulation of policy, the governmental entity is immune. State v. Terrell, 588 S.W.2d 784, 788 (Tex.1979); Ramos v. Texas Dept. of Public Safety, 35 S.W.3d 723, 733 (Tex.App.Houston [1st Dist.] 2000, pet. denied); Mitchell, 855 S.W.2d at 745. If the injury results from the negligent implementation of policy, the governmental entity is not immune. Terrell, 588 S.W.2d at 788; Ramos, 35 S.W.3d at 733; Mitchell, 855 S.W.2d at 745. Whether a governmental activity is discretionary is a question of law. State v. Miguel, 2 S.W.3d 249, 251 (Tex.1999) (per curiam).

An act is discretionary if it requires exercising judgment and the law does not mandate performing the act with such precision that nothing is left to discretion or judgment. City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex.1994). This standard is easier stated than applied, however. Because of the difficulty in distinguishing between discretionary and ministerial functions, a number of courts have adopted the design/maintenance test. This test requires the application of the discretionary exception only when the claims are based upon governmental decisions at the “design level,” instead of at the “maintenance level.” Design decisions made by the State are discretionary and therefore immune from liability. Ramos, 35 S.W.3d at 733; Mitchell, 855 S.W.2d at 745. Maintenance activities undertaken at the operational level are not discretionary functions and are not immune from liability. City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex.1985); City of Fort Worth, 977 S.W.2d at 817; Mitchell, 855 S.W.2d at 745.

According to UTSA, it is entitled to immunity under section 101.056 because it was not required to design the bleacher railings in any particular manner and any decisions that led to the final design and construction of the Convocation Center and the attached equipment were discretionary. UTSA contends that although the Trevinos’ claim arises from a premise defect, the “gravaman” of their complaint is that UTSA did not design the railings in such a way so as to prevent a child from falling between the railing sections. UTSA asserts this complaint involves fundamental design decisions behind the construction of the railings, and such design decisions are discretionary acts for which immunity is not waived. On the other hand, the Trevinos contend section 101.056 does not apply because their complaint is not about the design of the railings. In their petition, they alleged UTSA was negligent in failing to properly maintain the bleachers in a safe condition, inspect the bleachers to ascertain and institute an effective remedial plan, warn of the dangers presented by the defects, and maintain the bleachers in compliance with applicable code requirements.

In support of their claim that the bleachers and railings were not maintained in a safe condition, the Trevinos rely on a preliminary report filed by a San Antonio police officer who inspected the bleachers following Marissa’s fall. The officer stated that the side railings of the bleachers were loose “from wear and tear” and some of the platform boards were slightly warped, “possibly causing someone to trip.” Thus, the trial court had before it evidence supporting the Trevinos’ allegation that UTSA was negligent in failing to properly maintain the bleachers in a safe condition. Accordingly, we hold the Trevinos sufficiently alleged maintenance activities on UTSA’s part that were not discretionary, and thus, not within the scope of section 101.056. See Bland Indep. Sch. Dist., 34 S.W.3d at 555 (court deciding a plea to the jurisdiction may consider evidence relevant to the jurisdictional issue). For this reason, we need not consider whether the Trevinos’ allegation that UTSA had a duty to change the bleachers and railings to comply with new code requirements implicated a nondiscretionary function.

We conclude that UTSA did not meet its burden of establishing that the merits of the Trevinos’ claims should not be reached. Accordingly, we affirm the trial court’s order denying UTSA’s plea to the jurisdiction.

      . Following the hearing at which the trial court considered both UTSA’s plea to the jurisdiction and its motion for summary judgment, the court denied the plea to the jurisdiction. The record contains no ruling on the motion for summary judgment.

      . In its plea to the jurisdiction, UTSA did not dispute the Trevinos' allegations that it had a duty to maintain the bleachers in a particular manner. In support of its argument on appeal that it was under no duty to maintain the bleachers in conformity with applicable building codes, UTSA relies on this court’s opinion in University of Texas Health Science Center at San Antonio v. Bruen, 92 S.W.3d 24 (Tex. App.-San Antonio 2002, pet. filed) (motion to publish granted). UTSA's reliance is misplaced, however. In Bruen, the plaintiff asserted that the design of a ramp constituted a dangerous condition. The plaintiff did not raise a failure to maintain claim. Id. at 26. The plaintiff also contended the University had a duty under the Americans With Disabilities Act ("ADA”) to make structural changes to the facility after it was installed. Id. at 27. This court did not reach the issue of whether the ADA waived the University's sovereign immunity because the plaintiff was not qualified to assert a claim under the ADA. Id. Here, UTSA did not allege in its plea to the jurisdiction that it had no duty or that it was under no legal mandate to maintain the bleachers.


author: KAREN ANGELINI, Justice.

text:
    Fred TABRIZI, Appellant, v. DAZ-REZ CORPORATION d/b/a El Maracumbe Restaurant, H.D. Hosseini, and Sima D. Hosseini, Appellee.
    No. 04-03-00387-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 4, 2004.
    Rehearing Overruled Nov. 3, 2004.

      Adam Poncio, Law Office of Cerda & Poncio, P.C., San Antonio, for appellant.
    Sharon E. Callaway, Michael J. Murray, Crofts & Callaway, P.C., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, and SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Plaintiff Fred Tabrizi appeals a portion of a judgment granted in favor of Daz-Rez Corporation d/b/a El Maracumbe Restaurant, H.D. Hosseini, and Sima D. Hosseini (“Hosseini”). Hosseini brings a cross-appeal on a portion of the judgment granted in favor of Tabrizi. Because we hold that Tabrizi’s first issue and Hosseini’s cross-issue have merit, we modify the judgment of the trial court. As modified, we affirm.

BACKGROUND

H.D. Hosseini owns Das-Rez Corporation, and Das-Rez Corporation owns El Maracumbe Restaurant. In 1987, Tabrizi came to work for El Maracumbe as a manager. He was paid a salary of $36,000 a year plus a bonus of forty percent of El Maracumbe’s net profits. Tabrizi’s bonuses ranged from $44,000 to $76,000 a year.

At some point, Tabrizi approached Hos-seini about expanding the restaurant. Although Hosseini was initially reluctant, he eventually agreed to expand and took out a loan to pay for the costs of expansion. After the expansion was completed, the parties became aware that El Maracumbe was experiencing cash flow problems. So Hosseini and Tabrizi met with William Corley, the accountant. Corley told Hos-seini that the reason the restaurant was running out of money was that in calculating net profit, El Maracumbe had not been deducting certain expenses, including the cost of paying off the note for the loan, from revenue. In order to fix this problem, Hosseini and Tabrizi made an agreement. The parties dispute, however, what the terms of that agreement were.

According to Hosseini, the parties agreed to deduct the cost of paying off the note from revenue prior to calculating net profit. Under the former method of calculating net profit, Hosseini contends, Tabri-zi was receiving inflated bonuses. By agreeing to deduct the cost of paying off the note from revenue before calculating net profit, Hosseini argues, Tabrizi was merely agreeing to pay back his share of overdrawn bonuses.

Tabrizi views the agreement differently. According to Tabrizi, he and Hosseini agreed to forego them bonuses to cover the cost of the expansion at forty and sixty percent, respectively. In exchange for paying forty percent of the expansion, Ta-brizi contends, the parties agreed that he would receive forty percent of future profits. In Tabrizi’s view, this agreement made him a part owner of El Maracumbe. He testified as follows:

We were shortage [sic] about the money, expanding. They said I have to pay. Okay. I told Mr. Corley, I [asked] him, Mr. Corley, I will be glad to pay that. That’s going to be my investment, but I would like [it] to be on [paper in] black and white.

Corley also testified at trial. He agreed with Hosseini that El Maracumbe was experiencing cash flow problems and that, in order to fix those problems, the parties agreed to convert the bonus calculation from a percentage of net income to a percentage of cash flow. He also agreed with Tabrizi that the parties agreed that Tabrizi would pay forty percent of the expansion of El Maracumbe in exchange for forty percent of El Maracumbe’s future profits. He did not agree with Tabrizi’s assertion, however, that this arrangement made Ta-brizi a part owner in El Maracumbe. Cor-ley also testified that the total costs of expansion exceeded $100,000 and that Ta-brizi contributed at least $40,000.

Tabrizi left El Maracumbe on May 21, 1999. He subsequently brought suit against Hosseini for breach of contract, fraud, and negligent misrepresentation. He also alleged that the parties had formed an implied partnership.

Statute of Frauds

At trial, the jury found that Hosseini and Tabrizi had an implied agreement and that Hosseini failed to comply with the agreement. Arguing that enforcement of such agreement is barred by the statute of frauds, Hosseini filed a motion for judgment notwithstanding the verdict. The trial court granted the motion. In his first issue on appeal, Tabrizi argues that the trial court erred in granting Hosseini’s motion for judgment notwithstanding the verdict.

A trial judge may grant a motion for judgment notwithstanding the verdict only when there is no evidence to support one or more of the jury’s findings of fact necessary to the judgment. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). In reviewing a trial court’s decision to grant a motion for judgment notwithstanding the verdict, we must determine whether there is any evidence upon which the jury could have made a necessary finding of fact. In doing so, we review the record in the light most favorable to the finding of fact, considering only the evidence and inferences from that evidence that support the finding and rejecting the evidence and inferences that do not. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex.1988) (per curiam) (citing Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex.1986)). We will sustain the granting of a motion for judgment notwithstanding the verdict if the record shows (1) the complete absence of evidence of a necessary fact, (2) the evidence offered to prove the necessary fact is no more than a mere scintilla of evidence, (3) the evidence conclusively establishes the opposite of the necessary fact, or (4) the rules of law or evidence bar consideration of the only evidence offered to prove the necessary fact. See Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991).

Here, Tabrizi argues that the statute of frauds does not bar enforcement of the implied agreement because such agreement could have been performed in one year. Whether an agreement falls within the statute of frauds is a question of law. Gerstacker v. Blum Consulting Eng’rs., Inc., 884 S.W.2d 845, 849 (Tex.App.-Dallas 1994, writ denied).

Texas law provides that an agreement that is not to be performed within one year from the date of making the agreement is not enforceable unless it is (1) in writing; and (2) signed by the person charged with the promise or agreement. Tex. Bus. & Comm.Code Ann. §§ 26.01(a), 26.01(b)(6) (Vernon 2002).

Section 26.01(b)(6) does not apply if the contract, from its terms, could possibly be performed within a year. Ni-day v. Niday, 643 S.W.2d 919, 920 (Tex. 1982) (per curiam) (if the agreement, either by its terms or by the nature of the required acts, cannot be performed within one year, it falls within the statute of frauds and must be in writing). To determine the applicability of the statute of frauds with indefinite contracts, a court may use any reasonably clear method of ascertaining the intended length of performance. Gerstacker, 884 S.W.2d at 850. The method is used to determine the parties’ intentions at the time of contracting. Id. Where an oral contract omits the performance term, duration may properly be implied from extrinsic evidence. Niday, 643 S.W.2d at 920.

Here, Hosseini argues that because the term of the note was two years, the agreement could not be performed within a year. We disagree. The agreement to pay off a two-year note was not between Hosseini and Tabrizi but between Hosseini and his lender. Both Tabrizi and Corley testified that the parties agreed that Ta-brizi would pay forty percent of the expansion of El Maracumbe in exchange for forty percent of El Maracumbe’s future profits. It is certainly possible that Tabri-zi could have paid forty percent of the expansion within a year by investing his bonuses — in fact, the record reflects that his yearly bonuses typically exceeded that amount.

Citing Mann v. NCNB Tex. Nat’l Bank, 854 S.W.2d 664, 668 (Tex.App.-Dallas 1992, no writ), Hosseini argues that the fact that Tabrizi could have paid forty percent of the note within a year does not remove the agreement from the ambit of the statute of frauds. See id. at 669 (loan agreement with three-year repayment term was within statute notwithstanding remote possibility that debtor would repay loan within year from its making). Unlike Mann, however, there is no evidence here that Hosseini and Tabrizi contemplated that performance of the agreement would exceed one year. Rather, the evidence reveals that the time period for performance was dependent on El Maracumbe’s profits — in other words, that it was uncertain. Where the time of performance of a contract is uncertain and performance can conceivably occur within one year, the statute of frauds does not apply. Walker v. Tafralian, 107 S.W.3d 665, 668 (Tex.App.Fort Worth 2003, pet. denied). Accordingly, we hold that enforcement of the alleged agreement is not barred by the statute of frauds and that Tabrizi should recover $36,913.00 on his breach-of-contract claim. We sustain Tabrizi’s first issue.

Lost PRofits

At trial, the jury awarded Tabrizi $183,000.00 in lost profits for Hosseini’s failure to comply with the alleged agreement. Arguing that Tabrizi failed to establish these damages with reasonable certainty, Hosseini filed a motion for judgment notwithstanding the verdict. The trial court granted the motion. On appeal, Tabrizi argues that the trial court erred in granting Hosseini’s motion for judgment notwithstanding the verdict because the evidence establishes the amount of lost profits with reasonable certainty.

Again, in reviewing a trial court’s decision to grant a motion for judgment notwithstanding the verdict, we must determine whether there is any evidence upon which the jury could have made a necessary finding of fact. In doing so, we review the record in the light most favorable to the finding of fact, considering only the evidence and inferences from that evidence that support the finding and rejecting the evidence and inferences that do not. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex.1988) (per curiam) (citing Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex.1986)). We will sustain the granting of a motion for judgment notwithstanding the verdict if the record shows (1) the complete absence of evidence of a necessary fact, (2) the evidence offered to prove the necessary fact is no more than a mere scintilla of evidence, (3) the evidence conclusively establishes the opposite of the necessary fact, or (4) the rules of law or evidence bar consideration of the only evidence offered to prove the necessary fact. See Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991).

Recovery for lost profits does not require that the loss be susceptible to exact calculation. Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex.1994). However, the injured party must do more than show that it suffered some lost profits. Id. The loss amount must be shown by competent evidence with reasonable certainty. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). This is a fact-intensive determination. Heine, 835 S.W.2d at 84. At a minimum, opinions of lost-profit estimates must be based on objective facts, figures, or data from which the lost-profits amount may be ascertained. Szczepanik, 883 S.W.2d at 649; Heine, 835 S.W.2d at 84. Although supporting documentation may affect the weight of the evidence, it is not necessary to produce in court the documents supporting the opinions or estimates. Heine, 835 S.W.2d at 84.

Tabrizi testified to lost profits as follows:

I would like to request, ask my forty percent investment in El Maracumbe. I would like to ask forty percent net profit since I left El Maracumbe. I would roughly say 1999 would be $35, $34,0000, 1999, because I have received some of it before I resign. Year 2000, $60,000; 2001, $60,000.... That was my average bonus I used to make yearly at El Mara-cumbe.

This evidence fails to provide a factfin-der with sufficient data to determine lost profits with reasonable certainty. It is not based on objective facts, figures, or data from which the lost-profits amount may be ascertained. Szczepanik, 883 S.W.2d at 649; Heine, 835 S.W.2d at 84. Accordingly, we hold that the evidence of lost profits is legally insufficient to support an award of damages. We overrule this issue on appeal.

Fraud

At trial, the jury found that Hosseini committed fraud against Tabrizi and awarded Tabrizi $1,000.00 in damages. Arguing that there is no evidence Hosseini committed such fraud, Hosseini filed a motion for judgment notwithstanding the verdict. The trial court granted the motion. On appeal, Tabrizi argues that the trial court erred in granting the motion.

Citing Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex.1991), Hosseini argues that the trial court properly granted his motion because Tabrizi’s claim sounds only in contract. See id. at 495 (quoting Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex.1986)) (“The acts of a party may breach duties in tort or contract alone or simultaneously in both. The nature of the injury most often determines which duty or duties are breached. When the injury is only the economic loss to the subject of a contract itself the action sounds in contract alone.”). Tabrizi, on the other hand, states that his claim sounds either in tort or contract: “The claims by Fred Tabrizi for negligent misrepresentation and fraud were pled in the alternative to the breaeh-of-contract/implied partnership claims.” Therefore, because Tabrizi concedes that his claim for fraud was pled as an alternative to his breach-of-contract claim, and because we have determined that Tabrizi should recover damages on his breach-of-contract claim, we overrule this issue on appeal.

Negligent MisrepResentation

At trial, the jury found that Hosseini made a negligent misrepresentation on which Tabrizi justifiably relied and awarded Tabrizi $1,000.00 in damages. Arguing that there is no evidence Hosseini made such negligent misrepresentation, Hosseini filed a motion for judgment notwithstanding the verdict. The trial court denied the motion. In his one issue on cross-appeal, Hosseini argues that the trial court erred in failing to grant his motion for judgment notwithstanding the verdict.

Although Tabrizi did not file a reply brief, he states in his original brief that “[t]he claims by Fred Tabrizi for negligent misrepresentation and fraud were pled in the alternative to the breach-of-contract/implied partnership claims.” Therefore, because Tabrizi concedes that his claim for negligent misrepresentation was pled as an alternative to his breach-of-contract claim, and because we have determined that Tabrizi should recover damages on his breach-of-contract claim, we hold that the trial court erred in failing to grant Hosseini’s judgment notwithstanding the verdict with respect to Tabrizi’s negligent misrepresentation claim. We sustain this issue on appeal.

Implied PaRtnership

At trial, the jury found that Hosseini and Tabrizi had an implied partnership. Arguing that there is no evidence of an implied partnership, Hosseini filed a motion for judgment notwithstanding the verdict. The trial court denied the motion. In its judgment, however, the trial court states:

After the jury returned its verdict, Defendants Das-Rez Corporation d/b/a El Maracumbe Restaurant and H.D. Hos-seini moved for judgment notwithstanding the verdict as to each of the jury’s findings. Having concluded that the evidence is legally insufficient to support them, the court has previously ordered that certain jury findings should be disregarded, specifically ... the jury’s findings that the parties had entered into an implied partnership agreement (Question 11).

On appeal, Tabrizi argues that if the trial court in fact granted the motion for judgment notwithstanding the verdict with respect to the implied partnership, such granting was error because there is legally sufficient evidence of an implied partnership. Because, however, Tabrizi pled implied partnership as an alternative to his breach-of-contract claim in his petition, and because we have determined that Ta-brizi should recover on his breach-of-contract claim, we overrule this issue.

Conclusion

. We modify the judgment as follows: with respect to Tabrizi’s breach-of-contract claim, we order that Tabrizi recover $36,913.00 in damages. With respect to Tabrizi’s negligent misrepresentation claim, we order that Tabrizi take nothing. As modified, the judgment of the trial court is affirmed.

      . Additionally, we see no damages question or finding to correspond to the implied partnership finding.


author: PAUL W. GREEN, Justice. CATHERINE STONE, Justice,

text:
    LAREDO MEDICAL GROUP, Appellant, v. Oscar N. LIGHTNER, M.D., Appellee.
    No. 04-01-00416-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 15, 2004.

      W. Wendell Hall, Rosemarie Kanusky, Fulbright & Jaworski, L.L.P., San Antonio, C.M. Zaffirini, Guadalupe Castillo, Zaffirini & Castillo, Laredo, for appellant.
    Nissa M. Sanders, Thomas H. Crofts, Jr., Crofts & Callaway, P.C., Benjamin R. Bingham, Royal B. Lea, III, Bingham & Lea, P.C., San Antonio, Arnulfo Gonzalez, Jr., Law Office of Arnulfo Gonzalez, Laredo, for appellee.
    Sitting: ALMAL. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, and PHYLIS J. SPEEDLIN, Justice.
   OPINION

PAUL W. GREEN, Justice.

Laredo Medical Group’s Motion for Partial Rehearing En Banc is granted. See TexR.App. 49.7. Accordingly, we withdraw the panel’s opinion and judgment and substitute the following.

This case involves a salary dispute between Laredo Medical Group (“LMG”) and its employee, Dr. Oscar Lightner. Light-ner claims his employment agreement with LMG created a duty of good faith and fair dealing between the parties that LMG breached. He also claims he was not bound by the agreement’s covenant not to compete. We disagree and reverse the trial court’s judgment.

Background

In October 1995, Lightner sold his medical practice to LMG and became one of its employees. Under Lightner’s employment agreement, LMG guaranteed Lightner’s income for the first three years of his employment, but after that time Lightner’s income would be based on a percentage of the total revenue LMG collected from his practice. The agreement also included a non-compete provision. During the course of Lightner’s employment, LMG did not collect all of his accounts receivable. Lightner claimed this resulted in an income shortfall of approximately one-half million dollars over the four-year term of his employment.

In June 1999, Lightner filed suit against LMG claiming LMG breached its duty of good faith and fair dealing by failing to adequately collect his accounts receivable. Four months later, Lightner resigned from his position at LMG. LMG filed a counterclaim against Lightner seeking to enforce the non-compete provision in Lightner’s employment agreement and to recover damages.

Based on jury findings that LMG maliciously breached its duty of good faith and fair dealing to Lightner, the trial court rendered judgment for Lightner for actual and punitive damages. Lightner’s claim for attorney’s fees was denied. The court further ordered that LMG take nothing on its counterclaim.

LMG challenges the jury’s findings claiming: (1) it owed no duty of good faith and fair dealing; (2) there is insufficient evidence that any duty of good faith and fair dealing was breached; (3) there is insufficient evidence to support the award of actual or punitive damages; (4) there is insufficient evidence to prove it acted with malice; (5) the amount of post-judgment interest should be reduced; and (6) there is no evidence to support the jury’s finding regarding the covenant not to compete.

Duty of Good Faith & Fair Dealing

Texas does not recognize a cause of action for breach of a duty of good faith and fair dealing in the context of an employer/employee relationship. See City of Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex.2000). No distinction is made for employment governed by an express agreement. Id. However, Lightner claims LMG nevertheless owed him a duty of good faith and fair dealing because the power of attorney provisions within the parties’ employment and asset-purchase agreements created an agency relationship. See Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 593-94 (Tex.1992) (recognizing principal-agent relationship gives rise to fiduciary duty encompassing duty of good faith and fair dealing). It is essential to an agency relationship, however, that the principal have the right to “assign the agent’s task and to control the means and details of the process by which the agent will accomplish the task.” Walker v. Fed. Kemper Life Assurance Co., 828 S.W.2d 442, 452 (Tex.App.-San Antonio 1992, writ denied). Thus, even if a person acts for and on behalf of another, if he is not under the other person’s control, an agency relationship does not exist. Id. The agreements between the parties contain provisions that make LMG Lightner’s attorney-in-fact for the collection of fees. Although the appointment of an attorney-in-fact ordinarily creates an agency relationship, there is no agency relationship here because there is no evidence LMG was under Lightner’s control. See Walker, 828 S.W.2d at 452.

Lightner also argues LMG owed him a duty of good faith and fair dealing because he trusted LMG with his property interest in his accounts receivable, citing Manges v. Guerra, 673 S.W.2d 180 (Tex.1984). We find Lightner’s argument unpersuasive for two reasons. First, the Manges court recognized that a holder of executive rights to a mineral estate owes a fiduciary duty to the non-executive interest. Manges, 673 S.W.2d at 183. This case is not comparable to that situation. Second, Lightner’s argument is based on the premise that the fees generated by his work belonged to him. This is simply not true. The parties’ employment agreement specifically provides that “all fees and other revenues attributable to [Lightner’s] services ... belong to [LMG].”

Finally, Lightner argues that a “special relationship,” implicating a duty of good faith and fair dealing, existed between the parties by virtue of an imbalance of bargaining power. A “special relationship” has been recognized where there is unequal bargaining power between the parties and a risk exists that one of the parties may take advantage of the other based upon the imbalance of power, e.g., insurer-insured. See Arnold v. Nat’l County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987). But the supreme court has ruled that the elements which make a relationship special are absent in the relationship between an employer and an employee. See City of Midland v. O’Bryant, 18 S.W.3d at 215.

We hold that LMG owed no duty of good faith and fair dealing to Lightner.

Covenant Not To Compete

The employment contract that Lightner actually signed failed to include a page that contained provisions addressing the restrictions placed on Lightner by his non-compete agreement with LMG. An earlier unsigned draft of the document that included the omitted provisions was reviewed by Lightner’s attorney. When the final document was prepared for signatures, one of the pages was included twice and an apparent gap in the text from one of the pages to the next indicated a skipped page. Even so, all the pages were numbered consecutively. LMG claims the page was omitted from the final document by an inadvertent mistake, that Lightner knew of the non-compete agreement and its terms, and that he even accepted $100,000 in exchange for it. Accordingly, LMG says either Lightner is bound by the non-compete agreement, or in the alternative it is entitled to the return of its $100,000.

The jury found the omission of the page was not a mutual mistake, and the trial court thereupon refused to enforce the non-compete agreement. LMG challenges this jury finding claiming that mutual mistake was established as a matter of law and that the finding should be disregarded.

We see the question as being whether the parties had a mutual understanding and intent that Lightner was to be bound by a non-compete agreement when he signed the employment contract with LMG. That question can be resolved in the affirmative simply by considering Light-ner’s testimony and by examining the document Lightner actually signed.

Lightner testified he was aware his employment agreement included a covenant not to compete, but he disclaimed any interest in it and denied knowing its terms. He said “It was not an important issue for me in signing [the agreement].” Moreover, the document Lightner signed clearly contains a promise not to compete against LMG for two years after termination. And the agreement expressly acknowledges that he was to be paid $100,000 “[f]or and in consideration of [Lightner’s] agreement to the terms and conditions of the covenant not to compete.”

Lightner says he was “completely unaware” of the omitted provisions, which he says destroys any mutual understanding and intent that would support an agreement. We disagree. The evidence conclusively establishes Lightner’s intent to be bound by the covenant not to compete. Lightner’s claim not to know all the terms of the covenant does not avoid his responsibilities under the agreement he made. See Roland v. McCullough, 561 S.W.2d 207, 213 (Tex.Civ.App.-San Antonio 1978, writ ref'd n.r.e.) (“A contract may not be avoided on the ground of mistake of fact where it appears that ignorance of the facts was the result of carelessness, indifference, or inattention.”).

“Reformation is a proper remedy when the parties have reached a definite and explicit agreement, understood in the same sense by both, but, by their mutual or common mistake, the written contract fails to express this agreement.” Champlin Oil & Ref. Co. v. Chastain, 403 S.W.2d 376, 377 (Tex.1965). Because it is clear the parties had a non-compete agreement, but it is unclear from the signed document what all the terms of the agreement were, the matter must be remanded to the trial court to reform the written contract to conform to the terms of the agreement.

Conclusion

Because we hold LMG owed Lightner no duty of good faith and fair dealing, we reverse and render judgment that Light-ner take nothing from LMG. We further hold that the omission of the page from the written employment contract was a mistake that did not invalidate Lightner’s explicit agreement not to compete. Accordingly, the matter is remanded to the trial court to reform the written contract to conform to the actual agreement of the parties, and to determine the reasonableness and enforceability of the covenant not to compete.

Concurring and dissenting opinion by CATHERINE STONE, Justice, joined by ALMA L. LÓPEZ, Chief Justice.

CATHERINE STONE, Justice,

concurring and dissenting, joined by ALMA L. LÓPEZ, Chief Justice.

I concur in the opinion of the court reversing and rendering judgment that Dr. Oscar Lightner take nothing from Laredo Medical Group. I respectfully dissent, however, from the court’s decision on the issue of the non-competition agreement.

The majority describes the issue as “whether the parties had a mutual understanding and intent that Lightner was to be bound by a non-compete agreement when he signed the employment contract with LMG.” In answering this question in the affirmative, I believe the majority ignores parts of Lightner’s testimony and engages in its own credibility determinations.

By relying on Champlin Oil & Ref. Co. v. Chastain, 403 S.W.2d 376 (Tex.1965), the majority apparently determines that the omission of the page from the agreement was the result of mutual mistake, yet the majority does not cite to any record evidence indicating that Lightner was in any way responsible for the failure to include the missing page or that Lightner was aware of the provisions contained on the omitted page. Rather, the majority concludes that Lightner was careless, indifferent, or inattentive because he stated he was unaware of the terms of the covenant not to compete. In reaching this conclusion the majority makes a credibility determination that Lightner was aware of the provisions, but just chose to ignore them. This is in direct conflict with his testimony that the provisions in question-two-year and twenty-five-mile non-compete restrictions — were never discussed. The majority’s conclusion also fails to acknowledge Lightner’s testimony that he understood the $100,000 “was part of the deal to join LMG. In other words, a bonus for coming into the group.” This testimony is not indicative that the parties had reached a definite and explicit agreement that was omitted from the written agreement by mutual mistake. These credibility determinations were for the jury to make. I respectfully dissent from this court’s decision to engage in such determinations.

      . Although Lightner pleaded numerous other causes of action, including a claim for breach of contract, only the duty of good faith and fair dealing cause was submitted to the jury.

      . The omitted language provided: (1) Recognition and acknowledgment that time, effort and expense has been devoted by LMG to establish its patient base and hiring staff to treat the patients; that the patient base is a valuable asset of LMG; that Physician is given access to the patient base under the agreement; and that Physician’s solicitation of the patient base outside of the agreement would be highly damaging to LMG. (2) The agreement’s geographical limitation of a twenty-five mile radius. (3) The liquidated damages provision in the event of violation. (4) Physician’s acknowledgment that the restrictions are reasonable in scope and essential to LMG's business interests. (5) Provision for Physician's voluntary termination of non-compete restrictions upon payment to LMG of $200,000.

      . The signed agreement included the following non-compete provisions:
      ARTICLE VIII
      COVENANT NOT TO COMPETE
      A. Covenant Not to Compete. For and in consideration of Physician’s agreement to the terms and conditions of the covenant not to compete and other covenants set forth in this Article VIII, Medical Group shall pay to the Physician a one-time amount of $100,000, which shall be paid on or before the Commencement Date. Physician hereby agrees that, for the duration of Physician's employment with Medical Group, and for a period of two (2) years (twenty-four (24) months) after termination of employment with Medical Group for any reason at any time, Physician shall not in any manner directly or indirectly:
      1. Disclose or divulge to any other person, partnership, corporation, business organization, firm, or other entity whatsoever, or use for Physician’s own benefit or for the benefit of any other person, partnership, corporation, business organization, firm, or other entity directly or indirectly in competition with Medical Group, any knowledge, information, business methods, techniques, or patient lists, letters, files, records, or other information, of Medical Group other than as may be required by a court with jurisdiction over Physician and Medical Group.
      2. Solicit, divert, or otherwise interfere with the patients or their immediate family members, patronage, employees, or agents of Medical. .... (omitted provisions)
      E. Waiver of Practice Restriction. The practice restriction in subparagraph 3 of paragraph A of this Article shall be waived only in the following circumstances:
      1. If Medical Group elects to waive the restriction upon an affirmative recommendation of not less than seventy-five percent (75%) of the Board, or
      2. If Medical Group elects to terminate Physician’s employment for any reason other than one or more of the reasons listed in subparagraphs 1 through 6 paragraph A of Article VII.