Description: This motion sought summary judgment in a breach of contract case brought against 7-Eleven by a manufacturer’s representative. 7-Eleven was represented by Eric Pearson of Heygood, Orr & Pearson. The plaintiff alleged that 7-Eleven tortiously interfered with a redemption agreement between the plaintiff and third parties by obtaining confidential documents from parties to the agreement. The motion argued that 7-Eleven’s alleged act of interference did not cause the plaintiff actual damages and that her alleged damages actually flowed from the alleged breach of an entirely separate agreement. The court granted the motion and dismissed the plaintiff’s claims. This brief was filed by Heygood, Orr & Pearson on behalf of their client.
|IN THE DISTRICT COURT
DALLAS COUNTY, TEXAS
68TH JUDICIAL DISTRICT
7-ELEVEN INC.’S TRADITIONAL AND NO-EVIDENCE
MOTION FOR PARTIAL SUMMARY JUDGMENT
For the reasons set forth below, 7-Eleven, Inc. (“7-Eleven”) seeks a traditional and no-evidence summary judgment on Plaintiff’s claim for tortious interference with contract, and respectfully shows the Court as follows:
Summary of Argument
7-Eleven seeks a traditional and no-evidence summary judgment on Plaintiff Milissa Boisseau’s claim for tortious interference with a Redemption Agreement entered into by her and various third parties, including her former business partner, Wes Stone. The Redemption Agreement consummated Boisseau’s less-than-amicable separation from Stone, the brokerage services company she and Stone co-owned, Progressive Sales & Marketing, Inc., and Progressive’s related corporate entities. Boisseau claims 7-Eleven interfered with that agreement’s confidentiality and non-disparagement provisions by obtaining confidential documents from Stone and/or other parties who signed the Redemption Agreement.
7-Eleven is entitled to summary judgment on Boisseau’s tortious interference claim under a no evidence standard because she can bring forth no evidence that any alleged acts of tortious interference by 7-Eleven proximately caused her to suffer actual damages. Under a traditional standard, 7-Eleven is entitled to summary judgment because the uncontroverted evidence establishes that its alleged interference with the Redemption Agreement did not proximately cause Boisseau to suffer any actual damages. Rather, the evidence establishes that the actual damages Boisseau seeks to recover are not those flowing from any alleged breach of the Redemption Agreement, but are those damages Boisseau has alleged she suffered as a result of 7-Eleven’s alleged breach of a supposed oral employment agreement, a claim on which this Court has already granted summary judgment in 7-Eleven’s favor. For these reasons, set forth more fully below, 7-Eleven is entitled to summary judgment in its favor as a matter of law on Boisseau’s claim for tortious interference with the Redemption Agreement.
For several years prior to April 2004, Boisseau acted as a broker representing various manufacturers or suppliers wishing to sell their products to 7-Eleven. She provided these brokerage services as an employee of Progressive Sales & Marketing, Inc. (“Progressive”) and later as an employee of Progressive Convenience Sales & Marketing, LLC (“Progressive Convenience”), a corporation she formed after separating from Progressive and Stone, her former partner.
In January 2004, 7-Eleven received information that Boisseau was paying 7-Eleven employees to send her 7-Eleven’s confidential information and spending excessive amounts of money on 7-Eleven employees, including paying their expenses on lavish out-of-town trips. As a result, 7-Eleven commenced an internal investigation to determine whether any vendors or brokers, including Boisseau, were paying or overindulging its employees. Because Boisseau had apparently left Progressive’s employment at the end of 2003, shortly before 7-Eleven commenced its investigation, 7-Eleven contacted Progressive to ask if it could provide any documentation evidencing the payments, gifts, or lavish expenditures Boisseau had reportedly been making for the benefit of 7-Eleven employees.
In March 2004, Progressive provided 7-Eleven with miscellaneous expense documents, including Progressive’s Corporate American Express credit card statements (“Amex Statements”) containing charges incurred by Boisseau. These statements, along with other receipts and invoices, showed that she had traveled to an expensive resort and spa in Anguilla with three 7-Eleven employees, where they spent a week to ten days during late May and/or early June in 2001, 2002, and 2003 (“Anguilla Trips”). The Amex Statements reflected total expenses for each trip that were in excess of $10,000, suggesting that Boisseau had incurred expenses for more than just herself. Further, the Amex Statements, along with the hotel invoices provided by Progressive, reflected itemized charges for meal plans and hotel rooms that could not reasonably have been for Boisseau alone. Progressive also provided copies of 1099 tax forms and deposited checks showing payments by Progressive to 7-Eleven employees totaling over $10,000.
When it appeared that Boisseau had paid certain 7-Eleven employees as independent contractors and had paid other employees’ expenses on Caribbean vacations to the Cuisinart Resort and Spa (“Cuisinart Resort”) in Anguilla, 7-Eleven conducted several employee interviews. From these interviews and other sources, 7-Eleven discovered that Boisseau had made secret arrangements with at least two 7-Eleven administrative assistants whereby she would pay them to give her reports containing information about products sold in 7-Eleven stores. One of the employees admitted that the reports contained confidential, proprietary information about products and manufacturers that competed with the products and manufacturers Boisseau represented.
The employee interviews in March 2004 also confirmed that three employees had gone on the Anguilla Trips with Boisseau. 7-Eleven requested that the employees who went on these trips provide the company with expenses records showing they paid their own way. 7-Eleven also requested that Boisseau provide it with expense documentation showing that she paid only her own expenses. Boisseau falsely maintained that she and the employees had proportionately paid their share of expenses during each of the three Anguilla Trips. She then decided to corroborate these false claims with falsified copies of the relevant expense records.
Consequently, she called Progressive and requested that it send her the Amex Statements and other expense records for the Anguilla Trips. After receiving those records from Progressive, some of which were identical to records Progressive had provided 7-Eleven just a few weeks before, she falsified and tampered with them, concealing many large expenses incurred on the Anguilla Trips. Then, during the first week of April 2004, she emailed 7-Eleven the falsified records, hoping to deceive it into believing that she had not paid its employees’ expenses during the trips. Nevertheless, it was quickly apparent to 7-Eleven that she had tampered with those records, even without referring to or comparing them with the authentic records it had obtained from Progressive a few weeks before. Except for the falsified portions, the Amex Statements and Cuisinart Resort invoices Boisseau sent 7-Eleven during early April 2004 are identical to the records Progressive sent 7-Eleven in March 2004, the same records that she now claims to be confidential and sent to 7-Eleven in violation of the Redemption Agreement’s confidentiality and non-disparagement clauses.
So, by mid-April 2004, 7-Eleven had determined that Boisseau had, among other things: (a) paid its employees to steal trade secrets and proprietary information for her, (b) paid substantial amounts of its employees’ expenses on the Anguilla Trips, and (c) elaborately falsified expense records she’d sent to 7-Eleven. Understandably, 7-Eleven notified Boisseau and the manufacturers she represented that it did not wish to continue doing business through her. About two months later, in June 2004, Boisseau filed this action against 7-Eleven, claiming that it had wrongfully terminated its relationship with her under an oral contract she conjured up for purposes of the lawsuit. She also claimed that 7-Eleven tortiously interfered with the Redemption Agreement by obtaining certain information from her former business partner, Wes Stone, during its investigation into her wrongful conduct.
On July 6, 2004, shortly after Boisseau filed suit, 7-Eleven subpoenaed Ultimate Sales & Marketing, Inc. (“Ultimate Sales”), the company that maintained Progressive’s business and expense records after the Redemption Agreement effectively dissolved Progressive (“July 2004 Subpoena”). In general, the July 2004 Subpoena sought production of documents relating to Progressive and Boisseau’s relationships with 7-Eleven employees, including documentation evidencing any payments made to 7-Eleven employees or expenses paid on their behalf. In other words, it requested, among other documents, a formal production of the same Amex Statements and expense/payment records that Progressive had provided to 7-Eleven a few months before, the same documents Boisseau now claims are confidential and were provided by Progressive in violation of the Redemption Agreement. Yet, despite receiving a copy of the July 2004 Subpoena at the time it was served on Ultimate Sales, Boisseau never objected to it or moved to quash it.
Additionally, on May 9, 2005, 7-Eleven served a “Notice of Production of Documents to Non-Party Ultimate Sales & Service, Inc.” (“May 2005 Notice of Production”) on Ultimate Sales. It requested that Ultimate Sales produce documents responsive to an additional, attached subpoena concerning Progressive and Boisseau’s communications and business dealings with 7-Eleven and the manufacturers Boisseau represented. Like the July 2004 Subpoena, the May 2005 Notice of Production called for Ultimate Sales to produce the same documents that Boisseau now claims were provided to 7-Eleven in violation of the Redemption Agreement. Although Boisseau’s counsel also received a copy of the May 2005 Notice of Production, Boisseau never objected to it or moved to quash it.
Finally, the Court should recall that it previously granted 7-Eleven summary judgment on Plaintiff’s claim for breach of contract/wrongful termination, holding that the alleged verbal and/or implied agreement between 7-Eleven and Boisseau was too vague and indefinite to be enforceable and that Boisseau’s business relationship with 7-Eleven was therefore an at-will relationship subject to termination at any time, with or without cause. Despite this ruling, Boisseau continues to seek damages from the termination of her business relationship with 7-Eleven under the guise of her tortious interference claim. As set forth below, however, such damages were not proximately caused by any alleged tortious interference with the entirely separate Redemption Agreement and Boisseau can bring forth no evidence of any damages that were. For this reason, 7-Eleven’s Motion must be granted.
Arguments and Authorities
A party alleging tortious interference with an existing contract must prove that: 1) a contract subject to the alleged interference exists; 2) the alleged act of interference was willful and intentional; 3) the willful and intentional act proximately caused damage; 4) actual damage or loss occurred. Texas Beef Cattle Co. v. Green, 921 S.W.2d 203 (Tex. 1996); Juliette Fowler Homes v. Welch Associates, 793 S.W.2d660, 665 (Tex. 1990). “Tortious interference with a contract includes the elements of proximate causation of actual damages.” Prentiss Properties Ltd., Inc. v. Parnassus Venture Group, Inc., No. 05-92-00347-CV, 1993 WL 189624 at *7 (Tex. App.–Dallas May 27, 1993) (not designated for publication). 7-Eleven brings this traditional and no-evidence motion on the basis that Plaintiff cannot prove — and 7-Eleven can refute as a matter of law — that 7-Eleven’s alleged interference with the Redemption Agreement proximately caused Plaintiff to suffer actual damages.
I. Plaintiff has no evidence that 7-Eleven’s alleged acts of interference proximately caused her actual damages.
As set forth above, to prove tortious interference with contract, a plaintiff must offer evidence of actual damages proximately caused by the alleged act of interference. 7-Eleven brings this Motion in part under Texas Rule of Civil Procedure 166a(i), on the basis that Boisseau has no evidence of the following elements of her tortious interference claim:
- No evidence that 7-Eleven’s alleged interference with the Redemption Agreement proximately caused Boisseau any damage; and
- No evidence that any actual damage or loss occurred.
Without evidence of these two critical elements, Boisseau cannot, as a matter of law, prevail on her tortious interference claim. See, e.g., Prentiss Properties, 1993 WL 189624 at *8 (“without a finding that Parnassus actually suffered some damage proximately caused by Prentiss’s tortious interference, the trial court could not use Parnassus’s breach of contract damages as a measure of its tortious interference damages.”). For this reason, 7-Eleven is entitled to judgment in its favor as a matter of law.
II. As a matter of law, 7-Eleven’s alleged acts of interference did not proximately cause Plaintiff actual damages.
A. Through her tortious interference claim, Boisseau improperly seeks to recover damages flowing from the alleged breach of an entirely separate contract as opposed to damages flowing from a breach of the Redemption Agreement allegedly interfered with.
Through her tortious interference claim, Boisseau is improperly seeking to recover the economic damages she allegedly incurred as a result of 7-Eleven’s termination of their business relationship. These damages are not those damages caused by the alleged breach of the Redemption Agreement with which 7-Eleven allegedly interfered, but rather are the damages she says she suffered as a result of 7-Eleven’s breach of her alleged oral employment agreement. This Court, however, has previously held that such damages are not recoverable because the alleged oral agreement was unenforceable as violative of the statute of frauds and Boisseau’s business relationship with 7-Eleven was thus purely at-will.
Under well established Texas law, the damages for tortious interference with a contract are the same as the damages for breach of that same contract:
The basic measure of actual damages for tortious interference with contract is the same as the measure of damages for breach of the contract interfered with, to put the plaintiff in the same economic position he would have been in had the contract interfered with been actually performed.
American National Petroleum Co. v. Transcontinental Gas Pipe Line Corp., 798 S.W.2d 274, 278 (Tex. 1990) (emphasis added); Barker v. Jumper, No. 05-99-01580-CV, 2001 WL 253853 at *2 (Tex. App.–Dallas March 15, 2001, no writ) (not designated for publication) (“the basic measure of actual damages in an action for tortious interference is the same as the measure for damages for a breach of contract”). Thus, it is the damages occasioned by the failure of the breaching party to perform the contract interfered with that are recoverable. In other words:
As a general rule, the measure of damages for tortious interference is the same as the measure of damages for breach of contract. In such a case, a Texas court will generally apply the benefit of the bargain measure of damages and attempt to put the plaintiff in the same economic position he would have enjoyed had the contract interfered with been actually performed.
Gonzalez v. Hewitt Holdings, Inc., No. 09-00-152-CV, 2000 WL 1643871 at *3 (Tex. App.–Beaumont Oct. 13, 2000, no writ) (not designated for publication) (emphasis added).
Stated another way, a plaintiff suing for tortious interference with contract is entitled to the benefit of the bargain measure of damages as to the contract allegedly interfered with, here, the Redemption Agreement. See, e.g., Gonzalez v. Hewitt Holdings, LLC, No. 09-00-152-CV, 2000 WL 1643871 at *3 (Tex. App.–Beaumont Nov. 2, 2000, no writ) (in cases of tortious interference with contract, “Texas courts will generally apply the benefit of the bargain measure of damages and attempt to put the plaintiff in the same economic position he would have been in had the contract interfered with been actually performed”) (emphasis added). In fact, this benefit of the bargain measure of damages has been recognized by the Restatement (Second) of Torts, which states that one who is liable for tortious interference is liable for damages for “the pecuniary loss of the benefits of the contract or the prospective relation.” Restatement (Second) Contract § 774A; Exxon v. Allsup, 808 S.W.2d 648, 660 (Tex. App.–Corpus Christi 1991, writ denied) (citing to Section 774A); Sandare Chemical Co., Inc. v. Wako Int’l, Inc., 820 S.W.2d 21, 24 (Tex. App.–Fort Worth 199, no writ) (“The Restatement (Second) of Torts sec. 774A (1979) is a statement of the measure of damages generally applicable to tortious interference cases”). .
As set forth above, damages for tortious interference with contract are the same as damages for breach of the contract interfered with. Such damages are intended to put the plaintiff in the same economic position they would have been in had the contract interfered with actually been performed. In the instant case, such damages would therefore be those damages arising from Wes Stone’s alleged breach of the Redemption Agreement. The damages Boisseau seeks, however, are benefit of the bargain damages based on an entirely separate contract — the alleged verbal employment agreement with 7-Eleven this Court has already held to be unenforceable. Such damages are simply unavailable in the context of a claim for tortious interference with the Redemption Agreement and there is no evidence of any other damages proximately caused by 7-Eleven’s alleged tortious interference with that agreement.
B. As a matter of law, damages flowing from the termination of Boisseau’s business relationship with 7-Eleven were not proximately caused by 7-Eleven’s alleged tortious interference with the Redemption Agreement.
Even if this Court were willing to indulge Boisseau’s theory that 7-Eleven’s alleged tortious interference with the Redemption Agreement impacted an entirely separate (and unenforceable) agreement, Boisseau would still have to prove that the damages she seeks were proximately caused by the alleged interference. Texas Beef Cattle Co. v. Green, 921 S.W.2d 203 (Tex. 1996). This burden of proof requires Boisseau to demonstrate that she would still be calling on 7-Eleven and receiving commissions for the sale of products to it but for 7-Eleven’s alleged interference with the Redemption Agreement. As her sole evidence of tortious interference with the Redemption Agreement, Boisseau asserts that 7-Eleven obtained payment and expense documentation from Progressive. But 7-Eleven can affirmatively establish as a matter of law that, regardless of whether it had obtained such information from Progressive in March 2004, it would have discovered Boisseau’s unethical, deceitful, and illegal conduct and ceased doing business with her.
First, 7-Eleven learned that Boisseau had been paying its employees and taking them on trips to Anguilla before it requested or received any documents from Progressive. That knowledge alone prompted 7-Eleven to interview its employees and Boisseau. In other words, 7-Eleven would have interviewed its employees and Boisseau regardless of whether or not it was able to obtain payment and expense documents from Progressive. Furthermore, during these interviews, none of the payment and expense information obtained from Progressive was referenced or used in any way.
Although neither prompted by or assisted by the Progressive documents, 7-Eleven’s employee interviews yielded a great deal of information about Boisseau’s wrongdoing. For example, during the interviews, 7-Eleven’s employees volunteered that Boisseau had indeed been paying them to send reports regarding product sales. One of the employees, Rachel White (“White”), admitted that Boisseau secretly arranged to pay her in exchange for sending Boisseau confidential and proprietary reports concerning products that competed with the products Boisseau represented. She said she eventually decided to stop sending Boisseau the reports and asked Boisseau to stop paying her for them because she was ethically “uncomfortable” with that situation.
Further, after confirming that three employees had gone on the Anguilla Trips with Boisseau, 7-Eleven requested trip-related expense documentation from Boisseau and the employees to determine if Boisseau had paid a disproportionate share of their expenses in violation of the Code and company policies. The employees could not provide sufficient or satisfactory expense documentation showing that they had paid their share of expenses on the trips. Boisseau, however, did provide such documentation. 7-Eleven was easily able to determine that such documents were forged and falsified, even without comparison to the Progressive documents. It goes without saying that 7-Eleven would have terminated its business dealings with Boisseau based on her document falsification.
Finally, the information 7-Eleven voluntarily obtained from Progressive was available through other means. If 7-Eleven had not obtained payment and expense documentation from Progressive in March 2004, it would have sued Progressive for misappropriation or theft of trade secrets and subpoenaed Progressive’s Amex statements, the Cuisinart Resort statements, and the payment records from the 7-Eleven employees who were paid (that is, if the 7-Eleven employees refused to provide the payment records without subpoena). In other words, if Progressive had refused to provide the expense and payment documents to 7-Eleven in March 2004, 7-Eleven would have subpoenaed the identical documents in a lawsuit against Progressive.
Under Texas law, “proximate cause comprises two elements: cause in fact and foreseeability.” Excel Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex. 2002). The test for cause in fact, or “but for cause,” is whether the act or omission was a substantial factor in causing the injury “without which the harm would not have occurred.” Id; see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). A finding of cause in fact cannot be supported by “mere conjecture, guess, or speculation.” Doe, 907 S.W.2d at 477.
As set forth above, 7-Eleven obtained ample information from sources other than Progressive, including its own employees and Boisseau, that in and of itself would have caused 7-Eleven to terminate its dealings with Boisseau. And it would have obtained this information regardless of whether or not it obtained the expense and payment documentation from Progressive in March 2004. Accordingly and as a matter of law, Boisseau cannot prove that the alleged interference with the Redemption Agreement was a but-for cause without which her business relationship with 7-Eleven would not have been terminated. Any contrary conclusion is built on nothing more than conjecture and speculation.
C. Any causal connection between 7-Eleven’s alleged interference with the Redemption Agreement and the termination of Boisseau’s relationship with 7-Eleven is simply too attenuated to constitute proximate cause.
As the Texas Supreme Court has repeatedly held, “cause in fact is not shown if the defendant’s negligence did no more than furnish a condition which made the injury possible.” Doe, 907 S.W,.2d at 477; Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995). Moreover, “even if the injury would not have happened but for the defendant’s conduct, the connection between the defendant and the plaintiff’s injuries simply may be too attenuated to constitute legal cause.” Id. As set forth below, any causal connection between 7-Eleven’s alleged interference with the Redemption Agreement and the termination of Boisseau’s business relationship with 7-Eleven is simply too attenuated to constitute proximate cause and, if anything, merely furnished a condition which made her supposed injury possible.
Boisseau seeks to convince this Court that her business relationship with 7-Eleven was terminated not because of her document tampering (which this Court has already found to have occurred), not because of her less than honest responses to 7-Eleven’s questions during its investigation, not because of her improper payments to 7-Eleven employees, not because of her theft of 7-Eleven’s confidential information and not because of her improper gifts and trips to 7-Eleven employees, including vacations at a lavish resort in Anguilla. Rather, Boisseau asserts, her business relationship was terminated and she was financially damaged because Wes Stone provided 7-Eleven with accurate, unaltered documents reflecting Boisseau’s business expenses as an employee of Progressive. Boisseau’s causal explanation apparently goes something like this:
- 7-Eleven interfered with the Redemption Agreement by convincing Wes Stone to provide it with Progressive’s own Corporate American Express credit card statements;
- These original and unaltered credit card statements corroborated what 7-Eleven employees had already stated during 7-Eleven’s investigation, that Boisseau had taken them on trips to the resort island of Anguilla;
- Because 7-Eleven had the original, unaltered Amex statements from Wes Stone, it was able to compare those statements to the altered Amex statements Boisseau provided during the investigation;
- This comparison allowed 7-Eleven to discover Boisseau’s document tampering and alteration;
- As a result of this document tampering and alteration, 7-Eleven terminated its business relationship with Boisseau.
Thus, according to Boisseau, it was not her own willful acts of deceit that caused her termination, but the provision of accurate information from Wes Stone that enabled 7-Eleven to detect her deceit that caused her termination.
But the provision to 7-Eleven of Progressive’s accurate, unaltered Corporate American Express statements did nothing more than furnish a condition which made Boisseau’s alleged injury possible. Moreover, any connection between the provision of such documents and the ultimate termination of Boisseau’s business relationship with 7-Eleven is simply too attenuated to constitute proximate cause as defined by Texas law. For the additional reasons, 7-Eleven is entitled to summary judgment as a matter of law.
D. Boisseau’s document tampering and forgery was a new and independent cause that severed any causal link between 7-Eleven’s alleged interference with the Redemption Agreement and the termination of Boisseau’s business relationship with 7-Eleven.
Finally, 7-Eleven is entitled to summary judgment because Boisseau’s document tampering and alteration was a new and independent cause that severed any causal link between 7-Eleven’s alleged interference with the Redemption Agreement and the termination of Boisseau’s business relationship with 7-Eleven. Under Texas law, a “new and independent cause” is “an act or omission of a separate and independent agency that destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes the immediate cause of such injury.” Benitz v. The Gould Group, 27 S.W.3d 109, 116 (Tex. App.–San Antonio 2000, no pet.). The issue of new and independent cause “is not an affirmative defense; it is one element to be considered by a fact finder in determining whether proximate cause exists.” Id.; see also Hall v. Huff, 957 S.W.2d 90, 96 (Tex.App.-Texarkana 1997, pet. denied). In determining whether another’s act is a new and independent cause, the pivotal inquiry is whether it was “incapable of being foreseen by the original wrongdoer in the exercise of ordinary care.” Benitz, 27 S.W.3d at 116.
As set forth above, weeks after 7-Eleven obtained Amex statements and other documents from Progressive, Boisseau presented 7-Eleven with falsified and altered records during its investigation into her alleged wrongdoing. This intentional and wrongful conduct, which this Court has already found after a lengthy evidentiary hearing, constituted a new and independent cause which broke any causal connection between the provision of documents from Progressive and 7-Eleven’s eventual termination of its business relationship with Boisseau. Such document tampering was not reasonably foreseeable to 7-Eleven and led directly to the termination of Boisseau’s relationship with 7-Eleven. Because Boisseau’s own wrongful conduct constitutes a new and independent cause of her alleged damages, 7-Eleven is entitled to summary judgment on her tortious interference claim as a matter of law. See, e.g., Coleman v. Equitable Real Estate Inv. Mgt., Inc., 971 S.W.2d 611, 618 (Tex. App.–Dallas 1998, pet. denied) (trial court properly granted defendant’s motion for summary judgment on basis that decedent’s deliberate violation of store safety policies was a new and independent cause of his death).
Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, 7-Eleven respectfully requests that the Court grant it a no-evidence and traditional summary judgment on Plaintiff’s claim for tortious interference with the Redemption Agreement and award it such other and further relief to which it may be justly entitled.
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)
 See January 2004 Redemption Agreement (App. at 131).
 Oral & Videotaped Deposition of Milissa Boisseau (“Boisseau Deposition”) at 32, ll. 24-25; 33 ll. 1-3 and 12-17 (App. at 2–3 ).
 Oral Deposition of Bryan F. Smith (“Smith Deposition”) at 39, ll. 3-25; 40, ll. 1-25 (App. at 8); Affidavit of William S. Snyder (“Snyder Affidavit”) at ¶2 (App. at 9–10 ).
 Id. at ¶ 3 (App. at 10).
 Id. at ¶ 4 (App. at 10).
 Id. at ¶ 4 (App. at 10).
 Id. at ¶ 4 (App. at 10).
 Id. at ¶ 4 (App. at 10).
 Id. at ¶ 5 (App. at 10).
 Oral Deposition of Rankin Gasaway (“Gasaway Deposition”) at 203, ll. 5–25; 204, ll. 1–2 (App. at 93); Snyder Affidavit at ¶ 13 (App. at 13); Oral Deposition of Walter E. Stone III (“Stone Deposition”) at 90, ll. 2–25; 91, ll. 1–8 (App. at 95); Oral Deposition of Scott M. Lins (“Lins Deposition”) at 20, ll. 23–25; 21, ll. 1–20 (App. at 98–99); Oral Deposition of William S. Snyder (“Snyder Deposition”) at 31, ll. 8–25; 32, ll. 1–25; 33, ll. 1–24; 66, ll. 7–25; 67, ll. 22–25; 68, ll. 1–25; and 69, ll. 1–22 (App. at 101–103).
 Gasaway Deposition at 189, ll. 1–25; 190, ll. 1–25; 191, ll. 1–15; 192, ll. 1–9 (App. at 91–92).
 First Gasaway Affidavit at ¶ 6 (App. at 41).
 First Gasaway Affidavit at ¶ 6 (App. at 41); Snyder Affidavit at ¶ 6 (App. at 11).
 See 2/13/2005 Associate Judge’s Decision (App. at 104–106); Gasaway Deposition at 146, ll. 4–18; Affidavit of Rankin Gasaway dated 11/01/2004 (“Second Gasaway Affidavit”) at ¶¶ 9–11 (App. at 109–110).
 Stone Deposition at 198, ll. 3–25; 199, ll. 1–24 (App. at 96).
 See 2/13/2005 Associate Judge’s Decision (App. at 104–106); Gasaway Deposition at 146, ll. 4–18 (App. at 90); Second Gasaway Affidavit at ¶¶ 9–11 (App. at 109–110).
 First Gasaway Affidavit at ¶¶ 8–9 (App. at 41–42).
 Snyder Affidavit at ¶ 6 (App. at 11).
 Snyder Affidavit at ¶ 7 (App. at 11–12). The July 2004 Subpoena and proof of service on Boisseau’s counsel are attached to the Snyder Affidavit under Tab “A” (App. at 15–32).
 Snyder Affidavit at ¶ 7 (App. at 11–12).
 The May 2005 Notice of Production and proof of service on Boisseau’s counsel are attached to the Snyder Affidavit under Tab “B” (App. at 33–38).
 Snyder Affidavit at ¶ 10 (App. at 12–13).
 November 3, 2005 Amended Associate Judge’s Decision (App. at 146-50).
 See Boisseau’s Request for Disclosure Responses at p. 2 (identifying her damages as “lost commissions from the period of time that she should have been allowed to continue as a sales representative to 7-Eleven.”) (App. at 152).
 Snyder Affidavit at ¶ 5 (App. at 11).
 Gasaway Deposition at 203, ll. 5–16 (App. at 93).
 Snyder Affidavit at ¶ 6 (App. at 11); First Gasaway Affidavit at ¶ 6 (App. at 41).
 Second Gasaway Affidavit at ¶ 10 (App. at 110).
 Second Gasaway Affidavit at ¶¶ 8–10 (App. at 109–110); Gasaway Deposition at 146, ll. 4–18 (App. at 90).
 Second Gasaway Affidavit at ¶¶ 8–11 (App. at 109–110).