Griffin MacY v. Waste Management, Inc.

Opinion issued May 28, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00276-CV

GRIFFIN MACY, Appellant/Cross-Appellee

V.

WASTE MANAGEMENT, INC., Appellee/Cross-Appellant

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2004-47274

MEMORANDUM OPINION

Appellant, Griffin Macy, has filed a motion for rehearing of our March 12,

2009 memorandum opinion and judgment. We deny that motion. We, however,

withdraw our March 12, 2009 memorandum opinion and judgment and issue this

memorandum and judgment in its stead to clarify the analysis of the legal authority

cited by Macy in his first appellate issue. Macy appeals a final judgment ordering he

take nothing from appellee, Waste Management, Inc. The judgment also orders Macy

to pay $170,173.19 to Waste Management for repayment of attorney's fees and

litigation expenses advanced to Macy. Macy's three issues contend the trial court

erred by (1) determining as a matter of law that Waste Management complied with

the terms of the employment Agreement it had with Macy; (2) finding the Board of

Directors' determination of cause was timely under the Agreement; and (3) denying

certain discovery to Macy. In two issues in a cross-appeal, Waste Management

contends it was entitled to judgment for $357,843.41, the entire amount of the fees

it advanced to Macy, because Macy was not the prevailing party under the terms of

the Agreement and the Agreement does not provide for segregation of attorney's fees.

We conclude the trial court properly determined Waste Management complied with

the terms of the Agreement; that Waste Managment was due the return of only those

fees it advanced to Macy following the decision of the Board of Directors (the Board)

that Macy was terminated for cause, excluding the amount pertaining to litigation

over the amount of the fees; and that the trial court properly denied the requested

discovery. We affirm.

Background Waste Management hired Macy in 2000 as the vice president of Enterprise

Systems Development (ESD) in charge of software development. Macy had an

employment Agreement with Waste Management, which provided that his

employment "shall continue . . . unless terminated pursuant to the terms of Section

5 and 6 of this Agreement."

Section 5 of the Agreement, entitled "Termination of Employment," provided

that employment "may be terminated under the following circumstances." Those

circumstances included death; total disability; voluntary termination by the employee;

termination by the company without cause; and termination by the company for

cause. The Agreement listed the following three criteria applicable to the designation

of termination for cause under section 5:

(c) Termination by the Company for Cause. The Company may

terminate Employee's employment hereunder for "Cause" at any time

after providing written notice to Employee.

(i) For purposes of this Agreement, the term "Cause" shall mean any of

the following . . . (C) fraud or embezzlement determined in accordance

with the Company's normal investigative procedures consistently

applied in comparable circumstances . . . .

(ii) An individual will be considered to have been terminated for Cause

if the Company determines that the individual engaged in an act

constituting Cause at any time prior to a payment date for any amounts

due hereunder, regardless of whether the individual terminated

employment voluntarily or is terminated involuntarily, and regardless of

whether the individual's termination initially was considered to have

been for Cause.

(iii) Any determination of Cause under this Agreement shall be made by

resolution of the Company's Board of Directors adopted by affirmative

vote of not less than a majority of the entire membership of the Board of

Directors at a meeting called and held for that purpose and at which

Employee is given an opportunity to be heard.

In the event of a dispute arising out of section 5(c)--the section describing

termination for cause--section 10 of the Agreement provided for advance payment

of the employee's attorney's fees for resolution of disputes between the employee and

Waste Management.

Depending on the circumstances under which the employee stopped working

for the company, section 6 of the Agreement provided for the structure of

compensation following termination. Upon termination for cause or voluntary

termination of employment, the employee received few benefits, such as payment of

accrued wages. However, for termination without cause, the employee received more

substantial benefits to be paid over a two-year period of time. The Agreement

provided,

(e) Termination by the Company Without Cause. . . . [T]he company

shall pay the following amounts to Employee:

. . . .

(iii) An amount equal to two times the sum of Employee's Base Salary

plus his or her target annual bonus (as then in effect), of which one-half

shall be paid in a lump sum within ten (10) days after such termination

and one-half shall be paid during the two (2) year period beginning the

date of Employee's termination . . . .

In early 2004, Lynn Caddell was hired by Waste Management as its Chief

Information Officer. At a meeting between Caddell and Macy, Macy stated he was

thinking about leaving the company. On April 5, 2004, Macy stopped working for

Waste Management. Caddell indicated she was accepting Macy's resignation. Macy,

however, believed he was terminated without cause and entitled to severance fees in

accordance with the Agreement.

Waste Management's Forensic Audit Services (FAS) conducted a "Special

Review" of ESD, issuing an audit report in June 2004. FAS typically investigated

financial impropriety within the company. The report indicated 12 people were

interviewed, including Warren Brauer, "Finance Manager, ESD (Contractor)"; Gary

Rind, "Budget Coordinator, ESD (Contractor)"; and Christy Cooper, "IT Controller."

Macy was not interviewed.

In August 2004, Macy sued Waste Management for breach of contract for

failure to pay the severance fees required for termination without cause. Waste

Management generally denied, later amending to include affirmative defenses that

Macy resigned or could have been terminated for cause.

In August 2005, and while Macy's lawsuit was pending, Waste Management

convened the Board to determine the classification of Macy's departure. The Board,

in writing, told Macy he was "invited to be heard at a special meeting called to

consider whether [Macy] engaged in an act constituting Cause." Macy and Waste

Managment were told they could each submit a 10-page position paper with no more

than 10 pages of exhibits, submit a proposed Board resolution, and make an oral

presentation to the Board. Although the Board originally limited the oral

presentations to 15 minutes per side, Macy's counsel was allowed approximately 30

minutes to address the Board at the meeting, which lasted approximately two hours.

In addition to considering the oral statements by the parties' respective attorneys, the

Board considered Macy's employment Agreement; the executive summary of the

forensic audit report; and written documents submitted by counsel for Macy and

Waste Management. Determining Macy committed fraud, the Board issued a

resolution by a unanimous vote that cause existed for Macy's April 2004 termination.

The Board determined Macy committed fraud by understating his departmental

"headcount" and accumulating accruals. According to the Chairman of the Board,

John Pope, these two problems could result in lack of compliance with Securities and

Exchange Commission regulations.

Waste Managment filed a matter-of-law motion for final summary judgment

asserting the Agreement allowed the determination of cause to be made at any time

prior to the date of any payment due under the Agreement. Waste Managment also

argued that the Agreement's unambiguous provisions required the Board to be the

sole and final authority for the determination of cause. Waste Management further

sought repayment of the attorney's fees it advanced to Macy. Waste Management

later filed a matter-of-law and no-evidence motion for final summary judgment that

the decision by the Board was made in good faith, and alternatively, seeking summary

judgment limiting the fact finder to a review of whether the Board acted in good faith

when it found Macy committed fraud.

Macy filed responses to Waste Management's motion for final summary

judgment and competing motions for summary judgment. Macy challenged the

Board's determination of cause under the Agreement by asserting he did not clearly

waive his right to sue; the Board's determination of cause was not timely made under

the terms of the Agreement; the Board waived its right to determine cause due to the

delay in finding cause; the Agreement did not preclude the jury from reviewing

whether cause to terminate Macy existed; and alternatively, if the trial court

determined the Board's finding could be reviewed only on the matter of whether the

Board acted in good faith, there was evidence raising a question of fact on the

Board's good faith.

The trial court rendered partial summary judgment in favor of Waste

Managment, stating, "Section 5(c)(ii) of the Agreement allows the Board . . . to make

a cause determination at any time prior to a payment date for any amount due under

the Agreement." The trial court subsequently granted Waste Management's motion

for final summary judgment.

Upon prevailing in the summary judgment motions that determined Waste

Management did not breach the Agreement, Waste Management filed a summary

judgment motion for repayment of all the attorney's fees and litigation expenses it

had advanced to Macy under the terms of the Agreement. The trial court declined the

full amount requested by Waste Management, granting the motion for an apportioned

amount.

After the trial court granted summary judgment in favor of Waste Managment,

Macy filed a motion for reconsideration of the court's order granting final summary

judgment. In addition to reurging arguments previously presented, Macy asserted

new arguments and evidence. After Waste Management responded to the motion for

reconsideration, the trial court denied the motion and rendered the final, appealable

judgment.

During the course of the underlying litigation, Macy issued multiple requests

for production and interrogatories, ultimately filing a motion to compel. Waste

Management requested protection from the discovery, as it pertained to individuals

other than Macy. The trial court denied Macy's motion to compel and granted Waste

Management's motion for protection. Summary Judgment for Macy's Claims for Breach of Contract

Macy challenges the trial court's orders granting summary judgment in favor

of Waste Management.

A. Standard of Review

We review a trial court's summary judgment de novo. Valence Operating Co.

v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.

Knott , 128 S.W.3d 211, 215 (Tex. 2003). To prevail on a summary judgment, the

movant has the burden of proving that there is no genuine issue of material fact and

the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);

KPMG Peat Marwick v. Harrison County Hous. Fin. Corp ., 988 S.W.2d 746, 748

(Tex. 1999); Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Prop.

Mgmt. Co. , 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary

judgment must either (1) disprove at least one element of the plaintiff's cause of

action or (2) plead and conclusively establish each essential element of an affirmative

defense to rebut the plaintiff's cause. Cathey , 900 S.W.2d at 341 .

In our review, we take as true all evidence favorable to the nonmovant, and

indulge every reasonable inference and resolve any doubts in the nonmovant's favor.

Dorsett , 164 S.W.3d at 661 ; Knott , 128 S.W.3d at 215 ; Sci. Spectrum, Inc. v.

Martinez , 941 S.W.2d 910, 911 (Tex. 1997). Our task is to "consider whether

reasonable and fair-minded jurors could differ in their conclusions in light of all of

the evidence presented." Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754,

755-56 (Tex. 2007) (citing Wal-Mart Stores, Inc. v. Spates , 186 S.W.3d 566, 568

(Tex. 2006); City of Keller v. Wilson , 168 S.W.3d 802, 822-24 (Tex. 2005)). When,

as here, a summary judgment does not specify the grounds on which it was granted,

we will affirm the judgment if any one of the theories advanced in the motion is

meritorious. Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 157 (Tex. 2004).

B. Applicable Law Concerning Interpretation of Contract

"Whether a contract is ambiguous is a question of law that must be decided by

examining the contract as a whole in light of the circumstances present when the

contract was entered." David J. Sacks, P.C. v. Haden , 266 S.W.3d 447, 451 (Tex.

2008) (quoting Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd. , 940 S.W.2d

587, 589 (Tex. 1996)). "When parties disagree over the meaning of an unambiguous

contract, the court must determine the parties' intent by examining and considering

the entire writing in an effort to give effect to and harmonize all provisions so that

none will be rendered meaningless." Rolling Lands Invs., L.C. v. Nw. Airport Mgmt.,

L.P. , 111 S.W.3d 187, 196 (Tex. App.--Texarkana 2003, pet. denied) (citing Coker

v. Coker , 650 S.W.2d 391, 393 (Tex. 1983); First City Nat'l Bank of Midland v.

Concord Oil Co. , 808 S.W.2d 133, 137 (Tex. App.--El Paso 1991, no writ); KMI

Cont'l Offshore Prod. Co. v. ACF Petroleum Co. , 746 S.W.2d 238, 241 (Tex.

App.--Houston [1st Dist.] 1987, writ denied)). Terms in contracts are given their

plain, ordinary, and generally accepted meaning. Creel v. Houston Indus., Inc. , 124

S.W.3d 742, 749 (Tex. App.--Houston [1st Dist.] 2003, no pet.). Our primary

concern in interpreting a contract is to ascertain and give effect to the intent of the

parties as it is expressed in the contract. Seagull Energy E & P, Inc. v. Eland Energy,

Inc ., 207 S.W.3d 342, 345 (Tex. 2006). The intent of the parties must be taken from

the agreement itself, not from the parties' present interpretations, and the agreement

must be enforced as it is written. See Sun Oil Co. v. Madeley , 626 S.W.2d 726,

731-32 (Tex. 1981).

The dispute between the parties is over which of the benefits under section 6

of the Agreement Macy is entitled to receive. The parties here agree that Macy was

an at-will employee who could be terminated for no reason at all. See Tex. Farm

Bureau Mut. Ins. Cos. v. Sears , 84 S.W.3d 604, 609 (Tex. 2002). Because Macy was

an at-will employee, Waste Management was required to give Macy only those

benefits specified in the Agreement. See Matagorda County Hosp. Dist. v. Burwell ,

189 S.W.3d 738, 740 (Tex. 2006) (noting that to alter at-will relationship, employer

must unequivocally indicate definite intent to be bound not to terminate employee

except under clearly specified circumstances).

C. Terms of Agreement for Board's Determination of Cause

In his first issue, Macy contends he should be allowed to have a jury

independently decide whether there is cause to terminate him. Macy contends that

because the Agreement failed to say that the Board's decision is final and binding, the

jury should independently decide whether there was cause to terminate him, without

any deference to the Board's decision. Alternatively, Macy contends the jury should

review the Board's decision for bad faith.

1. Decision Is Final Despite Absence of Certain Words

We must examine the Agreement to determine the intent of the parties. See

Seagull Energy , 207 S.W.3d at 345 . Although the Agreement does not expressly state

that the decision is final and binding, it plainly states that Waste Management is to

make the determination of cause. An examination of the entire Agreement shows it

does not provide Macy any right of appeal to another entity, nor does it refer to any

other entity as having the authority to determine cause. We conclude the intent of the

Agreement is that the determination of cause must be made by Waste Management

alone. See id. Nothing in the Agreement supports Macy's position that a jury should

independently decide whether there is cause to terminate Macy. See id.

Macy also contends on appeal, "The Board's decision cannot be afforded any

finality because the contract does not include a clear waiver of the right to sue,

therefore the Court erred in granting summary judgment to Waste Management." See

In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 132 (Tex. 2004) (orig. proceeding)

(holding right to trial by jury in civil case may be waived "with sufficient awareness

of the relevant circumstances and likely consequences"). However, the trial court did

not hold that Macy had waived the right to a trial by jury. Rather, the trial court

determined the merits of the lawsuit for breach of contract by finding that as a matter

of law, Waste Management did not breach its Agreement with Macy. The summary

judgment ruling, deciding the Agreement was not breached as a matter of law,

obviated the need for a jury to resolve the lawsuit for breach of contract. Therefore,

the lack of an express waiver of the right to sue is immaterial because the trial court

did allow Macy to sue for breach of contract and the court did decide the merits of the

claim, albeit by summary judgment.

2. No Evidence Raises Issue of Fact About Board's

Determination

Also within his first issue, Macy asserts the trial court erred in granting

summary judgment because Macy presented evidence raising issues of fact whether

"Macy voluntarily resigned or whether he was terminated for Cause." Macy contends

Waste Management failed to conclusively show there was no dispute about the

credibility of the witnesses, the inferences to be drawn from the evidence, and the

weight to give the evidence.

The evidence conclusively shows the Board followed the terms of the

Agreement in determining Macy was terminated for Cause. Macy does not dispute

that all of the procedural requirements in section 5(c)(iii) were met by Waste

Managment. More specifically, Macy does not dispute that the determination of

cause under this Agreement was made by resolution of the Board adopted by

affirmative vote of not less than a majority of the entire membership of the Board at

a meeting called and held for that purpose and at which Macy was given an

opportunity to be heard.

The dispute between the parties is whether the requirements in section 5(c)(i)

were met by Waste Management. Section 5(c)(i)(C) provides that Waste

Management "may terminate" Macy's employment for "Cause," which means "fraud

determined in accordance with the Company's normal investigative procedures

consistently applied in comparable circumstances." Giving effect to the intent of the

parties as it is expressed in the contract, the plain reading of the Agreement shows the

only conditions for Waste Management's determination of cause under 5(c)(i)(C) are

that the Board must (1) find fraud (2) as determined in accordance with the

company's normal investigative procedures consistently applied in comparable

circumstances. See Seagull Energy , 207 S.W.3d at 345 . The record conclusively

shows that the Board found Macy committed fraud in understating his departmental

"headcount" and in accumulating accruals.

Macy suggests irregularity occurred in the investigation procedures.

Examining the evidence before the trial court at the time it rendered the summary

judgments, Macy's evidence does not raise a question of fact on the matter of whether

the company's normal investigative procedures were applied to Macy in a manner

consistent with comparable circumstances. Brian Thelen's testimony shows that FAS

typically took the lead in conducting investigations for impropriety within the

company. Thelen said he had been involved in approximately a dozen investigations

initiated by a senior vice president such as Caddell, and that at least half a dozen of

those investigations involved allegations of fraud and were conducted solely by FAS.

In contrast, Macy pointed to testimony by Karen Francis, one of the

interviewers conducting the forensic audit, who said that she destroyed her notes after

the interviews. Francis testified that after the interviews were conducted,

one of us would write up the interview, based on our notes, send it to the

other one, the other one would read it, compare it to their [sic] notes,

make any appropriate edits deemed appropriate by both interviewers and

have a final interview report that we agreed on as accurate. And then we

shred our interview notes after it's recorded into the interview report.

So we probably shredded those notes before the end of the ESD review.

Although Macy suggests there is a sinister motive behind the destruction of the notes,

he fails to provide any evidence to refute Francis's testimony that all of the

information in the notes was recorded into the interview report. More importantly,

he fails to show that this was not the usual practice of the forensic auditor. The

absence of the handwritten notes does not raise a factual issue on the matter of

whether the company's normal investigative procedures were applied to Macy in a

manner consistent with comparable circumstances.

Macy also suggests irregularity in the forensic audit by pointing out that the

company never interviewed Macy or any executive to whom Macy reported. No

evidence shows that the company's normal investigative procedures included

interviewing all ESD employees or the subject of the investigation. The failure of the

forensic auditor to question all employees in ESD also does not raise an issue of fact

concerning the regularity of the investigation procedure.

Macy further contends that Waste Management applied a stricter standard to

Macy than to others at Waste Management. Macy refers to testimony by the

chairman, who said that anyone complicit in the headcount or accrual manipulation

should be fired. Macy then argues that "various people in the ESD group knew of the

supposed and alleged improprieties of Macy, not to mention Warren Brauer and Gary

Rind's direct involvement, and still no person was disciplined or terminated for their

[sic] complicity." The evidence fails to raise an issue of fact because the subordinates

were not similarly situated to Macy, who was vice president of ESD. Moreover, the

Agreement required the Board's fraud finding be "determined in accordance with the

Company's normal investigative procedures consistently applied in comparable

circumstances." Under the plain language of the Agreement, the reference to

consistency in application to comparable circumstances refers to the investigative

procedures; the reference does not speak to whether there must be equality in the

punishment for certain conduct by dissimilar employees.

Macy further asserts, "The most egregious aspect of the special review is that

Waste Management did not have an official headcount policy and no one involved

(both interviewer and interviewee) had seen a policy regarding accruals." The

Agreement, however, requires the Board's fraud finding to be "determined in

accordance with the Company's normal investigative procedures consistently applied

in comparable circumstances." Under the plain language of the Agreement, the

reference to consistency in application to comparable circumstances refers to the

investigative procedures. The absence of a written or verbal policy is not pertinent

to the procedure employed to investigate Macy. Macy's complaint about the absence

of a policy is a substantive complaint concerning the merits of the Board's finding

and is not a challenge to the Agreement's requirement that a finding of fraud be

"determined in accordance with the Company's normal investigative procedures

consistently applied in comparable circumstances."

We conclude Macy's evidence presented to the trial court when the trial court

rendered summary judgment in favor of Waste Management fails to raise a factual

issue. We hold the trial court properly rendered summary judgment because no

evidence shows the Board failed to comply with the terms set forth in the Agreement.

3. No Evidence of Bad Faith

Because no evidence raises the issue, the trial court did not err by declining to

allow the jury to decide if the Board acted in bad faith. Macy cites Goudie v. HNG

Oil Co ., 711 S.W.2d 716, 718 (Tex. App.--El Paso 1986, writ ref'd n.r.e.), Associated

Milk Producers v. Nelson , 624 S.W.2d 920, 926 (Tex. Civ. App.--Houston [14th

Dist.] 1981, writ ref'd n.r.e.), and Texaco, Inc. v. Romine , 536 S.W.2d 253, 255 (Tex.

Civ. App.--El Paso 1976, writ ref'd n.r.e.). These decisions hold that in situations

where there is an employer-funded plan which is made a part of the

employment contract between the employer and the employee, and with

provisions which make the employer's determination final, that if the

employer determines that an employee is not entitled to benefits, the

only way that determination can be attacked is by showing that there

was bad faith or fraud in the employer's actions .

Goudie , 711 S.W.2d at 718 . Although these decisions looked to the treatment of

others who were similarly situated in deciding whether the company acted in bad

faith, the terms of those agreements required that similarly situated employees be

treated the same, which is not what the agreement here states. See Goudie , 711

S.W.2d at 718 (holding there was some evidence of bad faith, which was defined as

including dishonesty and unfairness, with regard to company's determination that

similarly situated employees were treated differently under company's Executive

Incentive Compensation Plan); Nelson , 624 S.W.2d at 926 (holding some evidence

showed retirement committee acted in bad faith based on jury instruction that defined

bad faith as using standards more strict than those applied to others similarly situated,

which was based on retirement provisions that stated, "The decision by the retirement

committee in such cases shall not be made in such a manner so as to discriminate in

favor of participants who are officers, shareholders, supervisors or highly

compensated."). Compare Romine , 536 S.W.2d at 255 (holding no evidence showed

Texaco acted in bad faith, as defined in jury charge as "dishonesty" or "unfairness,"

in discharging Texaco employee, Romine, denying Romine benefits under Permanent

Total Disability Plan, which terms specifically state eligibility is to be determined

solely by Texaco).

The record here fails to include any evidence that Waste Managment did not

fully comply with the terms set forth in the Agreement it had with Macy. The terms

of this Agreement specifically limited the procedural guarantees given to Macy to a

determination of Cause done "in accordance with the Company's normal investigative

procedures consistently applied in comparable circumstances." The evidence

conclusively shows Waste Management acted with fairness and honesty because it

acted "in accordance with the Company's normal investigative procedures

consistently applied in comparable circumstances." There was no question of fact as

to bad faith for the jury to decide. The trial court, therefore, did not err by rendering

summary judgment in favor of Waste Management and by refusing to allow a jury to

determine whether Waste Management acted in bad faith.

We overrule Macy's first issue.

D. Timeliness of Determination for Cause

In his second issue, Macy challenges the trial court's finding that the Board's

determination of cause was timely under the Agreement. Macy asserts the trial court

erred in interpreting the Agreement to allow the Board to make a cause determination

after the initial severance payment was due. Although the parties agree the language

of section 5(c) is unambiguous, they disagree about its meaning. Macy interprets the

section to mean that the Board's right to make a cause determination existed only

from the time the causative act occurred until the next severance payment date, which

here means within 10 days of the day when Macy stopped working for Waste

Management. Macy further argues that because the Board did not act more timely,

it waived its right to determine the nature of Macy's termination. Waste Management

responds that a determination of whether cause for the termination existed may be

made prior to the date of any severance payment, not just the first, or next, severance

payment due.

We agree with the trial court's interpretation of section 5(c)(ii). Giving effect

to the intent of the parties as it is expressed in the contract, the plain reading of this

section shows the Board is allowed to make a cause determination at any time prior

to a payment date for any amounts due under the Agreement. See Seagull Energy ,

207 S.W.3d at 345 . The Agreement unambiguously states, "An individual will be

considered to have been terminated for Cause if the Company determines that the

individual engaged in an act constituting Cause at any time prior to a payment date

for any amounts due hereunder . . . ." (Emphasis added). Furthermore, the

Agreement allows the determination of cause to be made at a later point, even when

the employee initially departs for a different reason. The Agreement unambiguously

provides that the determination of cause can be made "regardless of whether the

individual terminated employment voluntarily or is terminated involuntarily, and

regardless of whether the individual's termination initially was considered to have

been for Cause." Under the specific terms of the section describing termination for

cause, the timing of the Board's determination of cause was permitted under the

Agreement.

An examination of the entire Agreement is further evidence that the parties did

not intend to limit the determination of cause to the first severance payment, or 10

days. Looking at sections 5 and 6(e) together, Macy's interpretation would require

Waste Management to discover the basis of the cause, accumulate and investigate

relevant facts, convene a special meeting of the Board, and determine cause within

10 days of Macy's termination. If this were not accomplished, under Macy's

interpretation, Waste Management would waive its contractual right to determine

cause and would be required to continue paying all severance benefits owed even if

an investigation ultimately produced evidence of cause.

When we read section 5(c)(ii) in light of the definitions, procedures, and review

required by sections 5(c)(i) and (iii), and in light of the severance provisions of

section 6, we cannot interpret the phrase "prior to a payment date for any amounts due

hereunder" as reflective of the parties' intent to undertake all of the requirements of

section 5(c) prior to the first severance payment. Macy's interpretation would

immediately cut off the determination rights afforded Waste Management in sections

5(c)(ii) and (iii), rendering those rights meaningless. See Rolling Lands Invs. , 111

S.W.3d at 196-97 . Macy's interpretation is not supported by a reading of the entire

Agreement. See Dorsett , 164 S.W.3d at 662 . We conclude section 5(c)(ii) is more

reasonably interpreted to intend such a time frame that the procedures of 5(c)(i) and

(iii) could be conducted. We hold that the trial court properly granted summary

judgment, finding as a matter of law that the Board's determination of cause was

timely, and not waived, under the Agreement. See Nixon , 690 S.W.2d at 548 .

Macy also contends Waste Management waived the right to claim termination

for cause due to its 16-month delay in convening the Board to make that

determination. The record reflects that Macy's successor suspected cause for Macy's

termination shortly after Macy's departure, and that Waste Management filed an

amended answer within months of Macy's petition suggesting termination may have

been for cause, conducted internal investigations, convened its Board, and determined

cause within 16 months of Macy's termination. Having held Waste Management

timely determined cause, we do not infer Waste Management's conduct demonstrated

an actual intent to relinquish its right to determine cause, and Waste Management did

not waive its right to do so. See Williams v. Moores , 5 S.W.3d. 334, 337 (Tex.

App.--Texarkana 1999, pet. denied).

Macy further asserts, "Since Waste Managment failed to make payments to

Macy as they came due, the company had materially breached the Agreement and was

therefore precluded from taking advantage of the termination for cause provisions at

a later date." Macy is correct that under contract law a party who has broken a

contract cannot thereafter enforce the remaining terms. See Baker Marine Corp. v.

Weatherby Eng'g Co. , 710 S.W.2d 690, 696 (Tex. App.--Corpus Christi 1986, no

writ) (noting breaching party "cannot take advantage of provisions favorable to it

contained in the very contract which it was found to have breached"). However, as

we have explained above, the record undisputedly shows that the Agreement allowed

Waste Management to make its cause determination at any point before any of the

severance payments were due and even after termination for reasons other than cause.

We hold that Waste Managment did not breach the Agreement by determining cause

for termination after Macy separated from the company for a different reason.

We overrule Macy's second issue.

Macy's Motion for Reconsideration of the Summary Judgment

In its appellee's brief, Waste Management contends we should disregard most

of the evidence Macy refers to in his appellant's brief because the evidence was not

part of the evidence before the trial court when the trial court granted the summary

judgments in favor of Waste Management. Although Macy filed a reply brief, he did

not dispute that he could have presented the evidence in the motion for

reconsideration when the trial court rendered the summary judgment order, nor does

he explain why this evidence was not presented to the trial court prior to rendition of

the summary judgment.

"After a court grants a summary judgment motion, the court generally has no

obligation to consider further motions on the issues adjudicated by the summary

judgment." Kelly v. Gaines , 181 S.W.3d 394, 416 (Tex. App.--Waco 2005), rev'd

on other grounds , 235 S.W.3d 179 (Tex. 2007); see Gorrell v. Tex. Utils. Elec. Co. ,

915 S.W.2d 55, 60 (Tex. App.--Fort Worth 1995), writ denied , 954 S.W.2d 767

(Tex. 1997). The standard of review for a motion to reconsider a prior summary

judgment is whether the trial court abused its discretion. AIC Mgmt. v. Baker , No. 01-02-01074-CV, 2003 WL 22724629 , at *7 (Tex. App.--Houston [1st Dist.] 2003, pet.

denied) (mem. op.). An abuse of discretion will not be found if the movant cites no

additional evidence "beyond that available to him" when the first summary judgment

was granted. See Kelly , 181 S.W.3d at 416 .

After the trial court rendered the summary judgment order in favor of Waste

Management, Macy filed a motion for reconsideration that included a large volume

of evidence he had never before presented to the trial court. Macy presented new

evidence to assert a question of fact by claiming that (1) "there was no defined

methodology for conducting the investigation or special review, and the auditor

tasked with performing the review, Karen Francis, was not familiar with the

whistleblower process of Waste Management"; (2) portions of interviews that were

conducted were omitted from the special review report; (3) some people who were

interviewed were not afforded the opportunity to review their statements for

inaccuracies and some felt intimidated; (4) "[w]itnesses were shocked to find material

misstatements and mischaracterizations 'attributed' to them after finally getting the

chance to review their witness statements" created by the audit team; and (5) some

members of the Board reviewed the entire forensic audit report when Macy was

allowed only 10 pages to present his case.

The motions for reconsideration are based on evidence and arguments available

to Macy before the trial court rendered the summary judgment order. See id. We

cannot conclude the trial court abused its discretion by refusing to reconsider its

summary judgment. See id.

Denial of Discovery

In his third issue, Macy challenges the trial court's order denying certain

discovery to Macy.

An appellate court reviews a trial court's ruling on a motion to compel

discovery under an abuse-of-discretion standard. See Johnson v. Davis , 178 S.W.3d

230, 242 (Tex. App.--Houston [14th Dist.] 2005, pet. denied) (citing Cire v.

Cummings , 134 S.W.3d 835, 838 (Tex. 2004) (discussing discovery sanctions)). Trial

courts have broad discretion in matters of discovery. Johnson , 178 S.W.3d at 242 .

An appellate court should reverse a trial court's ruling on a motion to compel only

when the trial court acts in an arbitrary and unreasonable manner, without reference

to any guiding principles. See Barnett v. County of Dallas , 175 S.W.3d 919, 924

(Tex. App.--Dallas 2005, no pet.).

Macy states that he "attempted to pursue discovery regarding Revenue

Management System and the 'substantial impact' of a potential $60 Million write

down on the company's books and records as compared to the accrual balance Macy

was accused of accumulating." Macy contends, "The contract required that any gross

negligence or gross misconduct attributed to Macy have a 'substantial effect on the

company.'" This evidence is immaterial to whether Waste Management failed to

comply with the terms of the contract that left it up to the Board to decide whether

Macy committed fraud.

Macy next contends he wanted more discovery into other investigations

conducted by Waste Management to determine whether this investigation was

conducted "in accordance with the Company's normal, internal investigative

procedures consistently applied in comparable circumstances." As shown by the

exhibits attached to the motion for reconsideration of the summary judgment, Macy

deposed the chairman, many of the employees assigned to ESD, and individuals

conducting the forensic audit. Macy fails to show how the trial court abused its

discretion by denying further discovery into other investigations conducted by the

forensic auditors. We conclude the denial of the discovery was not so arbitrary and

unreasonable that it amounts to a clear and prejudicial error of law. Austin v.

Countrywide Homes Loans , 261 S.W.3d 68, 75 (Tex. App.--Houston [1st Dist.]

2008, pet. denied); Johnson , 700 S.W.2d at 917; see also Lovelace v. Sabine Consol.,

Inc. , 733 S.W.2d 648, 652 (Tex. App.--Houston [14th Dist.] 1987, writ denied). We

hold the trial court did not abuse its discretion by denying the requested discovery.

See Dillard Dep't Stores, Inc. v. Hall , 909 S.W.2d 491, 492 (Tex. 1995).

We overrule Macy's third issue.

Waste Management's Cross Appeal for Entire Amount of Attorney's Fees

In its two issues in the cross-appeal, Waste Management challenges the trial

court's grant of summary judgment for a partial amount of the attorney's fees it

requested from Macy.

As we explain above, we review a trial court's summary judgment de novo.

See Dorsett , 164 S.W.3d at 661 . The movant has the burden of proving that there is

no genuine issue of material fact and that he is entitled to judgment as a matter of law.

See Nixon , 690 S.W.2d at 548 . We take as true all evidence favorable to the

nonmovant, indulging every reasonable inference and resolving any doubts in the

nonmovant's favor. Dorsett , 164 S.W.3d at 661 .

Shortly after the lawsuit was filed in 2004, the trial court granted Macy's

motion to have Waste Management advance interim attorney's fees and costs

pursuant to section 10 of the Agreement, which provides,

If at any time during the term of this Agreement or afterwards there

should arise any dispute as to the validity, interpretation or application

of any term or condition of this Agreement, the Company agrees . . . to

promptly provide sums sufficient to pay . . . Employee's reasonable

costs and reasonable attorney's fees . . . , provided: (a) that Employee

shall repay any such amounts paid or advanced if Employee is not the

prevailing party with respect to any dispute or litigation arising under

Sections 5(c) or 8 of this Agreement, or (b) . . . [that] Employee did not

initiate frivolously such litigation.

Section 8 is inapplicable because it pertains to restrictive covenants not to

compete. Section 5(c) is the section describing termination for cause. Thus, the

question is whether this entire dispute from the beginning arose under section 5(c),

because if it did, then Waste Management is entitled to the entire amount, but if it did

not, then Waste Management is entitled to only the amount from the point that the

dispute began to arise under section 5(c).

Waste Management contends it should have received the full amount of the

fees it advanced to Macy, which is $357,843.40, rather than the portion it received,

which is $170,173.19. The court initially calculated reimbursement due to Waste

Management in the amount of $187,932.74 by determining that was the amount

Waste Management advanced to Macy from the point the Board determined Macy

was terminated for cause on August 25, 2005 to the point the litigation culminated.

The court then subtracted $17,759.55 from the $187,932.74 because $17,759.55 was

the amount of fees spent in the parties' section 10 dispute over the repayment of costs

and fees. Accordingly, the court ordered Macy to repay fees in the amount of

$170,173.19.

Examining the plain terms of the Agreement, Macy, as the non-prevailing

party, must repay the sums advanced "with respect to any dispute or litigation arising

under Sections 5(c) . . . of this Agreement." See Creel , 124 S.W.3d at 749 (requiring

examination of plain terms). Section 5 of the Agreement included departures from

Waste Management for reasons of voluntary termination by the employee, and

termination by Waste Management without cause. Those departures would not

invoke section 10 of the Agreement, which only referenced departure under section

5(c), the section describing termination for cause. Section 5(c) of the Agreement was

not the subject of the dispute between Macy and Waste Management until the Board

referred to section 5(c) in deciding to terminate Macy for cause on August 25, 2005.

When the Board made its determination that Macy was terminated for cause, the

dispute became about section 5(c) of the Agreement. Before then, the dispute

pertained to section 5(e) for termination without cause and section 6(e) for the

company's failure to pay severance due to Macy for terminating him without cause.

Although section 5(c)(ii) permits the cause determination to apply retroactively to the

date of Macy's departure, it does not serve to amend the nature of the claims Macy

filed in his lawsuit. Having reviewed the language of section 10 and giving those

terms their plain and ordinary meaning, the trial court properly determined that only

those sums that accrued after the August 25, 2005 cause determination arose under

section 5(c). See id. Similarly, the court properly determined that the sums advanced

after August 25, 2005 to dispute the repayment of fees under section 10 of the

Agreement did not arise from sections 5(c) or 8 of the Agreement. We therefore hold

the trial court properly awarded Waste Managment the amount of $170,173.19.

We overrule the two issues presented in Waste Management's cross-appeal.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.