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Court of Appeals of Texas, Dallas.


No. 05-09-00397-CV

Decided: March 22, 2011

Before Justices Bridges, Francis, and Lang


Opinion By Justice Bridges

Appellant W.O. Burgers 1, L.L.C. (“Burgers”) appeals from a final judgment, entered by the trial court in favor of Appellees Watsonburger of Oklahoma, Inc. and Charles E. Watson (collectively referred to as “Watsonburger”).   In three issues, Burgers contends the trial court erred by:  (1) excluding evidence of the agreement to manage the Durant and other stores, (2) excluding the expert testimony of Kathy J. Tidd, and (3) denying its motion for judgment on the verdict or, in the alternative, notwithstanding the verdict.   We affirm.


In 2003, Burgers contacted Watsonburger, communicating its desire to operate a Watsonburger hamburger store.   At the time of negotiations, Burgers alleged the Ardmore store was being mismanaged and eventually closed.   In 2005, Burgers and Watsonburger entered into a temporary operating agreement (“TOA”), a commercial lease agreement (“CLA”), and a trademark license agreement (“TLA”) (collectively referred to as the “Ardmore Agreements”).   In essence, the Ardmore Agreements granted Burgers the right to operate a Watsonburger hamburger store in Ardmore, Oklahoma.   Burgers refurbished the Ardmore store, allegedly spending approximately $120,000.

In addition to the Ardmore Agreements, Burgers alleges that it also entered into an oral agreement with Watsonburger, allowing Burgers to operate a store in Durant, Oklahoma.   Watsonburger contends it never discussed a franchise agreement with Burgers.

Burgers ceased operating the Ardmore store, and Watsonburger changed the locks to the Ardmore store.   Watsonburger eventually sold the Ardmore store for $625,000.   Burgers claimed it suffered damages in the amount of $414,338, which Watsonburger has disputed.

Burgers filed the underlying lawsuit against Watsonburger,1 alleging violations of the Federal Trade Commission franchise rule and Deceptive Trade Practices Act, breach of contract, and fraud.   A jury reached a verdict in favor of Watsonburger, and the trial court entered judgment that Burgers recover nothing.   The judgment also awarded Watsonburger the sum of $5,145.95, plus interest, attorney's fees and costs of court.   This appeal ensued.


In its first issue, Burgers contends the trial court erred by excluding evidence of its agreement with Watsonburger to manage the Durant store and other stores.   An appellate court reviews a trial court's decision to admit or exclude evidence under an abuse of discretion standard.   In re J.P.B., 180 S.W.3d 570, 575 (Tex.2005).   A trial court abuses its discretion if it acts arbitrarily or unreasonably.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985).   To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was in error and that the error probably caused the rendition of an improper judgment.  McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.1992).   A challenge to a trial court's evidentiary rulings will be successful only if, after a review of the entire record, an appellate court determines that the error was harmful because the judgment turns on the particular evidence excluded or admitted.  Interstate Northborough P'ship v. State of Texas, 66 S.W.3d 213, 220 (Tex.2001).

It is well settled that a written instrument may not be varied by evidence of an oral agreement that contravenes its terms.   See Litton v. Hanley, 823 S.W.2d 428, 430 (Tex.App.-Houston [1 st Dist.] 1992, no writ) (citing Texas Export Dev. Corp. v. Schleder, 519 S.W.2d 134, 137 (Tex.Civ.App.-Dallas 1975, no writ)).   However, parol evidence is admissible to show (1) that the execution of a written agreement was procured by fraud, Town North Nat. Bank v. Braddus, 569 S.W.2d 489, 491 (Tex.1978);  (2) that an agreement was not to become effective except upon certain conditions or contingencies, Baker v. Baker, 183 S.W.2d 724, 728 (Tex.1944);  or (3) to ascertain the parties' true intentions, where the writing is ambiguous.  Trinity Univ. Ins. Co. v. Ponsford Bros., 423 S.W.2d 571, 574-75 (Tex.1968).   An unambiguous contract will be enforced as written, and parol evidence will not be received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imports.  David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex.2008);  Calce v. Dorado Exploration, Inc., 309 S.W.3d 719, 742 (Tex.App.-Dallas 2010, no pet.).   In other words, if the written instrument is worded so that it can be given a certain definite meaning or interpretation, then it is not ambiguous, and the court will construe the contract as a matter of law.   See Litton, 823 S.W.2d at 430 (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983)).

As noted above, the parties entered into three written agreements:  (1) the TOA, (2) the CLA, and (3) the TLA. Each of these agreements expressly referred to the operation of the Ardmore, Oklahoma store only.   Thus, evidence of an oral agreement to operate an additional store alters and contradicts the three unambiguous Ardmore Agreements in violation of the parol evidence rule.   See Haden, 266 S.W.3d at 450;  Calce, 309 S.W.3d at 742.   Thus, the trial court properly excluded evidence of an oral agreement between the parties with regard to the operation of other stores not expressly mentioned in the Ardmore Agreements.   See In re J.P.B., 180 S.W.3d at 575.   We overrule Burgers's first issue.

In its second issue, Burgers contends the trial court erred in excluding the expert testimony of Kathy J. Tidd. We review the trial court's exclusion of expert testimony under an abuse of discretion standard.  K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.2000).   The proponent of an expert must establish, among other things, that the expert's opinion will aid the trier of fact.  North Dallas Diagnostic Ctr. v. Dewberry, 900 S.W.2d 90, 94 (Tex.App.-Dallas 1995, writ denied).   Merely because a witness has knowledge, skill, expertise, or training does not necessarily mean that the witness can assist the trier of fact.  Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996).

We have reviewed the offer of proof in the record, providing the testimony of Tidd, a franchise lawyer.   The trial court decided to exclude her testimony, explaining “it's error to admit expert testimony when it's not necessary.”   We agree with the trial court's conclusion that the testimony of Tidd was unnecessary to aid the trier of fact.   During the offer of proof, she provided a definition for “franchise” and explained the elements of a franchise.   She also expressed what was not required for a franchise (i.e. a franchise agreement does not have to be in writing).   However, the court's charge provided the same information to the jury as follows:

Franchise means any continuing commercial relationship or arrangement, whatever it may be called, in which the terms of the offer or contract specify, or the franchise seller promises or represents, orally or in writing, that:

(1) The franchisee will obtain the right to operate a business that is identified or associated with the franchisor's trademark, or to offer, sell, or distribute goods, services, or commodities that are identified or associated with the franchisor's trademark;

(2) The franchisor will exert or has authority to exert a significant degree of control over the franchisee's method of operation, or provide significant assistance in the franchisee's method of operation;  and

(3) As a condition of obtaining or commencing operation of the franchise, the franchisee makes a required payment or commits to make a requested payment to the franchisor or its affiliate.

In the offer of proof, Tidd further explained the difference between a “franchise” and a “business opportunity.”   Again, the court's charge provided a definition for “business opportunity.”

Because the trial court had already incorporated the information provided by Tidd into the body of the charge, we believe her testimony would not further aid the jury.   Thus, we conclude the trial court did not abuse its discretion.   See K-Mart, 24 S.W.3d at 360.   We overrule Burgers's second issue.

In its final issue, Burgers contends the trial court erred by denying its motion for judgment on the verdict or, in the alternative, notwithstanding the verdict.   Specifically, Burgers complains the trial court erred in refusing to grant a judgment on the verdict on the “yes” answer to Question No. 20 (Did Watsonburger sell Burgers a business opportunity?) due to the “0”answer to Question No. 21 (damages).   Burgers explains that, “[i]n light of the jury's verdict regarding question number 20, the undisputed evidence of damages and the grounds set forth above, [Burgers] should be awarded damages in the amount of $414,338.00, plus attorneys' fees in the stipulated amount of $30,000.00 for preparation and trial, $5,000.00 for appeal to the Court of Appeals, $2,500.00 for making or responding to an application for writ of error to the Supreme Court of Texas, and $1,500.00 if application for writ of error to the Supreme Court of Texas, and $1,500.00 if application for writ of error is granted by the Supreme Court of Texas, plus pre and post judgment interest at the highest lawful rate.”

However, a point in a motion for new trial is a prerequisite to a complaint of the inadequacy of damages found by the jury on appeal.  Tex.R. Civ. P. 324.   Burgers did not file a motion for new trial and, thus, did not meet this prerequisite to complaint on appeal.   See id.;  McDade v. Texas Commerce Bank, Nat. Ass'n, 822 S.W.2d 713, 721 (Tex.App.-Houston [1 st Dist.] 1991, writ denied).   Therefore, Burgers waived this complaint on appeal, and we overrule its third issue.

Having overruled all of Burgers's issues, we affirm the judgment of the trial court.



FN1. Burgers also filed suit against Patsy R. Watson and Landmark Bank, N.A. They are not parties to this appeal..  FN1. Burgers also filed suit against Patsy R. Watson and Landmark Bank, N.A. They are not parties to this appeal.


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