# Gannon v. Baker

> Texas Court of Appeals, 1st District (Houston) · March 7, 1991 · 807 S.W.2d 793

URL: https://www.frixlaw.com/law-library/cases/9666409

## Case

- **Full name:** John P. GANNON, Appellant, v. John H. BAKER, III, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** March 7, 1991
- **Citations:** 807 S.W.2d 793; 1991 Tex. App. LEXIS 566; 1991 WL 29245
- **Precedential status:** Published
- **Opinion:** Dissent by O'Connor
- **Judges:** Bass, Dunn, O'Connor
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Gannon v. Baker, 35 Tex. Sup. Ct. J. 94 (1991).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9666409

## Opinion text

O’CONNOR, Justice,
dissenting.
I dissent.
1. The leveling agreement
In point of error 5, Gannon argues that the partial summary judgment on the oral agreement to “level” was wrong. (This point, though named “fifth point of error,” is actually the fourth point.) The careful reader should note that the majority holds that minutes of an organizational meeting, which state Gannon received full payment, is a written contract for the purposes of the parol evidence rule, thus the parol evidence rule applies. Under the parol evidence rule, if an oral agreement was made before or at the same time as a written agreement, and if it contradicts the written agreement, a party may not offer evidence of the oral agreement. Albritton Development v. Glendon, 700 S.W.2d 244, 246 (Tex.App. — Houston [1st Dist.] 1985, writ ref’d n.r.e.). Without any evidence that Gannon read and adopted the minutes as an agreement, the majority transforms minutes into a contract.
In resolving this point of error, the majority cites Bowers Steel, Inc. v. DeBrooke, 557 S.W.2d 369, 372-73 (Tex.App. — San Antonio 1977, no writ). There are a number *803 of problems with relying on Bowers in this case. First, the majority states that Bowers “implicitly accepted the minutes of the meeting as a written contract for purposes of the parol evidence rule.” Nothing in Bowers says the corporate minutes could be a contract; the opinion states that the board of directors minutes ratified an earlier oral agreement, that is, implemented a plan to carry out the oral agreement. In our case, ratification plays no role.
Second, even if Bowers could be interpreted to hold that the corporate minutes amounted to a contract, to make that holding relevant here (remember: this is a summary judgment case), Baker as the movant would have to establish that, as a matter of law, that the minutes were the equivalent of a contract. In Bowers, the plaintiffs signed the minutes, and the court held the directors were bound by them. Here, neither Baker nor Gannon signed the minutes in our ease. In his motion for summary judgment, Baker alleges the corporate minutes are a written agreement between Baker and Gannon, without stating how or why. By affirming the judgment, today’s opinion holds that corporate minutes, unsigned by either party to this appeal, are, as a matter of law a contract.
Third, only if the minutes were as a matter of law a contract, does the issue of parol evidence arise. In its opinion, the majority holds that the minutes, Gannon’s affidavit, and the trust agreement show a written contract for the purpose of the parol evidence rule as to the corporation. Op. at 799. The corporation was not a party to this suit. Whether an agreement would bar evidence against a non-party is not a reason to bar the evidence as to the parties in the suit.
Fourth, the majority states that the minutes of the corporation amounted to a contract, not between the corporation and Gan-non, but between Baker and Gannon. By no stretch of the imagination can Bowers be interpreted to hold that the minutes of a corporation can act as a contract between two parties that do not include the corporation.
2. Undecided issues
In point of error 2, Gannon contends the trial court was not bound to accept the appraiser’s conclusions; in point of error 3, Gannon argues that the appraisers report was not conducted according to accepted methods. The majority declines to address either point, but does not state how it disposes of the point. I suspect the majority is reversing these points as part of the reversal for failure to file findings and conclusions. It is not clear if the points are reversed and remanded on the grounds it involves the findings of fact, or if the majority is really overruling the point of error. The issues should be clarified.
3. Final paragraph
In the final paragraph, the majority lists the parts of the case it affirms, and then it reverses and remands the remainder. Because the body of the opinion does not state the resolution of each point of error, the final paragraph does not assist anyone in determining how the Court has ruled. At the minimum, our opinions should state clearly how we resolve each point.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9666409. Public record. Not legal advice.