author: LESLIE B. YATES, Justice.

text:
    In the Interest of C.L., a Child. In the Interest of M.C.G., a Child.
    Nos. 14-09-00643-CV, 14-09-00644-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 16, 2010.

      William M. Thursland, Houston, for appellant.

      Sandra D. Hachem, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.
   OPINION

LESLIE B. YATES, Justice.

Appellant Lonzell Gholston appeals from the trial court’s order terminating his parental rights to his daughter, M.C.G., and removing his status as possessory conservator of M.C.G.’s half-sister, C.L. We affirm.

BACKGROUND

M.C.G. and C.L. lived with their mother until March 2006, when appellee Department of Family and Protective Services (“DFPS”) removed them from her home. At the time, M.C.G. was three years old, and C.L. was fourteen months old. Their mother often left them home alone for extended periods of time, and when DFPS arrived to investigate, they found the children alone and C.L. sick and wearing only a diaper. Appellant and the mother were not living together at this time, and C.L.’s father is unknown. The children were removed and placed in foster care. DFPS was appointed as the sole managing conservator of both children, the mother was given no possessory rights, and appellant was appointed a possessory conservator with rights to visit the children at mutually agreeable times.

Appellant visited the girls frequently and maintained his relationship with them until September 2, 2008, when the trial court entered an order suspending his visitation rights. The order was entered after the girls returned from a visit with appellant and reported to their foster parents that they had gone to a birthday party and seen their mother, who was prohibited from any contact with the children, and seen a cousin that M.C.G. reported had sexually abused her (although there is no evidence that she reported the abuse before she saw him at the party). Further, C.L. had been hospitalized with an asthma attack after appellant smoked during a visit. Appellant did not appeal from this order suspending his visitations rights and has never taken any action to have his visitation rights reinstated.

Two days after the order suspending visitation, DFPS filed a motion to modify conservatorship and to terminate the parent-child relationship. DFPS sought, among other things, to remove appellant as possessory conservator of C.L. and to terminate his parental rights as to M.C.G. After a hearing, the court granted the motion and also terminated the parental rights of the children’s mother and the unknown father of C.L. Appellant brings this appeal; appellant is the only party challenging the trial court’s order.

ANALYSIS

A. Parental Rights to M.C.G.

The termination of parental rights is a serious matter that implicates fundamental constitutional rights. In re S.N., 287 S.W.3d 188, 186 (Tex.App.-Houston [14th Dist.] 2009, no pet.). To terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has committed one of the acts prohibited under Family Code section 161.001(1) and that termination of parental rights is in the child’s best interest. Tex. Fam.Code Ann. § 161.001(1), (2) (Vernon Supp. 2009); In re A.V., 113 S.W.3d 355, 362 (Tex.2003).

The trial court terminated appellant’s parental rights after finding that he committed three of the acts listed in section 161.001 and that termination would be M.C.G.’s best interest. Appellant then, pursuant to Family Code section 263.405, submitted to the trial court a statement of the points on which he intended to appeal. See Tex. Fam.Code Ann. § 263.405(b)(2) (Vernon 2008). Appellant’s appellate points stated that the evidence is insufficient to support the three actions found pursuant to subsections of section 161.001(1) but did not mention the court’s finding that termination is in M.C.G.’s best interest. The trial court then determined that appellant’s intended appeal did not present a substantial question for appellate review and was therefore frivolous. See Tex. Fam.Code Ann. § 263.405(d)(3) (Vernon 2008) (directing trial court to determine whether appellate points are frivolous as provided by Civil Practice and Remedies Code section 13.003(b)); Tex. Civ. Prac. & Rem.Code Ann. § 13.003(b) (Vernon 2002) (stating that frivolousness can be determined by considering whether the appellant has presented a substantial question for appellate review?).

If a trial court makes a frivolousness finding, the parent’s appeal is initially limited to the frivolousness issue. See In re J.J.C., 302 S.W.3d 436, 442 (Tex.App.Houston [14th Dist.] 2009, pet. denied); Lumpkin v. Dep’t of Family & Protective Servs., 260 S.W.3d 524, 526 (Tex.App-Houston [1st Dist.] 2008, no pet.). We can review appellant’s substantive issues only if we determine the trial court abused its discretion in determining appellant’s appeal was frivolous. See In re 302 S.W.3d at 442; Lumpkin, 260 S.W.3d at 526. An appeal is frivolous if it lacks an arguable basis in either fact or law. See In re J.J.C., 302 S.W.3d at 444; Lumpkin, 260 S.W.3d at 527.

In his appeal regarding M.C.G., appellant argues that the trial court erred in finding each of his appellate points frivolous. In his first issue regarding M.C.G., appellant argues that the trial court abused its discretion in finding frivolous his appellate point that the evidence is insufficient to support the termination of his parental rights under Family Code section 161.001(1)(F). Section 161.001(1)(F) provides for involuntary termination of parental rights if the court finds by clear and convincing evidence that the parent has “failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition.” This one-year period must be twelve consecutive months. See In re E.M.E., 234 S.W.3d 71, 72 (Tex.App.-El Paso 2007, no pet.); In re T.B.D., 223 S.W.3d 515, 518 (Tex.App.-Amarillo 2006, no pet.). DFPS filed its motion to terminate on September 4, 2009, and thus the relevant time period is any twelve consecutive months between March 4, 2007 and September 4, 2009. See In re E.M.E., 234 S.W.3d at 72.

The undisputed evidence in the record shows that in the twelve-month period between March 4, 2007 and March 4, 2008, appellant gave no money whatsoever in support of M.C.G. while earning income of at least $10,000 in 2007 and $3,500 in the first two months of 2008. Appellant had the ability to provide at least some support during these twelve months, but he provided none. Appellant argues that DFPS must present evidence of his ability to pay during each month of the twelve-month period. See id.; In re T.B.D., 223 S.W.3d at 518. The evidence in the record regarding appellant’s income is not broken down on a monthly basis for the entire time period. However, even if appellant was unable to provide support during some of those months, that will not interrupt the running of the one-year period if he made no effort to pay during other months in which there is a clear ability to pay. See McGowen v. State, 558 S.W.2d 561, 565 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.); see also In re C.M.C., No. 11-02-00270-CV, 2003 WL 760678, at *2 (Tex.App.-Eastland Mar. 6, 2003, no pet.) (mem. op.) (following McGowen); In re S.K.S., 648 S.W.2d 402, 404 (Tex.App.San Antonio 1983, no writ) (same). It is undisputed that appellant had at least $13,500 in income in the relevant time frame but provided no support at all. This is sufficient to support a finding by clear and convincing evidence of a violation of section 161.001(1)(F). See In re R.N.G., No. 11-02-00084-CV, 2002 WL 32344622, at *3 (Tex.App,-E astland Dec. 12, 2002, no pet.) (not designated for publication) (finding parent did not provide support in accordance with ability because she provided no support at all even though she had some money available); In re S.K.S., 648 S.W.2d at 404-05 (same).

Appellant asserts that the ad li-tem told him at some point not to pay support but instead to use that money to buy furniture for his apartment. However, appellant does not explain when he was told this, how much money he used to buy furniture, and when he bought the furniture. Furthermore, any excuse for failing to provide support, such as using the money for another purpose, is irrelevant in assessing a violation under section 161.001(1)(F). See Holley v. Adams, 544 S.W.2d 367, 371 (Tex.1976) (concluding that legislative purpose is best served by interpreting Family Code to mean that an excuse for act or omission of parent, including failure to support according to ability, “can be considered by the trial court only as one of the factors in determining the best interest of the child” (emphasis added)); In re S.K.S., 648 S.W.2d at 405. Excuse is pertinent only in the best interest assessment, and because appellant does not challenge on appeal the trial court’s finding that terminating his parental rights is in M.C.G.’s best interest, we cannot consider any excuse he may have for failing to provide any support. See In re S.K.S., 648 S.W.2d at 405 (holding that because appellant did not challenge the best interest finding, the contention as “to an excuse for failure to make appropriate support payments is inapplicable”); see also Holley, 544 S.W.2d at 371.

The trial court could have properly concluded that appellant’s sufficiency challenge as to the termination of his parental rights lacked a substantial basis in law or fact. Thus, the trial court did not err in finding appellant’s appellant point regarding section 161.001(1)(F) frivolous. Ae-cordingly, we overrule appellant’s first issue relating to M.C.G.

B. Possessory Rights to C.L.

In his two issues relating to C.L., appellant challenges the sufficiency of the evidence to support the trial court’s order removing his status as C.L.’s possessory conservator. Under Family Code section 156.101(a)(1)(A), the trial court can modify an order establishing conservatorship upon a showing that “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed” since the rendition of the prior order and that the modification would be in the child’s best interest. Tex. Fam.Code Ann. § 156.101(a)(1)(A) (Vernon Supp. 2009). We review a trial court’s conservatorship status decisions for an abuse of discretion. In re A.L.E., 279 S.W.3d 424, 427 (Tex.App.-Houston [14th Dist.] 2009, no pet.). A trial court abuses its discretion if it acts arbitrarily or unreasonably. Id.; Bates v. Tesar, 81 S.W.3d 411, 424 (Tex.App.-El Paso 2002, no pet.). There is no abuse of discretion if some evidence of a substantive and probative character supports the trial court’s decision, even if the evidence conflicts. See In re A.L.E., 279 S.W.3d at 428; Agraz v. Carnley, 143 S.W.3d 547, 554 (TexApp.-Dallas 2004, no pet.). In an abuse of discretion review, the sufficiency of the evidence is not and independent ground of error but is a factor to be considered in evaluating the trial court’s exercise of its discretion. In re A.L.E., 279 S.W.3d at 427.

In his first issue regarding C.L., appellant argues that the evidence is insufficient to show a material and substantial change in circumstances. In determining whether a material and substantial change has occurred, the trial court is not confined to rigid or definite guidelines. Id. at 428. The court is looking for evidence of a change since the prior order, but the law does not require any particular method for proving change of circumstances. See id. at 429. A material and substantial change can be established by circumstantial evidence, such as if the record shows that the trial court relied on facts or events occurring after the date of the prior order. See id. The prior order establishing appellant’s conservatorship status was entered on September 11, 2007. The hearing on DFPS’s motion to modify appellant’s conservatorship status was held on June 16, 2009. Therefore, we assess the record for evidence regarding a material and substantial change in circumstances between September 11, 2007 and June 16, 2009. See In re A.B.P., 291 S.W.3d 91, 95 (Tex.App.-Dallas 2009, no pet.); Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex.App.-Austin 2006, pet. denied).

The evidence shows several changes during this period. Appellant’s visitation rights had been revoked on September 2, 2008, two days before DFPS filed the motion to modify, from which appellant did not appeal. Thereafter, appellant had not seen and had hardly spoken to C.L. for over nine months. During the time appellant was allowed visitation, there is evidence that he allowed C.L.’s mother some access to her, which was forbidden by court order. Further, appellant smoked cigarettes while C.L. visited, even though C.L. has asthma, and after a visit, C.L. was hospitalized with a severe asthma attack. Finally, C.L. was moved to a foster home with her sister, and the foster parents are providing a safe environment and are meeting C.L.’s needs. The children have bonded with their foster family, calling the foster mother “mamma,” and the foster family is willing to adopt them. Based on evidence of appellant’s inappropriate conduct during the visits, his unchallenged loss of visitation rights, his lack of communication with C.L., and C.L.’s bonding with a foster family who wants to adopt her and her sister, the trial court did not abuse its discretion in determining that there had been a material and substantial change in circumstances since the prior order. We overrule appellant’s first issue regarding C.L.

In his second issue regarding C.L., appellant alleges that the evidence is insufficient to support a finding that removing him as possessory conservator is in C.L.’s best interest. The Family Code does not set forth any factors to be considered in determining whether a change in conservatorship status is in a child’s best interest. Bates, 81 S.W.3d at 433-34. In the termination of parental rights context, courts typically consider the non-exhaustive list of Holley factors, which are the desires of the child, the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parental abilities of the persons seeking custody, the programs available to assist these individuals seeking custody, the plans for the children by the individual seeking custody, the stability of the home, the acts or omissions of the parent that may indicate that the existing parent-child relationship is inappropriate, and any excuse for the acts or omissions of the parent. See Holley, 544 S.W.2d at 371-72.

We can consider those factors as appropriate in this context, but other factors are also important in the conservatorship modification context, such as the child’s need for stability. See In re V.L.K., 24 S.W.3d 338, 343 (Tex.2000); Bates, 81 S.W.3d at 433-34. Further, unlike in the termination context, the parental presumption does not apply in a modification suit and would not apply in this case in any event because appellant is not C.L.’s father. See In re V.L.K., 24 S.W.3d at 339-40.

Appellant asserts that the evidence shows that removing his conserva-torship status is not in C.L.’s best interest. According to appellant, his visitation was going well until he lost his visitation rights. He had stopped smoking and had taken parenting classes. He had been making preparations for the girls to live with him, including getting a new apartment and furniture. Though he was unable to fully support the girls at the time of the hearing, appellant testified that the Veterans’ Administration would provide him additional resources if he got custody of the girls. However, appellant’s analysis ignores other important considerations. Appellant lost his visitation rights after C.L. had a severe asthma attack when he smoked while she visited and after he violated a court order by allowing C.L.’s mother access to her. All that remained of appellant’s possessory conservatorship rights were limited rights to such things as inquiring about C.L.’s well being and accessing her medical records, but appellant never exercised any of these rights. Appellant had essentially no contact with C.L. for about nine months, and meanwhile, she had bonded with her foster family who was meeting all her needs and wanted to adopt C.L. and her sister. Given appellant’s lack of involvement in C.L.’s life, removing appellant’s possessory con-servatorship status actually preserves the child’s current environment and clears the way for full adoption and parental rights by the foster family, thereby promoting C.L.’s need for stability. We conclude that the evidence is sufficient to support a conclusion that removing appellant’s pos-sessory conservator status is in C.L.’s best interest. Therefore, the trial court did not abuse its discretion in so finding, and we overrule appellant’s second issue as to C.L.

CONCLUSION

We conclude that the trial court did not abuse its discretion in finding frivolous appellant’s appellate point that the evidence is insufficient to show he failed to provide appropriate support within his ability to M.C.G. The trial court also did not abuse its discretion in finding that there had been a material and substantial change of circumstances and that removing his status as possessory conservator would be in C.L.’s best interest. We affirm the trial court’s order terminating appellant’s parental rights to M.C.G. and removing his status as possessory conservator of C.L.

      . Appellant argues that he could not provide support because he became disabled, but that did not occur until April 2008 and thus has no bearing on his ability to provide support between March 2007 and March 2008.

      . DFPS argues that the trial court’s March 2008 order for appellant to pay child support, from which appellant did not appeal, constitutes an implicit finding that he had the ability to pay as a matter of law. DFPS relies on In re 80 S.W.3d 232, 250-51 (Tex.App.-Fort Worth 2002, pet. denied), which relied on the Corpus Christi Court of Appeals ruling in In re R.R.F., 846 S.W.2d 65 (Tex.App.-Corpus Christi 1992, writ denied). We note that the In re R.R.F. decision has been severely criticized, and the Corpus Christi Court of Appeals has since overruled that decision. See In re D.S.P., 210 S.W.3d 776, 780-81 (Tex.App.-Corpus Christi 2006, no pet.) (overruling R.R.F.); see also In re E.M.E., 234 S.W.3d at 73-74 (noting that In re R.R.F. has been overruled and following the rule in In re D.S.P.).

      . Appellant repeatedly notes that he was not ordered to pay child support during all of the relevant time frame. However, a parent has a duty to support his child, regardless of a court order. See Tex. Fam.Code Ann § 151.001(a)(3) (Vernon 2008); Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993). Further, the trial court specifically stated in its September 2007 modification order although it was not making a specific support order at that time, appellant is "still responsible for the support of the child.” Finally, any excuse for failure to support, even the lack of an order, is a factor to be considered only in the best interest analysis. See S.K.S., 648 S.W.2d at 405; see also Holley, 544 S.W.2d at 368, 371.

      . We need not address appellant's second and third issues, in which he challenges the trial court's frivolousness finding as to his arguments that two other bases for terminating his parental rights were not supported by sufficient evidence. See In re A.V., 113 S.W.3d at 362; see also Tex. Fam.Code Ann. § 161.001(1).

      . Appellant denies that C.L.'s mother had access to him during their visitations, but the trial court could have disbelieved appellant, and we defer to the trial court’s resolution of underlying facts. See In re A.L.E., 279 S.W.3d at 427.


source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    Ex parte Dustin DOAN.
    No. 03-08-00704-CR.
    Court of Appeals of Texas, Austin.
    Sept. 16, 2010.
    Rehearing Overruled Oct. 8, 2010.

      Terrence W. Kirk, Austin, TX, for Appellant.
    Giselle Horton, Assistant County Attorney, Austin, TX, for State.
    Before Chief Justice JONES, Justices PURYEAR and HENSON.
   OPINION

DAVID PURYEAR, Justice.

While on probation in Brazos County for drug possession, Dustin Doan was charged in Travis County with misdemeanor theft. The Brazos County Attorney moved to have Doan’s probation revoked on the basis (among others) that committing the theft violated Doan’s conditions of probation. The Brazos County court denied the motion. Doan then applied for a writ of habeas corpus in Travis County, arguing that the Brazos County court’s rejection of the theft allegation collaterally estopped his prosecution for theft. The Travis County court ultimately denied Doan’s ha-beas corpus application, and Doan appealed. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 28, 2005, a county court at law in Brazos County sentenced Doan to two years’ probation and deferred adjudication on a marijuana-possession charge. See Tex.Crim. Proc.Code Ann. art. § 42.12 (West Supp. 2009). The court placed several conditions on Doan’s probation, including that Doan not commit other crimes during the probationary period.

On May 17, 2005, Doan was arrested in Travis County for misdemeanor theft. See Tex. Penal Code Ann. § 31.03 (West Supp. 2009). On February 6, 2007, the Brazos County Attorney filed a Motion to Proceed with Adjudication of Guilt and Sentence (“motion to revoke”) on Doan’s previously deferred marijuana-possession charge. The motion alleged, among other things, that Doan had violated the conditions of his probation by committing the theft.

On November 30, 2007, the Brazos County Court at Law held a hearing on the motion to revoke. During the hearing, the Brazos County Attorney called Doan’s probation officer and asked her how Doan had violated the condition of his probation that prohibited him from committing other crimes. Doan’s attorney objected on hearsay grounds, and the court sustained the objection. The Brazos County Attorney moved on and made no further attempts to introduce evidence concerning the details of Doan’s alleged theft.

At the conclusion of the hearing, the court entered an order that stated: “On this November 30, 2007, came to be heard the [S]tate’s motion to proceed. The State’s failing to meet their [sic] burden of proof, IT IS ORDERED, ADJUDGED AND DECREED that the said criminal action be and the same is hereby dismissed.”

On January 30, 2008, Doan applied for a writ of habeas corpus in the Travis County Court at Law where his theft prosecution was pending. He argued that because the Brazos County court had considered and rejected the Brazos County Attorney’s theft allegation in denying the motion to revoke, the Travis County Attorney was collaterally estopped from pursuing the theft charge in a separate criminal prosecution.

On May 30, 2008, the Travis County court held a hearing on Doan’s habeas corpus application. At the hearing, Doan argued that because the Brazos County court had wholly denied the Brazos County Attorney’s motion to revoke, it must have found that the evidence supporting the theft allegation was insufficient. As a result, Doan argued, collateral estoppel barred his theft prosecution. In response, the Travis County Attorney argued that the Brazos County court could not have made an adverse evidentiary finding on the theft allegation because the Brazos County Attorney adduced no evidence on the issue.

The Travis County court granted Doan’s habeas corpus application and dismissed the theft charge. The Travis County Attorney appealed, and while his appeal was pending he filed a motion for reconsideration in the trial court. The motion reiterated that the Brazos County court could not have made an adverse evidentiary finding on the theft allegation because the Brazos County Attorney adduced no relevant evidence. Consequently, the Travis County Attorney argued, Doan’s theft prosecution was not barred by collateral estoppel.

The Travis County court held a hearing on the Travis County Attorney’s motion for reconsideration. It subsequently granted the motion, set aside its previous order granting Doan’s habeas corpus application, and ordered the reinstatement of the information charging Doan with theft. Doan appeals.

STANDARD OF REVIEW

We review de novo a trial court’s application of the doctrine of collateral es-toppel. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.2007). We review for abuse of discretion a trial court’s ruling on an application for a writ of habeas corpus. Jaime v. State, 81 S.W.3d 920, 924 (Tex.App.-El Paso 2002, pet. ref'd).

DISCUSSION

The sole issue in the this appeal is whether the doctrine of collateral estop-pel applies to bar the Travis County Attorney from prosecuting Doan for theft. We hold that it does not, as the Brazos County probation-revocation hearing did not involve the same parties that the Travis County theft prosecution does.

“The doctrine of collateral estop-pel ‘means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ” Stevens, 235 S.W.3d at 740 (Tex.Crim.App.2007) (emphasis added) (quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)). Though the doctrine of collateral estoppel originated in common-law civil litigation, Reynolds v. State, 4 S.W.3d 13, 17 (Tex.Crim.App.1999), it also applies in the criminal context because it is “embodied in the Fifth Amendment guarantee against double jeopardy.” Ashe, 397 U.S. at 445, 90 S.Ct. 1189.

The Supreme Court established that criminal collateral estoppel is a constitutional requirement in Ashe v. Swenson. In Ashe, the state of Missouri alleged that the defendant, Ashe, was one of several men who had robbed a group of six poker players. After Ashe was tried and acquitted of robbing one of the players, the State tried him for robbing a different player. The second prosecution, based on “substantially stronger” testimony from “witnesses [who] were for the most part the same,” id. at 439-40, 90 S.Ct. 1189, resulted in a conviction. The Supreme Court concluded that the second prosecution was constitutionally prohibited. Because the “single rationally conceivable issue in dispute before the jury” at the first trial was whether Ashe was one of the robbers, id. at 445, 90 S.Ct. 1189, the Court held that the jury’s verdict of acquittal collaterally estopped the State from trying Ashe for robbing a different player during the same criminal episode: “whatever else th[e] constitutional guarantee [against double jeopardy] may embrace, it surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time.” Id. at 445-46, 90 S.Ct. 1189 (citations omitted).

Ashe addressed only whether collateral estoppel applies against the State when the same question of ultimate fact arises in two successive criminal prosecutions. It did not address whether collateral estoppel applies against the State when the same question of ultimate fact arises in a probation-revocation hearing and then in a criminal prosecution. The Fifth Circuit Court of Appeals has addressed the latter situation, holding that collateral estoppel does not apply when the same question of ultimate fact arises in a probation-revocation hearing and then in a criminal prosecution. See Showery v. Samaniego, 814 F.2d 200, 201 (5th Cir.1987).

The Texas Court of Criminal Appeals has reached the opposite result, holding that collateral estoppel does apply against the State when the same question of ultimate fact arises in a probation-revocation hearing and then in a criminal prosecution. See Ex parte Tarver, 725 S.W.2d 195, 197 (Tex.Crim.App.1986). In reaching that holding, the court acknowledged that the constitutional basis for applying collateral estoppel to criminal proceedings is the Double Jeopardy Clause of the Fifth Amendment. See id. at 199. It also acknowledged that, strictly speaking, the Double Jeopardy Clause is not implicated when the State prosecutes a defendant for a crime after using the crime as a basis for having the defendant’s probation revoked:

The double jeopardy proscription of the Fifth Amendment to the United States Constitution protects an accused against being twice placed in jeopardy of punishment for “the same offence.” In the instant case, if the district court had revoked applicant’s probation, the punishment he received would have been for the offense of which he was originally convicted, possession of cocaine. In the county criminal court at law, applicant faces the risk of being punished for the subsequent offense, assault. He is not, therefore, being twice placed in jeopardy for the same offense.

Id. at 197. Nevertheless, the court held that it would implicate “one of the risks the Double Jeopardy clauses [sic] protects against” — namely, the risk that the State will take its allegations to a series of fact-finders until it finds one willing to convict — if the State could relitigate facts during a criminal prosecution that it had already litigated during a probation-revocation hearing. See id. at 200 (citing Swisher v. Brady, 438 U.S. 204, 216, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978)).

Though Tañer adopted Ashe’s definition of “collateral estoppel,” see id. at 198, it did not address the meaning of its component phrase “the same parties” or explain how that phrase applies when multiple State agencies are involved in successive lawsuits. The court of criminal appeals later addressed that question in Reynolds, 4 S.W.3d 13, where the Texas Department of Public Safety (“DPS”) and the Harris County District Attorney tried to litigate the same fact issue in successive suits. A police officer arrested Reynolds for driving while intoxicated, and consequently the DPS brought an administrative proceeding to have Reynolds’s driver’s license revoked. Id. at 14. The presiding administrative law judge found that the arresting officer had lacked reasonable suspicion to stop Reynolds’s car. Id. Later, when the Harris County District Attorney tried to criminally prosecute Reynolds for the same incident, Reynolds argued that the doctrine of collateral estoppel barred the District Attorney from relitigating whether the arresting officer had reasonable suspicion to stop his car. See id. The question before the court, then, was whether facts found adversely to the DPS at an administrative hearing were binding on the District Attorney in a later criminal proceeding. In other words, the question was essentially whether the two State agencies were “the same party” for collateral-estop-pel purposes. See Tarver, 725 S.W.2d at 198 (doctrine of collateral estoppel bars “same parties” from relitigating issue of ultimate fact determined by valid and final judgment).

The Reynolds court answered that question in the negative. Id. at 17. In so doing, it adopted the parties analysis contained in Judge Womack’s concurrence in State v. Brabson, 976 S.W.2d 182 (Tex.Crim.App.1998) (en banc). See Reynolds, 4 S.W.3d at 15. In that concurrence, Judge Womack noted that because of “the fractured nature of Texas government ... [,] state agencies are not always in privity.” Brabson, 976 S.W.2d at 186-87 (Womack, J., concurring). He also noted that the State “has given its authority to prosecute ... to more than three hundred independently elected prosecutors, each of whom exercises authority in an area of the state no larger than a judicial district.... [Tjhere is no central prosecuting authority.” Id. at 187 (Womack, J., concurring). Finally, he noted that in analyzing whether different state agencies count as the same party for collateral-estoppel purposes, the “ ‘crucial point’ ” is “whether or not in the earlier litigation the representative of the government had authority to represent its interests in a final adjudication of the issue in controversy.” Id. at 188 (Womack, J., concurring) (quoting Sunshine Coal Co. v. Adkins, 310 U.S. 381, 403, 60 S.Ct. 907, 84 L.Ed. 1263 (1940)).

Though the Reynolds court adopted this analysis, it also recognized that in some circumstances different state agencies do count as the same party- — for example, when they attempt to criminally prosecute a defendant twice for the same offense. See Reynolds, 4 S.W.3d at 18-19. Nevertheless, the court ultimately held that because Reynolds was not being criminally prosecuted twice for the same offense, the application of collateral estoppel was not constitutionally required. See id. at 19-20. That being the case, the court held that in light of Judge Womack’s Brabson analysis, the DPS and the Harris County District Attorney should not be considered “the same parties” for collateral estoppel purposes. Id.

The present case implicates both Tarver and Reynolds. On the one hand, like Tar-ver, it involves a probation-revocation hearing followed by a criminal prosecution. On the other hand, like Reynolds, it involves multiple State agencies. Because of the latter, we must analyze whether “the same parties” were involved in both proceedings. That issue was wholly absent from Tarver, so we follow the parties analysis set forth in Reynolds.

Under that analysis, the Brazos County Attorney and the Travis County Attorney are not “the same party” for collateral estoppel purposes when one participates in a probation-revocation hearing and the other subsequently participates in a criminal prosecution. First, and most importantly, double jeopardy is not actually a risk here because Doan was not criminally prosecuted twice for the same event. See id. Second, as Judge Womack highlighted in his Brabson concurrence, the Brazos County Attorney and the Travis County Attorney are independent entities with no control over each others’ decision-making processes. See Brabson, 976 S.W.2d at 187 (Womack, J., concurring). This means, crucially, that the Brazos County Attorney had no authority to represent the interests of the Travis County Attorney. See id. at 188 (Womack, J., concurring) (citing Sunshine Coal Co., 310 U.S. at 403, 60 S.Ct. 907).

In sum, the Travis County Attorney is not collaterally estopped from prosecuting Doan for theft because it did not participate in Doan’s Brazos County probation-revocation hearing. See Reynolds, 4 S.W.3d at 17. We overrule Doan’s issue.

CONCLUSION

We affirm the order denying Doan’s application for a writ of habeas corpus.

      . The parties have not raised this issue, but we reach it because collateral estoppel is a question of law that we examine de novo. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.2007); see also Ex parte Primrose, 950 S.W.2d 775, 778 (Tex.App.-Fort Worth 1997, pet. ref'd) (we will affirm trial court’s decision, on habeas corpus application if it is correct on any applicable legal theory).
      We note that the issue in this case was present in State v. Getman, 255 S.W.3d 381 (Tex.App.-Austin 2008, no pet.), but we declined to reach it and decided the case on other grounds. Id. at 387.

      . It appears that a single State agency, namely the Harris County District Attorney's Office, was involved in both Tarver’s probation-revocation hearing and his subsequent criminal prosecution. See Ex parte Tarver, 695 S.W.2d 344, 345 (Tex.App.-Houston [1st Dist.] 1985), aff'd, 725 S.W.2d 195 (Tex.Crim.App.1986).

      . Because Tarver involved only one State agency, see supra note 2, the court simply stated without elaboration that the parties in both proceedings were the same. See Tarver, 725 S.W.2d at 199.


author: JEFFREY V. BROWN, Justice. KEM THOMPSON FROST, Justice,

text:
    H. Frank FAUCETTE and J. Lawrence Schadler, Appellants/Cross-Appellees, v. Grace C. CHANTOS and A.J. Chantos & Associates, Inc. d/b/a Sarco of Texas, Appellees/Cross-Appellants.
    No. 14-08-00536-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 23, 2010.

      Clinard J. Hanby, The Woodlands, for appellants.
    Bradley R. Walton, Peter Michael Kelly, James B. Lewis, Susan J. Taylor, Houston, for appellees.
    Panel consists of Justices FROST, BROWN, and Senior Justice HUDSON.

       Senior Justice J. Harvey Hudson, sitting by assignment.

   OPINION

JEFFREY V. BROWN, Justice.

This case involves the failed sale of a company to its employees, who instead resigned from the company, formed their own business, and obtained some of the seller’s former lines of business. The company, A.J. Chantos <& Associates, Inc., d/b/a Sarco of Texas (“Sarco”) and its principal shareholder, Grace C. Chantos, sued former employees H. Frank Faucette and J. Lawrence Schadler, alleging breach of contract, tortious interference with contract, and other claims. Both sides moved for summary judgment on the breaeh-of-contract claim, and the trial court granted Chantos and Sarco’s motion for partial summary judgment on liability for breach of contract.

The case was then tried to a jury on damages for breach of contract and on the tortious-interference claim. The jury awarded Chantos $192,266.00 in damages for breach of contract. The jury found both defendants liable for tortious interference and awarded Sarco $201,407.21 in damages. The trial court granted Fau-cette and Schadler’s motion for judgment notwithstanding the verdict on the tor-tious-interference claim, but entered a judgment on the breach-of-contract claim for the amount awarded by the jury, attorney’s fees, pre- and post-judgment interest, and costs.

On appeal, appellants Faucette and Schadler contend the trial court erred in granting Chantos and Sarco’s motion for partial summary judgment on the breach-of-contract claim and in not granting their motion for summary judgment. In resolving this issue, we are asked to consider the infrequent circumstance of a grantor of an option suing the holder of the option for allegedly breaching the option’s terms. The appellants also contend that the evidence at trial was legally and factually insufficient to prove damages for breach of contract.

On cross-appeal, Chantos and Sarco contend that the trial court erred in granting Faucette and Schadler’s motion for judgment notwithstanding the verdict because Chantos and Sarco presented legally sufficient evidence of each element of tortious interference.

For the reasons explained below, we affirm.

I

Grace Chantos and her husband, Andy, formed Sarco of Texas, a representative sales agency for plumbing supplies, in 1979. In 1983, they incorporated the agency as A.J. Chantos & Associates, Inc., d/b/a Sarco of Texas. Sarco had contracts with manufacturers in the plumbing, air-conditioning, and heating industry. It was standard in the industry that the contracts with the manufacturers had thirty-day termination provisions. Despite the thirty-day cancellation provision, Sarco represented several manufacturers for twenty years or more. These manufacturers included Elkay, Vanguard, McGuire, and Precision.

Grace and Andy had two children, Linda and Andrew. Andrew worked for Sarco until 1993, when he started his own agency, Sarco Central, in New Braunfels. Linda married Faucette, who worked for Sar-co for a few years in the 1980s, returned to Sarco as a salesman in 1994, and remained there until October 7, 2003. J. Lawrence Schadler worked as a salesman for Sarco from 1994 until October 7, 2003. The only other sales employee for Sarco was Lane Malmburg, who started with Sarco in 2002. Malmburg resigned the same day as Fau-cette and Schadler — October 7, 2003.

For many years, Andy Chantos had suffered from a serious illness. In 2001, he and Grace began to consider retiring and entered into negotiations with Chumley & Associates to sell the agency. Ultimately, Andy and Grace broke off negotiations with Chumley and offered to sell Sarco to Andrew, Faucette, and Schadler. Andrew already owned 260 of Sarco’s 1,000 shares, most of which were obtained in 2001 when Sarco acquired Andrew’s company, Sarco Central. In the spring and summer of 2001, the parties executed the “Sale and Purchase Agreement” containing the option to purchase all the shares of stock in Sarco (the “contract”).

The contract provided that, when Fau-cette, Schadler, and Andrew acquired forty-nine percent of the company, they would have the option to purchase the remainder of the company from Chantos. The relevant portion of the contract provided:

At such time as Buyers have acquired a total of forty-nine percent (49%) of the authorized and outstanding shares of the Corporation, Buyers shall have the option to purchase the remaining shares, but only in a lump sum wherein Buyers purchase all remaining shares.
This Agreement shall terminate unless the Sale and Purchase contemplated is completed in its entirety within thirty-two (32) months from the date of execution of the Agreement.

Andy became gravely ill in late 2001, and after that he and Grace did not actively participate in the operation of Sarco. Faucette, Schadler, and Linda operated Sarco on a day-to-day basis. On August 18, 2002, Andy died. Grace returned to work in May of 2008, and Linda resigned.

On July 22, 2003, Faucette, Schadler, Chantos, Andrew, and attorney Brad Walton met to discuss exercising the option. At the time of the meeting, Faucette owned 118 of Sarco’s 1,000 shares; Scha-dler owned 116 shares, and Andrew owned 260 shares. Thus, together they owned 494 shares, or 49.4 percent of the company. The parties discussed a plan in which Faucette and Schadler were to purchase enough shares from Chantos to bring their ownership to 260 shares each — the same number Andrew already owned. The company would then purchase the remaining shares. The parties also discussed having another meeting within sixty days, apparently to finalize the agreement. But no second meeting occurred, and Faucette and Schadler did not purchase the shares.

Sometime after the July 22 meeting, Faucette and Schadler’s business relationship with Grace deteriorated, and after one particularly heated encounter with Grace, they decided to leave Sarco and form their own representative agency. In early September, Faucette discussed leaving Sarco with Schadler and Malmburg. They all resigned on October 7, 2003. About a week or two before they resigned, Scha-dler went to some of the manufacturers with which Sarco had representative contracts, including Elkay, Vanguard, McGuire, and Precision, and posed a “hypothetical” question asking if he and the others left Sarco, whether they could represent those manufacturers. Also, in late September or early October, Faucette spoke with an attorney about incorporating a new manufacturer’s representative company to be called Tri-Rep Sales, Inc. Fau-cette, Schadler, and Malmburg did not inform Grace of their plans or that they were going to quit. They continued to represent to Grace and Andrew that they intended to complete the purchase of shares in Sarco.

On the day Faucette, Schadler, and Malmburg resigned, Grace was in California. Consequently, the office was left without salespeople and unable to function adequately. That same day, Vanguard sent Sarco written notice that it was terminating its manufacturer’s sales representative contract with the company. Three days later, on October 10, 2008, Elkay also terminated its sales agreement with Sarco. Elkay and Vanguard signed representation agreements with Tri-Rep shortly after that. Grace and Andrew were unable to find experienced salespeople to staff the company, and Sarco was therefore unable to service its remaining lines. After TriRep began operating, its annual sales ranged between $1 million and $3 million.

II

Breach of the Option Contract

Grace and Sarco moved for partial summary judgment on their breach-of-contract claim. They alleged that, after Andy passed away, Faucette and Schadler “concluded that it would be far less expensive to simply take the clients and suppliers of [Sarco] rather than to continue with the purchase.” They also alleged that Fau-cette and Schadler persuaded several of Sarco’s largest manufacturers and clients to leave Sarco and to sign representation contracts with them. Grace and Sarco contended that Faucette and Schadler breached the option contract when, at the meeting on July 22, 2003, Faucette and Schadler gave notice of their intent to exercise their option to purchase all of the remaining shares of the company, but then failed to complete the purchase.

Faucette and Schadler responded to this motion and filed their own motion for summary judgment on the breach-of-contract claim. In Faucette and Schadler’s motion for summary judgment and response, they argued that they did not exercise the option because they did not tender the funds to purchase the shares within the time required by the contract. Consequently, they argued, their failure to timely exercise the option according to its terms legally amounted to nothing more than a rejection of the option.

On November 2, 2006, the trial court granted Grace and Sarco’s motion for partial summary judgment. Faucette and Schadler moved for reconsideration, which the trial court denied.

In their first issue, Faucette and Scha-dler contend that the trial court erred in denying their motion for summary judgment on the breach-of-contract claim and in granting Grace and Sarco’s motion.

We review the trial court’s grant of summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex.2004). A movant must establish its right to summary judgment by showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Joe, 145 S.W.3d at 157. We review a summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006) (per curiam). When we review cross-motions for summary judgment, we consider both motions and render the judgment that the trial court should have rendered. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001).

It is undisputed that, under the terms of the contract, Faucette and Scha-dler, along with Andrew Chantos, acquired an option to compel Grace to sell the remaining ■ shares of Sarco on the stated terms before the option expired. An option is a privilege or right which the owner of property gives another to buy certain property at a fixed price within a certain time. State v. Clevenger, 384 S.W.2d 207, 210 (Tex.Civ.App.-Houston 1964, writ ref'd n.r.e.). An option contract has two components: (1) an underlying contract that is not binding until accepted and (2) a covenant to hold open to the optionee the opportunity to accept. Comeaux v. Suderman, 93 S.W.3d 215, 220 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Hott v. Pearcy/Christon, Inc., 663 S.W.2d 851, 853 (Tex.App.-Dallas 1983, writ ref'd n.r.e.).

In their motion for partial summary judgment, Grace and Sarco contended that in the meeting on July 22, 2003, Faucette and Schadler committed to exercise their option to purchase the remaining fifty-one percent of the Sarco shares and agreed that they would make financial arrangements to purchase the shares. Among other things, Grace and Sarco supported their motion with the following testimony from Faucette’s deposition:

Q. During that [July 22] meeting did you state that you were ready, willing and able to go forward with the deal to purchase the remaining 51 percent in conjunction with—
A. I believe we did.
Q. —and that would have been in conjunction with Andrew C. Chantos and Lawrence — ■
A. Correct.
Q. —Schadler.

And you told Grace you were going to go forward with the deal?

A. I believe I did.

Grace and Sarco also pointed to similar excerpts of both Faucette’s and Schadler’s testimony in which they confirmed that they agreed to exercise the option to purchase the remaining fifty-one percent of the corporation and discussed how they would finance the purchases. Based on Faucette and Schadler’s testimony, Grace and Sarco contended that Faucette and Schadler committed to exercise the option to purchase the remaining shares of the company and specifically worked out the details of how the purchase was to be made, including seeking financing. But rather than complete the sale, Faucette and Schadler breached their contractual obligation by failing and refusing to carry through with their agreement to purchase the remaining shares of stock.

On appeal, Faucette and Scha-dler argue that the option is not enforceable because their alleged acceptance varied materially from the option described in the contract. They also contend that their alleged acceptance was, at best, a statement of intent to purchase shares sometime in the future, and the sale was not completed by the deadline specified in the contract. Generally, acceptance of an option must be unqualified, unambiguous, and strictly in accordance with the terms of the agreement. Comeaux, 93 S.W.3d at 220; Crown Const. Co. v. Huddleston, 961 S.W.2d 552, 558 (Tex.App.-San Antonio 1997, no writ). A conditional acceptance of an offer is generally considered a rejection and counteroffer. See United Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360, 363-64 (Tex.1968); Hutcherson v. Cronin, 426 S.W.2d 638, 641 (Tex.Civ. App.-Tyler 1968, no writ). But that does not mean the parties to an option cannot modify the option or the terms of the underlying sale by mutual agreement. See Humble Oil & Refining Co. v. Westside Inv. Corp., 428 S.W.2d 92, 94-95 (Tex.1968); Wall v. Trinity Sand & Gravel Co., 369 S.W.2d 315, 317 (Tex.1963).

Faucette and Schadler argue that their alleged acceptance varied materially from the option contained in the contract because the parties’ agreement was changed. Specifically, at the July 22 meeting, Fau-cette and Schadler expressed an intent only to purchase enough shares from Grace so that they would each own 260 shares, the same number as held by Andrew Chantos. Conversely, the offer contained in the contract provided that the “Buyers” shall have the option to purchase the remaining shares, “but only in a lump sum wherein Buyers purchase all remaining shares.” The “Buyers” are defined in the contract as Andrew C. Chantos, H. Frank Faucette, and J. Lawrence Seha-dler. Thus, Faucette and Schadler argue, the option called for three buyers, Andrew, Faucette, and Schadler, to make a lump-sum purchase of fifty-one percent of the shares of stock in Sarco. But the summary-judgment evidence showed that the alleged acceptance called for Faucette to purchase 142 shares, Schadler to purchase 144 shares, Andrew to purchase nothing, and Sarco itself to purchase the remaining 220 shares. Consequently, they contend, their alleged acceptance amounted to nothing more than a counteroffer and rejection of the option contained in the contract. See Antonini v. Farris County Appraisal Dist., 999 S.W.2d 608, 610-11 (Tex.App.Houston [14th Dist.] 1999, no pet.) (“Acceptance must be identical with the offer in order to make a binding contract.”).

It is undisputed that Grace owned fifty-one percent of the company’s shares, her son Andrew owned twenty-six percent of the shares, and Faucette and Schadler owned the rest. The summary-judgment evidence shows that at the July 22 meeting, Faucette and Schadler agreed to exercise the option to purchase Grace’s shares. That Andrew, one of the “Buyers” defined in the contract, was not purchasing any additional shares does not raise an inference defeating summary judgment. The intended purpose of the option was to enable the majority shareholders (now Grace) to relinquish ownership of the company to the other shareholders (Andrew, Faucette, and Schadler) once they acquired forty-nine percent of the company. The evidence conclusively shows that the parties expressed an agreement consistent with this purpose. The arrangement to equalize the share ownership and to have the company itself buy the remaining shares merely goes to the manner in which the other shareholders would accomplish the agreed-upon purpose of buying out Grace’s ownership interest. On these facts, therefore, there was no counteroffer and rejection that rendered the agreement unenforceable.

Faucette and Schadler argue, however, that the alleged acceptance was not made in the manner or within the time the contract required. They point to the contract’s provision that the option requires the buyers to “purchase” all of the remaining shares and to do so “only in a lump sum.” Therefore, they contend, the contract required them to actually tender performance, not merely to announce an intent to perform without ever tendering any money. As additional support for their interpretation of the contract, Faucette and Schadler point to the “Term of Agreement” provision, which states that the contract “shall terminate unless the Sale and Purchase contemplated in its entirety within thirty-two (32) months from the date of execution of the Agreement.” This language, they contend, requires that actual payment be made prior to the end of thirty-two months to exercise the option. Thus, their mere statements at the July 22 meeting that they were ready to purchase some of Grace’s stock were not sufficient to accept the option.

In their motion, Grace and Sarco relied on a line of cases holding that unless an option to purchase contains provision to the contrary, the optionee is only required to notify the optionor prior to the expiration of the option period, and then tender performance within a reasonable time thereafter to exercise the option. See, e.g., English v. English, 44 S.W.3d 102 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Maxwell v. Lake, 674 S.W.2d 795, 798 (Tex.App.-Dallas 1984, no writ); San Antonio Joint Stock Land Bank v. Matcher, 164 S.W.2d 197, 200 (Tex.Civ.App.-San Antonio 1942, writ ref'd w.o.m.). In English, for example, an ex-wife notified her ex-husband that she was exercising the option contained in the parties’ divorce decree to buy out her ex-husband’s interest in their homestead within the option period, but she did not complete the purchase before the option expired. Id. at 104. This court held that “where the option instrument is silent regarding the method of exercising the option, giving timely notice to the op-tionor and subsequently tendering performance within a reasonable time is sufficient to exercise the option.” Id. (citing Maxwell v. Lake, 674 S.W.2d at 798). Grace and Sarco argue that, because the option provision of the contract did not specify the manner or method in which they were to be notified that the option was accepted, Faucette’s and Schadler’s agreement to purchase the remaining shares of stock at the July 22 meeting was sufficient to exercise the option.

On appeal, Faucette and Schadler argue that these cases stand merely for the proposition that unless the option provides otherwise, acceptance of the option does not require the optionee to tender actual payment before the option expires; they do not hold that an optionee may accept an option by mere notice without ever tendering payment. Thus, Faucette and Schadler contend, an optionee who never tenders performance cannot enforce the option. They also argue that the option in this case does “provide otherwise” because it requires the purchase be completed in its entirety according to its terms and within the specified deadline. In any event, they contend that because they never tendered payment within the option period, they never exercised the option. As support, Faucette and Schadler cite Kruegel v. Berry, 75 Tex. 230, 9 S.W. 863, 864-65 (1888), in which the supreme court concluded that a lessee who had an option to purchase leased land for a specified amount within two years “had the right at any time during the term of the lease ... to purchase the land by paying the consideration agreed upon,” but because he did not seek to enforce the option before the expiration of the two-year period, and the land was then sold to a third party, the lessee was not entitled to specific performance of the option contained in the lease. Kruegel did not involve a situation in which the lessee gave notice of an intent to exercise the option but failed to pay the consideration for the option within the option period. And, the court in Kruegel did not address whether acceptance alone is insufficient to exercise an option.

In this case, as in all option cases, the option contract itself is an offer by the optionor to the optionee. By agreeing to purchase the remaining shares at the July 22 meeting — an arrangement that fulfilled the intended purpose of the option — Faucette and Schadler elected to accept the offer. The effect of this election is the formation of a contract that binds both the optionor and the optionee:

Election is the act of the optionee which converts the option contract into a binding promise on the part of the optionor to sell. The effect of a timely and proper election under the contract, and of a timely and proper acceptance of an offer, is the same, in that the option contract, on the one hand, and the offer on the other, are turned into a bilateral contract. Having exercised the option by election the optionee must then proceed to perform the conditions of the option contract in order to complete the transaction.

Ferguson v. von Seggem, 434 S.W.2d 380, 385 (Tex.Civ.App.-Dallas 1968, writ ref'd n.r.e.) (emphasis added); see also Hott, 663 S.W.2d at 854 (“When the optionee gives notice or otherwise complies with the terms and conditions of the option ... a bilateral executory contract is formed, one party having the duty to convey and the other the duty to pay.”). The cases in which an optionee exercises the option and thus binds the optionor to perform are legion. See, e.g., Sinclair Refining Co. v. Allbritton, 147 Tex. 468, 218 S.W.2d 185, 188-90 (1949); Smith v. Hues, 540 S.W.2d 485, 490 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ ref'd n.r.e.); Luccia v. Ross, 274 S.W.3d 140, 149-50 (Tex.App.-Houston [1st Dist.] 2008, pet. denied); Odum v. Sims, 609 S.W.2d 881, 882 (Tex.Civ.App.-San Antonio 1980, no writ); Kenver Corp. v. Robinson, 492 S.W.2d 317, 319-20 (Tex.Civ.App.-Beaumont 1973, writ ref'd n.r.e.); Giblin v. Sudduth, 300 S.W.2d 330, 332-34 (Tex.Civ.App.-Austin 1957, writ ref'd n.r.e.); see also El Paso Natural Gas Co. v. W. Bldg. Assocs., 675 F.2d 1135, 1139-41 (10th Cir.1982) (holding optionee’s acceptance of option without tender of purchase price created mutually binding contract entitling optionee to specific performance). But the acceptance of an option ascribes contractual duties to the optionee in the same way that it does the optionor. By notifying Grace and Sarco of their intent to exercise the option, Fau-cette and Schadler entered into a bilateral contract and became obligated to perform. See Ferguson, 434 S.W.2d at 385. And when they failed to perform by refusing to complete the purchase of the remaining shares, they breached the contract.

Because we affirm the trial court’s grant of summary judgment in favor of Grace and Sarco, we do not address Faucette and Schadler’s competing motion for summary judgment.

We overrule Faucette and Schadler’s first issue.

Damages for Breach of Option Contract

In their second issue, Faucette and Schadler contend that the evidence is legally and factually insufficient to prove damages for breach of contract. They argue that Grace was awarded what she would have received from the sale of the remaining shares of Sarco without any evidence of the value of the shares she should have surrendered in the transaction. According to Faucette and Schadler, proper proof of damages required not only evidence of the amount Grace would have received had the sale of the shares been performed, but also evidence of the value of the shares she would have surrendered in the transaction. See Miga v. Jensen, 96 S.W.3d 207, 215 (Tex.2002) (holding damage award resulting from a breach of an agreement to purchase securities is the difference between the contract price and the fair market value of the asset at the time of the breach); Holt Atherton Indus. Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992) (evidence of lost income was legally insufficient to prove lost profits). They also argue there was undisputed evidence that she retained the shares, sold assets of the company, and kept the proceeds for herself.

When examining a legal-sufficiency challenge, we review the evidence in the light most favorable to the challenged finding and indulge very reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. Id. at 827. The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. Id.

When examining a factual-sufficiency challenge, we consider and weigh all the evidence, both supporting and contradicting the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). We set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

Initially, we note that the jury was asked to determine Grace’s damages for the breach of contract the court had found. The question was worded as follows:

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Grace C. Chantos for her damages, if any, that resulted from such breach of contract?
Consider the following elements of damages, if any, and none other:
The amount Grace C. Chantos would have received for the sale of her 502 shares of the business corporation if H. Frank Faucette and J. Lawrence Scha-dler had not breached the Sale and Purchase Agreement.

At the charge conference, Faucette’s and Schadler’s only objection to this question was that the answers should have been separate for each of them. They did not complain that the instruction’s measure of damages was improper or otherwise object to the instruction. Therefore, we measure the sufficiency of the evidence against the language in the charge. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000) (holding, when no objection is made to jury issue, sufficiency of the evidence is measured against charge given by court rather than some other unidentified law); Kroger Co. v. Brown, 267 S.W.3d 320, 323 (Tex.App.Houston [14th Dist.] 2008, no pet.) (measuring sufficiency of damages evidence against commonly understood meaning of undefined term used in charge); see also Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex.2007) (holding argument that charge submitted improper measure of damages was waived by failure to object in trial court); Tribble & Stephens Co. v. Consolidated Services, Inc., 744 S.W.2d 945, 949 (Tex.App.-San Antonio 1987, writ denied) (holding failure to raise issue of improper measure of damages in trial court waived review of complaints that proper measure of damages was not submitted to jury and that plaintiff failed to present evidence on the proper measure),

Here, the jury was instructed that the measure of damages is the amount of money Grace “would have received for the sale of her 502 shares” of the company had Faucette and Schadler not breached the contract. Under the terms of the contract, the price per share was $383. The jury awarded $192,266, which is exactly the share price multiplied by 502. Therefore, the jury’s answer is supported by legally sufficient evidence. And, although Faucette and Schadler corn-plain that Grace received a double recovery because she was awarded the sales price while retaining the shares, the jury was not asked to determine fair market value of the shares or to calculate Grace’s net profits on the sale of the shares. The evidence, measured against the question asked, is also factually sufficient to support the jury’s award.

Having overruled Faucette and Scha-dler’s second issue, we next turn to Grace and Sarco’s cross-appeal.

Ill

Tortious Interference

At trial, the jury found Faucette and Schadler tortiously interfered with Sarco’s manufacturers’ representative contracts with Elkay and Vanguard. In a single issue, Sarco contends the trial court erred in granting Faucette and Schadler’s motion for JNOV on the tortious-interference findings because Sarco presented legally sufficient evidence of each element of that cause of action.

A trial court may disregard a jury’s verdict and render a judgment notwithstanding the verdict if no evidence supports one or more of the jury’s findings or if a directed verdict would have been proper. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003). The final test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). To determine whether the trial court erred in rendering a JNOV, we review the entire record, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Id. at 807.

To prevail on a tortious-interference claim, Sarco was required to prove: (1) contracts existed which were subject to Faucette and Schadler’s interference; (2) Faucette and Schadler willfully and intentionally committed acts of interference; (3) Faucette’s and Schadler’s acts proximately caused damages; and (4) actual damages or loss occurred. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 926 (Tex.1993); Rodarte v. Investeco Group, LLC, 299 S.W.3d 400, 411 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

Sarco argues that the evidence shows that Faucette and Schadler intentionally destroyed Sarco’s business for their own financial gain. Specifically, Faucette and Schadler, while receiving salaries and bonuses from Sarco to enable them to purchase the company and promising they were continuing with the purchase, persuaded the manufacturers who had been with Sarco for over twenty years to terminate their contracts so they could do business with Faucette and Schadler’s new company, Tri-Rep. Further, Faucette and Schadler planned their method of departure from Sarco — resigning without notice when Grace was out of the state and taking the only other salesman with them— knowing it would cause great harm to Sar-co.

Faucette and Schadler respond that Sarco’s claim is not one for tortious interference with existing contracts, but is actually one for tortious interference with prospective contracts. They point out that Elkay and Vanguard complied with their contracts, giving Sarco the contractually required thirty-day notice of termination, and that Sarco continued to act as manufacturer’s representative for those thirty days. According to Faucette and Seha-dler, Sarco is actually seeking to recover damages for the loss of the prospect that Elkay and Vanguard would continue to renew the manufacturer’s representative contracts indefinitely.

This distinction is significant because in Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex.2001), our supreme court held that to prevail on a claim for tortious interference with prospective contracts the plaintiff must additionally prove that the defendant’s conduct was “independently tortious or wrongful.” The Sturges court explained that conduct that is merely “sharp” or perceived as “unfair competition” is not actionable as the basis for this tort. Id. The plaintiff is not required to prove an independent tort; instead, the plaintiff need only establish that the defendant’s conduct would be actionable under a recognized tort. Id.

Thus, after Sturges, the following formulation of the elements of the tort has been adopted:

(1) a reasonable probability that the parties would have entered into a contractual relationship;
(2) an “independently tortious or unlawful” act by the defendant that prevented the relationship from occurring;
(B) the defendant did such act with a conscious desire to prevent the relationship from occurring or knew that the interference was certain or substantially certain to occur as a result of his conduct; and
(4) the plaintiff suffered actual harm or damage as a result of the defendant’s interference.

See Baty v. ProTeeh Ins. Agency, 68 S.W.3d 841, 860 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Faucette and Schadler contend that Sarco does not even attempt to meet the burden of showing independently tortious conduct.

Sarco contends that Sturges does not apply because its claims were brought for tortious interference with existing contracts. Sarco points out that that it proved the existence of its contracts with the manufacturers and that Faucette and Schadler deprived Sarco of the benefits of those contracts. Sarco further points out that under Texas law the terminable-on-notice or terminable-at-will status of a contract is not a defense to an action for tortious interference. See Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 (Tex.1990) (terminable-on-notice contract); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex.1989) (terminable-at-will contract). Both Juliette Fowler Homes and Sterner instruct that “[u]ntil a contract is terminated, it is valid and subsisting, and third persons are not free to tortiously interfere with it.” Juliette Fowler Homes, Inc., 793 S.W.2d at 666; Sterner, 767 S.W.2d at 689 (citing Restatement (Second) of Torts § 766 cmt. g (1979)); see also Knox v. Taylor, 992 S.W.2d 40, 57-58 (Tex.App.-Houston [14th Dist.] 2001) (rejecting terminable-on-notice status of contract as defense to tortious-interference-with-contract claim and holding third party’s mailing of defamatory memo interfered with plaintiffs business relationship).

But as to terminable-on-notice or terminable-at-will contracts, the protection Juliette Fowler Homes and Sterner provide is somewhat limited. The supreme court has also instructed that a party cannot be hable for inducing another party “to do what it had a right to do” under a contract. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 431 (Tex.1997). Thus, a third party is prohibited from tortiously interfering with a terminable-on-notice or terminable-at-will contract, but “merely inducing one of the parties to exercise his right to terminate contractual relations after giving the required notice does not necessarily constitute tortious interference with contract under Texas law.” Juliette Fowler Homes, Inc., 793 S.W.2d at 667. Likewise, “harm that results only from lawful competition is not compensable by the interference tort.” Sturges, 52 S.W.3d at 727.

In this case, the jury was asked in separate questions whether Faucette and/or Schadler “intentionally interfered with the manufacturer’s representative contracts [Sarco] had” with Elkay and Vanguard. The jury answered “yes” to both. But there was no evidence that either Elkay or Vanguard breached their contracts with Sarco. It was undisputed that Elkay and Vanguard gave thirty days’ written notice of termination as their contracts provided, and Sarco did not allege or show that Faucette and/or Schadler induced them to breach their contracts with Sarco during the thirty-day termination period. Sarco’s real complaint below and on appeal is the loss of the continuing business relationship with Elkay and Vanguard, two of its most profitable lines, which had existed for over twenty years.

This court has recognized that tortious interference with prospective contractual relations includes continuing business relations. See Heil-Quaker Corp. v. Mischer Corp., 863 S.W.2d 210, 214 (Tex.App.Houston [14th Dist.] 1993), writ granted, judgm’t vacated w.r.m., 877 S.W.2d 300 (Tex.1994). In Heil-Quaker, the appellants argued there was no evidence to support the jury finding of tortious interference with business relations because the tortious interference alleged was directed to an existing contract rather than a prospective contractual relationship. Id. at 214. The court rejected this contention, stating that tortious interference with business or prospective contractual relations concerns not only business relations that have not yet been reduced to a contract but also continuing business relations not amounting to a formal contract. Id. (citing Restatement of ToRts (Second) § 766B, cmt. a, c (1979)).

More recently, in an appeal from a summary judgment, the Fort Worth court of appeals rejected a contention that a claim for tortious interference with prospective relations could not apply to a complaint that business was taken from an existing customer. Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 633 (Tex.App.-Fort Worth 2007, pet. denied). Citing Heil-Quaker Corp., the court concluded that tortious interference with prospective business relations includes tortious interference with continuing business relationships. Id. The court then proceeded to review the summary-judgment evidence concerning the defendant’s alleged interference with the plaintiffs existing customer, including whether there was no evidence that the defendant engaged in independently tortious conduct. See id. at 633-37.

In the context of at-will or terminable-on-notice contracts, the Restatement provides further support for the conclusion that the loss of the contract due to another’s tortious acts is properly considered tortious interference with prospective, or continuing, business relations:

One’s interest in a contract terminable at will is primarily an interest in future relations between the parties, and he has no legal assurance of them. For this reason, an interference with this interest is closely analogous to interference with prospective contractual relations. (See § 766B).

Restatement (Second) of ToRts § 766 cmt. g (1979) (emphasis added). Likewise, section 766B, the section applicable to prospective contractual relations, includes “interferences with ... the opportunity of selling or buying land or chattels or services, and any other relations leading to potentially profitable contracts.” Id. § 766B cmt. c. The comments to this section explain that “[i]n many respects, a contract terminable at will is closely analogous to the relationship covered by this Section.” Id.

We conclude, therefore, that under the facts of this case, Sarco’s claim is properly characterized as one for tortious interference with prospective relations, rather than tortious interference with existing contracts. We further conclude that the jury questions, as written, were broad enough to encompass this theory.

Because we have concluded that Sarco’s claim is one for tortious interference with prospective contracts, Sarco was required to demonstrate that, among other things, Faucette and Schadler engaged in independently tortious or unlawful acts that interfered with its business relations with Elkay and Vanguard. See Sturges, 52 S.W.3d at 726. But Sarco does not assert that Faucette and Schadler engaged in any independently tortious conduct. In the absence of any evidence to support this element of the cause of action, we conclude the trial court did not err in granting the JNOV.

Sarco contends, however, that it is not required to demonstrate that a contract was breached to show actionable interference with contract relations. Instead, Sar-co argues that a party may be liable for interference by actions that do not necessarily induce a breach of contract but which injure persons so that they are unable to perform a contract, destroy or damage property that is the subject matter of a contract, or make performance of a contract “more burdensome, difficult or impossible, or of less or no value to the one entitled to performance.” See Tippett v. Hart, 497 S.W.2d 606, 610 (Tex.Civ.App.-Amarillo 1973), writ ref'd n.r.e., 501 S.W.2d 874 (Tex.1973); Restatement (Second) of ToRts § 766A. According to Sarco, Fau-cette and Schadler planned to resign without notice or warning, in a manner and at a time when they knew it would harm Sarco, and took Sarco’s only other salesperson with them, leaving the company unable to continue its contracts with El-kay, Vanguard, and even its other lines, because it no longer had a sales force.

Sarco’s argument fails, however, because it conflates distinct theories of tortious interference in a way that is inconsistent with the jury questions and the evidence. Sarco’s authorities address the situation in which a plaintiff may recover for tortious interference with the plaintiffs performance of her own contracts, not tortious interference with the other party to the contract’s performance. For example, in Tippett v. Hart, Hart sued Tippett for allowing his cattle to graze on her land without her permission, causing her to breach a contract she had with a governmental agency that prohibited grazing. See 497 S.W.2d at 607-11. Likewise, the Restatement (Second) of Torts section 766A, entitled “Intentional Interference with Another’s Performance of His Own Contract,” provides as follows:

One who intentionally and improperly interferes with the performance of a contract ... between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him.

Restatement (Second) of Torts § 766A (1979). Section 766A “is concerned only with the actor’s intentional interference with the plaintiffs performance of his own contract, either by preventing that performance or making it more expensive or burdensome.” Id. cmt. a. Further, “[i]t is to be contrasted with [section] 766, which states the rule for the actor’s intentional interference with a third person’s performance of his existing contract with the plaintiff and section 766B, which concerns ‘the actor’s intentional interference with the plaintiffs prospective contract relations.” Id.

Here, the jury was asked whether Fau-cette and Schadler tortiously interfered with Sarco’s contracts with Elkay and Vanguard — not whether Faucette and Schadler tortuously interfered with Sarco’s own performance of its contracts with El-kay and Vanguard. Even if we read the jury question broadly enough to encompass this theory, there is no evidence that Faucette and Schadler tortiously interfered by preventing Sarco from performing its contracts with Elkay and Vanguard. Elkay and Vanguard notified Sarco that they were exercising their contractual rights to terminate their contracts on thirty days’ notice almost immediately after Faucette’s and Schadler’s resignations, and Sarco points to no evidence that Fau-cette’s and Schadler’s actions impaired or destroyed its ability to perform its contracts with Elkay and Vanguard during the remaining thirty days of each contract. As previously discussed, Sarco’s real complaint concerning Elkay and Vanguard is the loss of these two profitable lines of business to Faucette and Schadler’s new company, Tri-Rep. Further, to the extent Sarco points to evidence that it was unable to conduct business after Faucette and Schadler resigned, the jury was not asked whether Faucette and Schadler interfered with Sarco’s ability to perform its own contractual obligations to its remaining lines.

Therefore, viewing the evidence in a light most favorable to the jury’s verdict, we hold that the trial court did not err in granting Faucette and Schadler’s motion for JNOV, and we overrule Sarco’s issue.

Having overruled the parties’ issues on appeal and cross-appeal, we affirm the trial court’s judgment.

(FROST, J. concurring and dissenting).

KEM THOMPSON FROST, Justice,

concurring and dissenting.

To the extent this court affirms the trial court’s judgment notwithstanding the verdict as to the tortious-interference-with-contract claims, I concur in the judgment. To the extent this court affirms the trial court’s judgment awarding recovery on the breach-of-contract claims and declines to render a take-nothing judgment on these claims, I respectfully dissent.

Under the unambiguous language of the agreement in question, to exercise their option to acquire the remaining shares of the corporation, the option holders had to make the purchase by means of a lump-sum payment within a specified time from the execution date of the contract, and if this purchase did not occur within that time frame, the agreement and the option in it would terminate. It is undisputed that the option holders never purchased the remaining shares, and the plaintiffs judicially admitted that the contract upon which they base their breach-of-contract claims terminated at the expiration of the time period specified in the contract. Because the option holders did not exercise their option in the manner required by the contract and because the contract terminated by its own terms, the trial court erred in granting summary judgment in the plaintiffs’ favor as to liability on the breach-of-contract claims and in denying the defendants’ motion for summary judgment as to these claims. Accordingly, the trial court’s judgment should be reversed, and this court should render a take-nothing judgment.

Relevant Background

Plaintiffs/appellees/cross-appellants Grace C. Chantos and A.J. Chantos & Associates, Inc., d/b/a Sarco of Texas (hereinafter collectively, the “Chantos Parties”) sued defendants/appellants/cross-appellees H. Frank Faucette and J. Lawrence Schadler (hereinafter collectively, the “Option Holders”) for breach of a written contract entitled “Sale and Purchase Agreement” (hereinafter, the “Contract”). Grace Chantos, Grace’s husband Andrew J. Chantos, Faucette, and Faucette’s wife executed the Contract on May 25, 2001. Schadler and his wife executed the Contract on July 24, 2001.

In a section of the Contract entitled “Sale and Purchase,” the parties detailed the contemplated sale of the shares of A.J. Chantos & Associates, Inc., d/b/a Sarco of Texas (hereinafter, “Sarco”) by Grace and her husband to the Option Holders and Andrew J. Chantos (collectively hereinafter, the “Buyers”). The parties agreed that during the first thirty months of the Contract or until the Buyers acquired forty-nine percent of the Sarco shares, whichever occurred first, the Option Holders were required to purchase at least four Sarco shares per month. Under the terms of the Contract, if the Buyers acquired at least forty-nine percent of the outstanding Sarco shares, then the Buyers had “the option to purchase the remaining shares, but only in a lump sum wherein Buyers purchase all remaining shares.” The parties agreed that “[t]his Agreement shall terminate unless the Sale and Purchase contemplated is completed in its entirety within thirty-two (32) months from the date of execution of the Agreement” (hereinafter, the “Termination Provision”), (emphasis added). The parties did not specify a date of execution in the Contract. But in light of the two dates on which parties executed the Contract, this thirty-two month period ended no later than on March 24, 2004 (hereinafter, the “End Date”).

It is undisputed that, by July 22, 2003, the Buyers had acquired forty-nine percent of the Sarco shares and that they had the option to purchase the remaining Sar-co shares provided in the Contract (hereinafter, the “Option”). The Chantos Parties moved for partial summary judgment as to the Option Holders’ liability on the breach-of-contract claims. In their sole ground for summary judgment, the Chantos Parties asserted that the summary-judgment evidence conclusively proves that (1) the Option Holders exercised the Option by giving oral notice to Grace at the July 22, 2003 meeting of their acceptance and intent to exercise the Option; and (2) the Option Holders breached the Contract by failing, and refusing to purchase the remaining Sarco shares from Grace. The Chantos Parties agreed that acceptance of an option must be unqualified, unambiguous, and strictly in accordance with the terms of the agreement; but they asserted that the Contract did not contain any terms regarding the manner for exercising the Option. Therefore, the Chantos Parties argued, the Option Holders could accept and exercise the Option by giving oral notice to Grace at the July 22, 2003 meeting of their acceptance and intent to exercise the Option.

Both in response to the Chantos Parties’ motion and as a ground for summary judgment in their own motion for final summary judgment, the Option Holders asserted that, under the Contract, the parties specified the manner in which the Option Holders had to exercise the Option — they had to purchase Grace’s remaining shares in a lump-sum payment by the End Date. The summary-judgment evidence conclusively proves that the Option Holders did not purchase Grace’s remaining shares by the End Date. Therefore, the Option Holders asserted, (1) the Contract terminated by its own terms; and (2) the Option Holders had no obligation to purchase the remaining shares under the Contract and did not breach any of its terms. The Option Holders attached to their motion for summary judgment responses to requests for admissions, in which the Chantos Parties judicially admitted that the Contract terminated within thirty-two months of the Contract’s execution date and that the Contract was currently terminated.

The trial court denied the Option Holders’ summary-judgment motion and granted the Chantos Parties’ motion, ruling that, as a matter of law, the Option Holders breached the Contract and are liable to Grace for the breach.

Principles of Option Law

When one acquires an option to purchase property, the holder of the option purchases the right to compel a sale of the property on the stated terms before expiration of the option. See Comeaux v. Suderman, 93 S.W.3d 215, 219-20 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Option contracts have two components: (1) an underlying contract that is not binding until accepted and (2) a covenant to hold open to the option holder the opportunity to accept. See id. at 220. Before the option can ripen into an enforceable contract of sale, however, the option holder must manifest his acceptance. See id. Acceptance of an option must be unqualified, unambiguous, and strictly in accordance with the terms of the agreement. See id. For this reason, a failure to exercise an option according to its terms, including untimely or defective acceptance, is simply ineffectual, and legally amounts to nothing more than a rejection. See id. If the contract is silent regarding the method of exercising the option, the option holder may exercise the option by timely giving notice to the optionor of the option holder’s intent to exercise the option, and the option holder also may be required to tender performance within a reasonable time. See English v. English, 44 S.W.3d 102, 105 (Tex.App.-Houston [14th Dist.] 2001, no pet.).

Principles of Contract Interpretation

In construing contracts, this court’s primary concern is to ascertain and give effect to the intentions of the parties as expressed in the contract. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). To ascertain the parties’ true intentions, this court must examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be rendered meaningless. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex.1999). “Whether a contract is ambiguous is a question of law for the court. Heritage Res., Inc. v. Nations-Bank, 939 S.W.2d 118, 121 (Tex.1996). A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Id. But, when a written contract is worded so that it can be given a certain or definite legal meaning or interpretation, it is unambiguous, and the court construes it as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). This court cannot rewrite the Contract or add to its language under the guise of interpretation. See id. at 162. Rather, this court must enforce the Contract as written. See Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 181 (Tex.1965).

Analysis of the Contract

In the Contract, the parties agreed that, if the Buyers acquired at least forty-nine percent of the outstanding Sarco shares, then the Buyers would have the option to purchase the remaining shares, but only through a lump-sum payment by which the Buyers would acquire all remaining shares. The parties also agreed that the entire Contract would terminate unless the contemplated purchase of the Sarco shares was completed in its entirety by the End Date. The parties did not agree that any provisions of the Contract would survive termination of the Contract. If the Option Holders could have exercised the Option simply by giving notice to Grace of their acceptance and intent to exercise the Option and without purchasing the remaining shares from Grace, such an exercise would have imposed a binding obligation on the Option Holders to purchase the remaining shares by a lump-sum payment. But this construction of the Contract would render the Termination Provision meaningless. See Kruegel v. Berry, 75 Tex. 230, 9 S.W. 863, 863-64 (1888) (stating that option holder under lease had to tender purchase price before lease terminated in order to exercise option to buy leased premises for a specified price); Nguyen v. Woodley, 273 S.W.3d 891, 898 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (holding that contract for purchase of real property terminated by its own terms upon buyer’s giving of a certain notice and that therefore the contract was no longer valid and enforceable); Cate v. Woods, 299 S.W.3d 149, 153 (Tex.App.-Texarkana 2009, no pet.) (holding that trial court erred as a matter of law by enforcing contract for purchase of real property that had terminated by its own terms).

If the Termination Provision is given effect, then the Option Holders could not be bound to purchase the remaining shares because they could wait until the End Date passed and any obligation to purchase the remaining shares would terminate. Harmonizing and giving effect to all provisions of the contract so that none will be rendered meaningless, this court should conclude that, under the unambiguous language of the Contract, the parties specified the manner in which the Option Holders had to exercise the Option — they had to purchase the remaining shares by the End Date. See MCI Telecomms. Corp., 995 S.W.2d at 652. The summary-judgment evidence proves as a matter of law that the Option Holders did not do so, and therefore, they did not exercise the Option. After the End Date passed, the Contract terminated without any exercise of the Option. Indeed, the Chantos Parties have judicially admitted that the Contract upon which the trial court’s judgment is based. terminated on or before the End Date, which was before the Chantos Parties filed this lawsuit in the trial court.

In their Contract, the parties required the Option Holders to purchase Sarco stock up to the forty-nine-percent threshold. The parties could have required the Option Holders to purchase the remaining stock; however, the parties chose not to do so. Instead, they agreed to contractual language under which the Option Holders had the ability to choose whether they wanted to exercise the Option by purchasing the remaining shares from Grace no later than the End Date. This court cannot rewrite the Contract or add to its language under the guise of interpretation; instead, the court must enforce the Contract as written. See Schaefer, 124 S.W.3d at 157; Marshall, 388 S.W.2d at 181.

Conclusion

The sole ground asserted in the Chantos Parties’ motion for summary judgment lacks merit. In their cross-motion, the Option Holders proved as a matter of law that they did not exercise the Option and that the Contract terminated by its own terms. Though the majority notes the Option Holders’ arguments in this regard, the majority does not address these arguments or explain why they lack merit. The court should address these arguments, sustain the Option Holders’ first issue, and hold that the trial court erred by failing to grant the Option Holders’ motion. Accordingly, this court should reverse the trial court’s judgment and render judgment that the Chantos Parties take nothing.

      . Grace Chantos testified that the reason she and Andy broke off negotiations with Chum-ley was because Chumley could not offer permanent employment to Faucette and Scha-dler.

      . At trial, the testimony reflected that Scha-dler owned 120 shares, but we are confined to the summary judgment record for purposes of the appellants’ first issue.

      . Schadler testified that the reason the parties discussed equalizing the shares was that Grace was concerned about Schadler and Faucette having more shares than Andrew. Andrew, however, testified that the change actually helped Schadler and Faucette, who did not have to purchase as many shares.

      .Faucette and Schadler testified that they intended to work the entire week after they resigned, but because Grace changed the locks they were unable to do so. Schadler also testified that they continued to take orders for Sarco from Malmburg’s home for thirty days, and Sarco was paid the commissions on those orders.

      . Faucette's testimony included the following exchange:
      Q. So the plan was as of this July 22 meeting, was for you, Lawrence Schadler and Andrew C. Chantos to all equalize the number of shares you owned at 26 percent each and for Sarco of Texas to purchase the remaining 22 percent. Is that correct?
      A. I believe that is correct.
      Schadler also confirmed this plan in the excerpts of his testimony attached to Grace and Sarco's motion.

      . Faucette and Schadler also complain that the judgment was erroneously rendered jointly and severally against them for breach of contract. They state in their brief that even if they were required to exercise the option for the entire option price, Grace was entitled, at most, to an award of $82,472 against Faucette and $81,705 against Schadler. But Faucette and Schadler do not provide any argument or authority to support their contention that the trial court erred in rendering a judgment against them jointly and severally; therefore, il is waived. See Tex.R.App. P. 38. l(i).

      . We acknowledge dial diere are cases in which the elements of tortious interference with contracts was applied to the alleged loss of continuing business relationships. See, e.g., SP Midtown, Ltd. v. Urban Storage, L.P., No. 14-07-00717-CV, 2008 WL 1991747, *8-9 (Tex.App.-Houston [14th Dist.] May 8, 2008, pet. denied) (mem. op.); Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 218 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). But these cases are distinguishable because the issue presented here was not addressed.

      . We note that an allegation that Faucette and Sarco breached a fiduciary duty could have supplied the independently tortious conduct to support this element. See RenewData Corp. v. Strickler, No. 03-05-00273-CV, 2006 WL 504998, at *10-12 (Tex.App.-Austin Mar. 3, 2006, no pet) (mem. op.) (holding former employee's breach of fiduciary duties to employer satisfies the Sturges prerequisites for a claim of tortious interference with prospective business relations). But Grace and Sarco did not plead, seek to demonstrate, or request a jury question concerning whether Faucette and Chantos breached any fiduciary duty to Sarco.

      . Though Sarco was a plaintiff in the trial court, it was not a party to the Contract, and the trial court rendered judgment only in favor of Grace. References in this opinion to the ''parties” pertain to the contracting parties, not to the parties to the litigation, and do not include Sarco.

      . Various cases state that, if the contract is silent regarding the method of exercising the option, the option holder may exercise the option by timely giving notice to the optionor of the option holder's intent to exercise the option and by subsequently tendering performance within a reasonable time. See, e.g., English v. English, 44 S.W.3d 102, 105 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (stating that "we conclude and hold that where the option instrument is silent regarding the method of exercising the option, giving timely notice to the optionor and subsequently tendering performance within a reasonable time is sufficient to exercise the option"). But, given that the overwhelming majority of option cases involve option holders seeking to enforce the option, it may be that the tender of performance is required in these cases because the option holder seeks to enforce the option rather than as part of the exercise of the option. See id. (stating that "if [option holder] gave notice of her intent to exercise the option within the applicable 180 day period, such notice would be sufficient to trigger her rights under the divorce decree”). This court need not address this issue to dispose of this appeal, and it is not addressed in this opinion.

      . The Chantos Parties rely upon the English case. See English, 44 S.W.3d at 103-5. But, in that case, the divorce decree in question contained language materially different from the language in the Contract. See id. The divorce decree did not contain language similar to the Termination Provision, and the decree was silent as to the manner in which the option should be exercised. See id. Therefore, the English case is not on point.

      .On appeal, the Chantos Parties assert, in the alternative, that this court should affirm the trial court’s judgment on the breach-of-contract claims based on an alleged modification of the Contract by the parties at the July 22, 2003 meeting. Significantly, however, the Chantos Parties did not assert any alleged modification of the Contract as a ground in their summary-judgment motion. Therefore, this court cannot affirm the trial court's summary judgment on this unasserted ground. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993)

      . Presuming for the sake of argument that the Option Holders could have exercised the Option by notice alone and that they did so, the Chantos Parties still could not prevail on a breach-of-contract claim because the Contract terminated on the End Date and the parties did not agree that any contractual obligations would survive termination. See Nguyen, 273 S.W.3d at 898; Cate, 299 S.W.3d at 153.

      . This court appropriately holds the trial court did not err in granting the Option Holders' motion for judgment notwithstanding the verdict as to the tortious-interference-with-contract claims.