Affirmed and Memorandum Opinion filed April 18 , 2023
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00699

- CV
ENVEN ENERGY CORPORATION AND ENVEN ENERGY VENTURES, LLC , Appellant s V.
DAVID M. DUNWOODY, JR. , Appellee
On Appeal from the 151st District Co u rt

Harris County, Texas Trial Court Cause No. 2019

- 39608

MEMORANDUM OPINION Appellants EnVen Energy Corporation and EnVen Energy Ventures, LLC (collectively EnVen) appeal from the final judgment in favor of appellee David M. Dunwoody, Jr. , sig ned follo w ing a lengthy jury trial. Finding no error, we aff irm.
B A CKGROUN D
EnVen is an oil and ga s exploration comp any operat ing in the Gulf of Mexico. Steven Weyel served as EnVen ’ s Ch ief Executive Officer (CEO). Weyel2

hired Dunw ood y in 2013

. In 2015, EnVen t ransitioned fro m a limited li ability partnership to a corpo ration

. EnVen named Dunwoody its presid ent at that t ime

. As president, Dunwoody reported directly to Weyel. EnVen enjoyed considerable success as an operator in the Gulf of Mexico under their le adership

. EnVen instituted a 2015 Incentive Award Plan ( 2015 Plan ) gover n ing the distri bution of the pool of EnVen stock shares reserved for employee awards. Th e 2015 Plan r emai ned in place at all relevant time s

. The 2015 Plan established a stock reser ve of about 1.8 million shares of which 37.5% was allocated to EnV en’s top three executives . The re main der was held for future awards

. Under the 2015 P l an, D unwood y rec eived 31% of the 2015 equity awar d , which amount ed to two

thirds of the 46% amount Wey el rec eived. David Carmo n y , chief operating officer, recei ved a 23% share , which was half the a mount Weyel rece ived. These

amou nts matched the split that was granted under a previous plan in 201 4

. T his split was referred as the 60/ 4 0/30 split.
Dunwood y signed an Employment Agreement in 2015

. The Employment Agreement co vered mu ltipl e topics, including his c ompensation . The Employme n t Agreemen t divi ded Dunwoody ’ s c ompensation into d ifferent categor ies . In the first, Ba se Compensation , Dunwoody would r eceive $450,000 ba se pay each ye ar. B o nuses were the second category and these would be based on various perfor mance meas u re s. Fi nally there would be Equity Co m pen sation based on the 2015 Plan and any other equity incentive award pla n adopted by EnVen.

T he Employment Agreement provided that in the ev ent Dunwoody terminated his empl o yment with E nVen for “ Good Reason, ” he w ould rece i ve certain ben efit s , which collectively made up the defined t erm “ Severance

. ”

“ Severance ” included (1) a “ Separation Amount ” based on a percent a ge of Dunw o ody ’ s Base Compensation and Target Bonu s Amo unt d ivided into twelve3

e q ual monthly paym ents; (2 ) a lump

- s um payment of the pro

- rat a bonus amount owed to executives in the termination year at the time the other executives receiv e their bonuses; ( 3 ) Dunwoody and h is family had the right to par tici pate in E n Ven ’ s health plan at En Ven ’ s expe nse for a pe riod of 18 months; (4) reimbursement by EnVen if Dunwoody and his family elected to participate in EnVen ’ s company health plan pursu ant to COBRA for an additional 1 8

- m onth period ; and (5) the im m ediate vesting o f Dunwoody ’ s unvested sha res of EnVen stock. The Employment Agreement defined when Dunwoody would have “Good Reason” t o terminate

. “ Good Reason ” existed i f any of the foll owi ng

c ircumst an c e s occurred : (1) an act ion by EnVen that “ resu lts in th e material diminution of [Dun woody ’ s] position, duties or auth orities from those in effect immediately prior to such change in title, assig nment or action by ” EnVen ; (2) EnVen fail ed to c ontinue D u nwoody ’s part ici pa tion in the 2015 Plan “unles s [ a substitu t e plan has been i nsti tuted ] on a ba sis not materially less favorable to [Du nwoody], unless any such failure to conti nue in effect any plan or participation relates to a discontinuance of such plans or participation on a management

- wide or Com p any
- side b a s i s ; ” or (3) EnVen ’ s “ m aterial brea ch of any material provision of this [Empl oy ment ] A greement

. . . . ” The Employment Agreement also provided “ Good Reason ” would n ot exist unless Dun woody gave EnVen thirty days ’ notice an d EnVen fail ed to c ur e the problem within t hat pe riod of time

. Additionally, Dunwoo dy had to com ply , for the twel ve
- month period following his termination , with “ Restric ti v e Covenants ” found i n Section 8 of the Employment Ag r eement. These include d non
com petit i on, no n
- dispar agement, an d non

- disclosure provisions

. Finally, the Employm e nt Agreement protected Dunwoody’s S everance amount from being reduced for any reason

. The Em pl oyment Agreement provided4

that Du nwoody “sh all not be req u ire d to mitig a te the amount of any paym ent or benefit provided for in this Agreement by see king other employment or otherwise,

nor

. . . shall the amount of any [such] payment or benefit

. . . be reduced by any compensation or benefit earn ed by Executiv e

. . . , b y any r etirem e nt benefits, or be offset against any amou nt claimed to be owing by [D unwoody] to [EnVen] , or otherwise .”
W eyel’s relationship with Dunwoody publicly soured a fter Dunwoody asked Weyel ’ s th ought s on a lea de r ship success i on pl an and t he timing for such a plan to go into effect. Weyel testified that he was “beyond offended” at Dunwoo dy’s inquiry. Weyel ’ s relationship w ith Dunwoody deteriorated from that point. Weyel lash ed out at Dunwoody i n pro fanity

- laden tirades in fr ont o f other EnVen executives. Weyel also hired a friend , John Wilkirson , for the long vacant CFO position and began what Dunwoody believed was a campaign to reduce Dunwoody ’ s role and co mpen sation

. Dunwoo d y’s e qui t y share d ecrea sed after 20 1 5

. This comp arati ve change in equity ownership was concealed from Dunwoody because Weyel kept the equity award changes confiden tial. This resulted from EnVen inclu d ing o nly th e number of shares Dunwoody received in his Restr icted Stock Un it Grant Notice s , not the
tot al sh ares distributed , o r the number awarded to other executives . As a result of this tactic Dunwoody did n ot know that his share was being diluted

. On M ay 9, 20 19, Dunwoody delivered his Notice of Existence of Good Reasons to En Ven’s board

. EnV en respon ded th at Good Reason did n ot exist

. E nVen ’ s response con tinued that “ there [ was] nothing to cure and no separation
amount [was] ow ed ” Dunw o ody. A t th at point, Dunwoody notified EnVen in writing that due to EnV en ’s breach and r e pudiation, he cons idered hi s Employment Agreement t erminated and he filed suit.5

Dunwoody alleged that EnVen breached the Employment Agreement an d repudiated its S e verance obligation after Dunwoody resigned for three Good Reasons : (1) EnVen mater i al ly reduced his e quity award ; (2) EnVen material l y dimi nished Dunwoody’s authority withi n the company ; and (3) EnVen violated the

non
- disparagement coven ant in Dunwo o dy’s E mployment Agreement

. Sever al ru lings by the trial court affect ed the course o f the litigation. In a n order granting a motion for partial summary judgment, the trial court deter mined that “ prior to terminating h i s emp loyment, [D unwo ody] complied with and satisfied the notice and c u re re q uirements c o ntained ” in his Em ployment Agreement. T h e trial court refused to revisit that ruling d uring the trial. The trial

c ourt granted Dunwo o d y ’ s motion for dire cted verdict rul ing that there was “no genuine iss ue of material fa c t about whether [D unwoody] elected to terminate” th e Employment Agreement

. In granting this motion, the t rial court ob served that Dunwoody’s notice of term i n atio n letter “speak s for itself” that he considered the Employment Ag re eme nt ter minate d

. Th e trial court also agreed with Dunwo o dy that there was no need to submit a breach question to the jury because “ EnVen was obligated to vest [Dunwoody ’s ] s har es immediately ” and that , if the jury finds Dunwoody had “ Good Re as on ” for his ter m ination, then “E nV en breached [the E mployment Agreeme n t ] as a matter of law. ” In other words, the o nly issue for the jury to re solve was the e x is ten ce of “ Good Reas on ” under the Employment Agreement. O n the question of dama ges, the trial court had previo usly rejected E nV e n ’ s argument that the jury should be as ked about the “value of the things [EnVen] claim[ed] that Dunwoo dy avoi ded ” be cau se EnVen failed to plead this defensive issue , failed to disclose e vid ence of the a lleged savings in their pre trial di sclosures, and fai led to in t roduce evidence du ring the trial on the value of the alleged savings.6

A t the con c l usion of th e ev idence, the jur y found that Dunwoody had Good Reason to r esi gn based on E nVen’s material br eaches of the equity participation and non

- d isparagement clauses of his Employment Agreement. It further found that Dunwoody did not consent to or w a ive t hose breac hes. The jury also fo und that (1) EnVen repudiat ed the E mpl oyment Agree m ent before Dunwood y terminated it; (2) En Ven material ly breac h ed the Employment Agreement by failing to vest Dunwoody’s shares upon termination; (3) Dunwoody complied w ith
t he Employm ent Agreement’s confidentiality and non

- disparagement p ro vis ions; and (4 ) Dunwo ody was enti tled to damages

. On the value of t he only d isputed element of Dunwoody ’ s damages, the jury found that the value of Dunwoody ’ s unvested stock was $5, 1 61,69 9.38. 1 En V en then filed multiple post

- trial motion s whi ch were deni e d. The trial cour t signed a fina l j udgment and this a p peal followed.
A NA LYSIS
I. Because the evidence was undisputed that Dunwoody d id not c ompete with EnVen, he did n ot wa ive his right to collect his S e veran c e by not submitting th e issu e to the jury.
En V en ar gues in its f

irst issue that Dunwoody waived h is r ight to colle ct his Severance benefits because he “ declined to obtain a jury finding on an essential condition t o Seve rance. ” In En V en ’ s view , the non

- competit ion requirement

c ont ained in se c t ion 8 of Dun w oody ’ s Employment Agreement , titled “ Restr i ctive Covenants, ” fu nctioned as a condition precedent to his right to collect his S everance benef

its . As a res u lt, E nVen a rgues Dunwoody was require d to submit his compliance with t he no n
- competitio n requirement to th e ju ry and , when he did

1 The tria l cour t had pre vio usl y determined the amounts of the undisputed el emen ts of Dunw oody ’ s damages which included Dunwoody ’ s sep aration payment , p r o
- rata bonus , health pla n be ne fi t, and COBRA b enefit.7

not, he waived any right to c ollect those benefits

. Dunwoody responds that the non

- competition restrictions 2 contained in his Emplo yment Agreement were not conditi on pre cedents to his recovery but m ere ly
covenants beca use the non
- co mpeti tion restrictions con tinued after m uch of the S everance was alr e ady owed to Dunwoody. Ultimately, Dunwoody ass e rts the answer to whether the no n
- comp etition restriction functions as a covenant or a condition prece d en t d oe s not matt e r because it was u ndisputed at trial that Dunwoody compl i e d with the requirement at all relevant times. We agree with Dunwoody.
In civil cases , a party has a r ight to a jury trial to determine disp uted
qu estions of fact. In re C om mit ment of Harr i s , 541 S.W.3d 322, 330 (Tex. App.

— Houston [14th Dist.] 2 0 17, no pet.). “ Uncontroverted questions of fact need not be and should not be submitted to the jury for its d e termi n ation. ” Id. (quoting Clark v. Nat ’ l Li fe & Accident Ins. Co. , 2 00 S. W. 2d 820, 8 2 2 (Tex. 19 47 ) )

. Hav ing r eview ed the rec ord, we have found n o evidence disputing Dunwoody ’ s testimony that he comp lied at all relevant time s with the non

competi tion res t ricti ons in his Employment Agreement. David Wi lliams, EnVen ’ s Executi ve Vi ce Pres ident , t estified that he knew Dunwoody “ was doing everythi n g he could to honor ” the non
- com petition restrictions in his Employment Agreement and that Dunwoody was being care f ul to not violate it

. In addition, EnVen adm itted an em ai l e xchange into evidence , Exhibit 2092, wherein Dunwoody ’ s
attor ney told EnVen ’ s attorneys that “ Dunwoody has not engaged and does not intend to engage in any activities prohibited by Se cti on 8(c) of the Employment

2 The restrictions found in sec t ion 8(c) of Dunw oody ’ s Employment Agreement encompassed both refrainin g from compe titiv e employm ent and specified types of investment s in a competi tive ent ity

.8

Agreement. ” EnVen , as pa r t of th eir defen s e s trategy that Dunwo ody never terminate d the Emp loym ent Ag reement , poi nted out to the trial cour t that Dunwoody admitted he was complying wi th Section 8 ’ s restrictions b y retu rning confidential document s and following the non

- competition re st ric tions. Finally, EnV en r ecognized this lack of d ispu te during its closing argument to the jury when it argued that Dun woody never terminated the Employment Agreement bec a use h e treated it as if it was still in e ffect

. Because t her e was no dis p ute ove r w hether D unwoody compl ied wit h the restrictions found in Se ction 8(c) of his Employment Agreement, Dunwoody was not requi red to submit a question o n h is compl i ance with the restrictions to the jury. Id. ; see Gupta v. E

. Ida ho Tu mo r I nst

. , Inc. , 1 40 S.W. 3d 747, 756 (Tex. App.

— Houston [14th Dist.] 2004, pet. denied) ( “ When the evidence is undisputed or the evidence conclusively prove s performance or non

performa n ce of the contract terms, the trial court should not submit the issue to th e jury. ” ) (e m phasis added)

. We overrule EnVen ’ s fi rst issue on appeal.
II. The trial court did not abuse its discretion when it excluded some of EnVen ’ s proposed email e xhibits
. E nVen makes two different arguments within its second appellate issue. W e

a ddress each a rgument separate ly . In the first part of its second issue, EnVen
argues the trial court abused i ts disc retion when it excluded emails EnVen argue s

were rele v ant t o its cont ention that Dunwoody could not collect his Severance b ene fits bec ause he d id not comply wi th the non

- disparagem ent provisions found in his Employment Agreement . In EnVen ’ s view, Dunwoody violated the provision when he sent d isparaging emai l s to Weyel and others

. In response, D unwood y argues t hat the tr ial cour t did n o t abuse its discretion wh en it excluded some, but not all , of EnVen ’ s proposed email e xhibits because EnVen failed to produce the proposed exhibits during discovery

. Dunwood y a dditionally argues that EnVen did not preserv e this i ssue be c ause its argument on ap peal does not9

compor t with its argument to the trial court

. We review the trial court ’ s decision to admit or exclud e evid ence under

an abuse of discretion standard. Katy Springs & Mfg ., Inc. v. Fava lora , 476 S.W.3 d 579, 610 (Tex. App.

— Houston [14th Dist.] 2015, pet. denied)

. A trial
court ex c eeds its discretion when it acts in an arbitrary or unreasonable manner or with o ut reference to guiding rule s or principles. Bowie Mem ’ l Hosp. v. Wright , 79 S.W.3 d 48, 52 (Tex. 200 2 ) ; Barnhart v. Morales , 459 S.W .3d 7 33, 742 (Tex. App.

— Houston [14t h Dist.] 2015, no pet.)

. Whe n reviewing matters committed to the trial court ’ s discretion, a reviewing court m ay no t substitute its own judgment for that of the trial court. Bar nhart , 459 S.W. 3d at 742

. Th us, the question is not whether this court would have admitted the evidence. Id. Rath er, an appellate court will uphold the trial court ’ s eviden tiary ruling if there is any legitimate basi s for the ruling. Jones v. Mattress Firm Holding Corp. , 55 8 S.W.3d 732 , 737 (Tex. App.

— Houston [14th Dist.] 2018, no pet.)

. I n an effo rt to de fend ag a inst Dunwoody ’s allegation t hat E nVen, through Weyel , disparaged him , EnVen sou ght to admit 28 Dunwoody emails that it

a sserted showed the existence of a “ locker room ” atmosph e re in EnVen ’ s offices

. Dunwoody objected that the proposed exhi bit s had not be e n produced during disco very. The tr ial court announced it would review the ema ils to see if they should be excluded for some other reason. The trial court then reviewed the 28

em ails outside the presence of the jury and initial ly excluded ten because they were

sexu ally g raphi c, ra cist , o r referenced alc oho l in violation of a motion in limi ne. The trial court then t old the parties the remaini ng 18 emails w e re to o many and instr ucted EnVen to pick the seve n best and let D unwoody know du ring the next lunc h break

. EnVen respo nded that it intended to only offer seve n out of the ori gina l 28 but some of the excluded emails were amon g the seven. It ask e d the10

trial court to reconsider because the exclu ded emails were r e levant. The trial court d eclin ed. On appe al, EnVen argues th at the excluded emails were rele vant because they were “ dire ctl y probative of wh ether Dunwoody disparaged others. ” E nVen then argued that the excluded emails were not unfairly prejud i cial. Dunwoody resp onds that EnVe n waived this issue because its argument on appeal is not the same argument it offered for adm issio n of the documents in the trial court

. See Moran v. Mem ’ l Poi n t Pro p. Owners Ass ’

n , 410 S.W.3d 3 97, 407 (Tex. A pp.

— Houston [14th Dist.] 2013, no pet.) ( hold ing c omplain ts on appeal
must c omport with the objections made in the trial court t o preserve error ). We need not reach the question of wh e ther E nVen w a ived this argument because, e ven if they did not , we co n clude the trial co urt did not abuse its di scret ion when it excluded the e mails bec ause it could have reaso nably determined the emails were unduly prejudicial or cumulati ve of other emails th a t wer e admitted into e vidence. Se e Tex. R. Evid

. 403 (court “ may exclude relevant e vidence if its probativ e val ue is substanti ally outweighed by a danger of one or more of the f ollowing: unfair prejudice, confu sing the issues, misleading the jury, und ue d elay, or needlessly presenting cum ulative e viden c e ” ). We overrule the first argumen t raised in EnVen ’ s sec ond i ssue.
III. The trial court did not e rr when it granted a directed verdict conclu ding that Dunwoody was excu sed fro m performing post

- terminat ion oblig ation s . In th e second part o f EnVen ’ s seco n d issue, EnVen argues the trial cou rt erred when it grante d a d irected verdict concluding that Dunw oody was excused from performing any p o st

- te rmina tion contractu al obligations, such as pro viding a release, because of EnVen ’ s prior materia l br eac h of the E mployment Agreement. In support of this conten tion, EnVen argu es that Dunwoody did not treat the E mployment A greemen t as term inated afte r EnVe n ’ s b reach because , in their11

view , he continued to abide by the Employment Agreement ’ s non
- competi tion provision s and returned EnVen ’ s confidential information. EnV en makes this argument even tho ugh i t recognizes the principle that “ a par t y ele cts t o continue the contract i f it insists on performance by the party in default, seeks to benefi t from the con t ra ct, or other wise treats t he contr act as con t inuing. ” See Koonce v. Bar c l ays Capital Real Estate Inc. , No. 01

- 10

- 00194

- CV, 2011 WL 13 38543 5, at *8 (Tex. App.

— Houston [1st Dist.] Dec. 22, 20 11, no pet.).
A directed verdict is warra nted when the e vidence is such that no other verdi ct can be rendered and the m oving party is entitled, as a m atter of law, to judgment. Tanglewood Home s Ass ’ n v. Feldman , 436 S.W.3d 48, 66 (Tex. App.

— Houston [14th Dist.] 2014, pet. denied). W hen reviewin g a directed v e rdict , an appellate court views the evidence in the light most favorable to the party against whom the verdict was rendered. Szczepanik v . Fir st S. Trust Co. , 883 S.W.2d 648, 649 ( Tex. 1994). When r eviewing a directed verdict on a legal is sue, we consid e r all the evidence presented at tri al, viewing it in the l osing party’s favor “as much as the recor d allows.” S.V. v. R.V. , 933 S.W.2d 1 , 8 (T ex. 1 996). We may consider
any reason why the directed v erdict should have been granted, even if not stated in
t he party’s motion. Industrial III, Inc. v. Burns , No. 14

- 13

- 00 383

- CV, 2014 WL 4202495, at *8 (Tex. App.

— Houston [14th Dist.] Aug. 26, 20 1 4, pe t. de nied) (mem. op.). In this case, the following events are u ndis p ute d. Dunwoody sent his noti ce of the exis t ence of “ G ood Reason ” under the ter ms of his Employment Ag reeme nt on May 9, 2019. This notice b egan the thir ty

- day period fo r EnVe n to cure the problems pointed out in Dunwoody ’ s n otice. On June 6, 2019, EnVen sent a
response l etter to Dunwo o dy. EnVen notified Dunw oody that it did not be lieve

“ any Good Reason exists ” and t hat t here were “ accordingly no is s ues r equir ing12

cu re. ” It also denied that it owed Dunwoody a S eparation A mou nt under the Employment Ag reement. EnV e n c ontinued that it ha d f ully performed its obli gat io ns under the Employment Agreeme nt an d it believed Dunwoody r emain ed bo und by all restrictions surviv ing the termination of his employment. On June 7, 2019, Dunwo o dy filed suit a gainst EnVen a l leging that EnVen had breached and

a n ticipa torily rep u dia t ed th e Employment Agreement by fa ili ng to pay him “ his S epar a tion Payme nt and Pro

- Rata Bonus, to vest his unvested incentive awards, o r to provide any of the additional benefits owed upon [his] ter m ination for Good Reason. ” On June 10, 2019, Dunw oody sent a letter to EnVen in which he

a sserted that EnVen h ad el ected to treat his Employment Agreement “ as terminated upon the ex piration of the 30

- day cure period following the No tice [of Good R eason] , specifically June 8, 201 9 , ” and he concurred “ that the Agreement terminated as of that date

. ”
Wh en a par ty to a contract commits a material br each of a contr act, the non

breaching party m ust elect between two course s of a cti on, either c ontinuing performance or ceasing pe rformance and filing su it fo r damages. Gupta , 140 S.W.3d a t 756

. EnVen p oints out no ev i denc e in the record de monstrating that , after June 7, 2019 , Dunwoody insist ed EnVen perform the Employment Agreem ent , s ought any b e n efits from the Employment Agreemen t, or in any
manner tre ated the Employment Agreement as con tinui ng. Instead, the u n dis pu ted

e vidence detailed above establ ishes that D unwoody exercised the second option, he ceased performance and filed su it seeking dam a ges caused by EnVen ’ s breach. By

e xe r cising the second op tion, Dunwoody was excused from full y per forming the Employm e nt Ag reeme nt. See i d. at 757, n. 7 ( “ The election affects only whether the non

- bre ac hin g party itself is then required to pe r form fully

. ” )

. We conclude the trial court di d not err whe n it grant ed a directed verdict that Dunwoody was13

e xcused from further perfo rmanc e of the terms of this Employme nt Agreement. We overrule the second argument raised in EnVen ’ s second issue.
I V
. T he final ju d gment si gned by the trial court doe s not include excessive dama ges.
EnVen ar gues in its third i s su e that the damages a warde d i n the final judgment are exc essive and Dunwoody received a win d fall because the trial court

“ failed t o subtract th e c osts Dunwoo d y avoided by escaping his ongoing S everance obligations

. ” Specifically, EnVen argues Dunwo ody ’ s damages calcu l ation was def ective because it did not account for the “ costs he avoided by terminating the [Employment] Agreement an d avo idi ng futur e p e rformance. ” The only avo ided

“ costs ” EnVen asse rts D unwoody avoided were (1) honori ng hi s non
- competi t i on ob liga tions , employment and investment, fo r one year after term ination; (2) signing a release of noncontractual claims; and (3) returning c ompany information and meeting the confidentiality re quire ments

. Bu ilding on thi s arg ument , EnVen
assert s that there was insufficient ev idence supporting the award, there was charge error because the charge did not instruct the jury to account fo r avoided costs , and the damages awa rded were excessive. A s exp lained below, w e disagree.
Beca use t his is a bre ac h of c ontract case, we are required to examine and apply the terms of the Em ployment Agreement. W hen constru ing a contract, we may not limit o ur re view to o nly one part of the c ontract

. Ins t ead, when cons truing

a written contract, our prima ry goal i s to a scert ain the true intentio ns of the parties

as e xpressed in the instrument

. J.M. Davidson , Inc. v. Webs t er , 1 28 S.W.3 d 223, 22 9 (Tex. 2003)

. W e give contrac t te rms t heir plain, ordin ary, and gener ally

acc epted mean i n gs un les s the contract itself sh ows them to be u sed in a techni cal or differe nt sen se. Va lence Operatin g Co. v. Dorse t t , 164 S .W.3d 656, 66 2 (Tex. 2005)

. We con strue contracts from a utilitarian s tand p oin t, be aring i n min d t he14

particular business a ctiv ity sought t o b e served, an d we avoid, wh en pos sible and proper, a const ruction tha t is unr easonable, ine q uitable, or o p pressive

. F rost Nat ’ l Bank v . L & F Distri b., L td. , 165 S.W. 3 d 310, 31 2 (Tex. 2005)

. We examin e and consider the entire writing i n an effort to harmonize a nd give effect to a ll provision s of the contra c t so that none wi ll be rendered mea ningless

. J.M. Davidso n, In c. , 1 28 S.W.3 d at 22 9. Courts are n ot authoriz ed to rew rite

a greements to i nsert additional provisions the parties could h ave included , or to

remove prov isions th at the parties , for whatever r eason , would p refer to i gnore. Ten neco, Inc. v. Enterprise Prod . Co. , 925 S.W.2d 64 0, 646 (Tex. 1996)

. In othe r words, courts cannot make , or remake, c ontrac ts for the parties. HECI Exploration Co . v. Neel , 982 S.W.2d 881, 888 (Tex. 1998 )

. W he t her a contract is ambiguo us is a que stion of law for the court to decide by e xamining the agreement as a whole in light o f the circumstances present when the contract was entered

. Lan e
- Valent e Indus. (Nat ’ l ), Inc. v. J.P. Morga n Chase , N.A. , 468 S.W. 3d 2 0 0, 205 (Tex. App.

— Houston [14th Dist .] 2015, no pet.). A

c ontract is unambiguous if it can be given one certain or definite legal interpretation

. Id. The fact that the parties disagree abou t a contract ’ s meaning does not nece ssarily show that it is amb i guous. Id. Also , lack of clar ity d oes no t

c reate an am biguity

. Universal Health Servs., Inc. v. Renaissan c e Women ’ s Group, P.A. , 121 S.W.3d 742, 746 (Tex. 2003). A ddit ion ally , pa rol eviden c e is not admis sible for the purpose of creating an ambigui ty. Material Partnerships, Inc. v. Ventu ra , 102 S.W.3d 252, 258 (Tex. App.

— Houston [14th Dist.] 2003, pet. denied). W hen a con tract is not ambiguous, a cour t const rues it as a m atte r of law. Am. Mfrs. Mut. Ins . Co. v . Schaefer , 12 4 S.W.3d 154, 157 (Tex. 2003 ). Having reviewed the entire Emplo yment Agreement, w e conclude that Dunwoody ’ s Employment Agreement is not ambiguous.15

To recover on a br each

- of

- contract cl aim , a plaintiff must have sustaine d damages as a res u lt of the defenda nt’s breach. West v. T riple B. Servs., LLP , 264 S.W.3d 440 , 446 (Tex. App.

— Houston [14th Dist.] 2008, no pet.). Th e goal in measuring damages for a breach

- of

- contract claim is to provide just comp ensation for any loss o r damage actua lly sustained as a re sult of the breac h. Pa rkway Dental Assocs., PA v. Ho & Hua ng Pr ops., LP , 391 S.W.3d 596, 607 (Tex. App.

— Houston [14th Dist.] 2012, no pet.). By operation of this rule, a party generally should be awarded neither less n o r more th an hi s a c tual damages. Sh arifi v. Sheen Automoti ve, L

LC , 370 S.W.3d 126, 148 (Tex. A pp.

— D allas 2012, no pet.) . The facts of the case determi ne the proper measu r e of d amages as well as any allowable offsets. Vance v. My Apartment Steak House of San Anton io, I nc. , 677 S.W.2d 48 0, 481 n. 1 (Tex. 1 984). T he no rmal measure of damages for a b reach of contract claim i s exp ectancy or benefit

- of

- the

- bargain measure. Q addura v. Indo

- Eu r opean Foods, Inc. , 141 S.W.3d 882, 88 8 ( Tex. App.

— Dallas 2004, pet. denied). The
p urpose of this measure is to rest ore the injured party to the e conomic positi o n he woul d have o c cupied had the co ntract been performed. Id. “ The benef it of the bar gain i s mea sured by the prevail ing party ’ s ant icipated receipts and losses caused by the b reach less any cos t o r other loss he has avoided by not having to perform. ” Id. at 889

. Dun woody, as the pla int iff, ha d the burden of proving with some degree of certainty a factual basis to support the damages awarded. Lakewood Pip e of Texas, In c . v. C o nv eying Tec hniques, Inc. , 81 4 S.W.2d 553, 556 (Tex. App.

— Houston [1st Dist.] 1991, no w rit).
We conclude that D unwoody met this b urden. Turning first t o EnVen ’ s list

o f Dunwoody ’ s allegedly avoided costs, it was undisputed that Dunw oody did not

c o mpete w it h EnVen a nd did not bring any claims that would h ave b een barred by the signing of th e rel ease . In addition, the jury found that Dunwoody complied16

with the Employment Agreement ’ s confidential information provision

. As a result , there were no act ual av oided costs or lo ss es to be account ed for in Dunwoody ’ s da mages calculation or in the jury charge

. See Qaddura , 141 S.W.3d at 889 ( stating that benefi t of the bargain damages are measured by the prev ailing party ’ s
ant icipat ed receip ts and losses cau sed by the breach minus any cos t o r other loss actually avo ided not any possible cos t or loss that might have been avoided). In addition, section 7(f) of the Emplo yment Agree ment proh i bit s Dunwoody ’ s Sever ance from bein g reduced by EnVen ’ s proposed hypoth etical ly avoided costs. Thi s section provides in its entir ety: No Duty to Mitigate

. [Dunwood y] s hall not be re quired to mitigate the amount of any payment or benefit pro vided for in this [Employment] Agreem ent by seeki ng other emp loyment o r otherwise,
no r, exc ept as provided i n the 18

- Month Plan Participation Be nefit or the 24

- Month Plan Participation Benefit, sha ll the amount of any payment or benef

it provided for in this [Employment] Agreement be reduced b y an y compen sat ion or be nefit ear ned by [Dunwood y] as a result of emplo yment by an other employer or self

- em ploym ent, by any reti rement benef

its, or be offset ag ainst any amount claimed to be owing by [Dunwoody] to [EnVen] , o r otherwise.
Thi s expansi ve con tract ual language the p artie s chose for their contract
prev ents the deduction of any r eal or hy pothetical avoide d costs from Dunwoody ’ s Severance. See Bennett v. Comm ’ n for Lawyer Discipline , 489 S.W.3d 58, 69 (Tex. App

. — H ouston [14th Dist.] 2016, no pet. ) ( applying “ Texas ’ s fu ndame nta l public policy in favor of a b ro ad fre edom to contract, which allows parties to allocate risks as they see fit as lon g as their agreement does not violate the law or public pol icy. ” ). To h ol d otherwise would ignore the lang uag e of the parties ’

co ntrac t and would not plac e Dunwo ody in th e same position he would have been in if the contract had been fully perfo rmed. See i d. at 68

– 69 (stating that courts are not authorized to rew rite agre eme n ts even if one of the parties has c ome to dislike17

one of i ts p r ovisions ).
Finally, as we exp lai ne d above in section III of this opinion, Dunwoody was excused from any post

- termination requirements because of EnVen ’ s prior material breach of the Emplo yme nt Agreement. Because Dunwoody was excused from these post

- term ination requirements, there wer e n o cost s avoided. In summary, sufficien t evidence supported the damage s awarded by the jury and included in the final judgment , there was no charg e error , and th e damage award was not excessive. We overrule EnVen ’ s t hird is sue.
V. E nVen has not s hown th at Dunwoody failed to establish Good Reason in its fourth issue on appeal.
In it s f ourth issue, EnVen makes mu ltiple arguments that Dunwoody failed to establish Good Reason

. We c onclude no ne o f En V en ’ s arguments hav e mer it

. A. Dunwoody a de quate ly pled and disclosed hi s disparagement claim
. EnVen initially argues in its fourth issue that the trial court erred when it refused to disregard the jury ’ s finding that E nVen breached the non
- disp ar a g em ent
pr ovision in Dunwoo dy ’ s Emp loyment A greement becaus e Du nwood y did not
prop erly plead or disclose the claim. As a result, in EnVen ’ s view, the final judgment does not co nform to the pleadings as requir ed by Rule 301 o f t he Texas Rules of Civi l Pr ocedur e. See Tex. R. Civ. P. 301 (stating that the “ judgment of the c ourt shall con form to the plea dings ” ). EnVen additional ly argues that Dunwoody failed to pro perl y disclose his disparagement claim as required by Rules 193 a nd 194 of the Rules of C ivil Pro ce d ure. See Tex. R. Civ. P. 1 93, 194 (establishing requi reme nt th at parties res pond to written discovery, provide a complete response, and disclose the legal theories and factual bases of that party ’ s claims). As explained b elo w, we disagree

.18

E n Ven initia lly argues tha t Dunwood y fai led to plead his disparagem ent claim b ecause, in EnVen ’ s view, Dunwoody buried the accusation within a different section of his a mended pleading. Specifically , EnVen asserts that the foll owing is insufficient to asser t a dispar agement cla im:
28. M r . Weye l routinely criticized and disp arage d Mr. Dunwoody to his co

- workers an d third parties. The deli berate and sustained effort to s queeze Mr. Dunwoody out of the Company ’ s affairs coin cided with his discovery of behavior by EnVen ’ s CEO that indep endentl y sup ported Mr. Dunwoody ’ s Goo d Reas on fo r terminating the [ Employment ] Agreement. These included unprovoked, physically aggressive v erbal attacks by Mr. Weyel, at times while he was visibly impaired by alcohol. These att acks were witnesse d b y other co mp any e xecutives as well as by th i rd p artie s with whom the Company maintained business relationships, and they occurred both inside an d out of EnVen ’ s offices. Mr. Weyel ’ s belligerent conduct created a toxic and unprofession al e nviron ment within EnVen ’ s man ageme nt which rendered it imposs ible for Mr. Dunwoody to remain at the Company. In fact, Mr. Dunwoody operated in constant anxiety of this behavior, fur ther effecting [sic] his ability to do his job. M r. D unwoody has also learned t hat Mr. Weyel
ro u tinel y emai led his colleagues and even thi rd pa rties behind his back to make false and disparaging comments about Mr. Dunwoody ’ s work performanc e or ability. Mr. Weyel ’s verbal attacks and disparagement of Mr. D u nwoody not only served to undermine and mat eriall y dim inish Mr. Dunwoody ’s author ity , b ut it also vi olated the
non
- dispar agement covenant in Mr. Dunwoody ’s Employment Agreement (the breac h of which serves as an independent basis for Mr. Dunwoody ’s Good Rea sons for resigna tion).
We disa gr ee this detailed paragraph de scrib ing We yel ’ s d isparagement of Dunwoody , which ended by pl ainly stating t hat i t served as an independent ba sis for Dun woody ’ s Good Reasons for re si gnat ion, const itute s ina d equate notice. See Te x. R. Civ. P. 47(a) ( st ating that a plea ding “ sets forth a c l aim for relief ” if it contains “ a short statement of the cause of action sufficie nt to give fair notice of the claim involved ” ) . EnVen did not sp ecial ly except t o Dunwoody ’ s Third19

Amended Pet i ti on. See Tex. R. Civ. P

. 91 (st at i ng that a special e xcepti on is u sed
to “ p o i nt out any defect, omission, obscurity , duplicity, generality , or o ther insufficiency in the allegations in the pleading excepted to. ” ). As a res ult , we li berally construe Dunw oo dy ’ s amended petition t o det ermine whether he adequately pl eaded his disparag ement claim. See Zarate v. Rodriguez , 542 S.W.3d 26, 36 n.4 (Tex

. App.

— Houston [14th Dist.] 2017, pet. denied). We conclu de that , based on the very specif

ic paragra ph 28 quote d above, Dunwoody did.

We t urn next to EnVen ’ s argument th at Du n woody failed to adequately dis c lose his disparagement claim as required by Ru le 194 of the Texas Rules of Civ il Procedure. See Tex. R. Civ. P

. 194 (b)( 3). D unwoody ser ved his ame nded disc l os ure responses on Novemb er 20 , 2020, approximate ly six month s bef ore trial

. I n response to the requirement that he disclose th e legal the ories a nd provide a summary of the factual basis of his claims, Dunwoo dy be gan by inc or porating by reference his Thir d Amended Original Petiti on

. We conclude this was sufficient to
p rov ide fair n otice to EnVen of Dun woody ’ s addition of disparagement as a Good Re ason for his departu re f r o m E nVen. See Tex. R. Civ. P. 59 (per mitting incorpo ration by r eference into plea din gs ); In re Alford Che vrol et

- Ge o , 997 S.W.2d 173, 180 (Tex. 19 99) ( orig. proce ed ing) ( “ The primary objective of discovery is to ensure that lawsu it s are decided by what th e facts reveal, not what facts are conc ealed. ” ) (inter nal quotati ons omitted)

. B. Dunw oo dy substantial ly compli ed wi th the notice re quirement found in S ection 7(i) o f this Employme nt Agreement.
In th e next part of its Fourth Issu e EnVen argues that Dunwoody failed to provide the thirty

- d ay not ice of his dis p aragement c laim as required by h is Employment Agreement

. This issue was raised pre

- trial whe n D u n woo dy filed a motion for partial summary judg ment in part on the issue of con tra ctual notice.20

Th e motion was filed ten da ys after Dunwoo dy filed hi s Third Amended Petitio n. In his motion Dunwo ody a rgued that he had complied with the Good R eason

reasona ble notice requ irements found in section 7(i) of his Employment Ag r eem ent. EnVen did not respond to th e motion. The trial court subsequently granted t he motion in par t, conc l udin g that “ prior to t erminating hi s emp loyment, Plaintiff David M. Dunwoody, Jr. complied with a nd satisfied the notice and cure requ irem ents contained in S ection 7(i) of the Employm ent Agreement. ”
EnVen sought to revisi t the contractua l notic e iss ue during t rial. The trial

cou rt re affirmed its partial summary judgment and declined to allow EnVen to introduce evidence on the notice issue during the trial. On appeal, EnVen does not direc tly challen ge the trial court ’ s pa rtial summary ju dgment but i nstead argues the trial court ’ s part ial summary judgment order w as too narrow to cover Dunwoody ’ s di sp aragement claim . It then r e v ives its notice argument asserting that “ notice was a live issu e, an d the record is clear (and un controverted) th at Dunw oody did not provide notice of this claim

. ” W e di sagree with both of EnVen ’ s argumen t s. Section 7(i) of Dunwoody ’ s Employmen t A g reement required Dunwoody to provide EnVen wi th “ re a sonable noti ce ” det ailing t he existen ce of his Good Reason for te rmina ti ng his employment. Dunwoody was f urther required to give EnVen thirty days to cure those issues. It is und isputed that Dunwoody sent a Good Rea son not ice lett er on May 9 , 2019. In his letter D unwoody detailed his

co ntent ions that EnVen had provided Go od Re ason by decreasing his equity compensat ion and by reducing his authority as president

. Dunwoo dy also inc luded a final para graph in the le tter titl ed “ Other Actions to Consider. ” This para graph provide s:
I believe these point s are more t han s ufficient to constitu te Good Reason for te rmination as t hey relate to m y Employment Agreement. With that said, they a re not an exhaustive lis t of m y concern s21

regarding the direction and manag ement of the Com pany, w hich I am wil ling to expand upon in a c on fi dential setting should the board desire additional information . Amon g other concerns, I am aware of questionable in stances of expense reimb urseme nt by an executive a nd I have concerns regar ding aspects of the Com pany ’ s budgetary approval process. Addit ionally, while there are other actions that have been taken against me that would further sub s tantiate the occurrence of Good Reason under, an d brea ch of , my empl oyment agreement, I believ e th e documentation of th es e add itional actions would not be in the interest of all parties in vol ved. EnVen reje cted D unwoody ’ s notice less tha n thirty days later . In th e rejection lett er En Ven refuse d to acknowledge the existence of any Go od Reason , made no effo rt to respond to every point raised in Du nwoody ’ s letter, asserted there wa s nothing to cure, and notified Dunwoody that it would not pay Dunwoody any Severance as de fined in Dun wood y ’ s Employment Ag reement.

We conclude that Dunw oody ’ s Good Reason notice lette r pro v ided EnVen with “ reasonable notice ” that he believed multiple Good Reasons existed for him
to termina te his c ontract and receive Severance

. Dunwoody also offered to pr ovide more detailed inf

ormation in a co n fident i al s etting, which EnVen declined. The f act EnVen chose not to accept the opportunity to learn more details does not eliminate the fact it rec eived written notice that Dunwoody beli eved Good Reaso n existed. T hat was sufficient. Se e James Constr. Group, L LC v

. Westlake Chem. Corp. , 650 S.W .3d 3 92, 396 (Tex. 202 2) ( stating that Te xas law generall y recognizes that “ a party ’ s substantial complianc e with contractual notice conditions is sufficient to satisf

y th o se conditions ” ). Finally , the trial court ’ s par tial summary judgment order , quoted above , was b road enough to cover all of Dunwoody ’ s

c laims. W e overrule th is part of EnVen ’ s four th issue.
C. EnVen was not entitled to re

- litig ate during tria l an issue r es olved by summary judgmen t.22

Next, EnVen al terna tivel y argues that the trial cou rt “ impro perly forbade EnVen from pur suing its [lack o f not ice] defense. ” In making this a rgument, E nVen does not substanti vely challenge the trial court ’ s partia l summary j u dgment

. It instead simply argues that the trial cou rt should have a llowed E nVen to a mend its answer, introduce evidence on the n otice issue, and submit the notice issue to the jury. We ag ain disagree.
EnVen asserts that the tr ial court erred when it de n ied E nVen ’ s request to adv ance a claim at trial t hat w as already dec ided as a matter of la w through a partial summary judgment. The a nswer is clear that the trial court committed no error when it refused to allow EnVen to pursue the contractua l notice is s ue during trial becaus e th at question had been re s olve d through a su mmary judgment

. S ee R obles v. Consol

. Graphics, Inc. , 965 S.W.2d 552 , 558 n.5 (Tex. App.

— Houston [14th Dist.] 199 7, pet. denied) ( “ Because the court had already decided the is sue of ille g al double commissions in t he first summary judgme nt de aling with Rob les ’ s claims , tha t iss ue was n ot befo re the court in the second summary judgment and the trial court properly refu sed to consid er it. ” ) ; Martin v. First Republic Bank, Fort Wor th , 799 S.W

. 2d 482, 488 (Tex. App.

— For t Worth 1990, writ d eni ed) ( “ The issues de termined on a mot ion f or summary judgment are final, although the judgment is interlocutory. ” )

. We overrule this part of EnVen ’ s fourth issue.
D. The trial cou rt did not misi nterpret Se c tion 7(i)(ii) of Dunwoody ’ s Employment Agreement
. EnV en next argues that the trial c o urt reversibly erred because it misinterpreted Section 7(i)( ii) of Dunwoody ’ s Empl oyment Agre eme nt

. We again disagree. This argument requires this Court to interpret D u nwoody ’ s Employment Agree m ent

. We apply the same stan dard set out in s ection IV abov e. W e have23

already deter mined that the Employment Agreement is not ambiguous. In th is situation , it is the trial court , not the ju ry, which co nstrues the con tract

. Am. Mfrs. Mut. Ins. Co. , 124 S .W. 3d at 157.
Section 7(i)( ii) provides Dunwoody had Good Reaso n to resign if , without Dunwoo dy ’s written co nsent, En V en failed

to con tinue in effect any plan in which Executive participates that is
m a terial to Executive ’s tota l compensation, unless an e quitable
arr angement (e m bodi ed in an ongo ing substitute or alter native plan) has been made w ith respect to such plan or the failure by the Company to co ntinue Execut ive ’s participation therein (or in suc h subst it ute or alternativ e plan) on a basis not m ate rially less favorable t o Exe cutive, unles s such failure to conti nue in effect any such failure to con tinue in effect any p lan or participation relates t o a discontin uan ce of such plans or participation o n a manag ement

- wide
o r Com p any
- wide basis

. . . . T hroughout most of the p re
- trial proceedings of this case E nVen took the position that the Employment Agreement was not ambiguous

. Then , a short time before the t

rial commen ced , EnVen s hifte d its positio n. The trial cour t rejected EnVen ’ s ambigu ity argument and construed the Employment Agreement as a

ma tter of law. The trial court inc luded the following questi on and instruction s in the jur y charge :

Did EnVen fail to continue D unwood y ’s particip a tion in an equity compensation plan “ on a basis not materially less fa vorable ” to Dunwoody, as that phrase is used in Section 7(i)(ii) of the E mployment Agreement? Answe r “Yes ” to this question if you find that EnVen ma teria lly
re duced Du nw oody ’s share of the management equity award year
ove r year. Material mean s a reasonable person would attach im portance to the fact or a c hange of condition in the conte xt of the total m ix of information relevant to such fact o f change of co n d i tion.24

The jury a nswer ed “ Yes. ” The jury also found that Dunwoody did no t provide writt en con sent to a re ductio n in his equity award

.
In EnVen ’ s view, th e trial court erred when it interpreted Dunwoody ’ s Empl oyment Agreement in this way a n d the n excluded evidence not relevant to th is interpre tation. EnVen continues t hat the jury wa s asked the wrong ques tion as a result, the trial court sh ould have submitt e d the meaning of the Emplo yment Agreement to the jur y , and th ere was legally insuffic ient evidence to support the verdict under a proper interp retation of Section 7( i)(ii)

.
EnVen ’ s board a dop ted the 2015 Plan when En Ven converted to a

co rpo rat ion

. T he 2015 Plan created a rese rve o f s hares to award various employees. In 2015 , EnVen issued “ 37.5% of the amount of the Reserv e ” a nd th e issued shares we re divided among the t hree top EnVen executives

. Weyel rec eiv ed 46 percent , Dunwoody 31 percent , and Carmo n y 23 p ercent

. T h e 2015 Plan was never ch anged or discontinued.
Turning to the key terms used in Section 7( i)(ii), “ b asis ” is defined as

“ foundatio n ” or “ b ase. ” Me rria m
- Webster Di ctionary Ne w Edition 58 (2004). The same dicti onary def

ines “ Parti cipation ” as “ t ak e p art in som ething ” or “ share

. ” Id. at 525. It also defines “ Continue ” as “ to maintain without interruption. ” Id. at 157. We conclude that the plain la nguage of section 7(i) ( ii) of D unwoody ’ s Employment Agreement protect s Dunwood y ’ s r i ght ove r time to tak e part in EnVen ’ s 2 015 P la n at a base level not materially l ess favorable to D unwoody. In other words, t h e 2015 Plan establis hed the b asis for D u nwoody ’ s participation in EnVen ’ s equity plan and Dunwoody ’ s relative share, as comp ared to the o ther top executives , c ould not be reduced in future years

. We conclude that the trial cou rt did not err when it determined the only way to meas ure EnVen ’ s complianc e with25

Section 7(i)(ii) was by a year over year comparison of Dunwoody ’ s share of t he equit y awards

.
EnVen ’ s refe rence to S ection 5(a) of Dunwoody ’ s Employment Agreement does not ch ange our an alysis because i t c a n b e h a r m o n i z e d w i t h S e c t i o n 7 ( i ) ( i i )

. See J

. M

. D a v i d s o n , I n c
. , 1 2 8 S

. W

. 3 d a t 2 2 9

. Section 5(a) guarantees Dunwoody ’ s in itial right t o participat e in EnVen ’ s equity compensation plan and other benefits

“ on a basis at least as favorable to [D unwoody] as may be provided to simi larly situated [EnVen] sen i or executives

. . . . ” Se ction 7(i )(ii) establi shes when Dunwoody has Good Reason to re sign based on EnVen ’ s handling of the e quity

co mpe nsation plan

. EnVen argues t hat S ection 5 (a) and Sec tion 7 ( i)( ii) , by both usi ng the word “ Basis , ” es tablished o nly that t he methodology used for Dunwoo dy ’ s equity a ward would be the same as the metho dology u s ed for the other top EnVen executives. If we were to adopt EnVen ’ s proffered interpretatio n, wh ich would measure EnV en ’ s compliance with th e Employm ent Agreem ent by
compar ing Dunwoody ’ s equi ty aw ard agai nst other executives ’ awards in a single
year , we would eliminate the Empl oy ment Agreement ’ s use of the word

“ con tin ue ” in Section 7(i)(ii). T his w e cannot do. See Han d & Wri st Center of Hou ston, P .A. v. Lower

y Masonry, LLC , No. 14

- 19

- 00539

- CV, 2 020 WL 7 626179 , at * 4 (Tex. Ap p.

— Houston [14th Dist.] Dec. 22, 2020, no pet.) (mem. op.) (stating that eliminat ing words from a contract “ is no t reason able ” )

. By using the wor d

“ continue , ” the Emplo yment Agreemen t est abl i s hed a temporal aspect to th e

r eq uired co mparison which dictate s a comparison of Dunwoody ’ s share of the equity aw ards o ver time

. The fact En Ven now dis like s the Employment Agreement ’ s lan gu age does not author ize this court to rew r i te the contract in the guise of interpreting it. S ee Be nnett , 4 89 S.W .3d at 70

. Fina lly, interpreting Dunwoody ’ s Employment Agreement to require a comparison of Dunwoody ’ s26

share of the equity award over time r a ther than using some othe r method, such as
t otal value or the s ame metho d o lo g y as other executi ves i n a sing le year , i s not a n abs urd result. See Lawre nce v. CBD Services, Inc. , 44 S.W.3d 544, 553 (Tex. 2001) (recognizing Texas ’ s str ong public policy in fav or of preserving freed om of contract); Wal

- Mart Stores Texas LLC v. Shirey , No. 14

- 18

- 00545

- C V, 20 20 WL 54 8323, at *5 (Tex. App.

— Houston [14th Dist.] Feb. 4, 2020, pet . denied) (mem. op.) ( “ We bear in mind Texas ’ s fundamental public policy in favor of a broad free dom of contrac t , which allows part ies to alloc ate r is ks as they see fit as long as th eir a greement does not violate the law or public policy. ” ). We overrule this part of EnVen ’ s fourth issue. B ecause we have det er m ined th a t the trial court di d not misinte rpret Dunwood y ’ s Employment Agree ment, we need not r each the next part of En V en ’ s fo urth issue ar guing tha t the trial c ourt ’ s mi sinterpretati on le d to other

errors.

E. The exception fo u nd in Section 7(i )(ii) does not ap ply
.
En Ven next argues t h at the trial court erred when it failed to ap pl y the exception f

ound in Section 7(i)(ii) which p rovid es that Good Reas on does not e xist if EnVen “ fails to con tinue ” Dunwoody ’ s participation in the equity award plan because the “ failure to continue in effe c t any plan or participati on relates to a disc on tinuance of such plans or participation on a mana gem en t

- wide o r C ompany
wide basis. ” In EnVen ’ s view , EnVen disco ntinu ed participation in the 2015 plan in 2016 when no equity compensation awards were made

. E nVen also asserts t h at it then “ adopted a mar ket

- based com pen sat ion plan for all executives ” in 2017 and dist ributed t he equity awa rd s under that new plan in 201 7, 20 18, and 2019.
The record evidence does not support En V en ’ s argument. EnVen ’ s own witness e s, CEO Weyel and gen eral counsel Jeff Star z e c , testified that th e 201527

Equity Award Plan was nev er di scontinu ed and remain e d i n pla ce at the time of trial. Because the evidence was undisputed that the 2 015 P l a n was never discontinued, t h e trial court did not err when it r uled as a matter of law that the exception foun d in Section 7 (i)(i i) was i napplicable an d should not go to the jury. The undisputed fact that EnVen did not distribute any equity awards in 2016 is simply not r e levant b ecause Dunwoody d id not allege Good R eason aro se in 2016, only in 2017 , 2018 , and 201 9

. We o verrule this part of E nVen ’ s f ourth issue.

F. Legally sufficient ev idence s upports the jury ’ s finding tha t Dunwoody did not con sent to the reductions of h i s equity awards in 2017 , 2018 , an d 2019.
Fin ally, in the last part of EnVen ’ s fourth issue , EnV en ar gues the re is no evide nce supp orting the jury ’ s finding tha t Dunwoody did not provide written

con s ent to the reductions i n h is equity awards in 2017, 2018 , an d 2019. Even if we

as sume for purposes of appeal that Dunwo ody bore the burden to prove t h at he d i d
not c on sent to the changes in his equity awards , there i s more than a scintilla of evidence supporting the jury ’ s finding that Dunwoody did not con s ent

.
When an appellant attac ks the legal suffici ency of an adverse finding on an issue on which it did n ot have the burden of proof, t he a ppellant must demonstrate on appeal t hat there is no evidence to support the adverse finding. Univ. Gen. Hosp., L.P. v. Prexus Health Consultants , LLC , 403 S.W.3d 54 7, 550 (Tex. App.

— Houston [14th Dist.] 2013, no pet .)

. In condu cting a legal

- sufficie ncy review, we must consider the evidence in the light most favorable to the appealed finding and indulge every reasonable i n ference that supports it. Id. at 550

– 51 (cit ing City of Keller v. Wilson , 168 S.W.3d 802, 82 1

– 2 2 (Te x. 2005) ). The evidenc e is leg ally sufficient if it would enable reason able and fair

- minded people to reach the decision under review. Id . at 551

. This C ourt must credit favorabl e evidence if a28

reas onable trier of fact could, and disregard contra ry evide nce unle ss a reasonabl e trier of f act could not. Id

. The trier of fac t is th e sole judge of the witnesses’ credibility and the weight to be given their t estimony. Id

. This C ourt may sustain a legal sufficiency (or no

- evidence) issue only if the

rec ord r eveals o ne of the foll owing: ( 1) t he complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight t o the only evidence offer ed to prove a vital fact; (3) the evidence offered to prove a vital fac t is no more than a scintil la; or ( 4) t he evidence established conclusively the opposite of the vital fact. Id

. Evidence that is so weak as to do no more tha n create a mere surmise or suspicion that the fact e xists is less than a scintilla. Id.
The p l ain l anguage of Dunwo ody ’ s Employme nt Agreement provide s that the occurrence of any of the events specif ied in S ection 7(i) would not constit ute

“ Good Reason ” i f Dun woody gave “ written consent

. ” The documents relevant to whet her D unwoody gave his “ writ ten cons ent ” are the Restricted Stock Unit Grant Notices Du nwoody signed in 2017, 2018, and 2019. Each Notice discl osed only the exact number of shares granted t o Dunwoody. The Notices did n ot infor m Dunwoody of the tot a l number of shar e s issued, the dis tribut ion of those shares among EnVen ’ s to p executives, or the assumed value of the shares

. Because t he Notices did not c ontain this type of information , we conclude that m o re t han a

sc intilla of evi dence su pports the jury ’ s findin g that Dunwoody did not give

wr itten consent to a material reduction in his share of the management e quity award. See Ford v. Culbertson , 308 S.W .2d 855, 865 (Tex. 1958) (explain ing that waiver “ o ccurs wher e o ne in possessi on of an y right whether co nferred by law or by contract, with full knowledge of the material facts, does or forbears to do something , the doing of which o r the failure of for beara nce to do which is i nconsist ent with the righ t or his intention to rely upon it ” ) ; S hannon v. Memo rial29

Dri ve Presbyterian Ch urch U.S. , 476 S.W.3d 612, 627 (Tex. App.

— Houston [14th Dist.] 2015, pet . denied ) (holdin g that former emp l oyee did not expressly wa ive her rights under a confidentiality and anti

- disparagement agreement with her for mer employer w hen sh e s igned an authorization per mitting former employers to provide full details concerning her past employment). We overrule t h is final part of EnVen ’ s fo urth is sue.

C ONCLUS ION Having overruled all of the issues raised by E nVen in this appeal, we affirm the trial court’s judgment.

/s/ Jerry Z immerer Justice

Pa ne l consists of Justices Zimmerer, Hassan , and Pois sant

.