Affirmed and Opinion Filed July 22, 2015.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-00870-CV

BLACKSTONE MEDICAL, INC. D/B/A ORTHOFIX SPINAL IMPLANTS, Appellant

V.

PHOENIX SURGICALS, L.L.C., Appellee

On Appeal from the County Court at Law No. 4

Dallas County, Texas

Trial Court Cause No. CC-11-00902-D

OPINION

Before Justices Bridges, Lang, and Lang-Miers

Opinion by Justice Lang

Blackstone Medical, Inc. d/b/a Orthofix Spinal Implants appeals the trial court’s final 

judgment incorporating the jury verdict and award of $705,232.80 in damages in favor of 

Phoenix Surgicals, L.L.C. In three issues, Orthofix argues the trial court erred when it denied 

Orthofix’s motions for directed verdict and judgment notwithstanding the verdict because: (1) 

the statute of frauds precluded, as a matter of law, Phoenix’s claims for breach of contract due to 

wrongful termination of the agreement and promissory estoppel; (2) the trial court applied an 

improper measure of damages and there is “no evidence to prove recoverable damages” under 

the correct measure of damages; and (3) the evidence is legally insufficient to support Phoenix’s 

claim for promissory estoppel as to the expense of hiring of a sales “specialist.”
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Phoenix filed a cross-appeal. In its sole issue on cross-appeal, Phoenix argues the trial 

court erred, as a matter of law, when it awarded Phoenix attorneys’ fees in an amount less than 

what Phoenix requested.

We conclude the trial court did not err when it denied Orthofix’s motion for a directed 

verdict and motion for judgment notwithstanding the verdict on Phoenix’s claims for breach of 

contract due to wrongful termination and promissory estoppel. Also, we conclude the trial court 

did not err when it declined to award Phoenix all of the requested attorneys’ fees. The trial 

court’s final judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Orthofix is a manufacturer and supplier of spinal implants, orthopedics, and biologicsrelated medical products. Phoenix is an independent, multi-line distributor of medical products, 

including spinal implant devices. In March 2009, Orthofix and Phoenix executed a sales 

representative agreement. That agreement was effective from February 1, 2009 to December 31, 

2011, with automatic renewal for additional one-year periods. Section 5(J) of the agreement

prohibited Phoenix from selling undisclosed competing products:

J. During the Term of this Agreement, and except for those products 

identified in Exhibit C hereto (“Disclosure of Competitive Products Carried by 

Representative”), Representative shall not, without the prior written consent of 

Company, solicit sales of any product competitive with or similar to any of the 

Products, nor act as distributor, representative, agent, dealer or otherwise on 

behalf of any manufacturer of any such competitive or similar product. 

Representative shall keep the Company informed of all other companies or 

business establishments whose merchandise the Representative represents. In the 

event Company adds a new Product to this Agreement which competes with a 

third party product being carried or offered by Representative, Representative

agrees to not renew its representation of such third party with respect to the 

competitive product upon the expiration or termination of such representation 

without obtaining the written consent of the Company.

In addition, section 9 contained provisions addressing the early termination of the agreement:

9. TERMINATION
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A. Termination for Cause. The following actions by or events 

involving [Phoenix] shall each constitute a material breach of this Agreement and 

give [Orthofix] an immediate right, but not obligation, to terminate this 

Agreement for cause:

. . . .

5. Any material breach of obligations under this Agreement, 

including, but not limited to any violation of the provisions 

of Section 5;

. . . .

B. Termination without Cause. Company may terminate this 

Agreement without cause by providing thirty (30) days’ written notice to 

[Phoenix]. In the event of termination without cause by [Orthofix], [Orthofix] 

shall pay to [Phoenix] a lump sum amount equal to the average monthly 

commission received by [Phoenix] during the previous six (6) months for each 

month that would have remained during the Term of this Agreement or one (1) 

year, whichever is shorter.

During the contractual relationship, Phoenix distributed and sold products manufactured 

by Orthofix’s competitors and Phoenix fully disclosed its sales activities to Orthofix. Also, 

during the contractual relationship, Orthofix and Phoenix discussed Phoenix hiring a “sales 

specialist” to exclusively sell Orthofix’s Trinity® EvolutionTM biologics product in the Boston 

area. Orthofix and Phoenix discussed sharing the cost of Phoenix hiring this “sales specialist”

for the first six months of employment. Based on this understanding, Phoenix hired a “sales 

specialist,” Cheri Malo, and paid her salary.

On August 26, 2010, Orthofix sent Phoenix a letter terminating their agreement. That 

letter stated, in part:

It has come to our attention that Phoenix Surgicals, LLC[,] has been actively 

soliciting sales of competitive products in violation of the terms of the abovereferenced agreement. In light of Phoenix’s material breach of its obligations, 

Blackstone hereby terminates the agreement for cause, effective immediately.

The agreement states that “Phoenix shall not, without the prior written Consent of 

Blackstone, solicit sales of any product competitive with or similar to any of the 

Products, nor act as distributor, representative, agent, dealer or otherwise on 

behalf of any manufacturer of any such competitive or similar product.” 

Nevertheless, Phoenix has been actively soliciting sales of competitive products 
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manufactured by at least the following Blackstone competitors: Lanx, Orthovita, 

Spine Wave, Spinology, US Spine, and Vertiflex. Such activity constitutes a 

material breach of the agreement.

(Footnotes omitted.)

On September 14, 2012, Phoenix filed its second amended petition, asserting several 

claims, including one for breach of contract due to wrongful termination.1 Phoenix alleged, in 

part:

Notwithstanding Orthofix’s contentions to the contrary, [Orthofix’s] termination 

of the [a]greement was done without cause or justification. Despite Phoenix 

having fulfilled all conditions precedent, Orthofix breached the [a]greement by 

wrongfully and improperly terminating [Phoenix] without justification or cause. 

As a result, Orthofix has proximately caused, and continues to cause, Phoenix 

direct and consequential damages . . .

The crux of Phoenix’s wrongful termination claim was that Orthofix breached the agreement 

when it claimed it was terminating the agreement “with cause” because “Phoenix had been 

soliciting the sales of products of Orthofix’s competitors” in violation of the agreement’s 

exclusivity provision. Phoenix asserted that Orthofix terminated the agreement “without cause,” 

in part, because Orthofix was fully aware that Phoenix was selling competitor’s products and 

waived enforcement of the exclusivity provision prohibiting the sale of competitor’s products. In 

its prayer for relief, Phoenix sought all actual, compensatory, and consequential damages, and a 

declaration that it was entitled to the lump sum payment due under the parties’ agreement as a 

result of a termination of the agreement without cause. On October 23, 2012, Phoenix filed a 

supplement to its second amended petition, adding the affirmative counter-defenses of estoppel 

and waiver with respect to its claim for breach of contract due to wrongful termination.

 

1

In that petition, Phoenix alleged claims against Orthofix for breach of contract for unpaid commissions, breach of contract due to wrongful 

termination of the agreement, breach of contract for wrongful sales and distribution of Orthofix products, breach of the covenant of good faith 

and fair dealing, tortious interference with existing contracts, tortious interference with prospective contracts, violations of the Connecticut 

Franchise Act, violations of the Connecticut Unfair Trade Practices Act, unjust enrichment, and declaratory judgment. In the alternative to its 

claim for breach of contract due to wrongful termination, Phoenix alleged a claim for promissory estoppel. Also, Phoenix sought recovery of 

its attorneys’ fees. Phoenix’s original and first amended petition are not included in the clerk’s record on appeal. 
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On January 6, 2012, Orthofix’s filed its first amended answer and counterclaim, generally 

denying the allegations and asserting the affirmative defenses of failure to state a claim on which 

relief may be granted, the claims are barred by the statute of frauds, the doctrine of merger, and 

the parol evidence rule, Phoenix suffered no compensable damages, justification, and Phoenix’s

claims are barred by its own inequitable conduct.2 Also, Orthofix specifically denied acting with 

malice, and that its conduct or intent justified the submission of a jury question on exemplary 

damages. Further, Orthofix asserted a counterclaim for breach of contract, alleging Phoenix 

breached the agreement by initiating litigation in Connecticut. Orthofix sought attorneys’ fees 

on its breach of contract counterclaim.

On January 11, 2013, the trial court granted, in part, and denied, in part, Orthofix’s

motions for traditional and no-evidence summary judgment, ordering that Phoenix take nothing 

on some of its claims.

3

 However, the trial court denied the motions as to Phoenix’s claims for 

breach of contract due to wrongful termination, breach of contract for unpaid commissions, and 

request for declaratory judgment. Also, on January 11, 2013, the trial court denied, in its 

entirety, Phoenix’s motion for partial summary judgment on its claims for breach of contract, 

promissory estoppel, and declaratory judgment based on Phoenix’s assertion that Orthofix 

wrongfully terminated the agreement.

Although Phoenix sought all actual, compensatory, and consequential damages in its 

second amended petition, on February 5, 2013, during a pretrial hearing, Phoenix stated, on the 

record, it was not submitting lost sales and profits as a measure of damages. Instead, Phoenix 

stated it was seeking the “liquidated damages” provided for in section 9(B) of the agreement. 

 

2

Orthofix’s original answer is not included in the clerk’s record on appeal.

3

Specifically, the trial court ordered that Phoenix take nothing on its claims for unjust enrichment, breach of the covenant of good faith and fair 

dealing, breach of contract for wrongful sales and distribution of Orthofix products, tortious interference with existing contract, tortious 

interference with prospective contracts, violations of the Connecticut Franchise Act, and violations of the Connecticut Unfair Trade Practices 

Act.
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Orthofix responded that the provision was not a liquidated damages provision, but a contractual 

penalty, and the only available measure of damages was lost profits. The trial court declined to 

rule whether the provision was a liquidated damages provision or penalty during the pretrial 

hearing.

On February 8, 2013, after the close of the presentation of all evidence, Orthofix filed its 

motion for directed verdict. On February 11, 2013, after a hearing, the trial court signed an order 

granting a directed verdict as to Phoenix’s alternative claim for promissory estoppel for wrongful 

termination. However, the trial court denied Orthofix’s motion for directed verdict as to 

Phoenix’s claims for breach of contract due to wrongful termination of the agreement, 

promissory estoppel as to the expenses of hiring the “sales specialist,” Malo, and breach of

contract for unpaid commissions. Those claims proceeded to the jury, which found in favor of 

Phoenix and awarded Phoenix a total of $705,232.80 in damages: $668,826, the lump sum fee

provided for in section 9(B) of the agreement, for breach of contract due to wrongful termination 

of the agreement; $27,503 on the claim for promissory estoppel as to the hiring of Malo; and 

$8,903.80 for breach of contract for unpaid commissions.

On February 22, 2013, Phoenix filed its application for attorneys’ fees, seeking a total of 

$340,322.75. On March 25, 2013, Phoenix filed a motion for leave to file its third amended 

petition accompanied by the amended petition. Phoenix’s third amended petition added, in part, 

a statement that as to its claim for breach of contract due to wrongful termination, “Phoenix’s 

damages are, at a minimum, the amount equal to the lump-sum payment required by the 

[agreement] when terminated by Orthofix without cause.” Also, Phoenix added, in part, a claim 

for promissory estoppel, alleging “Phoenix justifiably relied on Orthofix’s promise to share in 

the expense of hiring independent contractor, Cheri Malo, which also caused financial detriment 
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to Phoenix for which it now seeks compensation.” Also, on March 25, 2013, Orthofix filed its 

motion for judgment notwithstanding the verdict.

On April 1, 2013, the trial court granted Phoenix’s motion for leave to file its third 

amended petition. On April 2, 2013, the trial court signed an order denying Orthofix’s motion 

for judgment notwithstanding the verdict. Also, on April 2, 2013, the trial court signed the final 

judgment, which incorporates the jury’s verdict and awarded Phoenix $200,000 in attorneys’ 

fees. On May 2, 2013, Phoenix filed a motion for new trial, which was overruled by operation of 

law.

II. BREACH OF CONTRACT AND PROMISSORY ESTOPPEL CLAIMS

In issue one, Orthofix argues four points: (1) the trial court erred when it denied 

Orthofix’s motion for directed verdict on Phoenix’s claim for breach of contract due to wrongful 

termination; (2) the trial court erred when it denied Orthofix’s motion for directed verdict on 

Phoenix’s claim for promissory estoppel; (3) the trial court erred when it denied Orthofix’s 

motion for judgment notwithstanding the verdict on Phoenix’s claim for breach of contract due 

to wrongful termination; and (4) the trial court erred when it denied Orthofix’s motion for 

judgment notwithstanding the verdict on Phoenix’s claim for promissory estoppel. In issue two,

Orthofix argues two points: (1) the trial court erred when it denied Orthofix’s motion for directed 

verdict on Phoenix’s claim for breach of contract due to wrongful termination as to the measure 

of damages; and (2) the trial court erred when it denied Orthofix’s motion for judgment 

notwithstanding the verdict on Phoenix’s claim for breach of contract due to wrongful 

termination as to the measure of damages. Issue three includes two points: (1) the trial court 

erred when it denied Orthofix’s motion for directed verdict on Phoenix’s claim for promissory 

estoppel; and (2) the trial court erred when it denied Orthofix’s motion for judgment 

notwithstanding the verdict on Phoenix’s claim for promissory estoppel. We divide these issues 
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into two main categories addressing: (1) the breach of contract claim; and (2) the promissory 

estoppel claim.

A. Standards of Review

1. Standard of Review for Denial of Motion for Directed Verdict

A directed verdict is warranted when the evidence is such that no other verdict can be 

reached and the moving party is entitled to judgment as a matter of law. Halmos v. Bombardier 

Aerospace Corp., 314 S.W.3d 606, 619 (Tex. App.—Dallas 2010, no pet.); Byrd v. Delasancha, 

195 S.W.3d 834, 836 (Tex. App.—Dallas 2006, no pet.). A directed verdict for a defendant may 

be proper in two situations: (1) when a plaintiff fails to present evidence raising a fact issue 

essential to the plaintiff’s right of recovery; or (2) if the plaintiff either admits or the evidence 

conclusively establishes a defense to the plaintiff’s cause of action. Prudential Ins. v. Fin. 

Review Servs., 29 S.W.3d 74, 77 (Tex. 2000); Mauricio v. Castro, 287 S.W.3d 476, 479 (Tex. 

App.—Dallas 2009, no pet.). If a fact issue is raised on a material question, a directed verdict is 

not proper and the issue must go to the jury. See Exxon Corp. v. Emerald Oil & Gas Co., 348 

S.W.3d 194, 220–21 (Tex. 2011); see also Flying J Inc. v. Meda, Inc., 373 S.W.3d 680, 685 

(Tex. App.—San Antonio 2012, no pet.).

The standard of review for the denial of a directed verdict is a legal sufficiency or “no 

evidence” standard of review. Mauricio, 287 S.W.3d at 478–79. When reviewing a directed 

verdict, an appellate court considers all the evidence in a light most favorable to the nonmovant, 

and resolves all reasonable inferences that arise from the evidence admitted at the trial in the 

nonmonvant’s favor. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003); 

Mikob Props., Inc. v. Joachim, No. 05-13-01613-CV, 2015 WL 2394117, at *4 (Tex. App.—

Dallas May 19, 2015, no pet. h.).
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2. Standard of Review for Denial of Motion for Judgment Notwithstanding the Verdict

A trial court should grant a motion for judgment notwithstanding the verdict when: (1) 

the evidence is conclusive and one party is entitled to recover as a matter of law, or (2) a legal 

principle precludes recovery. Kwik Indus., Inc. v. Rock Prairie Holdings, Ltd., No. 05-13-00054-

CV, 2015 WL 1449902, at *7 (Tex. App.—Dallas Mar. 30, 2015, no pet.) (mem. op.); Iroh v. 

Igwe, No. 05-13-00027-CV, 2015 WL 1261818, *3 (Tex. App.—Dallas Mar. 19, 2015, no pet. 

h.); COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 662 (Tex. App.—Dallas 2004, pet. 

denied); see TEX. R. CIV. P. 301. A judgment notwithstanding the verdict is proper when a 

directed verdict would have been proper. TEX. R. CIV. P. 301; Fort Bend Cty. Drainage Dist. v. 

Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991); Helping Hands Home Care, Inc. v. Home Health of 

Tarrant Cty., Inc., 393 S.W.3d 492, 515 (Tex. App.—Dallas 2013, pet. denied). Also, the 

standard of review for the denial of a motion for judgment notwithstanding the verdict is the 

same as for the denial of a motion for directed verdict. City of Keller v. Wilson, 168 S.W.3d 802, 

823 (Tex. 2005) (“the test for legal sufficiency should be the same for summary judgments, 

directed verdicts, judgments notwithstanding the verdict, and appellate no-evidence review”); 

Iroh, 2015 WL 1261818, at *3 n.3.

B. Phoenix’s Claim for Breach of Contract Due to Wrongful Termination

In issue one, points one and three, and issue two, points one and two, Orthofix argues the 

trial court erred when it denied Orthofix’s motion for directed verdict and motion for judgment 

notwithstanding the verdict on Phoenix’s claim for breach of contract due to wrongful 

termination. Specifically, Orthofix contends it proved, as a matter of law, its affirmative defense 

of statute of frauds, which bars Phoenix’s breach of contract claim. Also, Orthofix asserts the 

evidence precludes, as a matter of law, the damages element of Phoenix’s breach of contract 

claim.
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1. Motion for Directed Verdict as to the Affirmative Defense of Statute of Frauds

In the first point of issue one, Orthofix claims it conclusively established its affirmative 

defense of statute of frauds, which barred Phoenix’s claim for breach of contract due to wrongful 

termination. It is Orthofix’s contention that what Phoenix claims was a waiver of compliance is 

actually an oral modification that is precluded by the statute of frauds. Phoenix responds that the 

statute of frauds does not apply because Phoenix claimed Orthofix waived compliance with the 

written contract, not that there was an oral modification.

a. Applicable Law

The contention that a party to a contract is excused from performance because of a prior 

material breach by the other contracting party is an affirmative defense that must be affirmatively 

pleaded. Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 852 (Tex. App.—Dallas

2005, pet. denied); see RE/MAX of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 327 (Tex. App.—

Houston [1st Dist.] 1997, pet. denied); see generally, Tony Gullo Motors I, L.P. v. Chapa, 212 

S.W.3d 299, 314 (Tex. 2006) (referring to prior material breach as an affirmative defense to a 

contract claim). When one party to a contract commits a material breach of that contract, the 

other party is excused from any obligation to perform. Mustang Pipeline Co. v. Driver Pipeline 

Co., 134 S.W.3d 195, 196 (Tex. 2004) (per curiam); Compass Bank, 152 S.W.3d at 852.

Waiver is an affirmative defense that must be affirmatively pleaded. TEX. R. CIV. P. 94. 

Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent 

with claiming that right. In re Gen Elec. Corp., 203 S.W.3d 314, 316 (Tex. 2006). Waiver may 

be express or implied. Waiver may be established by showing a party has expressly renounced a 

known right. Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass’n, 1 S.W.3d 108, 111 (Tex. 

1999); Martin v. Birenbaum, 193 S.W.3d 677, 681 (Tex. App.—Dallas 2006, pet. denied). Also, 

an implied waiver may be established by showing a party’s prolonged silence or inaction in 
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asserting a known right. El Paso Indep. Auto. Dealers, 1 S.W.3d at 111; Martin, 193 S.W.3d at 

681. Waiver is largely a matter of intent. El Paso Indep. Auto. Dealers, 1 S.W.3d at 111. 

Ordinarily, waiver is a fact question, but it may be established as a matter of law when the facts 

and circumstances are admitted or clearly established. El Paso Indep. Auto. Dealers, 1 S.W.3d 

at 111; Martin, 193 S.W.3d at 681. Statements made and conduct occurring before the signing 

of the agreement cannot constitute waiver of the terms in the agreement. Comiskey v. FH

Partners, L.L.C., 373 S.W.3d 620, 640 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).

Modification of a contract is an affirmative defense. White v. Harrison, 390 S.W.3d 666, 

674 (Tex. App.—Dallas 2012, no pet.). A modification to a contract creates a new contract that 

includes the new modified provisions and the unchanged old provisions. Boudreaux Civic Ass’n 

v. Cox, 882 S.W.2d 543, 547–48 (Tex. App.—Houston [1st Dist.] 1994, no writ). A valid 

contract modification must include a meeting of the minds supported by consideration. White, 

390 S.W.3d at 674. An oral modification of a written contract is enforceable under the statute of

frauds only if the modification does not materially alter the obligations imposed by the 

underlying agreement. White, 390 S.W.3d at 674.

The contention that an agreement falls within the statute of frauds is an affirmative 

defense. TEX. R. CIV. P. 91; Biko v. Siemens Corp., 246 S.W.3d 148, 159 (Tex. App.—Dallas

2007, pet. denied). The party pleading the statute of frauds bears the burden of establishing its 

applicability. Berryman’s South Fork, Inc. v. J. Baxter Brinkman Int’l Corp., 418 S.W.3d 172, 

192 (Tex. App.—Dallas 2013, pet. denied); Kalmus v. Oliver, 390 S.W.3d 586, 589 (Tex. 

App.—Dallas 2012, no pet.). Under the statute of frauds, certain contracts are not enforceable 

unless they are in writing and signed by the person against whom enforcement of the contract is 

sought. See TEX. BUS. & COM. CODE ANN. § 26.01(a) (West 2009); Berryman’s, 418 S.W.3d at

192; S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 854 (Tex. App.—Dallas 2011, no pet.). 
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The question of whether an agreement falls within the statute of frauds is one of law. 

Berryman’s, 418 S.W.3d at 192; Biko, 246 S.W.3d at 159; see Bratcher v. Dozier, 162 Tex. 319, 

321, 346 S.W.2d 795, 796 (1961). However, whether the circumstances of a particular case fall 

within an exception to the statute of frauds is generally a question of fact. See Berryman’s, 418 

S.W.3d at 192; Kalmus, 390 S.W.3d at 589.

b. Application of the Law to the Facts

In its pleadings, as more fully described above, Phoenix asserted that Orthofix breached 

the contract by wrongfully terminating its agreement with Phoenix without cause or justification. 

Orthofix asserted the affirmative defense of the statute of frauds on the basis that it barred 

Phoenix’s claims. In its third amended petition, Phoenix asserted the affirmative counter-defense 

of waiver in response to Orthofix’s affirmative defenses.

In its motion for directed verdict, Orthofix argued, in part, that the evidence conclusively 

established that Orthofix’s breach of contract was excused because of a prior material breach of 

the agreement by Phoenix. Further, Orthofix argued that all of the alleged oral agreements that 

Phoenix claimed amended the agreement, constituting a waiver of compliance by Orthofix and 

excusing Phoenix’s prior material breach “are barred under both the statute of frauds and the 

express terms of the [a]greement.” Phoenix responded to the motion arguing it presented 

evidence that Orthofix breached the agreement when Orthofix purported to terminate that 

agreement “for cause,” Orthofix waived compliance with the exclusivity provision of the 

agreement, and the agreement is not subject to the statute of frauds. The trial court denied 

Orthofix’s motion for directed verdict as to Phoenix’s claim for breach of contract due to 

wrongful termination of the agreement. 

On appeal, in contrast to the arguments made in its motion for directed verdict, Orthofix 

argues only that the evidence conclusively established its affirmative defense of statute of frauds, 
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which barred Phoenix’s affirmative defense of oral modification. However, Phoenix did not 

assert the affirmative counter-defense of oral modification. Instead, Phoenix argued that 

Orthofix’s conduct constituted an implied waiver of compliance with certain contract provisions. 

Further, the record reflects there was some evidence adduced at trial that, during the contractual 

relationship, Phoenix disclosed its sales activities to Orthofix and, for a period of time, Orthofix 

remained silent or did not act to assert its rights under the agreement. See El Paso Indep. Auto 

Dealers, 1 S.W.3d at 111 (implied waiver may be established by showing party’s prolonged 

silence or inaction in asserting known right). Accordingly, we conclude the trial court did not err 

when it denied Orthofix’s motion for directed verdict on its affirmative defense of statute of 

frauds as to the breach of contract due to wrongful termination. 

The first part of issue one is decided against Orthofix.

2. Motion for Judgment Notwithstanding the Verdict

as to the Affirmative Defense of Statute of Frauds

In the third point of issue one, Orthofix contends that, as a matter of law, the statute of 

frauds precludes Phoenix’s claim for breach of contract because “[a]llowing Phoenix to recover 

by using alleged subsequent oral modifications to contradict the parties’ valid, proven contract 

would defeat the recognized purposes of the statute of frauds to safeguard the integrity of written 

instruments against fraud, remove uncertainty, and reduce litigation.”

Phoenix responds that question number 1 of the jury charge, which asked whether 

Orthofix breached the contract by terminating the agreement under section 9(A)(5), “did not 

require the jury to find that the [agreement] had been orally modified in order [for the jury] to 

answer [the question] in the affirmative.” Also, Phoenix contends that the jury may have 

determined Orthofix’s breach was not excused because there was no prior material breach of the 

contract by Phoenix. As a result, Phoenix claims the jury could have found in favor of Phoenix 
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without reaching the issue of whether Phoenix’s prior material breach was excused because 

Orthofix waived compliance.

a. Probable Rendition of an Improper Judgment

An appellant must attack all independent bases or grounds that fully support a 

complained of ruling or judgment. Creech v. Columbia Med. Ctr. of Las Colinas Subsidiary, 

L.P., 411 S.W.3d 1, 6 (Tex. App.—Dallas 2013, no pet.); Oliphant Fin. L.L.C. v. Angiano, 295 

S.W.3d 422, 423–24 (Tex. App.—Dallas 2009, no pet.). If an independent ground fully supports 

the complained-of ruling or judgment, but the appellant assigns no error to that independent 

ground, an appellate court must accept the validity of that unchallenged independent ground, and 

any errors in the grounds challenged on appeal are harmless because the unchallenged 

independent ground fully supports the complained-of ruling or judgment. Oliphant, 295 S.W.3d 

at 423–24; Prater v. State Farm Lloyds, 217 S.W.3d 739, 740–41 (Tex. App.—Dallas 2007, no 

pet.).

The harmless error rule states, in part, that before reversing a judgment because of an 

error of law, an appellate court must find that the error amounted to such a denial of the 

appellant’s rights as was reasonably calculated to cause and probably did cause “the rendition of 

an improper judgment.” TEX. R. APP. P. 44.1(a)(1); G&H Towing Co. v. Magee, 347 S.W.3d 

293, 297 (Tex. 2011) (per curiam). The harmless error rule applies to all errors. Magee, 347 

S.W.3d at 297 (citing Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 819–20 (Tex. 1980)). 

b. Application of the Law to the Facts

Question number 1 of the trial court’s jury charge contained one question with two 

instructions. The question was whether Orthofix breached the contract. The instructions were 

that Orthofix’s breach was excused if there was a prior material breach of the contract by 
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Phoenix and Phoenix’s prior material breach was excused if Orthofix waived compliance. 

Specifically, question number 1 of the trial court’s jury charge states:

Question Number 1

Did Orthofix fail to comply with the Sales Representative Agreement by 

terminating the Sales Representative Agreement under Section 9(A)(5)?

Failure to comply by Orthofix is excused by Phoenix’s previous failure to comply 

with a material obligation of the same agreement. In order to properly terminate 

the Agreement for cause, Phoenix must have materially failed to comply with 

Section 5(1) of the Agreement by soliciting the sale of products competitive with 

or similar to Orthofix’s products, except for those products otherwise agreed to by 

Orthofix and Phoenix.

The circumstances to consider in determining whether a failure to comply is 

material include:

(a) the extent to which the injured party will be deprived of the benefit 

which it reasonably expected;

(b) the extent to which the injured party can be adequately 

compensated for the part of the benefit of which it will be 

deprived;

(c) the extent to which the party failing to perform or to offer to 

perform will suffer forfeiture;

(d) the likelihood that the party failing to perform or to offer to 

perform will cure it’s failure, taking into account the circumstances 

including any reasonable assurances;

(e) the extent to which the behavior of the party failing to perform or 

to offer to perform comports with standards of good faith and fair 

dealing.

Phoenix’s non-compliance, if any, with Section (J) of the Agreement is 

excused if compliance is waived by Orthofix.

Waiver is an intentional surrender of a known right or intentional conduct 

inconsistent with claiming the right.

Contractual provisions may be waived even if a contract states all 

modifications to the written contract must be in writing, but the existence of a 

contract provision disclaiming waiver and requiring any waiver to be in writing 

and signed by the waiving party may be some evidence of non-waiver.

The jury answered “Yes” to question number 1.
–16–

Orthofix’s burden in this case is to demonstrate that the answer of “Yes” to question 

number 1 and the finding in Orthofix’s favor was error. See Creech, 411 S.W.3d at 6. The 

language of question number 1 shows that because question number 1 was submitted with the 

two instructions described above, the jury may have answered question number 1 “Yes” because 

it found: (1) Orthofix breached the contract and Orthofix’s breach was not excused because there 

was no prior material breach of the contract by Phoenix, or (2) Orthofix breached the contract 

and Orthofix’s breach was excused because of a prior material breach of the contract by Phoenix 

and Phoenix’s prior material breach was excused because Orthofix waived compliance. 

However, on appeal, Orthofix argues only that the trial court erred when it denied Orthofix’s 

motion for judgment notwithstanding the verdict because the statute of frauds prohibited the 

inclusion of the instruction that Phoenix’s prior material breach could be excused if Orthofix 

waived compliance. Orthofix does not argue error because there was no evidence to support the 

jury’s finding that Orthofix breached the contract and Orthofix’s breach was not excused because 

there was no prior material breach of the contract by Phoenix. As a result, Orthofix fails to 

attack all independent bases or grounds that fully support the jury’s verdict. Creech, 411 S.W.3d 

at 6; Oliphant, 295 S.W.3d at 423–24. 

Assuming, without deciding, the trial court erred when it denied Orthofix’s motion for 

judgment notwithstanding the verdict on the basis argued because, as a matter of law, the statute 

of frauds prohibited the inclusion of the instruction that Phoenix’s prior material breach could be 

excused if Orthofix waived compliance, that error is harmless because Orthofix fails to challenge 

on appeal an independent ground that fully supports the jury’s verdict. See Oliphant, 295 

S.W.3d at 423–24; Prater, 217 S.W.3d at 740–41.

The third point of issue one is decided against Orthofix.
–17–

3. Breach of Contract - Element of Damages

In issue two, points one and two, Orthofix argues that the lump-sum provision in section 

9(B) of the agreement “is not an available measure of damages” for breach of contract because: 

(1) Orthofix elected to terminate the agreement for cause under section 9(A) and risk a wrongful 

termination lawsuit resulting in damages, and the lump-sum provision contained in section 9(B), 

which addresses termination of the agreement without cause, cannot be substituted for those 

damages; and (2) Phoenix abandoned its claim for lost profits, which is the only appropriate 

measure of damages for wrongful termination. Also, Orthofix contends that there was no 

evidence of the proper measure of damages, i.e., lost profits, because Phoenix presented no 

evidence of damages and stipulated that it “suffered no damages as a result of the alleged 

wrongful termination, save and except Orthofix’s failure to pay the lump-sum payment.” 

Phoenix responds that the jury found Orthofix terminated the agreement without cause and there 

is “no legal support for Orthofix’s efforts to dodge the lump-sum payment due [to] Phoenix.”

a. Motion for Directed Verdict as to the Element of Damages

In its motion for directed verdict, Orthofix argued the lump sum provided for in the 

agreement for termination without cause was not a liquidated damages provision, and if it was, it 

is unenforceable because it is a disproportionate penalty. Relying on a case from the Delaware 

Court of Chancery, Orthofix argued the lump-sum provision was not a liquidated damages 

provision because a termination fee is different than liquidated damages paid in the event of a 

breach of contract. See Brazen v. Bell Atl. Corp., No. 14976, 1997 WL 153810 (De;. Ch. Mar. 

19, 1997) (mem. op.) affirmed on other grounds 695 A.2d 43 (Del. 1997). Also, Orthofix argued 

that if the lump-sum provision is a liquidated damages clause, it cannot be enforced because 

Orthofix has proven that Phoenix did not incur any actual damages. Phoenix responded that 

“Phoenix and Orthofix agree the lump-sum payment due under the [agreement] in the event of 
–18–

termination without cause by Orthofix is not a liquidated damages provision. Hence, Orthofix’s 

arguments in its directed verdict motion asserting the lump[-]sum payment obligation is not 

enforceable must be ignored.”

During the hearing on Orthofix’s motion for directed verdict, Orthofix initially stated it 

was not going to argue the portion of its motion relating whether the lump-sum provision in the 

agreement was a liquidated damages clause because Phoenix “has stipulated that the [section] 

9(B) fee or buyout lump[-]sum payment is not a liquidated damages clause.” However, by the 

end of the hearing, Orthofix contended that “[t]here was no way you get to the [lump-sum] fee 

unless it is a liquidated damages provision, and [Phoenix] ha[s] abandoned that contention.” The 

trial court denied Othofix’s motion for directed verdict as to Phoenix’s claim for breach of 

contract due to wrongful termination.

Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an 

appellate complaint. To preserve a point for appellate review, a party must make a timely, 

specific objection or motion to the trial court that states the grounds for the ruling sought with 

sufficient specificity, unless the grounds are apparent from the context, obtain a ruling on the 

complaint, and comply with the rules of evidence or procedure. TEX. R. APP. P. 33.1. 

Complaints and arguments on appeal must correspond with the complaint made at the trial court 

level. Knapp v. Wilson N. Jones Mem’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, 

no pet.). To preserve an error for appeal, a party’s argument on appeal must comport with its 

argument in the trial court. Tate v. Andrews, 372 S.W.3d 751, 754 (Tex. App.—Dallas 2012, no 

pet.); Knapp, 281 S.W.3d at 170–71.

On appeal, Orthofix does not argue or cite to case law relating to liquidated damages and 

the enforceability of such provisions. As a result, Orthofix’s motion for directed verdict and 

argument during the hearing did not apprize the trial court of the argument it now makes on 
–19–

appeal. Accordingly, we conclude Orthofix failed to preserve issue two, point one, for appellate 

review. See TEX. R. APP. P. 33.1.

b. Motion for Judgment Notwithstanding the Verdict as to the Element of Damages

During the jury charge conference, Orthofix objected to question number 2, arguing the 

lump-sum payment provided for in the agreement in the event the contract was “Terminat[ed] 

without Cause” was not an available measure of damages. Specifically, counsel for Orthofix 

argued:

Orthofix objects to Question 2 for failure to include a limined [sic] instruction to 

the effect that the lump sum payment set forth in Section 9(B) of the sales 

representative agreement is unavailable as a form of damages. If the jury finds a 

breach of the sales representative agreement and answers Question Number 1, it is 

Orthofix’s position that the lump sum payment that would result from a withoutcause termination of the sales representative agreement under Section 9(B) of the 

agreement is not triggered by with-cause termination under Section 9(A) of the 

agreement even if the jury finds the cause asserted by Orthofix was deficient. 

Thus the lump sum payment is unavailable as a matter of law. And as a result, 

Orthofix objects to the absent instruction to the effect the lump sum payment is 

unavailable as a form of damages and hereby requests such an instruction.

The trial court denied Orthofix’s objection to question number 2.

Question number 2 of the trial court’s jury charge states:

Question Number 2

What sum of money, if any, paid now in cash, would fairly and reasonably 

compensate Phoenix for its damages, if any, that resulted from Orthofix’s

termination of the Sales Representative Agreement you identified in answer to 

Question Number 1?

In answering questions about damages, answer each jury question 

separately. Do not increase or decrease the amount in one answer because of your 

answer to any other questions about damages relating to the other claims in other 

questions. Do not speculate about what any party’s ultimate recovery may or may 

not be. Any recovery will be determined by the [trial] court when it applies the 

law to your answers at the time of judgment.

Consider the elements of damages listed herein for this question and none 

other. Do not add any amount for interest on damages, if any.
–20–

The jury answered question number 2 by writing the amount “$668,826” in the space provided. 

This amount matched the evidence at trial of the amount calculated to be owed pursuant to the 

lump-sum provision in section 9(B) of the agreement. 

After the jury returned its verdict, with the trial court’s permission, Phoenix filed its third 

amended petition, amending its damages on the breach of contract due to wrongful termination 

of the agreement claims to state, in part, “Specifically, Phoenix’s damages are, at a minimum, the 

amount equal to the lump sum payment required by the [agreement] when terminated by 

Orthofix without cause.”

In its motion for judgment notwithstanding the verdict, Orthofix argued three main 

points:

[1.] The [trial court] should disregard the jury’s answer to Question Number 2 

and award no recovery to [Phoenix] on its wrongful termination claim because the 

without-cause termination fee provided by § 9(B) of the [agreement] was legally 

unavailable to [Phoenix] and [Phoenix] stipulated that it suffered no actual 

damages.

. . . .

[2.] [T]he termination provisions of the [a]greement are exclusive alternatives. 

Only § 9(B) sets forth a stipulated sum to be paid, while termination under § 9(A) 

does not trigger any payment. Orthofix elected to terminate the [a]greement

under § 9(A) and undertook the accompanying risk of any litigation that might 

arise and the risk of having to pay expectation damages in the form of lost profits; 

thus, the separate termination scheme set forth under § 9(B) was never triggered. . 

. .

Orthofix has found no case allowing a terminated party to recover a without-cause 

termination fee following a with-cause termination subsequently found to be 

faulty during litigation.

[3.] In a distributor termination case, the proper measure of damages for a 

distributor’s claim is its “overall business loss,” which is often in the form of lost 

profits. . . . During trial, [Phoenix] stipulated that “it suffered no damages as a 

result of the alleged wrongful termination, save and except Orthofix’s failure to 

pay the lump sum payment.”

(Emphasis added). 
–21–

These arguments are premised on Orthofix’s contention that the jury’s finding that 

Orthofix did not terminate with cause under section 9(A) did not allow for the applicability of 

section 9(B), which contains the lump-sum provision when the agreement was terminated 

without cause. However, in question number 1, the question submitted to the jury was whether 

Orthofix complied with section 9(A) of the agreement. The jury was instructed that in order to 

terminate for cause, Phoenix must have materially failed to comply with section 5(J) of the 

agreement. Orthofix argued at trial that it terminated Phoenix for cause, but the jury disagreed. 

Phoenix’s third amended petition claimed the contractually specified damages in section 9(B) 

were its damages because it was terminated without cause. The record shows the section 9(B) 

sums are the damages Phoenix contended it was due in the testimony presented to the jury. On 

appeal, Orthofix argues only that the contractual calculation in section 9(B) of the agreement was 

not actual lost profits damages. Orthofix cites to no case law demonstrating the lump-sum 

provision in the agreement could not be awarded as Phoenix pleaded.

It is well-settled that upon breach of contract, a party may pursue any remedy which the 

law affords in addition to the remedy provided in the contract. See Accent Builders Co. v. Sw. 

Concrete Sys., Inc., 679 S.W.2d 106, 109 (Tex. App.—Dallas 1984, writ ref’d n.r.e.); Ganske v. 

WRS Grp., Inc., No. 10-06-00050-CV, 2007 WL 1147357, at *4 (Tex. App.—Waco Apr. 18, 

2007, no pet.) (mem. op.). It is critical to the resolution of this case that section 9(B) of the 

agreement clearly provided for a remedy in the event the agreement was terminated without 

cause:

In the event of termination without cause by [Orthofix], [Orthofix] shall pay to 

[Phoenix] a lump sum amount equal to the average monthly commission received 

by [Phoenix] during the previous six (6) months for each month that would have 

remained during the Term of this Agreement or one (1) year, whichever is shorter.
–22–

Accordingly, we conclude the trial court did not err when it denied Orthofix’s motion for 

judgment notwithstanding the verdict as to the element of damages for Phoenix’s claim for 

breach of contract due to wrongful termination.

Issue two, point two is decided against Orthofix.

C. Promissory Estoppel Claim

In issue one, points two and four, and issue three, points one and two, Orthofix argues the 

trial court erred when it denied Orthofix’s motion for directed verdict and motion for judgment 

notwithstanding the verdict on Phoenix’s promissory estoppel claim.

1. Motion for Directed Verdict on Promissory Estoppel Claim

As to its motion for directed verdict, Orthofix contends “The statute of frauds [] bars the 

alleged oral promise—that Orthofix would share the cost of hiring Malo as a dedicated sales 

representative for the Trinity® EvolutionTM product—underlying Phoenix’s promissory estoppel 

claim.” As a result, Orthofix claims the evidence is legally insufficient to support that claim. In 

addition, Orthofix argues the alleged oral promise is governed by section 5(C) of the 

representative sales agreement and the evidence is legally insufficient to prove the alleged oral 

promise to share costs was outside the terms of the agreement.

Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an 

appellate complaint. TEX. R. APP. P. 33.1. To preserve a point for appellate review, a party must 

make a timely, specific objection or motion to the trial court that states the grounds for the ruling 

sought with sufficient specificity, unless the grounds are apparent from the context, obtain a 

ruling on the complaint, and comply with the rules of evidence or procedure. TEX. R. APP. P.

33.1.

In its motion for directed verdict, the only argument Orthofix made with respect to the 

promissory estoppel claim relating to the agreement to share the expenses for Malo was 
–23–

“Phoenix has failed to present evidence raising a fact issue as to the existence of an agreement 

regarding Cheri Malo.” During the hearing on Orthofix’s motion for directed verdict, the trial 

court inquired, “So now, what about the claim for promissory estoppel regarding the alleged 

agreement for Cheri Malo’s expenses? Why do you believe I should grant directed verdict on 

that? . . . . Why would promissory estoppel not fit there?” Counsel for Orthofix withdrew the

argument, stating:

I was really thinking of the contract termination lump sum payment. I don’t think 

the same arguments apply to Cheri Malo because I can’t think of any reason why 

she’s within the statute of frauds or—and you’re right that if those—you know, 

whatever those damages were, they were of reliance nature. So I’m not going to 

quarrel with you on Cheri Malo.

In its order disposing of Orthofix’s motion for directed verdict, the trial court granted the motion 

as to the alternative claim for promissory estoppel relating to the wrongful termination of the 

agreement, but denied the motion as to the unpleaded claim for promissory estoppel “as to the 

hiring of [] Malo.”

We conclude Orthofix has failed to preserve for appeal its argument that the trial court 

erred when it denied Orthofix’s motion for directed verdict on Phoenix’s claim for promissory 

estoppel. See TEX. R. APP. P. 33.1. The second point of issue one and the first point of issue 

three are decided against Orthofix.

2. Motion for Judgment Notwithstanding the Verdict on Promissory Estoppel Claim

As to its motion for judgment notwithstanding the verdict, Orthofix argues “The statute 

of frauds [] bars the alleged oral promise—that Orthofix would share the cost of hiring Malo as a 

dedicated sales representative for the Trinity® EvolutionTM product—underlying Phoenix’s 

promissory estoppel claim.” As a result, Orthofix claims the evidence is legally insufficient to 

support that claim. In addition, Orthofix argues the alleged oral promise is governed by section 

5(C) of the agreement and the evidence is legally insufficient to prove the alleged oral promise to 
–24–

share costs was outside the terms of the agreement. Phoenix responds that its promissory 

estoppel claim “does not seek to alter, counter, or defeat its responsibility and liability for [] 

Malo.” Phoenix claims that Phoenix “took and assumed full responsibility and liability for [] 

Malo,” by recruiting, training, and paying her.

a. Applicable Law

In some cases, promissory estoppel is used as a counter-defensive plea. Frost Crushed 

Stone Co. v. Odell Geer Constr. Co., 110 S.W.3d 41, 46 n.1 (Tex. App.—Waco 2002, no pet.). 

In those circumstances, promissory estoppel may be used to bar the application of the statute of 

frauds and allow enforcement of an otherwise unenforceable oral promise. Id. Promissory 

estoppel defeats a statute of frauds defense if a plaintiff proves all elements of a cause of action 

for promissory estoppel in addition to showing that the defendant promised to sign a written 

document complying with the statutes of frauds. Ortiz v. Collins, 203 S.W.3d 414, 425 (Tex. 

App.—Houston [14th Dist.] 2006, no pet.).

Although promissory estoppel is normally a counter-defensive theory, it is an available 

cause of action to a promisee who relied to his detriment on an otherwise unenforceable promise. 

See Frost, 110 S.W.3d at 44; Bechtel Corp. v. Citgo Products Pipeline Co., 271 S.W.3d 898, 926 

(Tex. App.—Austin 2008, no pet.). Generally, promissory estoppel is a viable alternative to 

breach of contract. Trevino & Assocs. Mech., L.P. v. Frost Nat’l Bank, 400 S.W.3d 139, 146 

(Tex. App.—Dallas 2013, no pet.); Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. App.—

Houston [14th Dist.] 1999, pet. denied). The promissory estoppel doctrine presumes that no 

contract exists. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 226 (Tex. 

2002). Although promissory estoppel is not applicable to a promise covered by a valid contract 

between the parties, promissory estoppel will apply to a promise outside a contract. Trevino, 400 
–25–

S.W.3d at 146; see Richter v. Wagner Oil Co., 90 S.W.3d 890, 899 (Tex. App.—San Antonio

2002, no pet.).

The parol evidence rule excludes only prior and contemporaneous negotiations. See 

Garcia v. Karam, 276 S.W.2d 255, 258 (Tex. 1955); Sheffield v. Gibson, No. 14-06-00483-CV, 

2008 WL 190049, *3 (Tex. App.—Houston [14th Dist.] Jan. 22, 2008, no pet.) (mem. op.). The 

parol evidence rule does not apply to agreements made subsequent to the written agreement. 

Lakeway Co. v. Leon Howard, Inc., 585 S.W.2d 660, 662 (Tex. 1979); Garcia, 276 S.W.2d at

258; Sheffield, 2008 WL 190049, at *3; Digby v. Tex. Bank, 943 S.W.2d 914, 928 (Tex. App.—

El Paso 1997, writ denied); Mortgage Co. of Am. v. McCord, 466 S.W.2d 868, 871 (Tex. Civ. 

App.—Houston [14th Dist.] 1971, writ ref’d n.r.e.) (“Extrinsic evidence may always be offered 

to show a new agreement or that an existing written contract has been changed, waived, or 

abrogated in whole or in part.”).

b. Application of the Law to the Facts

Question number 3 of the jury charge contained one question and states, “Did Phoenix 

and Orthofix agree to share in the expense of a dedicated biologics sales representative (Cheri 

Malo) for the Boston area?” The jury answered “No” to question number 3, finding there was no 

agreement. Orthofix does not challenge the jury’s answer to question number 3 on appeal. 

Because the jury answered “No,” to question number 3, they were instructed to proceed to 

question number 5, which contained one question and some instructions:

Question Number 5

Did Phoenix reasonably and substantially rely to its detriment on 

Orthofix’s promise, if any, to share in the expense of a dedicated biologics sales 

representative (Cheri Malo) for the Boston area, and was this reliance foreseeable 

by Orthofix?

For a person’s reliance to be reasonable, he must have exercised 

reasonable diligence in protecting his own interests. A person’s failure to protect 
–26–

his own interests is not excused by his confidence in the honesty and integrity of 

the other party.

A party’s conduct includes the conduct of another who acts with the 

party’s authority or apparent authority.

Authority for another to act for a party must arise from the party’s 

agreement that the other act on behalf of and for the benefit of the party. If the 

party so authorizes another to perform an act, that other party is also authorized to 

do whatever else is proper, usual, and necessary to perform the act expressly 

authorized.

Apparent authority exist f a party (1) knowingly permits another to hold 

himself out as having authority or, (2) through lack of ordinary care, bestows 

upon an another such indication of authority that lead a reasonably prudent person 

to rely on the apparent existence of authority to his detriment. Only the acts of 

the party sought to be charged with responsibility for the conduct of another may 

be considered in determining whether apparent authority exists.

The jury answered “Yes” to question number 5.

First, we address Orthofix’s claim that the statute of frauds bars the oral promise made by 

Orthofix to Phoenix that it would share in the costs associated with Malo. However, Phoenix did 

not assert promissory estoppel as a counter-defense to the affirmative defense of statute of 

frauds. See Frost Crushed Stone, 110 S.W.3d at 46 n.1. Instead, Phoenix sought affirmative 

relief under the equitable doctrine of promissory estoppel based on the premise that it 

detrimentally relied on Orthofix’s oral promise to share in the costs of Malo. Orthofix’s statute 

of frauds argument ignores the basic contention and legal authority under which Phoenix’s 

promissory estoppel claim was brought. See Frost Crushed Stone, 110 S.W.3d at 44. Further, 

the jury found that Phoenix and Orthofix did not agree to share the costs associated with Malo 

and, on appeal, Orthofix does not challenge that finding by the jury. 

Second, we address Orthofix’s claim that the alleged oral promise is governed by section 

5(C) of the agreement and the evidence is legally insufficient to prove the alleged oral promise to 

share costs associated with Malo was outside the terms of that agreement. Orthofix argues that 

the written agreement “extinguished any purported prior promise or understanding between the 
–27–

parties, in accordance with the merger doctrine, the parol evidence rule, and the express terms of 

the agreement.” However, the parol evidence rule excludes only prior and contemporaneous 

negotiations. See Garcia, 276 S.W.2d at 258; Sheffield, 2008 WL 190049, at *3. Orthofix’s 

alleged promise to share in the expense of the “sales specialist,” Malo, for the Boston area 

occurred after the agreement was executed. As a result, the parol evidence rule does not apply to 

Orthofix’s alleged oral promise to the share costs associated with Malo as it was outside the 

terms of the agreement. See Lakeway, 585 S.W.2d at 662; Garcia, 276 S.W.2d at 258; Sheffield, 

2008 WL 190049, at *3; Digby, 943 S.W.2d at 928; McCord, 466 S.W.2d at 871.

We conclude the trial court did not err when it denied Orthofix’s motion for judgment 

notwithstanding the verdict on Phoenix’s claim for promissory estoppel. The fourth point of 

issue one and the second point of issue three are decided against Orthofix.

III. ATTORNEYS’ FEES

In its sole issue on cross-appeal, Phoenix argues the trial court erred, as a matter of law, 

when it refused to award Phoenix all of its attorneys’ fees. Phoenix argues that its counsel 

provided an “extensive affidavit” detailing the efforts undertaken in the lawsuit and explained 

how the $340,322.75 in requested attorneys’ fees “advanced all of the claims asserted by 

Phoenix against Orthofix and the necessity of such legal services.” Also, Phoenix argues the 

only controverting evidence offered by Orthofix was an unverified declaration, arguing 

Phoenix’s counsel failed to properly segregate their fees. Orthofix responds, in part, that 

Phoenix failed to satisfy its burden to segregate attorneys’ fees.

A. Standard of Review

An appellate court reviews a trial court’s decision to award attorneys’ fees for an abuse of 

discretion. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012); Classic Superoof LLC v. 

Bean, No. 05-12-00941-CV, 2014 WL 5141660, *8 (Tex. App.—Dallas Dec. 17, 2014, pet. 
–28–

denied) (mem. op.); Jarvis v. Rocanville, 298 S.W.3d 305, 318 (Tex. App.—Dallas 2009, pet. 

denied). If attorneys’ fees are proper under section 38.001(8) of the Texas Civil Practice and 

Remedies Code, the trial court has no discretion to deny them. Smith v. Patrick W.Y. Tam Trust, 

296 S.W.3d 545, 547 (Tex. 2009).

The sufficiency of the evidence to support the amount of the award is a relevant factor in 

assessing whether the trial court abused its discretion. Jarvis, 298 S.W.3d at 318. Accordingly, 

an appellate court reviews the amount awarded under legal and factual sufficiency standards. Se. 

Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 173 (Tex. 1999) (remanding to court of appeals, in 

part, for consideration of factual sufficiency of attorneys’ fees); Am. Nat’l Petroleum Co. v. 

Transcon. Gas Pipe Line Corp., 798 S.W.2d 274, 280 (Tex. 1990) (remanding to court of 

appeals, in part, for consideration of factual sufficiency of attorneys’ fees); Classic Superoof, 

2014 WL 5141660, at *8 (legal sufficiency); Brockie v. Webb, 331 S.W.3d 135, 138–39 (Tex. 

App.—Dallas 2010, no pet.) (Brockie II) (legal and factual sufficiency); Aaron Rents, Inc. v. 

Travis Cent. Appraisal Dist., 212 S.W.3d 665, 671 (Tex. App.—Austin 2006, no pet.) (legal 

sufficiency); Cannon v. Castillo, No. 11-12-00256-CV, 2014 WL 3882190, at *3–4 (Tex. 

App.—Eastland Aug. 7, 2014, no pet.) (mem. op.) (factual sufficiency). 

In reviewing the sufficiency of the evidence supporting an award of attorneys’ fees, an 

appellate court considers the following factors: (1) the time and labor required, the novelty and 

difficulty of the questions involved, and the skill required to perform the legal service properly; 

(2) the likelihood that the acceptance of the particular employment will preclude other 

employment; (3) the fee customarily charged in the locality for similar legal services; (4) the 

amount involved and the results obtained; (5) the time limitations imposed by the client or by the 

circumstances; (6) the nature and length of the professional relationship with the client; (7) the 

experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) 
–29–

whether the fee is fixed or contingent on results obtained or uncertainty of collection before the 

legal services have been rendered. See TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04(b), 

reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G app. A (West 2013); El Apple, 370 S.W.3d at 

760-61; Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997); 

Brockie II, 331 S.W.3d at 138–39. When reviewing the record, an appellate court determines

whether any evidence supports the award of attorneys’ fees. Brockie II, 331 S.W.3d at 135, 138–

39; Good v. Baker, 339 S.W.3d 260, 268 (Tex. App.—Texarkana 2011, pet. denied).

B. Applicable Law

A party may recover attorneys’ fees only as provided by contract or statute. Tex. 

Worldwide Asset Purchasing, L.L.C. v. Rent-A-Center E., Inc., 290 S.W.3d 554, 570 (Tex. 

App.—Dallas 2009, no pet.). Section 38.001(8) of the Texas Civil Practice and Remedies Code 

allows the recovery of attorneys’ fees from an individual or corporation, in addition to the 

amount of a valid claim and costs, if the claim is for an oral or written contract. TEX. CIV. PRAC.

& REM. CODE ANN. § 38.001(8) (West 2015); Smith, 296 S.W.3d at 547; Classic Superoof, 2014 

WL 5141660, at *8. To recover attorneys’ fees under section 38.001, a plaintiff must: (1) prevail 

on a cause of action for which attorneys’ fees are recoverable; and (2) recover damages. Classic 

Superoof, 2014 WL 5141660, at *8 (citing Woodhaven Partners, Ltd. v. Shamoun & Norman, 

L.L.P., 422 S.W.3d 821, 846 (Tex. App.—Dallas 2014, no pet.)).

To calculate reasonable attorneys’ fees, the fact-finder should multiply the number of 

hours worked by the attorney’s hourly rate. See Guity v. C.C.I. Enter. Co., 54 S.W.3d 526, 528 

(Tex. App.—Houston [1st Dist.] 2001, no pet.). The resulting amount is commonly referred to 

as the “lodestar” figure. Guity, 54 S.W.3d at 528. The party applying for the award of attorneys’ 

fees under the lodestar method bears the burden of proof or “documenting the hours expended on 
–30–

the litigation and the value of those hours.” El Apple, 370 S.W.3d at 761–63; Smith, 296 S.W.3d 

at 547.

When applying for a fee under the lodestar method, the applicant must provide sufficient 

details of the work performed before the court can make a meaningful review of the fee request. 

El Apple, 370 S.W.3d at 764. For purposes of lodestar calculations, this evidence includes, at a 

minimum, documentation of: (1) the nature of the work; (2) who performed the services and their 

rate, e.g., if multiple attorneys or other legal professionals are involved in a case, the fee 

application should indicate which attorney performed a particular task or category of tasks; (3) 

approximately when the services were performed; and (4) the number of hours worked. El 

Apple, 370 S.W.3d at 763, 764. Although an attorney could testify to these details, in all but the 

simplest cases, the attorney would probably have to refer to some type of record or 

documentation to provide this information. El Apple, 370 S.W.3d at 763.

C. Application of the Law to the Facts

Prior to Phoenix resting its case in chief, the parties stipulated that, if Phoenix prevailed, 

the issue of Phoenix’s attorneys’ fees would be submitted to the trial court. After the jury 

returned a verdict in favor of Phoenix, it filed an application for the award of attorneys’ fees 

attaching the affidavit of Phoenix’s attorney as evidence. Phoenix sought a total of $340,322.75 

in attorneys’ fees. In Orthofix’s written response to Phoenix’s application for an award of 

attorneys’ fees, Orthofix stated, in part, “[Phoenix’s] requested fee should not stand and should 

instead be reduced from $340,322.75 to $200,000.00, which is more than a reasonable and 

necessary fee for the claims that were tried and for which fees are recoverable.” During the 

hearing on attorneys’ fees, the trial court specifically asked Phoenix’s attorney if he thought 

there was “any problem with [his] affidavit,” and Phoenix’s attorney answered, “I do not.” Also, 

the trial court noted that Orthofix’s attorney had conceded that Phoenix was entitled to $200,000 
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in attorneys’ fees. The trial court’s order granting Phoenix’s application for attorneys’ fees states 

that the application is “modified consistent with [the] amount awarded in [the] final judgment.” 

The final judgment awarded Phoenix, in part, $200,000 in attorneys’ fees. Accordingly, we 

review the evidence to determine whether Phoenix proved, as a matter of law, that it was entitled

to the additional $140,322.75, constituting the remainder of the requested attorneys’ fees.

In this case, Phoenix’s attorney sought a total of $340,322.75, but did not indicate in his 

affidavit how the “1,028.25 hours in partner time, 138.40 hours in of counsel and senior 

associate time, 156 hours in associate time, and 23.4 hours in paralegal time” were devoted to 

any particular task or category of tasks. See El Apple, 370 S.W.3d at 763. Although the affidavit 

supporting the fee application acknowledges that the attorneys and paralegals billed at different 

rates, it did not indicate which attorneys or paralegals performed a particular task or category of 

tasks. See El Apple, 370 S.W.3d at 763. Nor did Phoenix’s attorney present time records or 

other documentary evidence of the services performed, who performed them and at what hourly 

rate, when they were performed, and how much time the work required. See El Apple, 370

S.W.3d at 763–64. Instead, Phoenix’s attorney based his firm’s time estimates on generalities 

such as the amount of discovery in the case, and a general description of the factual allegations 

and the causes of action involved in the case. Further, in his affidavit, Phoenix’s attorney makes 

the general assertion that:

The foregoing billing rates and attorney’s fees were customary, reasonable, 

necessary, and appropriate in conjunction with the prosecution of Phoenix’s 

claims in this action. In this regard, I am familiar with and have knowledge of the 

fees charged in the north Texas area for substantially similar litigation. The time 

expended by me and the other personnel performing the legal services rendered to 

Phoenix and the fees charged as fully described herein were customary, 

reasonable, necessary, and appropriate given (1) the time and labor required, the 

novelty and difficulty of the issues presented, and the skill required to properly 

perform the legal services, (2) the likelihood that Phoenix’s representation by

[counsel] would preclude it from other employment and engagements, (3) the fees 

customarily charged in north Texas for similar legal services, (4) the amount in 

controversy and the results obtained in this action[,] (5) the time limitations 
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imposed by Phoenix and by the circumstances surrounding this action, (6) the 

nature of the professional relationship between Phoenix and [counsel], (7) the 

experience, reputation, and ability of [counsel] and the other [] personal 

performing the services I have described, and (8) attorney’s fees Phoenix agreed 

to following the performance of the legal services described herein and having 

been previously rendered.

Phoenix’s attorney’s affidavit provides none of the specificity needed for the trial court to make 

a meaningful lodestar determination. See El Apple, 370 S.W.3d at 763. 

We conclude the evidence is legally insufficient to establish Phoenix was entitled to an 

award of the additional $140,322.75 in attorneys’ fees as a matter of law. We express no opinion 

as to award of attorneys’ fees in the amount $200,000 because, on appeal, Orthofix does not 

challenge the amount of the award of attorneys’ fees and, at trial, Orthofix conceded that 

Phoenix was entitled to $200,000 in attorneys’ fees. Phoenix’s sole issue on cross-appeal is 

decided against it.

IV. CONCLUSION

The trial court did not err when it denied Orthofix’s motion for a directed verdict and 

motion for judgment notwithstanding the verdict on Phoenix’s claims for breach of contract due 

to wrongful termination and promissory estoppel. Also, the trial court did not err when it 

declined to award Phoenix all of the requested attorneys’ fees.

The trial court’s final judgment is affirmed.

130870F.P05

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE
–33–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

BLACKSTONE MEDICAL, INC. D/B/A 

ORTHOFIX SPINAL IMPLANTS, 

Appellant

No. 05-13-00870-CV V.

PHOENIX SURGICALS, L.L.C., Appellee

On Appeal from the County Court at Law 

No. 4, Dallas County, Texas

Trial Court Cause No. CC-11-00902-D.

Opinion delivered by Justice Lang. Justices 

Bridges and Lang-Miers participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

It is ORDERED that appellee Phoenix Surgicals, L.L.C., recover its costs of this appeal 

from appellant Blackstone Medical, Inc. d/b/a Orthofix Spinal Implants and from Westchester 

Fire Insurance Company as surety on appellant’s cost bond; and the full amount of the trial 

court’s judgment and the costs of this appeal, to the extent that they exceed the liability of 

Westchester Fire Insurance Company as surety on appellant’s cost bond, from appellant 

Blackstone Medical, Inc. d/b/a Orthofix Spinal Implants and from Westchester Fire Insurance 

Company as surety on appellant’s supersedeas bond.

Judgment entered this 22nd day of July, 2015.