Preview
CLERK’S RECORD
Appellate Court Case Number 01‐22‐00808‐CV_
Volume ____5_______ of ____5_______
Trial Court Cause No. 19‐CV‐1003
In the Court 56th District Court
of Galveston County, Texas
Honorable Lonnie Cox Judge Presiding
_________________________________________________________________
A*Med Management, Inc. vs. Eutiva Thomas, Et Al
_________________________________________________________________
Appealed to the Court of Appeals for the First District of Texas, at, Houston, Texas
Attorney for Appellants(s): Sean Michael Reagan; Timothy A. Hootman
Address: The Reagan Law Firm
PO Box 79582, Houston TX 77279
2402 Pease St
Houston TX 77003
Telephone Number: 888‐550‐8575; 713‐247‐9548
Fax Number: 7135839523
E‐Mail Address: sean@reaganfirm.com; thootman2000@yahoo.com
State Bar of Texas Number: 24046689; 09965450
Name Of Appellant/s: A*Med Management, Inc., et al; Eutiva Thomas
Name of clerk preparing the clerk’s record: John D. Kinard, District Clerk of Galveston County, Texas
By /s/ : Shailja Dixit
2365
Case Number 19‐CV‐1003 ‐ 56th District Court
A*Med Management, Inc. vs. Eutiva Thomas, Et Al
Date Filed and Document Name Page#
Volume 1
2022‐11‐18_Title Page 1
2022‐11‐18_Index 2
2022‐11‐18_Caption 8
2019-06-03_Original Petition 9
2019-06-03_Temporary Restraining Order- OCA 56
2019-06-03_Order - Granting Plaintiff's Motion for Expediated Discovery 60
2019-07-01_Original Answer and Counterclaim 62
2019-07-05_Motion to Dismiss - Defendants' 71
2019-07-05_Motion - Motion to Dissolve Ex Parte Temporary Restraining Order 126
2019-07-08_Motion - Defendant's Motion to Dissolve Ex Parte TRO 182
2019-07-11_Response - Plaintiff's Response to Defendants' Motion to Dismiss 238
2019-07-11_Objection_Defendant's Objections to Response to Motion to Dismiss 345
2019-07-11_Motion for Leave 369
2019-07-11_Exhibit - Exhibit S to Plaintiff's Response to Motion to Dismiss 371
2019-07-11_Reply - Defendants' Reply to Plaintiff's Response 374
2019-07-11_Objection - Defendants' Objection and Response to Motion for Leave 390
2366
Case Number 19‐CV‐1003 ‐ Index on Appeal Continued
2019-11-12_Order Granting Temporary Injunction 413
2019-07-23_Notice of Filing - Defts' Request for Clarification of Temporary Injunction Order 418
2019-07-26_Request for Hearing 433
2019-07-31_Notice of Appeal 435
2019-08-05_Motion - Motion for Rehearing on Temporary Injunction 443
2019-09-09_Order Granting Motion to Withdrawal of Counsel 447
2019-10-07_Order -Order Regarding Temporary Injunction Order 448
2020-05-01_Order - Joint Stipulated Confidentiality Order 449
2020-05-08_Motion - Motion for Rehearing on Temp. Injunction Order 458
2020-05-11_Response - in Opposition to Motion to Remove or Terminate the Injunction 462
2020-05-19_Amended Answer - Second Amended Answer and Counterclaim 471
2020-06-02_Order - Regarding Temporary Injunction 479
2020-08-07_Jury Demand - Defendants' 481
2020-08-19_Third Party Petition 483
2020-09-14_Amended Petition - First 492
2020-09-17_Order Denying Motion for Leave 509
2020-09-30_Amended Petition - Second 512
2020-10-01_Amended Petition - Third 528
2020-10-29_Amended Answer - Third 543
2020-12-09_Motion for Summary Judgment 552
2020-12-09_Answer - Fourth Amended 556
2367
Case Number 19‐CV‐1003 ‐ Index on Appeal Continued
2020-12-22-_Motion for Summary Judgment - Plaintiff's Partial SJ against Defendant 565
2022-12-12_Clerk's Certificate 817
Volume 2
2022-11-18_Title Page 818
2022‐11‐18_Index 819
2022‐11‐18_Caption 825
2020-12-22_Answer- Fifth Amended Answer and Counterclaim 826
2020_12-22_Motion for Summary Judgment - Eutiva Thomas 838
2020-12-30_Amended Motion - Second Amended No Evidence Motion for Summary Judgment 855
2020-12-30_Amended Answer- Sixth Amended Answer and Counterclaim 859
2020-12-30_Amended Motion for Summary Judgment - Defendant's First Amended No 870
Evidence MSJ
2020-12-30_Exhibit - Exhibit C Part 1 - Defendant's First Amended MSJ 904
2020-12-30_Exhibit - Exhibit C Part 2 - Defendant's First Amended MSJ 919
2021-01-11_Response - Defendant’s Response to Plaintiffs' Motion for Summary Judgment 938
2021-01-11_Exhibit - Defendant’s Response to Plaintiffs' Motion for Summary Judgment 1022
2021-01-14_Response - Plaintiff's Response in Opposition to Amended No Evidence MSJ 1085
2021-01-14_Exhibit - Plaintiff's Response in Opposition to Amended No Evidence MSJ 1296
2021-01-19_Response - Defendant's Response to Plaintiffs' Reply to the Defendant's Motion for 1354
Partial MSJ
2021-02-09_Order Denying - Defendant's No Evidence MSJ as to Claims for Damage 1366
2021-02-09_Order Denying - Defendant's No-Evidence MSJ and Traditional Summary Judgment 1367
2368
Case Number 19‐CV‐1003 ‐ Index on Appeal Continued
2021-02-09_Order Denying - Plaintiff's Partial Summary Judgment 1368
2022-12-12_Clerk's Certificate 1369
Volume 3
2022-11-18_Title Page 1370
2022-11-18_Index 1371
2022-11-18_Caption 1377
2021-10-25_Amended Answer – Seventh Amended Answer and Counterclaim 1378
2021-12-15_Rule 11 Agreement 1432
2022-01-04_Motion for Summary Judgment -Defendant's 1435
2022-01-17_Amended Motion for Summary Judgment - Defendant's First Amended Motion for 1524
Partial MSJ
2022-12-12_Clerk's Certificate 1601
Volume 4
2022-11-18_Title Page 1602
2022-11-18_Index 1603
2022-11-18_Caption 1609
2022-01-17_Amended Answer – Eight Amended Answer and Counterclaim 1610
2022-01-17_Amended Answer – Plaintiff’s First Amended Answer 1664
2022-02-04_Response -Plaintiff’s Response to Defendant's Motion for Summary Judgment 1670
2022-02-07_Reply – Defendant’s Reply to First Amended Motion for Partial Summary Judgment 1724
2022-02-07_Amended Answer - Ninth Amended Answer and Counterclaim 1734
2369
Case Number 19‐CV‐1003 ‐ Index on Appeal Continued
2022-04-05_Amended Petition - Fourth 1791
2022-04-05_Answer - Plaintiff's Amended Answer to Ninth Amended Answer and Counterclaim 1810
2022-04-15_Response - Plaintiff's Amended Response to Motion for Summary Judgment 1816
2022-04-15_Motion for Summary Judgment - Plaintiffs' Partial Summary Judgment 2063
2022-04-18_Motion for Summary Judgment - Supplemental Motion for Partial Summary 2326
Judgment
2022-04-18_Answer - Tenth Amended Answer and Counterclaim 2336
2022-12-12_Clerk's Certificate 2364
Volume 5
2022-11-18_Title Page 2365
2022-11-18_Index 2366
2022-11-18_Caption 2372
2022-04-27_Order Denying -Defendant's Amended Motion for Partial Summary Judgment 2373
2022-05-03_Motion for Summary Judgment - Eutiva Thomas' Second Supplemental Motion for 2375
Partial Summary Judgment
2022-05-03_Motion for Summary Judgment 2384
2022-05-09_Answer - Eleventh Amended Answer and Counterclaim 2396
2022-06-16_Order Granting Summary Judgment -Non-Final 2423
2022-06-24_Motion to Sever 2426
2022-06-27_Objection - Objection to Motion to Sever 2489
2022-06-27_Motion - Motion for Rehearing on Rule 11 Agreement 2492
2022-06-27_Reply - Reply to Amed Motion to Sever 2518
2370
Case Number 19‐CV‐1003 ‐ Index on Appeal Continued
2022-06-29_Reply -Plaintiff's Reply in Support of Motion to Sever 2521
2022-07-05_Motion_Supplemental Motion to Deny Amed's Request for Attorney's Fees 2526
2022-07-08_Jury Charge and Verdict 2544
2022-07-08_Jury Communication to Court (2) 2558
2022-07-08_Jury Communication to Court (1) 2559
2022-07-12_Motion - Motion for Entry of Judgment 2560
2022-07-13_Motion - Plaintiffs' Motion for Entry of Final Judgment and Permanent Injunction 2570
2022-08-01_Response - Amed's Request for Permanent Injunction and Attorney's Fees 2665
2022-08-09_Judgment - Final - Jury Verdict-OCA 2683
2022-09-08_Motion for New Trial 2685
2022-10-12_Response - Response to Motion for Reconsideration of Final Judgment and in the 2708
Alternative Motion for New Trial
2022-10-17_Order Denying Motion - for Reconsideration of Motion for Entry of Judgment 2723
2022-10-28_Notice of Appeal 2724
2022-11-04_Notice of Appeal - Eutiva Thomas 2726
2022-11-10_Request for Clerk's Record on Appeal 2729
2022-12-12_Case Summary 2736
2022-12-12_Cost Bill 2774
2022-12-12_Clerk's Certificate 2778
2371
Appeal Caption
The State of Texas
County of Galveston
In 56th District Court at Galveston, Texas, within and for the County of Galveston, before the
Honorable Lonnie Cox, Judge thereof Presiding, the following case came on for trial, to-wit:
CASE NUMBER 19-CV-1003
A*Med Management, Inc. vs. Eutiva Thomas, Et Al
2372
r
Received
Received 4/21/20224:26
4/21/2022 4:26 PM V I
‘71
~
Envelope
Envelope No,
N6. 63793880
63793880
FiL.ED·
Cause No. 19-CV-I003
'
CauseNo.19-CV-1003
22 APR:Z7 PH : . '.'
_
A*MED MANAGEMENT, INC., INC., A*MED
§ IN THE ~STRI~~
IN DISTRICT COUl&S8
COU 'T“
HEALTH, INC. d/b/a §
A*MED
.')~~ \'~~ \l ~:. •.
’
d/b/a .
COMMUNITY HOSPICE, AND AMED § ,)gm .~
/'.,
.\
X
..-..>......
2&5‘
;. '. OISTR"
(3‘ng '.
A*MED ';~A[V£ST
‘
SERVICES, INC. d/b/a
d/b/a A §
*MED HOME .v-<.,GALvssro~ leT CLERK ';
??OTUgLERK
. ON C(JUNTY,TEXAS
.
*
TY. Texas-
HEALTH; §
Plaintiff,
Plaintiff, §
§ mmmmmwwmmmmmm
th JUDICIAL DISTRICT OF
v.
v. § 56
56th 0F
§
EUTIVA
EUTIV A THOMAS, THE PROVIDENCE §
INC., and §
HOME HEALTH SERVICES, INC.,
THE PROVIDENCE HOSPICE, INC. §
Defendants. § GALVESTON COUNTY, TEXAS
THOMAS’
ORDER DENYING DEFENDANT EUTIVA THOMAS'
AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT
On this
this day,
day, came to
t0 be heard
heard Defendant Eutiva
Eutiva Thomas'
Thomas’ Amended Motion for
for Partial
Partial
Summary Judgment Regarding the
the Settlement (the "Motion").
Settlement Agreement (the “‘Motion”). The Court,
Court, having
having
considered the
the Motion, evidence, and arguments of counsel,
Motion, evidence, counsel, if
if any,
any, finds
finds as
as follows:
follows:
The June 6,
6, 2021,
2021, Rule 11
1 1 Agreement between the
the Plaintiffs
Plaintiffs and
and Defendant
Defendant Eutiva
Eutiva Thomas
is not
is not an
an enforceable
enforceable contract
contract as
as aa matter
matter 0f
of law.
law.
Court is
The Court is therefore
therefore of
of the
the opinion
opinion that
that Defendant’s
Defendant's Motion
Motion should
should be
be DENIED.
IS, THEREFORE, ORDERED that
IT IS, that Defendant
Defendant Eutiva
Eutiva Thomas’s
Thomas's Motion
Motion is
is DENIED
in its
in its entirety.
entirety.
SIGNED 0n
on this
this _----=J~l___ day of----';y~_I_--------,
_------"J_1
2., Of~;Y~-I- M
_ _ _ _ _ _ _ _ ' 2022.
day of
,
,
2022.
JUDGE PRESIDING /
f
19-CV-1003
19—61—1003
DCORDENY
DCOBDENY
Order Denying
Denying
'
Order
'I irni
mumuuwmmnmmm
111111111111111" 111111\\11
2373
.
AGREED AS TO FORM AND SUBSTANCE:
& Associates
Johnson & Associates
Attorneys
Attorneys at
at Law, PLLC
By: lsi
By: /s/ Christopher
Christopher L.L. Johnson
Christopher
Christopher L. L. Johnson
Texas State
State Bar No. 24069999
chris@Johnson-Attomeys.com
Morgan A. A. Jenkins
Jenkins
Texas State
State Bar No.
No. 24106141
241 06141
morgan@Johnson-Attorneys.com
m0rgan@Johnson—Attorneys.com
303
303 East
East Main Street,
Street, Suite
Suite 100
League City,
City, Texas 77573
Main:281-895-2410
Mainz281-895-2410
Fax:
Fax: 409-263-1020
COUNSEL FOR PLAINTIFFS
2
2374
Filed: 5/3/2022 3:22 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 64115856
CAUSE NO. 19-CV-1003 By: Rolande Kain
5/3/2022 8:48 AM
A*MED MANAGEMENT, INC. §
Plaintiff § IN THE DISTRICT COURT
§
v. §
§ 56TH JUDICIAL DISTRICT
EUTIVA THOMAS, THE §
PROVIDENCE HOME HEALTH §
SERVICES, INC., and THE § GALVESTON COUNTY, TEXAS
PROVIDENCE HOSPICE, INC. §
EUVITA THOMAS’ SECOND SUPPLEMENTAL MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING THE RULE 11 SETTLEMENT
AGREEMENT
AND
RESPONSE TO AMED’S MOTION FOR PARTIAL SUMMARY
JUDGMENT
Eutiva Thomas asks the Court to consider this second supplemental Motion for Summary
Judgment file by Eutiva Thomas as both a supplement to Eutiva Thomas’s Motion for Summary
Judgment and a supplemental response to AMED’s Motion for Summary Judgment.
EXAMINATION OF RELEVANT EVIDENCE TO DETERMINE (1) WAS THE
RULE 11 AN ENFORCEABLE CONTRACT, AND, (2) WAS AMED’S BREACH
EXCUSED BY THOMAS’ REPUDIATION
The argument of anything outside of the four corners of the documents is irrelevant and improper
Further any argument that Ms. Thomas in performing duties and obligations for her then current
employer, prior to ever beginning performance under the Rule 11 Agreement is irrelevant.
Although there were arguments of breach by THOMAS there was never any attempt to show that
any “breach” by THOMAS was material. In fact the evidence was to the contrary.
There was never any evidence presented to the Court that raised to the standard of
communication clarity of providing AMED any evidence that THOMAS unconditionally refuses to
perform the contract. Id.; Jenkins v. Jenkins, 991 S.W.2d 440, 447 (Tex.App.Fort Worth 1999, pet.
denied); see Hauglum v. Durst, 769 S.W.2d 646, 651 (Tex.App - Corpus Christi 1989, no writ). The
1
2375
intention to abandon a contract must be expressed in positive and unconditional terms. Pollack
v. Pollack, 39 S.W.2d 853, 856–57 (Tex. Comm’n App. 1931, holding approved).
No such evidence was ever presented. The only thing presented by AMED was argument
of counsel as to AMED’s interpretation of THOMAS completing her last day of employment
with Resolutions Hospice.
EXAMINATION OF THE CONTRACT TERMS AND BEST EFFORTS
The Rule 11 Agreement contained the “ESSENTIAL TERMS” of the settlement agreement
which is admitted to by AMED. The Rule 11 Agreement contained 5 paragraphs for the duties and
obligations of THOMAS. AMED made the argument in response for the first time in oral argument that
the Rule 11 failed because it utilized the term “best efforts” and improperly represented the contents of
the Rule 11 as well as the law regarding the use of “best efforts” in contracts.
ONLY ONE OF THE FIVE PARAGRAPHS DESCRIBING THOMAS’ WORK
UTILIZED THE TERM “BEST EFFORTS”
Breaking down each of the five paragraphs we see that the term “BEST EFFORTS” only
appears in one of the five paragraphs which outline Ms. Thomas’ duties and objectives as an
independent contractor/consultant for AMED:
i. “Use her best efforts to re-secure or stabilize previous and existing referral
to AMED;”
ii. “Consult on and assist with business development and marketing strategies,
which the parties expect to average 16 hours per week of Thomas' time.
Time toward those 16 hours will include Thomas being present within,
communicating to, or working with the community, being a positive voice
for utilizing A*Med for clients/patients and for working with A*Med as a
marketer.”
iii. “Assist in the evaluation, training and recruitment of existing and
prospective marketers including advising AMed of and contacting those
marketers when appropriate to determine if they have an interest in working
2
2376
for AMed.”
iv. “Assist in forming a hiring strategy, training strategy and employment
atmosphere that allows the best marketers to be attracted to AMed and to be
retained by AMed.”
v. “Review marketing materials as request and suggest improvement where
appropriate.”
LAW REGARDING THE TERM ‘BEST EFFORTS”
Courts enforce contractual best efforts clauses in a wide variety of circumstances. See E.
Farnsworth, Farnsworth on Contracts ( 7.17c (2d ed. 2001) (stating it is no longer the case that
"a duty defined only in terms of best efforts is too indefinite to be enforceable)1 (citations
omitted); Kenneth A. Adams, Understanding "Best Efforts" and Its Variants (Including Drafting
Recommendations), 50 No. 4 Practical Lawyer, Aug. 2004, at 17 (noting courts in most
jurisdictions have held best efforts clauses enforceable).
1
DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160, 2012 Tex. App. LEXIS 1489, 2012 WL
602864, 2012 WL 602864
3
2377
Quoting from Daimler Chrysler2 the Court stated:
"Whatever the test of best efforts, there is no question but that courts
today regard the standard of best efforts—like that of good faith—as
a workable standard in a variety of circumstances." E. Farnsworth, On
Trying to Keep One's Promises: The Duty of Best Efforts in Contract
Law, 46 U. Pitt. L. Rev. 1, 12 (1984).
“Courts construing a best efforts provision that does not specify the
performance to be required commonly hold the promisor to the
standard of the diligence a reasonable person would use under the
circumstances. See, e.g., CKB & Assoc., Inc. v. Moore McCormack
Petroleum, Inc., 809 S.W.2d 577, 578 (Tex. App.—Dallas 1991, writ
denied) (op. on reh'g) (comparing performance of best efforts with that of
average prudent operator in light of circumstances of case); see also Bloor
v. Falstaff Brewing Corp., 601 F.2d 609, 614-15 (2d Cir. 1979) (holding
licensor could not treat licensee(s brands less favorably than its own); Van
Valkenburgh, Nooger & Neville, Inc. v. Hayden Publ'g Co., 30 N.Y.2d 34,
281 N.E.2d 142, 144, 330 N.Y.S.2d 329 (1972) (holding publisher who
promised best efforts to promote author's book not restricted from also
promoting competing series); Farnsworth, 46 U. Pitt. L. Rev. at 7-8 ("Best
efforts is a standard that has diligence as its essence . . . .").3
“Moreover, other courts have held enforceable "best efforts" requirements
in contracts that contained none of the defining language in Herrmann
Holdings. See, e.g., First Union Nat'l Bank v. Steele Software Sys. Corp.,
154 Md. App. 97, 838 A.2d 404, 428-29, 433, 448 (Md. App. 2003)
(holding "best efforts" is a standard in and of itself and is therefore
enforceable, noting that even where "best efforts" is not defined it is
"a standard that has diligence as its essence" and a term that "takes
its meaning from the circumstances"); see also Coady Corp. v. Toyota
Motor Dist., Inc., 361 F.3d 50, 59 (1st Cir. 2004) ("Best efforts” is
implicitly qualified by a reasonableness test—it cannot mean everything
possible under the sun.") (citing Macksey v. Egan, 36 Mass. App. Ct. 463,
2
DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160, 2012 Tex. App. LEXIS 1489, 2012 WL
602864, 2012 WL 602864
3
DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160, 2012 Tex. App. LEXIS 1489, 2012 WL
602864, 2012 WL 602864
4
2378
633 N.E.2d 408, 413 & n.16 (Mass. App. Ct. 1994)); Baron Fin. Corp. v.
Natanzon, 509 F. Supp. 2d 501, 513-14 (D. Md. 2007) (applying
Maryland law and holding best efforts clause enforceable and defined in
terms of reasonableness highly dependent upon surrounding
circumstances); Mark P. Gergen, The Use of Open Terms in Contract, 92
Columbia L. Rev. 997, 1000 (1992) ("Best efforts clauses and other
terms that require a party to use reasonable diligence in performance
are obviously like a negligence rule.").
But even if the Court were to consider the argument as made in CKB &
Associates., Inc.4 the “i” qualifies as having a standard of performance because it states
the objective which was to “to re-secure or stabilize previous and existing referral to AMED.”
The phrase specifically identifies the objective which was to re-secure or stabilize referral sources
to AMED. It states an identifiable objective and therefore the defines the measurable objective
by which performance can be judged.
Even though it does contain a standard the issues of did her performance meet that
standard would be viewed in terms of did Ms. Thomas use "reasonable efforts" to fulfill its
[her]contractual duties is usually a question of fact for the jury.Fingold v. Cook, 902 S.W.2d
579, 582 (Tex. App.—Houston [1st Dist.] 1995, writ denied); see also DaimlerChrysler Motors
Co. v. Manuel, 362 S.W.3d 160, 174 (Tex. App.—Fort Worth 2012, no pet.) ("Whether a
contractual best efforts obligation has been met or fulfilled is usually a question of fact because
it is heavily dependent upon the particular circumstances of the case."). Fingold demonstrates the
fact-intensive nature of the inquiry. 902 S.W.2d at 580.5
It is absolutely impossible for there to be a fact issues on whether or not Tiva
Thomas utilized her best efforts to “re-secure or stabilize previous and existing referral to
AMED” is not at issue in this case because she was never given the opportunity to
4
CKB & Assoc., Inc. v. Moore McCormack Petroleum, Inc.
TX Court of Appeals and Court of Civil Appeals Cases from 1892 Court of Appeals of Texas, Fifth District,
Dallas Apr 23, 1991 809 S.W.2d 577
5
Kim v. Ahn, 2012 Tex. App. LEXIS 8550, *19-20, 2012 WL 4857356
5
2379
perform because AMED breached the Rule 11 Agreement. She was never allowed to
start work.
“BEST EFFORTS” INTERPRETED IN LIGHT OF THE ENTIRE AGREEMENT
The very purpose of the Rule 11 Agreement is to increase AMED’s business and to get back
business which has been lost to other companies. The very essence of the ii through v, when undertaken
by THOMAS are intended to and do accomplish the goal of improving AMED’s market share of the
business. When the standard of “best efforts” is interpreted in light of the entire contract it is a simple
statement of a goal which is definable and measurable because AMED knows the referral sources that
refer business. Ultimately, the issues of “best efforts” would have been a possible jury questions if
AMED had but given THOMAS an opportunity to perform.
CONTRACT INTERPRETATION
Our primary goal when construing an instrument is to give effect to the intent of the parties. 6We
ascertain that intent from the language of the contract,7 as a matter of law and without resort to parol
evidence unless the contract is ambiguous.8 Parenthetically, when, as here, neither party contends the
instrument is ambiguous, its construction must be resolved as a question of law.9 In construing the
instrument, we must consider and attempt to give effect to all of it,10 while mindful of the intentions
existing when it was executed. 11The ultimate restraint is that a court cannot, through the construction
process, make a new contract for the parties, one they did not make. 12
6
Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex. 1962).
7
R & P Enterprises v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 519 (Tex. 1980)
8
Caviness Packing Co., Inc. v. Corbett, 587 S.W.2d 543, 546 (Tex.Civ.App. -- Amarillo 1979, writ ref'd n.r.e.).
9
City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968)
10
Southland Royalty Co. v. Pan American Petro. Corp. , 378 S.W.2d 50, 57 (Tex. 1964)
11
First Nat. Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 148 (Tex.Civ.App. -- Tyler 1979, writ ref'd n.r.e.).
12
Neece v. A.A.A. Realty Co., 159 Tex. 403, 322 S.W.2d 597, 600 (1959).
6
2380
CONCLUSION AND ARGUMENT
The use of the term “best efforts” in “i” is an acceptable and viable contract term and should be
interpreted not nullify an entire contract but interpreted in a manner consistent with the entire contract.
When “i” is read and interpreted in light of the entire contract, and especially in light of “ii – v” is must be
interpreted as the use of reasonable diligence. But even if the Court requires some standard of
performance as to “i” the sentence itself, states a very specific goal for the measurement of performance:
“to re-secure or stabilize previous and existing referral to AMED.”;
If Ms. Thomas had ever been given the opportunity to perform then the sufficiency of the
performance would have been a fact question.
Respectfully submitted,
TOM A. DICKENS
6341 Stewart Road, #265
Galveston, TX 77551
Tel: (281) 924-8786
By:
TOM DICKENS
State Bar No. 05820800
tomdickenslaw@gmail.com
Attorney for Defendant Thomas
7
2381
CERTIFICATE OF SERVICE
A true and correct copy of this motion was served via electronic filing to all attorneys of record on May 3,
2022.
By:
TOM DICKENS
8
2382
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Tom Dickens on behalf of Tom Dickens
Bar No. 5820800
TomDickensLaw@gmail.com
Envelope ID: 64115856
Status as of 5/3/2022 8:49 AM CST
Associated Case Party: A*Med Management, Inc.
Name BarNumber Email TimestampSubmitted Status
Brandon J.Evans Brandon@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT
Ashley N.Shepherd Ashley@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT
Colleen McCracken Colleen@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT
Jordan Corn jordan@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT
Morgan A.Jenkins Morgan@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT
Nancy Olney nancy@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT
Christopher L.Johnson chris@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT
Associated Case Party: Eutiva Thomas
Name BarNumber Email TimestampSubmitted Status
Eutiva Thomas tivathomas@yahoo.com 5/3/2022 3:22:40 AM SENT
Tom Dickens TomDickensLaw@gmail.com 5/3/2022 3:22:40 AM SENT
Tom Dickens tomdickenslaw@gmail.com 5/3/2022 3:22:40 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Mark StephenKennedy mark@markkennedylaw.com 5/3/2022 3:22:40 AM SENT
Susan Borgsmiller susan@markkennedylaw.com 5/3/2022 3:22:40 AM SENT
Daniel Barrera dbarrera@txlegalmal.com 5/3/2022 3:22:40 AM SENT
Anita Malone records@lexitaslegal.com 5/3/2022 3:22:40 AM SENT
Daniel Barrera dbarrera@txlegalmal.com 5/3/2022 3:22:40 AM SENT
Joanna HojdusMartin joanna@markkennedylaw.com 5/3/2022 3:22:40 AM ERROR
2383
Filed: 5/3/2022 3:22 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 64115856
By: Rolande Kain
5/3/2022 8:48 AM
CAUSE NO. 19-CV-1003
A*MED MANAGEMENT, INC. §
Plaintiff § IN THE DISTRICT COURT
§
v. §
§ 56TH JUDICIAL DISTRICT
EUTIVA THOMAS, THE §
PROVIDENCE HOME HEALTH §
SERVICES, INC., and THE § GALVESTON COUNTY, TEXAS
PROVIDENCE HOSPICE, INC. §
EUVITA THOMAS’ MOTION FOR SUMMARY JUDGMENT
THE NONCOMPETE AGREEMENT UNENFORCEABLE BECAUSE IT WAS NOT
EXECUTED ANCILLARY TO AN OTHERWISE ENFORCEABLE AGREEMENT
Eutiva Thomas asks the Court to enter a Summary Judgement based on a question of law. The
Non-Compete Agreement was not ancillary to an otherwise enforceable agreement and is therefore
unenforceable as a matter of law. The Non-Compete Non-Solicitation Agreement is attached
hereto.
INTRODUCTION
Plaintiffs are A*Med Management, Inc., A*Med Health, Inc. d/b/a A*Med
Community Hospice, and A*Med Services, Inc. d/b/a A*Med Home Health.
Plaintiff sued defendant for EUTIVA THOMAS,
Preview
CLERK’S RECORD Appellate Court Case Number 01‐22‐00808‐CV_ Volume ____5_______ of ____5_______ Trial Court Cause No. 19‐CV‐1003 In the Court 56th District Court of Galveston County, Texas Honorable Lonnie Cox Judge Presiding _________________________________________________________________ A*Med Management, Inc. vs. Eutiva Thomas, Et Al _________________________________________________________________ Appealed to the Court of Appeals for the First District of Texas, at, Houston, Texas Attorney for Appellants(s): Sean Michael Reagan; Timothy A. Hootman Address: The Reagan Law Firm PO Box 79582, Houston TX 77279 2402 Pease St Houston TX 77003 Telephone Number: 888‐550‐8575; 713‐247‐9548 Fax Number: 7135839523 E‐Mail Address: sean@reaganfirm.com; thootman2000@yahoo.com State Bar of Texas Number: 24046689; 09965450 Name Of Appellant/s: A*Med Management, Inc., et al; Eutiva Thomas Name of clerk preparing the clerk’s record: John D. Kinard, District Clerk of Galveston County, Texas By /s/ : Shailja Dixit 2365 Case Number 19‐CV‐1003 ‐ 56th District Court A*Med Management, Inc. vs. Eutiva Thomas, Et Al Date Filed and Document Name Page# Volume 1 2022‐11‐18_Title Page 1 2022‐11‐18_Index 2 2022‐11‐18_Caption 8 2019-06-03_Original Petition 9 2019-06-03_Temporary Restraining Order- OCA 56 2019-06-03_Order - Granting Plaintiff's Motion for Expediated Discovery 60 2019-07-01_Original Answer and Counterclaim 62 2019-07-05_Motion to Dismiss - Defendants' 71 2019-07-05_Motion - Motion to Dissolve Ex Parte Temporary Restraining Order 126 2019-07-08_Motion - Defendant's Motion to Dissolve Ex Parte TRO 182 2019-07-11_Response - Plaintiff's Response to Defendants' Motion to Dismiss 238 2019-07-11_Objection_Defendant's Objections to Response to Motion to Dismiss 345 2019-07-11_Motion for Leave 369 2019-07-11_Exhibit - Exhibit S to Plaintiff's Response to Motion to Dismiss 371 2019-07-11_Reply - Defendants' Reply to Plaintiff's Response 374 2019-07-11_Objection - Defendants' Objection and Response to Motion for Leave 390 2366 Case Number 19‐CV‐1003 ‐ Index on Appeal Continued 2019-11-12_Order Granting Temporary Injunction 413 2019-07-23_Notice of Filing - Defts' Request for Clarification of Temporary Injunction Order 418 2019-07-26_Request for Hearing 433 2019-07-31_Notice of Appeal 435 2019-08-05_Motion - Motion for Rehearing on Temporary Injunction 443 2019-09-09_Order Granting Motion to Withdrawal of Counsel 447 2019-10-07_Order -Order Regarding Temporary Injunction Order 448 2020-05-01_Order - Joint Stipulated Confidentiality Order 449 2020-05-08_Motion - Motion for Rehearing on Temp. Injunction Order 458 2020-05-11_Response - in Opposition to Motion to Remove or Terminate the Injunction 462 2020-05-19_Amended Answer - Second Amended Answer and Counterclaim 471 2020-06-02_Order - Regarding Temporary Injunction 479 2020-08-07_Jury Demand - Defendants' 481 2020-08-19_Third Party Petition 483 2020-09-14_Amended Petition - First 492 2020-09-17_Order Denying Motion for Leave 509 2020-09-30_Amended Petition - Second 512 2020-10-01_Amended Petition - Third 528 2020-10-29_Amended Answer - Third 543 2020-12-09_Motion for Summary Judgment 552 2020-12-09_Answer - Fourth Amended 556 2367 Case Number 19‐CV‐1003 ‐ Index on Appeal Continued 2020-12-22-_Motion for Summary Judgment - Plaintiff's Partial SJ against Defendant 565 2022-12-12_Clerk's Certificate 817 Volume 2 2022-11-18_Title Page 818 2022‐11‐18_Index 819 2022‐11‐18_Caption 825 2020-12-22_Answer- Fifth Amended Answer and Counterclaim 826 2020_12-22_Motion for Summary Judgment - Eutiva Thomas 838 2020-12-30_Amended Motion - Second Amended No Evidence Motion for Summary Judgment 855 2020-12-30_Amended Answer- Sixth Amended Answer and Counterclaim 859 2020-12-30_Amended Motion for Summary Judgment - Defendant's First Amended No 870 Evidence MSJ 2020-12-30_Exhibit - Exhibit C Part 1 - Defendant's First Amended MSJ 904 2020-12-30_Exhibit - Exhibit C Part 2 - Defendant's First Amended MSJ 919 2021-01-11_Response - Defendant’s Response to Plaintiffs' Motion for Summary Judgment 938 2021-01-11_Exhibit - Defendant’s Response to Plaintiffs' Motion for Summary Judgment 1022 2021-01-14_Response - Plaintiff's Response in Opposition to Amended No Evidence MSJ 1085 2021-01-14_Exhibit - Plaintiff's Response in Opposition to Amended No Evidence MSJ 1296 2021-01-19_Response - Defendant's Response to Plaintiffs' Reply to the Defendant's Motion for 1354 Partial MSJ 2021-02-09_Order Denying - Defendant's No Evidence MSJ as to Claims for Damage 1366 2021-02-09_Order Denying - Defendant's No-Evidence MSJ and Traditional Summary Judgment 1367 2368 Case Number 19‐CV‐1003 ‐ Index on Appeal Continued 2021-02-09_Order Denying - Plaintiff's Partial Summary Judgment 1368 2022-12-12_Clerk's Certificate 1369 Volume 3 2022-11-18_Title Page 1370 2022-11-18_Index 1371 2022-11-18_Caption 1377 2021-10-25_Amended Answer – Seventh Amended Answer and Counterclaim 1378 2021-12-15_Rule 11 Agreement 1432 2022-01-04_Motion for Summary Judgment -Defendant's 1435 2022-01-17_Amended Motion for Summary Judgment - Defendant's First Amended Motion for 1524 Partial MSJ 2022-12-12_Clerk's Certificate 1601 Volume 4 2022-11-18_Title Page 1602 2022-11-18_Index 1603 2022-11-18_Caption 1609 2022-01-17_Amended Answer – Eight Amended Answer and Counterclaim 1610 2022-01-17_Amended Answer – Plaintiff’s First Amended Answer 1664 2022-02-04_Response -Plaintiff’s Response to Defendant's Motion for Summary Judgment 1670 2022-02-07_Reply – Defendant’s Reply to First Amended Motion for Partial Summary Judgment 1724 2022-02-07_Amended Answer - Ninth Amended Answer and Counterclaim 1734 2369 Case Number 19‐CV‐1003 ‐ Index on Appeal Continued 2022-04-05_Amended Petition - Fourth 1791 2022-04-05_Answer - Plaintiff's Amended Answer to Ninth Amended Answer and Counterclaim 1810 2022-04-15_Response - Plaintiff's Amended Response to Motion for Summary Judgment 1816 2022-04-15_Motion for Summary Judgment - Plaintiffs' Partial Summary Judgment 2063 2022-04-18_Motion for Summary Judgment - Supplemental Motion for Partial Summary 2326 Judgment 2022-04-18_Answer - Tenth Amended Answer and Counterclaim 2336 2022-12-12_Clerk's Certificate 2364 Volume 5 2022-11-18_Title Page 2365 2022-11-18_Index 2366 2022-11-18_Caption 2372 2022-04-27_Order Denying -Defendant's Amended Motion for Partial Summary Judgment 2373 2022-05-03_Motion for Summary Judgment - Eutiva Thomas' Second Supplemental Motion for 2375 Partial Summary Judgment 2022-05-03_Motion for Summary Judgment 2384 2022-05-09_Answer - Eleventh Amended Answer and Counterclaim 2396 2022-06-16_Order Granting Summary Judgment -Non-Final 2423 2022-06-24_Motion to Sever 2426 2022-06-27_Objection - Objection to Motion to Sever 2489 2022-06-27_Motion - Motion for Rehearing on Rule 11 Agreement 2492 2022-06-27_Reply - Reply to Amed Motion to Sever 2518 2370 Case Number 19‐CV‐1003 ‐ Index on Appeal Continued 2022-06-29_Reply -Plaintiff's Reply in Support of Motion to Sever 2521 2022-07-05_Motion_Supplemental Motion to Deny Amed's Request for Attorney's Fees 2526 2022-07-08_Jury Charge and Verdict 2544 2022-07-08_Jury Communication to Court (2) 2558 2022-07-08_Jury Communication to Court (1) 2559 2022-07-12_Motion - Motion for Entry of Judgment 2560 2022-07-13_Motion - Plaintiffs' Motion for Entry of Final Judgment and Permanent Injunction 2570 2022-08-01_Response - Amed's Request for Permanent Injunction and Attorney's Fees 2665 2022-08-09_Judgment - Final - Jury Verdict-OCA 2683 2022-09-08_Motion for New Trial 2685 2022-10-12_Response - Response to Motion for Reconsideration of Final Judgment and in the 2708 Alternative Motion for New Trial 2022-10-17_Order Denying Motion - for Reconsideration of Motion for Entry of Judgment 2723 2022-10-28_Notice of Appeal 2724 2022-11-04_Notice of Appeal - Eutiva Thomas 2726 2022-11-10_Request for Clerk's Record on Appeal 2729 2022-12-12_Case Summary 2736 2022-12-12_Cost Bill 2774 2022-12-12_Clerk's Certificate 2778 2371 Appeal Caption The State of Texas County of Galveston In 56th District Court at Galveston, Texas, within and for the County of Galveston, before the Honorable Lonnie Cox, Judge thereof Presiding, the following case came on for trial, to-wit: CASE NUMBER 19-CV-1003 A*Med Management, Inc. vs. Eutiva Thomas, Et Al 2372 r Received Received 4/21/20224:26 4/21/2022 4:26 PM V I ‘71 ~ Envelope Envelope No, N6. 63793880 63793880 FiL.ED· Cause No. 19-CV-I003 ' CauseNo.19-CV-1003 22 APR:Z7 PH : . '.' _ A*MED MANAGEMENT, INC., INC., A*MED § IN THE ~STRI~~ IN DISTRICT COUl&S8 COU 'T“ HEALTH, INC. d/b/a § A*MED .')~~ \'~~ \l ~:. •. ’ d/b/a . COMMUNITY HOSPICE, AND AMED § ,)gm .~ /'., .\ X ..-..>...... 2&5‘ ;. '. OISTR" (3‘ng '. A*MED ';~A[V£ST ‘ SERVICES, INC. d/b/a d/b/a A § *MED HOME .v-<.,GALvssro~ leT CLERK '; ??OTUgLERK . ON C(JUNTY,TEXAS . * TY. Texas- HEALTH; § Plaintiff, Plaintiff, § § mmmmmwwmmmmmm th JUDICIAL DISTRICT OF v. v. § 56 56th 0F § EUTIVA EUTIV A THOMAS, THE PROVIDENCE § INC., and § HOME HEALTH SERVICES, INC., THE PROVIDENCE HOSPICE, INC. § Defendants. § GALVESTON COUNTY, TEXAS THOMAS’ ORDER DENYING DEFENDANT EUTIVA THOMAS' AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT On this this day, day, came to t0 be heard heard Defendant Eutiva Eutiva Thomas' Thomas’ Amended Motion for for Partial Partial Summary Judgment Regarding the the Settlement (the "Motion"). Settlement Agreement (the “‘Motion”). The Court, Court, having having considered the the Motion, evidence, and arguments of counsel, Motion, evidence, counsel, if if any, any, finds finds as as follows: follows: The June 6, 6, 2021, 2021, Rule 11 1 1 Agreement between the the Plaintiffs Plaintiffs and and Defendant Defendant Eutiva Eutiva Thomas is not is not an an enforceable enforceable contract contract as as aa matter matter 0f of law. law. Court is The Court is therefore therefore of of the the opinion opinion that that Defendant’s Defendant's Motion Motion should should be be DENIED. IS, THEREFORE, ORDERED that IT IS, that Defendant Defendant Eutiva Eutiva Thomas’s Thomas's Motion Motion is is DENIED in its in its entirety. entirety. SIGNED 0n on this this _----=J~l___ day of----';y~_I_--------, _------"J_1 2., Of~;Y~-I- M _ _ _ _ _ _ _ _ ' 2022. day of , , 2022. JUDGE PRESIDING / f 19-CV-1003 19—61—1003 DCORDENY DCOBDENY Order Denying Denying ' Order 'I irni mumuuwmmnmmm 111111111111111" 111111\\11 2373 . AGREED AS TO FORM AND SUBSTANCE: & Associates Johnson & Associates Attorneys Attorneys at at Law, PLLC By: lsi By: /s/ Christopher Christopher L.L. Johnson Christopher Christopher L. L. Johnson Texas State State Bar No. 24069999 chris@Johnson-Attomeys.com Morgan A. A. Jenkins Jenkins Texas State State Bar No. No. 24106141 241 06141 morgan@Johnson-Attorneys.com m0rgan@Johnson—Attorneys.com 303 303 East East Main Street, Street, Suite Suite 100 League City, City, Texas 77573 Main:281-895-2410 Mainz281-895-2410 Fax: Fax: 409-263-1020 COUNSEL FOR PLAINTIFFS 2 2374 Filed: 5/3/2022 3:22 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 64115856 CAUSE NO. 19-CV-1003 By: Rolande Kain 5/3/2022 8:48 AM A*MED MANAGEMENT, INC. § Plaintiff § IN THE DISTRICT COURT § v. § § 56TH JUDICIAL DISTRICT EUTIVA THOMAS, THE § PROVIDENCE HOME HEALTH § SERVICES, INC., and THE § GALVESTON COUNTY, TEXAS PROVIDENCE HOSPICE, INC. § EUVITA THOMAS’ SECOND SUPPLEMENTAL MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING THE RULE 11 SETTLEMENT AGREEMENT AND RESPONSE TO AMED’S MOTION FOR PARTIAL SUMMARY JUDGMENT Eutiva Thomas asks the Court to consider this second supplemental Motion for Summary Judgment file by Eutiva Thomas as both a supplement to Eutiva Thomas’s Motion for Summary Judgment and a supplemental response to AMED’s Motion for Summary Judgment. EXAMINATION OF RELEVANT EVIDENCE TO DETERMINE (1) WAS THE RULE 11 AN ENFORCEABLE CONTRACT, AND, (2) WAS AMED’S BREACH EXCUSED BY THOMAS’ REPUDIATION The argument of anything outside of the four corners of the documents is irrelevant and improper Further any argument that Ms. Thomas in performing duties and obligations for her then current employer, prior to ever beginning performance under the Rule 11 Agreement is irrelevant. Although there were arguments of breach by THOMAS there was never any attempt to show that any “breach” by THOMAS was material. In fact the evidence was to the contrary. There was never any evidence presented to the Court that raised to the standard of communication clarity of providing AMED any evidence that THOMAS unconditionally refuses to perform the contract. Id.; Jenkins v. Jenkins, 991 S.W.2d 440, 447 (Tex.App.Fort Worth 1999, pet. denied); see Hauglum v. Durst, 769 S.W.2d 646, 651 (Tex.App - Corpus Christi 1989, no writ). The 1 2375 intention to abandon a contract must be expressed in positive and unconditional terms. Pollack v. Pollack, 39 S.W.2d 853, 856–57 (Tex. Comm’n App. 1931, holding approved). No such evidence was ever presented. The only thing presented by AMED was argument of counsel as to AMED’s interpretation of THOMAS completing her last day of employment with Resolutions Hospice. EXAMINATION OF THE CONTRACT TERMS AND BEST EFFORTS The Rule 11 Agreement contained the “ESSENTIAL TERMS” of the settlement agreement which is admitted to by AMED. The Rule 11 Agreement contained 5 paragraphs for the duties and obligations of THOMAS. AMED made the argument in response for the first time in oral argument that the Rule 11 failed because it utilized the term “best efforts” and improperly represented the contents of the Rule 11 as well as the law regarding the use of “best efforts” in contracts. ONLY ONE OF THE FIVE PARAGRAPHS DESCRIBING THOMAS’ WORK UTILIZED THE TERM “BEST EFFORTS” Breaking down each of the five paragraphs we see that the term “BEST EFFORTS” only appears in one of the five paragraphs which outline Ms. Thomas’ duties and objectives as an independent contractor/consultant for AMED: i. “Use her best efforts to re-secure or stabilize previous and existing referral to AMED;” ii. “Consult on and assist with business development and marketing strategies, which the parties expect to average 16 hours per week of Thomas' time. Time toward those 16 hours will include Thomas being present within, communicating to, or working with the community, being a positive voice for utilizing A*Med for clients/patients and for working with A*Med as a marketer.” iii. “Assist in the evaluation, training and recruitment of existing and prospective marketers including advising AMed of and contacting those marketers when appropriate to determine if they have an interest in working 2 2376 for AMed.” iv. “Assist in forming a hiring strategy, training strategy and employment atmosphere that allows the best marketers to be attracted to AMed and to be retained by AMed.” v. “Review marketing materials as request and suggest improvement where appropriate.” LAW REGARDING THE TERM ‘BEST EFFORTS” Courts enforce contractual best efforts clauses in a wide variety of circumstances. See E. Farnsworth, Farnsworth on Contracts ( 7.17c (2d ed. 2001) (stating it is no longer the case that "a duty defined only in terms of best efforts is too indefinite to be enforceable)1 (citations omitted); Kenneth A. Adams, Understanding "Best Efforts" and Its Variants (Including Drafting Recommendations), 50 No. 4 Practical Lawyer, Aug. 2004, at 17 (noting courts in most jurisdictions have held best efforts clauses enforceable). 1 DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160, 2012 Tex. App. LEXIS 1489, 2012 WL 602864, 2012 WL 602864 3 2377 Quoting from Daimler Chrysler2 the Court stated: "Whatever the test of best efforts, there is no question but that courts today regard the standard of best efforts—like that of good faith—as a workable standard in a variety of circumstances." E. Farnsworth, On Trying to Keep One's Promises: The Duty of Best Efforts in Contract Law, 46 U. Pitt. L. Rev. 1, 12 (1984). “Courts construing a best efforts provision that does not specify the performance to be required commonly hold the promisor to the standard of the diligence a reasonable person would use under the circumstances. See, e.g., CKB & Assoc., Inc. v. Moore McCormack Petroleum, Inc., 809 S.W.2d 577, 578 (Tex. App.—Dallas 1991, writ denied) (op. on reh'g) (comparing performance of best efforts with that of average prudent operator in light of circumstances of case); see also Bloor v. Falstaff Brewing Corp., 601 F.2d 609, 614-15 (2d Cir. 1979) (holding licensor could not treat licensee(s brands less favorably than its own); Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publ'g Co., 30 N.Y.2d 34, 281 N.E.2d 142, 144, 330 N.Y.S.2d 329 (1972) (holding publisher who promised best efforts to promote author's book not restricted from also promoting competing series); Farnsworth, 46 U. Pitt. L. Rev. at 7-8 ("Best efforts is a standard that has diligence as its essence . . . .").3 “Moreover, other courts have held enforceable "best efforts" requirements in contracts that contained none of the defining language in Herrmann Holdings. See, e.g., First Union Nat'l Bank v. Steele Software Sys. Corp., 154 Md. App. 97, 838 A.2d 404, 428-29, 433, 448 (Md. App. 2003) (holding "best efforts" is a standard in and of itself and is therefore enforceable, noting that even where "best efforts" is not defined it is "a standard that has diligence as its essence" and a term that "takes its meaning from the circumstances"); see also Coady Corp. v. Toyota Motor Dist., Inc., 361 F.3d 50, 59 (1st Cir. 2004) ("Best efforts” is implicitly qualified by a reasonableness test—it cannot mean everything possible under the sun.") (citing Macksey v. Egan, 36 Mass. App. Ct. 463, 2 DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160, 2012 Tex. App. LEXIS 1489, 2012 WL 602864, 2012 WL 602864 3 DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160, 2012 Tex. App. LEXIS 1489, 2012 WL 602864, 2012 WL 602864 4 2378 633 N.E.2d 408, 413 & n.16 (Mass. App. Ct. 1994)); Baron Fin. Corp. v. Natanzon, 509 F. Supp. 2d 501, 513-14 (D. Md. 2007) (applying Maryland law and holding best efforts clause enforceable and defined in terms of reasonableness highly dependent upon surrounding circumstances); Mark P. Gergen, The Use of Open Terms in Contract, 92 Columbia L. Rev. 997, 1000 (1992) ("Best efforts clauses and other terms that require a party to use reasonable diligence in performance are obviously like a negligence rule."). But even if the Court were to consider the argument as made in CKB & Associates., Inc.4 the “i” qualifies as having a standard of performance because it states the objective which was to “to re-secure or stabilize previous and existing referral to AMED.” The phrase specifically identifies the objective which was to re-secure or stabilize referral sources to AMED. It states an identifiable objective and therefore the defines the measurable objective by which performance can be judged. Even though it does contain a standard the issues of did her performance meet that standard would be viewed in terms of did Ms. Thomas use "reasonable efforts" to fulfill its [her]contractual duties is usually a question of fact for the jury.Fingold v. Cook, 902 S.W.2d 579, 582 (Tex. App.—Houston [1st Dist.] 1995, writ denied); see also DaimlerChrysler Motors Co. v. Manuel, 362 S.W.3d 160, 174 (Tex. App.—Fort Worth 2012, no pet.) ("Whether a contractual best efforts obligation has been met or fulfilled is usually a question of fact because it is heavily dependent upon the particular circumstances of the case."). Fingold demonstrates the fact-intensive nature of the inquiry. 902 S.W.2d at 580.5 It is absolutely impossible for there to be a fact issues on whether or not Tiva Thomas utilized her best efforts to “re-secure or stabilize previous and existing referral to AMED” is not at issue in this case because she was never given the opportunity to 4 CKB & Assoc., Inc. v. Moore McCormack Petroleum, Inc. TX Court of Appeals and Court of Civil Appeals Cases from 1892 Court of Appeals of Texas, Fifth District, Dallas Apr 23, 1991 809 S.W.2d 577 5 Kim v. Ahn, 2012 Tex. App. LEXIS 8550, *19-20, 2012 WL 4857356 5 2379 perform because AMED breached the Rule 11 Agreement. She was never allowed to start work. “BEST EFFORTS” INTERPRETED IN LIGHT OF THE ENTIRE AGREEMENT The very purpose of the Rule 11 Agreement is to increase AMED’s business and to get back business which has been lost to other companies. The very essence of the ii through v, when undertaken by THOMAS are intended to and do accomplish the goal of improving AMED’s market share of the business. When the standard of “best efforts” is interpreted in light of the entire contract it is a simple statement of a goal which is definable and measurable because AMED knows the referral sources that refer business. Ultimately, the issues of “best efforts” would have been a possible jury questions if AMED had but given THOMAS an opportunity to perform. CONTRACT INTERPRETATION Our primary goal when construing an instrument is to give effect to the intent of the parties. 6We ascertain that intent from the language of the contract,7 as a matter of law and without resort to parol evidence unless the contract is ambiguous.8 Parenthetically, when, as here, neither party contends the instrument is ambiguous, its construction must be resolved as a question of law.9 In construing the instrument, we must consider and attempt to give effect to all of it,10 while mindful of the intentions existing when it was executed. 11The ultimate restraint is that a court cannot, through the construction process, make a new contract for the parties, one they did not make. 12 6 Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex. 1962). 7 R & P Enterprises v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 519 (Tex. 1980) 8 Caviness Packing Co., Inc. v. Corbett, 587 S.W.2d 543, 546 (Tex.Civ.App. -- Amarillo 1979, writ ref'd n.r.e.). 9 City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968) 10 Southland Royalty Co. v. Pan American Petro. Corp. , 378 S.W.2d 50, 57 (Tex. 1964) 11 First Nat. Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 148 (Tex.Civ.App. -- Tyler 1979, writ ref'd n.r.e.). 12 Neece v. A.A.A. Realty Co., 159 Tex. 403, 322 S.W.2d 597, 600 (1959). 6 2380 CONCLUSION AND ARGUMENT The use of the term “best efforts” in “i” is an acceptable and viable contract term and should be interpreted not nullify an entire contract but interpreted in a manner consistent with the entire contract. When “i” is read and interpreted in light of the entire contract, and especially in light of “ii – v” is must be interpreted as the use of reasonable diligence. But even if the Court requires some standard of performance as to “i” the sentence itself, states a very specific goal for the measurement of performance: “to re-secure or stabilize previous and existing referral to AMED.”; If Ms. Thomas had ever been given the opportunity to perform then the sufficiency of the performance would have been a fact question. Respectfully submitted, TOM A. DICKENS 6341 Stewart Road, #265 Galveston, TX 77551 Tel: (281) 924-8786 By: TOM DICKENS State Bar No. 05820800 tomdickenslaw@gmail.com Attorney for Defendant Thomas 7 2381 CERTIFICATE OF SERVICE A true and correct copy of this motion was served via electronic filing to all attorneys of record on May 3, 2022. By: TOM DICKENS 8 2382 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Tom Dickens on behalf of Tom Dickens Bar No. 5820800 TomDickensLaw@gmail.com Envelope ID: 64115856 Status as of 5/3/2022 8:49 AM CST Associated Case Party: A*Med Management, Inc. Name BarNumber Email TimestampSubmitted Status Brandon J.Evans Brandon@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT Ashley N.Shepherd Ashley@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT Colleen McCracken Colleen@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT Jordan Corn jordan@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT Morgan A.Jenkins Morgan@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT Nancy Olney nancy@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT Christopher L.Johnson chris@johnson-attorneys.com 5/3/2022 3:22:40 AM SENT Associated Case Party: Eutiva Thomas Name BarNumber Email TimestampSubmitted Status Eutiva Thomas tivathomas@yahoo.com 5/3/2022 3:22:40 AM SENT Tom Dickens TomDickensLaw@gmail.com 5/3/2022 3:22:40 AM SENT Tom Dickens tomdickenslaw@gmail.com 5/3/2022 3:22:40 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Mark StephenKennedy mark@markkennedylaw.com 5/3/2022 3:22:40 AM SENT Susan Borgsmiller susan@markkennedylaw.com 5/3/2022 3:22:40 AM SENT Daniel Barrera dbarrera@txlegalmal.com 5/3/2022 3:22:40 AM SENT Anita Malone records@lexitaslegal.com 5/3/2022 3:22:40 AM SENT Daniel Barrera dbarrera@txlegalmal.com 5/3/2022 3:22:40 AM SENT Joanna HojdusMartin joanna@markkennedylaw.com 5/3/2022 3:22:40 AM ERROR 2383 Filed: 5/3/2022 3:22 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 64115856 By: Rolande Kain 5/3/2022 8:48 AM CAUSE NO. 19-CV-1003 A*MED MANAGEMENT, INC. § Plaintiff § IN THE DISTRICT COURT § v. § § 56TH JUDICIAL DISTRICT EUTIVA THOMAS, THE § PROVIDENCE HOME HEALTH § SERVICES, INC., and THE § GALVESTON COUNTY, TEXAS PROVIDENCE HOSPICE, INC. § EUVITA THOMAS’ MOTION FOR SUMMARY JUDGMENT THE NONCOMPETE AGREEMENT UNENFORCEABLE BECAUSE IT WAS NOT EXECUTED ANCILLARY TO AN OTHERWISE ENFORCEABLE AGREEMENT Eutiva Thomas asks the Court to enter a Summary Judgement based on a question of law. The Non-Compete Agreement was not ancillary to an otherwise enforceable agreement and is therefore unenforceable as a matter of law. The Non-Compete Non-Solicitation Agreement is attached hereto. INTRODUCTION Plaintiffs are A*Med Management, Inc., A*Med Health, Inc. d/b/a A*Med Community Hospice, and A*Med Services, Inc. d/b/a A*Med Home Health. Plaintiff sued defendant for EUTIVA THOMAS,