Rieves vs. Buc-Ee's

ACCEPTED
14-15-01061-cv
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
3/11/2016 7:43:51 PM
CHRISTOPHER PRINE
CLERK
No. 14-15-01061-CV
FILED IN
14th
COURT
OF APPEALS
IN THE COURT OF APPEALS
HOUSTON, TEXAS
FOURTEENTH JUDICIAL DISTRICT
3/11/2016 7:43:51 PM
AT HOUSTON, TEXAS
CHRISTOPHER A. PRINE
Clerk
KELLEY RIEVES,
APPELLANT,
V.
BUC-EES, LTD.,
APPELLEE.
Appeal from the District Court of Brazoria County, Texas, 23rd Judicial
District
The Honorable Ben Hardin
Trial Court Cause Number 73332
APPELLANTS BRIEF
Bruce Johnson
Texas Bar # 00794029
BERG FELDMAN JOHNSON, LLP
4203 Montrose Blvd., Suite 150
Houston, Texas 77006
(713)526-0200
(832)615-1665 (fax)
bjohnson@bergfeldman.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL

A.
Appellant and Appellant counsel:

Appellant:
Kelley Rieves
Appellants counsel (trial and appeal):
Bruce Johnson
Berg Feldman Johnson, LLP
4203 Montrose Blvd., Suite 150
B.
Appellee and Appellees counsel:

Appellee:
Buc-ees, Ltd.
Appellees counsel (trial):
Jeffrey S. Wolff
Norton Rose Fulbright US, LLP
1301 McKinney, Suite 5100
Randy E. Moore
The Moore Law Firm
7 West Way Court, Suite C
Lake Jackson, Texas 77566
Elizabeth Lieb
H. Tracy Richardson
Buc-ees, Ltd.
327 FM 2004
Appellees counsel (appeal):
Joy M. Soloway
LEAD APPEAL COUNSEL
i
Jeffrey S. Wolff
Randy E. Moore
The Moore Law Firm
H. Tracy Richardson
Buc-ees, Ltd.
327 FM 2004
ii
TABLE OF CONTENTS
Identity of Parties and Counseli
Index of Authorities....vi
Statement of the Case.ix
Statement Regarding Oral Argumentxi
Issues Presented.....xii
Introduction........1
Statement of Facts.4
A.
Rieves Hiring and the Creation of the 2009 and 2010
Agreements.....4
B.
The End of Rieves Buc-ees Employment7
C.
The Express Purpose of the Repayment Provisions was to
Restrain Employees.9
D.
The Financial Impact on Rieves.12
Summary of the Argument....14

Argument.18
A.
Standard of Review ..18
B.
Because Rieves was an At-will Employee under a Bilateral Atwill Employment Contract, No Breach Resulted from her Departure
and, absent that Breach, Buc-ees is not Entitled to Enforce the
Liquidated Damages Provision under which it Seeks Repayment of
Additional Compensation and Retention Pay....19
1.
Buc-ees Does not Seek Actual Damages, it Seeks to
Enforce a Liquidated Damages Provision...20
iii
2.
Contract Damages are to Compensate for Loss and Bucees suffered no Loss due to Rieves Departure.22
3.
The only Possible Breach of the 2010 Agreement was
Rieves Failure to Remain Employed and/or Provide Six
Months Notice............................................................23
4.
The 2010 Agreement was a Bilateral Contract..24

a.
As an Unmodified Bilateral At-Will Employment
Contract, the 2010 Agreement contained only Illusory
Promises, Making it Unenforceable...25
5.
Because no Breach of the 2010 Agreement Occurred, the
Liquidated Damages Provision cannot be enforced...26
C.
The Liquidated Damages Provision is Alternatively
Unenforceable because it Constitutes a Penalty...27
D.
The Term and Repayment Provisions are Unenforceable
because they constitute a Restraint of Trade which does not satisfy
the Reasonableness Standards of Covenants not to Compete under
Texas Law...28
1.
The Texas Supreme Court has Held that Damage
Provisions such as those in the 2010 Agreement are Restraints
of Trade and are Subject to the Reasonableness Standards of
Covenants not to Compete28
2.
The 2010 Agreement does not satisfy the Reasonableness
Standards of Covenants not to Compete..33
E.
The 2010 Agreement and its Provisions are Unconscionable
because they are Grossly One-Sided...34
F.
The Trial Court Erred in Granting Summary Judgment on
Rieves Claims of Unjust Enrichment, Quantum Meruit, and Breach
of Contract....38
iv
G.
The Trial Court Erred in Granting Summary Judgment on
Rieves Claims of Failure to Mitigate, Estoppel, Quasi-estoppel, and
Waiver ....39
H. The Trial Court Erred in Awarding Attorney Fees to Bucees..40
Conclusion.....44
Prayer....45
Certificate of Service.....47
Certificate of Compliance47
Appendix..48
A.
Final Judgment
B.
Order Granting Buc-ees, Ltd.s Motion for Partial Summary
Judgment
C.
2009 Agreement
D.
2010 Agreement
E.
Texas Business & Commerce Code 1.718
F.
G.
Texas Business & Commerce Code 15.50-.52
INDEX OF AUTHORITIES
United States Constitution
U.S. CONST. amend. XIII 1) .32
Case Authority:
20901, Inc. v. Parker, 249 S.W.3d 392 (Tex. 2008) 19
APRM, Inc. v. Hartnell, No. 01-01-00831-CV, 2002 WL 1435995 (Tex.
App.Houston [1st Dist.], July 3, 2002, no pet.)33
Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20 (Tex. 1990)18
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003)..26
Deming v. Nationwide Mut. Ins. Co., 905 A.2d 623 (Conn. 2006).31
DeSantis v. Wackenhut Corp., 793 S.W.2d 670 (Tex. 1990)..33, 34
Exxon Mobil Corp. v. Drennan, 452 S.W.3d 319 (Tex. 2014).....3, 4
Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642 (Tex. 2009)18
Frankiewicz v. National Comp Associates, 633 S.W.2d 503 (Tex. 1982)31
Franklink, Inc. v. GJMS Unlimited, Inc., 401 S.W.3d 705 (Tex. App.
Houston [14th Dist.] 2013, no pet.) ......44
Garden Ridge L.P. v. Advance Intl, Inc., 403 S.W.3d 432 (Tex. App.
Houston [14th Dist.] 2013, pet. denied)...23
Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.
Houston [1st Dist.] 2011, pet. denied) )...44
Leach v. Conoco, Inc., 892 S.W.2d 954 (Tex. App.Houston [1st Dist.] 1995,
writ dismd w.o.j.)......18
Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642 (Tex. 1994)...25, 26
vi
Magill v. Watson, 409 S.W.3d 673 (Tex. App.Houston [1st Dist.] 2013, no
pet.)....28
Mann, Frankfort, Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844
(Tex. 2009)..18, 19, 30
Marsh USA, Inc. v. Cook, 254 S.W.3d 764 (Tex. 2011)..25, 30, 32, 33
Nacogdoches Heart Clinic, P.A. v. Pokala, No. 12-11-00133-CV, 2013 WL
451810 (Tex. App.Tyler, Feb. 6, 2013, pet. denied) ....32
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)..18
Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381 (Tex.
1991)3, 15, 23, 31
Perez v. Texas Disposal Systems, Inc., 103 S.W.591 (Tex. App.San
Antonio 2003, no pet) ....44
Phillips v. Phillips, 820 S.W.2d 785 (Tex. 1978) ..27, 28, 29
Pinson v. Red Arrow Freight Lines, 801 S.W.2d 14 (Tex. App.Austin
1990, no writ)39
In re Poly-American, LP, 262 S.W.3d 337 (Tex. 2008).34, 35, 42
Ritchie v. Rupe, 443 S.W.3d 856 (Tex. 2014)..25
Sawyer v.E.I. DuPont De Nemours and Co., 430 S.W.3d 396 (Tex.
2014)..25, 26
Ski River Development, Inc. v. McCalla, 167 S.W.3d 121 (Tex. App.Waco,
2005, pet. denied)37
Southwell v. University of the Incarnate Word, 974 S.W.2d 351 (Tex.
App.San Antonio 1998, pet. denied).26
Stewart v. Basey, 245 S.W.2d 484 (Tex. 1952)..23, 27
Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005)19, 23
vii
Venegas v. American Energy Services, 302 S.W.3d 299 (Tex. 2009)..25

Venture Cotton Coop v. Freeman, 435 S.W.3d 222 (Tex. 2014)..42
Statutes:
Texas Business & Commerce Code 1.718.27
Texas Business & Commerce Code 15.05xi, 2
Texas Business & Commerce Code 15.51.34, 43
Rules:
Texas Rule of Civil Procedure 166a.18, 19
viii
STATEMENT OF THE CASE

Nature of this Case:
At heart this is a restraint of trade case
presenting the question of whether, notwithstanding Texas Business and

Commerce Code section 15.05(a), Texas employers can contractually
restrain at-will employees by requiring payment of a substantial amount of
money to the employer (in this case $66,720.29) in order to resign.
Course of Proceedings and Trial Court Disposition: In July
2013, Kelly Rieves filed a Declaratory Judgment Action against Buc-ees,
Ltd. seeking, among other things, a declaration that contractual provisions
constitute a void, illegal, and unenforceable restraint of trade under Texas
law. 1
In August 2013, Buc-ees filed a counterclaim asserting Rieves
breached the contractual provisions by resigning her employment. 2 Bucees asserted damages of $66,720.29, interest, costs and expenses, and
attorney fees. 3
On January 8, 2015 Buc-ees filed a Motion for Partial Summary
Judgment seeking summary judgment on, among other issues, Rieves
restraint of trade declaratory judgment claim. 4
1
2
3
4
CR000007-15.
CR000017-24.
CR000021-23.
CR000076-161.
ix
On April 27, 2015 the 23rd District Court of Brazoria County, Texas,
the Honorable Ben Hardin presiding, granted Buc-ees Motion for Partial
Summary Judgment. 5
On June 23, 2015, Buc-ees filed a Second Motion for Summary
Judgment seeking summary judgment on, among other things, its breach of
contract counterclaim. 6
On July 13, 2015, Rieves filed a Motion to Reconsider the granting of
Buc-ees Motion for Partial Summary Judgment. 7
On July 17, 2015, Rieves filed a Motion for Summary Judgment
seeking, among other things, summary judgment on Buc-ees breach of
contract counterclaim. 8
On July 21, 2015, the 23rd District Court of Brazoria County, Texas,
the Honorable Ben Hardin presiding, denied Buc-ees Second Motion for
Summary Judgment. 9
On July 27, 2015, the 23rd District Court of Brazoria County, Texas,
the Honorable Ben Hardin presiding, ordered the matter referred to
mediation. 10
The Order Granting Summary Judgment is included in the appendix. A request to
supplement the record has been made as the Order Granting Summary Judgment in the
Clerks Record is the proposed order submitted by Buc-ees rather than the Order signed
by the trial court.
6 CR000712-841.
7 CR001505-38.
8 CR0001576-2227.
9 CR002238.
5
On September 21, 2015, Buc-ees filed a Motion to Reconsider the

denial of its Second Motion for Summary Judgment. 11
On November 16, 2015, the 23rd District Court of Brazoria County,
Texas, the Honorable Ben Hardin presiding, denied Rieves Motion for
Summary Judgment, reconsidered and granted Buc-ees Second Motion for
Summary Judgment, and entered Final Judgment purporting to dispose of
all claims between the parties. 12
On December 14, 2015, Rieves timely filed a Notice of Appeal. 13
STATEMENT REGARDING ORAL ARGUMENT
If permitted to stand, the trial courts decision permits Texas
employers to contractually restrain at-will employees despite the clear
statement of Texas law that Every contract, , in restraint of trade or
commerce is unlawful. 14 Employers need not establish the restraint is
reasonable. As a result, this case presents important questions of Texas law
concerning the limits that may be placed on at-will employment and the
restraints that may be placed on Texas employees employment freedom.
Oral argument in this case will permit in depth inquiry into the issues
presented including any justification Buc-ees can offer for its contractual
CR002239-40.
CR002302-08.
12 CR0002584-90.
13 CR0002593-95.
14 TEX. BUS. & COMM. CODE 15.05(a).
10
11
xi
provisions.
Oral argument will provide this Court the opportunity to
inquire as to the impact any decision will have on Texas law, Texas
employers and employees, restraints of trade on employees, and the future
sanctity of the Texas employment at-will doctrine.
ISSUES PRESENTED
I.
The trial court erred by granting summary judgment in favor of
Buc-ees on its breach of contract counterclaim.
1.
The trial court erred in determining on summary
judgment that the 2010 Agreement was enforceable.
2.
judgment that the 2010 Agreement was breached.
3.
judgment that the repayment provisions of the 2010 Agreement did
not constitute liquidated damages provisions.
4.
judgment that the liquidated damages provisions were enforceable.
5.
judgment in the 2010 Agreement is not a bilateral contract.
6.
judgment that non-illusory consideration supported the 2010
Agreement and the repayment provisions.
II.
The trial court erred in granting summary judgment
determining that the liquidated damage provisions of the 2010 Agreement
did not constitute an unenforceable penalty
III. The trial court erred in granting summary judgment
determining that the repayment provisions of the 2010 Agreement did not
constitute liquidated damages provisions
xii
IV. The trial court erred in failing to grant summary judgment in

favor of Rieves on Buc-ees breach of contract counterclaim.
1.
judgment that the 2010 Agreement was enforceable.
2.
judgment that the 2010 Agreement was capable of being and was
breached.
3.
judgment that the repayment provisions of the 2010 Agreement did
not constitute liquidated damages provisions.
4.
judgment that the liquidated damages provisions were enforceable.
5.
judgment in the 2010 Agreement is not a bilateral contract.
6.
judgment that non-illusory consideration supported the 2010
Agreement and the repayment provisions.
V.
The trial court erred in awarding damages to Buc-ees, Ltd.
VI. The trial court erred in granting summary judgment in favor of

Buc-ees on Rieves declaratory judgment claim that the the 2010
Agreement constitutes an unenforceable restraint of trade.
1.
judgment that the term and repayment provisions of the 2010
Agreement do not constitute a restraint of trade.
2.
judgment that the restraint of trade imposed by the 2010 Agreement
met the reasonableness standards of covenants not to compete under
Texas law.
xiii
a.
finding that the restraint of trade imposed by the 2010
Agreement was reasonable as to time.
b.
Agreement was reasonable as to scope.
c.
Agreement was reasonable as to geography.
d.
Agreement was ancillary to an otherwise enforceable
agreement.
e.
Agreement protected legitimate business interests of Buc-ees.
f.
Agreement was not greater than required to protect any
legitimate business interests of Buc-ees.
VII. The trail court erred in granting summary judgment on
Rieves claim that the 2010 Agreement and its provision are
unconscionable.
VIII. The trail court erred in granting summary judgment on
Rieves unjust enrichment, quantum meruit, and breach of contract
claims.
IX. The trail court erred in granting summary judgment on
Rieves claim of Failure to Mitigate, Quasi-estoppel, and Waiver.
X.
The trial court erred in awarding attorney fees to Buc-ees.
xiv
1.
The trial court erred in awarding attorney fees to
Buc-ees under the superseded 2009 Agreement.
2.
Buc-ees under paragraph 6.08 of the 2010 Agreement.
3.
Buc-ees under Texas Civil Practice & Remedies Code chapter
38.
4.
Buc-ees because paragraph 6.08 is unenforceable due to
vagueness.
5.
Buc-ees because the 2010 Agreement is unenforceable in whole
as it is not supported by consideration.
6.
Buc-ees because paragraph 6.08 is not supported by
consideration.
7.
Buc-ees because paragraph 6.08 constitutes an unenforceable
penalty.
8.
Buc-ees because paragraph 6.08 is unenforceable as part of an
unconscionable contract.
9.
Buc-ees because paragraph 6.08 is an unconscionable onesided attorney fees provision.
10. The trial court erred in awarding attorney fees
incurred in defense of Rieves Declaratory Judgment claims to
Buc-ees because the award is neither just nor equitable.
11. The trial court erred in awarding attorney fees to
Buc-ees because Buc-ees attorney fee claim is preempted by
the Texas Covenant not to Compete Act.
xv
XI. The trial court erred by granting summary judgment in favor of

Buc-ees on Rieves declaratory judgment claims.
xvi
INTRODUCTION
Buc-ees hired Rieves to provide personal services as an assistant
manager in one of its convenience stores. 15
Rieves was an at-will
employee. 16
Not wishing to bind itself to Rieves but desiring to bind Rieves to it,
Buc-ees devised a means of preventing Rieves from leaving as permitted by
her at-will status. Buc-ees required Rieves pay it to leave.
Don Wasek, Buc-ees president, testified, had [Rieves] stayed the
48 months and gave six months (sic) notice, she would not owe [Buc-ees]
any money. 17:
the only basis on which Buc-ees [seeks] to require Kelley
Rieves to repay the retention pay and the additional
compensation that was paid to her while she was employed by
Buc-ees is that she did not work for a minimum of 48 months
from the effective date of the 2010 Agreement and she failed to
give six months written separation notice to Buc-ees of her
intent to leave. 18
other than the fact that [Rieves] didnt work for 54 months
after entering into the 2010 written agreement, Buc-ees
wouldnt have a claim to to get the money back that it paid
her 19
Gregg Wingert, Buc-ees operations manager testified:
15
16
17
18
19
CR000365-66; CR000570 6.02.

CR000407; CR000568, Art. I; CR000634, 1.2.
CR000408.
CR000376; CR000458.
CR000444-45.
Q.
So going back to the time period of May 2012 in which the
retention pay is reflected to be $66,720.29, do you think
providing someone- -an employee a bill by Buc-ees of
$66,720.29 when they want to leave Buc-ees employ impacts
their voluntary ability to leave Buc-ees employ?
A.
To the extent that it needs to be a consideration if they
want to leave, yes. 20
Wingert continued:
Q.
The only way to avoid a bill for $66,720.29 is to either- either/or work out the full term of a contract or give six months
notice before you decide to leave?
A.
I believe its both, sir.
Q.
OK. Otherwise you get to pay the $66,000.00 in
retention pay?
A.
Thats what the contract states. Yes, sir. 21
Yet, Wasek testified, [Rieves was] free to leave the company anytime she
chooses and were free to terminate her anytime we choose. 22
Every contract, , in restraint of trade or commerce is unlawful. 23
Wingert identifies the restraint, testifying:
Q.
Buc-ees reason for having the procedure that is
described in paragraph 9 of Exhibit 3 is to retain employees in
its employ and also to prevent them from going to work for
other employers?
A.
Yes, sir. An employees free to leave at any time and go to
work for whomever they want. However, if that happens and
20
21
22
23
CR000217; CR000233.
CR000233.
CR000407.
TEX. BUS. & COMM. CODE 15.05(a).
they have not met the minimum term and/or provided the
specified notice that they have signed to then the company- then they do forfeit that unearned amount of retention pay. 24
The Texas Supreme Court held in Peat Marwick Main & Co. v. Haass, 818
S.W.2d 381 (Tex. 1991), that provisions clearly intended to restrict the
right to render personal services are in restraint of trade and must be
analyzed for the same standards of reasonableness as covenants not to
compete to be enforceable. 25 The 2010 Agreement at issue here do not
even attempt to satisfy that standard.
Buc-ees will most certainly return to Exxon Mobil Corp. v. Drennan,
452 S.W.3d 319 (Tex. 2014) claiming it makes its contract enforceable
under Texas law.
However, Drennan neither reached that issue nor
impacted Haass.
The two questions posed in Drennan were:
whether New York choice-of-law provisions in a Texas based
corporations
executive
bonus-compensation
incentive
programs (sic) are enforceable and, if not, whether the
programs provisions allowing forfeiture of an executives bonus
awards for engaging in detrimental activity are enforceable
under Texas law. 26
The Supreme Court did not reach the second question and said so three
times, stating:
24
25
26
CR000227 (in reference to the repayment provisions).

Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381, 388 (Tex. 1991).
Exxon Mobil Corp. v. Drennan, 452 S.W.3d 319, 321 (Tex. 2014).
That the New York choice-of-law provisions in the executive

compensation plan are enforceable and that the detrimentalactivity provisions are enforceable under New York law.
Accordingly, without reaching the second question, we
reverse 27
Whether such provisions in non-contributory employee
incentive programs are unreasonable restraints of trade under
Texas law, such that they are unenforceable, is a separate
question and one which we reserve for a different day. 28
While application of Texas and New York law may reach
different results on the enforceability of these particular
detrimental-activity provisions-which we do not decide today 29
Drennan does not assist Buc-ees.
I.
STATEMENT OF FACTS
A. Rieves Hiring and the Creation of the 2009 and 2010
Agreements
Buc-ees employed Rieves from August 2009 through July 2012;
some thirty-five months in total. During her employment Rieves had two
Employment Contracts. (the 2009 Agreement and the 2010
Agreement). 30 Employees designated as managers were required to have
27
28
29
30
Drennan, 452 S.W.3d at 321.

CR000568-72; CR000573-76.
contracts. 31
Entering into contracts was a condition of Rieves
employment. 32 Wasek handled the contracts for Buc-ees. 33

When Rieves considered employment with Buc-ees in 2009 she met
with Wasek. 34 Wasek asked how much it would take to get Rieves to work
for Buc-ees. Rieves told Wasek it would require at least what she was being
paid by her current employer; approximately $55,000.00 a year. 35 Wasek
agreed. 36 Wasek then told Rieves this amount would be split between an
hourly rate and a flat monthly amount and she could chose the percentage
split. 37 This was Rieves only choice. 38 Rieves had no idea what percentage
to select because she had never seen anything like this before. 39
The 2009 Agreement derived from a template presented by Wasek. 40
Wasek calculated the pay split based on the selected percentage, basing
Rieves hourly rate on the minimum 48 hours per week she was required to
work and placing the remainder of her agreed compensation under a
category labeled Additional Compensation divided by twelve months. 41
31
32
33
34
35
36
37
38
39
40
41
CR000230.
CR002212;
CR001400.
CR002081.
CR002081.
CR002081.
CR002081;
CR001400;
CR001402.
CR001398.
CR002081;
CR000227.
CR001400.
CR001402.
CR000422-23.
Wasek told Rieves she would initially be paid an hourly rate and a flat
monthly additional amount which would later convert to a salary and a
monthly percentage of store profits 42
This was stated in the 2009
Agreement. 43
A year later, as Wasek requested, Rieves visited him again. 44 During
this meeting, Wasek determined how much Rieves was compensated the
prior 12 months. 45 Wasek took that amount, applied the previously selected
percentage split and arrived at a weekly salary and a category labeled
Retention Pay. 46 Rieves asked to change the percentage split but was
refused. Wasek told Rieves it was too late, she had already selected.47
Rieves was then asked whether she wanted a twelve month contract or to
complete the remaining 48 from the 2009 Agreement. 48 Rieves chose to
complete the 48. 49 Wasek chuckled, telling Rieves it was not smart; she
was young and would figure out one day why that was a mistake. 50 Wasek
also assured Rieves that, if, at the end of the year, she had not made the
CR001402.
CR000573.
44 CR001408; CR002081.
45 CR002081.
46 CR001410.
47 CR002081.
48 CR001410.
49 CR001410.
50 CR001410. The fact that 12 months was offered counters Buc-ees assertion that long
term contracts such as Rieves were required to prevent the revolving door of employees.
42
43
same amount she made the prior year to see him and Buc-ees would make
up the difference. 51
Wasek recalls nothing about the meetings or how Rieves
compensation terms were arrived at. 52
B.
The End of Rieves Buc-ees Employment
On April 22, 2012, Rieves sent an e-mail concerning her desire to

leave Buc-ees. 53 Wingert and Wasek received the e-mail. 54 In the e-mail,
Rieves acknowledged her contract but detailed the reasons for her desire to
depart. This was in line with what she was told by Wasek previously.
Wasek told Rieves that the only time Buc-ees would seek to recoup any
money from her is if she lied or stole and that life changing events occur
resulting in people leaving Buc-ees. 55 If it ever came to a point where she
wanted to leave, he asked that it be done gracefully. 56 Wasek acknowledges
that he may well have requested a graceful or gracious exit and that he
may have told Rieves a life changing event may occur resulting in no
51
52
53
54
55
56
CR001411.
CR000475-80; CR000482-84.
CR000289-90.
CR000244; CR000482.
CR001403.
CR001403.
demand for repayment. 57 Rieves believed she was complying with Waseks
request when she resigned.
In response to Rieves e-mail, Wingert obtained a summary of Rieves
compensation during her employment, including the amount of Additional
Compensation and Retention Pay. 58 In the normal course of business, Bucees utilizes this information when an individual desires to leave its
employ. 59 The information was specifically obtained in preparation for a
meeting between Rieves and Wasek to discuss her desire to depart. 60
According to Wingerts calculations, Rieves was paid $66,720.29 gross in
Additional Compensation and Retention Pay over the course of her
employment. 61
In discussing the matter with Rieves, Wingert presented four options.
First, she could simply decline the new job offer. Second, Rieves could pay
Buc-ees $66,720.29. Rieves third option was to get the money from her
new employer. Fourth, Rieves could wait until February 25, 2014 to accept
the new job. 62 In his discussion with Rieves, Wasek provided three options.
Rieves could, ask her new employer to pay it stay and work out her
CR000487-89.
CR000232; CR000247; CR000294.
59 CR000217-18.
60 CR000232.
61 CR000294; CR000232.
62 CR000231; CR000333; CR000294 (the term of the 2010 Agreement was 48 months
from date of first employment, August 25, 2009 plus the 6 month notice period).
57
58
agreed upon term and notice [or] pay it back. 63 Rieves proposed working
out the six months of the notice period but was refused. 64
Rieves accepted the new job. Rieves provided formal notice on May
31, 2012. 65 Rieves last day was July 12, 2012. 66 A year after her notice,
Buc-ees sent Rieves a demand for payment of $66,720.29 plus interest and
attorney fees. 67
C.
The Express Purpose of the Repayment Provisions was
to Restrain Employees
Soon after learning of Rieves desire to depart, Wingert corresponded
with her stating:
After having carefully processed on the content of it, our take is
that what you are essentially saying is that you have a job offer.
We understand the circumstances you describe around this job
offer but its still a job offer.
Kelley consider the implications to the Company to accept
harming our business to facilitate your help with another.
Ironically, the paragraphs in your employment contract were
written to prevent this very thing from even being a
consideration on your part.
We dont want you to leave under these circumstances. 68
63
64
65
66
67
68
CR000495-96.
CR002212.
CR000334; CR000249-50.
CR000334.
CR000599-600.
CR000338.
The circumstances were, at least in part, the prospect of repaying the

any retention and additional the retention pay and additional
compensation 69 Wingert told Rieves:
There are some rather large considerations on your part here
leaving with this kind of notice and that the company would
view this, your reason for leaving, directly in conflict with
the whole reason that we have employment contracts
and that is to retain you. 70
The large considerations were the reasons for her leaving would
be considered by - - a breach by the company The breach
would result in Repayment of the retention pay and the
additional compensation. 71
Wingert further testified that the repayment provisions were designed
to retain talented employees, which means retain their employment.
Maintain their employment. 72 This expressly included, trying to keep
people from leaving Buc-ees. 73 Wasek testified Additional Compensation
and Retention Pay were unambiguously designed to give people a financial
incentive to stay at Buc-ees. 74 Wasek expressly told Rieves the purpose of
the Retention Pay was to keep people employed at Buc-ees. 75
69
70
71
72
73
74
75
CR000252.
CR000248 (emphasis added).
CR000248.
CR000227.
CR000227.
CR000458-59.
CR001403.
10
Buc-ees takes the position that it is not the stick of repayment that
compels restraint, it is the carrot of not repaying. Either way, restraint is
the purpose. As Wingert describes it:
Q.
So in that situation [leaving prior to the specified term
and/or providing the specified notice] then the employee has to
pay a penalty of the unearned retention pay back to Buc-ees
then; is that what youre saying?
A.
Well, I wouldnt refer to it as that, sir. I refer to it as we
positively incent with retention a person to remain on their
agreed tenure with a specified notice with a positive incentive. 76
Wingert nearly forgot the Buc-ees line when he testified, the reason
[Rieves] wanted to leave [accept other employment] was the very reason
that we have our employment contracts to prevent folks - -to incent them to
stay. 77 Wingert quickly returned to the Buc-ees line.
Q.
And prevent them from leaving, I guess, is the corollary to
that statement?
A.
To consider the implications before they leave. Yes, sir.
Q.
Well you used the word prevent earlier, right? I mean
you did say the word prevent?
A.
I did.
Q.
And am I mistaken that what you were - - what you were
intending to say there was that you prevent them from leaving
and to retain them with Buc-ees - - in Buc-ees employment?
76
77
CR000227-28.
CR000252.
11
A.
If I said the word prevent allow me to correct myself,
78
sir.
Even using Wingerts term incent, the provisions are to incentivize
people to remain employed at Buc-ees. 79
Wingert identifies the
incentive. It is the implications Wingert wants a departing employee to

consider before leaving; paying Buc-ees to leave. 80 In the end, regardless
of double speak, word play, and obfuscation, the spirit and intent of the
retention pay is to oblige with a minimum term and a specified written
notice. 81
Buc-ees wanted employees who were subject to notice and
payment provisions to think long and hard about leaving. 82 Underscoring

that payment was designed to restrain the employees, if Rieves had
returned to Buc-ees even after leaving, Buc-ees would not have required
payment even though the asserted breach had already occurred. 83
D.
The Financial Impact on Rieves
Payment of $66,720.29 was not financially possible. 84
The
$66,720.29 Buc-ees demanded equated to more than Rieves netted in pay

from Buc-ees any year she was employed.
In 2009, Rieves netted
CR000252.
CR000252.
80 CR000252.
81 CR000229.
82 CR000232.
83 CR000498-500; CR000593 ( wed love the opportunity to have you back.-August 28, 2012).
84 CR002212.
78
79
12
$13,587.06. 85 In 2010, Rieves net was $49,141.35. 86 In 2011, Rieves netted

$58,724.12. 87 In 2012, Rieves net was $32,081.25. 88 According to Buc-ees
records, Rieves netted a total of $154,254.86 during her nearly three years
of employment. 89 Thus, Buc-ees demanded nearly half of Rieves total
earnings back. Further, Buc-ees made no accounting for the taxes and
withholdings Rieves paid on these earnings until it sought summary
judgment on its breach of contract counterclaim. 90 Of course, the 2009 and
2010 Agreements require all payments repaid and that is what Buc-ees
demanded of Rieves. 91
Further, the amount exceeded any amount Rieves would earn from
her new employer. Rieves initial base salary when she accepted the job in
2012 was $55,000.00. 92 Rieves 2012 gross was $22,884.65, her 2013 gross
was $55,308.36, and her 2014 gross was $61,861.76. 93 None of these funds
would have been available to pay Buc-ees as it required repayment within
thirty days of termination. 94
85
86
87
88
89
90
91
92
93
94
CR000603.
CR000613.
CR000616.
CR000618.
CR000584.
CR000746; CR00815-18.
CR000568; CR000573.
CR002082.
CR002082.
CR000569.
13
Buc-ees obtained judgment against Rieves for $48,687.46 in actual

damages, $17,677.07 in pre-judgment interest, $40,000.00 in attorney
fees through trial, post-judgment interest at 10% per annum, and appellate
attorney fees ($50,000.00-Court of Appeals/$15,000.00-Petition for
Review/$25,000.00-Texas Supreme Court on the merits). 95
II.
SUMMARY OF THE ARGUMENT
A.
Breach of Contract
The trial court denied Rieves summary judgment on Buc-ees breach

of contract counterclaim and granted Buc-ees, determining, as a matter of
law, that Buc-ees established each element of its claim. The trial court
erred twice. It erred in denying Rieves motion and in granting Buc-ees.
Because the 2010 Agreement was a bilateral at-will employment contract,
any consideration was illusory. Because the consideration was illusory, the
2010 Agreement was not enforceable. Because it was not enforceable, there
was no breach.
Because there was no breach, the liquidated damages
provision did not apply. As a result, no valid enforceable contract existed,

there was no breach, and Buc-ees is not entitled to enforce the liquidated
damages provision.
95
Alternatively, the liquidated damages provision
CR002588-90.
14
constitutes an unenforceable penalty. Either way, Buc-ees was not entitled

to summary judgment on its breach of contract counterclaim; Rieves was.
B.
Restraint of Trade
Damage provisions limiting the right to engage in personal services

are a restraint of trade and must be analyzed under the reasonableness
standards of covenants not to compete. 96
The provisions of the 2010
Agreement were expressly designed and intended to limit Rieves ability to

render personal services to other employees. As such, they constitute a
restraint of trade which is illegal under Texas law. To be saved they must
be reasonable as required to secure an enforceable covenant not to
compete. The provisions are unreasonable as measured by that standard.
Buc-ees wholly fails to show otherwise. As a result, the liquidated damages
provision is unenforceable. Buc-ees was not entitled to summary judgment
on this issue.
C.
Unconscionability
The 2010 Agreement and its terms are grossly one-sided. The terms
of the 2010 Agreement benefit Buc-ees and negate Rieves rights.
In
addition to negating Rieves at-will employment rights and imposing a

restraint of trade, Rieves right to a jury trial is negated, Rieves is required
to return Additional Compensation in the event it is determined Additional
96
Haass, 818 S.W.2d at 382.
15
Compensation should be included as wages for purposes of overtime pay.

Venue and jurisdiction of any disputes is dictated. Buc-ees retains the sole
right to interpret the 2010 Agreement based on its intent. Buc-ees seeks to
require Rieves pay all attorney fees, costs, and expenses should litigation
occur, Rieves must indemnify Buc-ees. The list continues. The only right
Rieves obtains under the contract is to be paid. Of course, this is limited as
Buc-ees retains the right to terminate and change Rieves pay at any time.
In sum, 2010 Agreement is so wholly and grossly one-sided as to be
rendered unconscionable, particularly as it is imposed for an employee in a
convenience store.
D. Unjust Enrichment, Quantum Meruit, and Breach of
Contract
The trial court erred in granting summary judgment on unjust
enrichment, quantum meruit, and breach of contract because, as no
enforceable contract exists between Rieves and Buc-ees, the only contract
was an oral at-will employment agreement under which Rieves agreed to
provide services to Buc-ees and Buc-ees agreed to pay Rieves for those
services. In the event Buc-ees is successful in obtaining repayment of
Rieves earnings, Buc-ees failed to pay Rieves as promised and agreed to.
Under either a breach of contract or quantum meruit claim, Rieves is
entitled to be paid what was agreed to. Further, to the extent Buc-ees
16
successfully obtains earnings from Rieves, it has been unjustly enriched

because it obtained over a years worth of services from Rieves for
significantly less than it agreed to pay Rieves.
D.
Failure to Mitigate, Estoppel, Quasi-estoppel, and Waiver

The trial court erred granting summary judgment on Rieves claims of
Failure to Mitigate, Estoppel, Quasi-estoppel, and Waiver because Buc-ees

willingly paid Rieves during her employment despite the contractual terms
it now relies on that she would not be paid until she fulfilled the full term of
the 2009 Agreement or earn Retention Pay until the fulfillment of the 2010
Agreement term. Buc-ees paid the funds with no limitation or restriction,
and, in fact, encouraged their use. Buc-ees cannot assert the funds did not
belong to Rieves when it paid them as earnings, reported them to the
United States Government as earnings, and treated them as earnings for all
purposes.
E.
Attorney fees
Buc-ees is not entitled to attorney fees under any scenario it
proposes. The attorney fee provision of the 2009 Agreement is superseded

by the 2010 Agreement; Buc-ees has not prevailed on its breach of contract
claim; the attorney fees provision is unenforceable due to fatal ambiguity,
lack of consideration, and because it is a penalty; Buc-ees has not defended
17
itself based on the 2010 Agreement, rather it sought to enforce the 2010
Agreement; the attorney fee provision is an unenforceable fee shifting and
one-sided fee provision; and Buc-ees attorney fee claim is preempted by
the Texas Covenants not to Compete Act.
III.
ARGUMENT
A.
Standard of Review
A matter-of-law summary judgment is proper only when the movant

establishes there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. 97
The standard of review on summary judgment is well established. 98
Review of the granting of summary judgment is de novo. 99 In order to
obtain a defensive summary judgment, the movant must establish through
summary judgment proof that, as a matter of law, no genuine issue of
material fact exists as to one or more elements of the non-movants cause of
action. 100 To establish affirmative summary judgment, the movant must
affirmatively prove that no genuine issue of material fact exists concerning
TEX. R. CIV. P. 166a(c).
See Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex. 1990); Nixon v. Mr.
Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
99 Ferguson v. Bldg Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009)(per
curiam).
100 Leach v. Conoco, Inc., 892 S.W.2d 954, 958 (Tex. App.-Houston [1st Dist.] 1995),
writ dismd w.o.j.); Mann, Frankfort, Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009).
97
98
18
each element of movants cause of action. 101
On appeal, all evidence
favorable to the non-movant is taken as true, every reasonable inference in

favor of the non-movant is allowed, and all doubts are resolved in the nonmovants favor. 102
As such, the evidence is analyzed in the light most
favorable to the non-movant, crediting evidence favorable to the nonmovant unless a reasonable juror could not. 103 Evidence contrary to the
non-movant is disregarded unless a reasonable juror could not likewise
disregard it. 104
When both parties move for summary judgment on the same issue,
one being granted and one being denied, the analysis is slightly altered.
The Court considers the summary judgment evidence presented by both
parties, determines all questions presented, and, in the event it is
determined the trial court erred, renders the judgment the trial court
should have rendered. 105
B. Because Rieves was an At-will Employee under a
Bilateral At-Will Employment Contract, No Breach Resulted
from her Departure and, absent that Breach, Buc-ees is not
Entitled to Enforce the Liquidated Damages Provision
under which it Seeks Repayment of Additional
Compensation and Retention Pay
TEX. R. CIV. P. 166a cmt. 1997.
20901, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Nixon, 690 S.W.2d at 54849.
103 Fielding, 289 S.W.3d at 848.
104 Fielding, 289 S.W.3d at 848.
105 Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
101
102
19
1.
Buc-ees Does not Seek Actual Damages, it Seeks to
Enforce a Liquidated Damages Provision
In exchange for Rieves personal services, Buc-ees agreed to:
In addition to Employees regular weekly salary, Employee will
be advanced a monthly Retention payment of 1.2652% of Bucees #32 net profit paid monthly and a one time (sic) payment of
$1,000.00. 106
This fulfilled the 2009 Agreement in which Buc-ees agreed to pay Rieves
[a] fixed monthly bonus of $1,528.67. Bonus will be changed to a % of
store net sometime in the future at employers (sic) Discretion (sic). 107
Thus, Retention pay under the 2010 Agreement was a continuation of
Buc-ees pre-existing agreement to pay Rieves a fixed monthly bonus. The
2010 Agreement merely quantified the percentage and changed the name.
The 2010 Agreement contained other provisions concerning
Retention Pay.
In the event Employee does not meet the above
requirements, regardless of the reason for termination or
regardless of the reason Employee did not provide the required
notification, Employee shall be required to repay all of the
Retention Pay to Company In other words, in the event
Employees employment with Company, its successors or
assigns terminates for any reason, with or without cause, and
the above requirements are not met by Employee, Employee
will be required to repay all of the Retention Pay received 108
106
107
108
CR000568, 3.01.
CR000573, 3.01.
CR000568, 3.02.
20
The above requirements were:

Employee shall be required to work for the Company a
minimum of 48 months from the Effective Date of this
Agreement and shall also provide Company with a minimum of
6 months written Separation Notice to be given only after
Employee fulfills the required minimum number of months
worked 109
The 2010 Agreement contained another provision regarding repayment.
In the event Employee has prior Employment Contract(s) with
Company which require the Employee to repay Additional
Compensation, the obligation to repay the Additional
Compensation shall continue to exist unless Employee complies
with all the terms of this Agreement 110
Rieves had a prior contract; the 2009 Agreement. 111
As pointed out supra, Buc-ees admits that:
other than the fact that [Rieves] didnt work for 54 months
for Buc-ees after entering in to the 2010 written agreement,
Buc-ees wouldnt have a claim to try to get the money back that
it paid her in retention pay and additional compensation. 112
Rieves did not violate a non-compete agreement as Buc-ees maintains no
non-compete agreement exists. 113 Further, Buc-ees does not allege Rieves
violated any non-solicitation or non-disclosure agreements. 114
CR000568, 3.02. Paragraph 3.05 required the employee remain employed during
the entirety of the six months.
110 CR000571, 6.06.
111 CR000573, 3.02.
112 CR000408; CR000444-45.
113 CR000541-42.
114 CR000542-43.
109
21
The $66,720.29 Buc-ees sues for in its breach of contract

counterclaim is merely an amount Buc-ees fixed in advance for failing to
remain employed; i.e. for failing to meet the above requirements of 2010
Agreement.
2.
Contract Damages are to Compensate for Loss and
Buc-ees suffered no Loss due to Rieves Departure
Buc-ees admits it is not seeking replacement costs or expenses
associated with Rieves departure. 115 Buc-ees made no effort to determine
these costs. 116 Buc-ees does not seek costs associated with training Rieves
replacement. 117
Buc-ees seeks no increased compensation expense for
Rieves replacement. 118 Buc-ees seeks no damages associated in any way

with filling Rieves position. 119 Buc-ees admits the amount it seeks is not a
fee or a bill due from Rieves. 120 The amount did not derive from relocation
or moving expenses. 121 Buc-ees admits the amount increased as long as
Rieves was employed. 122
The amount sought by Buc-ees is wholly
unrelated to any actual damage related to Rieves departure; it is merely the

sum of a portion of Rieves agreed compensation.
115
116
117
118
119
120
121
122
CR000390-91; CR000397-98.
CR000390.
CR000391.
CR000391.
CR000391.
CR000398-99.
CR000402.
CR000445-46.
22
The universal rule for measuring damages for the breach of a

contract is just compensation for the loss or damage actually sustained. 123
Buc-ees shows no loss or damages actually sustained due to Rieves
departure.
Rather,
Buc-ees
relies
on
liquidated
damages
provision.
Liquidated damages refers to an acceptable measure of damages that

parties stipulate in advance will be assessed in the event of a contract
breach. 124
A liquidated damages clause fixes, in advance, damages
accruing from the breach of specified contractual obligations. 125 The Texas
Supreme Court expressly identified a repayment clause similar to that here
as a form of liquidated damages. 126 Liquidated damages are recoverable
only when a failure to perform contractual obligations has occurred. 127
3.
The only Possible Breach of the 2010 Agreement was
Rieves Failure to Remain Employed and/or Provide Six
Months Notice
The only breach capable of triggering the liquidated damages
provision was Rieves failure to remain employed for 54 months and/or
Stewart v. Basey, 245 S.W.2d 484, 486 (Tex. 1952).

Garden Ridge L.P. v. Advance Intl, Inc., 403 S.W.3d 432, 438 (Tex. App.Houston
th
[14 Dist.] 2013, pet. denied).
125 Dorsett, 164 S.W.3d at 664.
126 Haass, 818 S.W.2d at 385.
127 Dorsett, 164 S.W.3d at 664-65.
123
124
23
provide six months notice after 48 months. 128 Rieves made no promise to
repay Buc-ees.
Payment was wholly dependent on failing to remain
employed and/or give notice. Buc-ees acknowledges this. On July 20,

2012, Buc-ees internal termination document expressly describes the
asserted breach as, [o]n May 31, 2012, Kelley submitted her resignation,
providing 6 weeks (sic) notice, in violation of her contract. 129 Moreover,
Buc-ees repeatedly identifies the failure to remain employed and/or give
notice as the breach in its testimony. Failure to pay is not the breach;
leaving is the breach.
4.
The 2010 Agreement was a Bilateral Contract
Payment of Additional Compensation and Retention Pay resulted

from express obligations undertaken by both Rieves and Buc-ees. Payment
was not discretionary. 130 Buc-ees was obligated to pay the Retention Pay
for so long as Rieves remained employed. 131 Rieves agreed to provide
personal services to Buc-ees in return.
Conversely, Rieves agreed to
provide personal services to Buc-ees and Buc-ees agreed to pay Rieves in

return. Either way, a bilateral contract existed between Rieves and Bucees.
128
129
130
131
A bilateral contract is one in which there are mutual promises
CR000568.
CR001481.
CR000508.
CR000435-37; CR000459; CR000534-537.
24
between two parties to the contract, each party being both a promisor and a
promisee. 132 Rieves and Buc-ees were each promisor and promisee.
a.
As an Unmodified Bilateral At-will Employment
Contract, the 2010 Agreement contained only Illusory
Promises, making it Unenforceable
Texas is steadfastly an at-will employment state. for well
over a century, the general rule in this State, as in most
American jurisdictions, has been that absent a specific
agreement to the contrary, employment may be terminated by
an employer or the employee at will, for good cause, bad cause,
or no cause at all. 133
Employers and employees can modify the at-will relationship but the intent
to do so must be unequivocal and definite. 134 At-will employment contracts
may be entered on any matter except those that limit the ability of either
party to terminate employment at will. 135
As Buc-ees repeatedly
acknowledges, Rieves was expressly an at-will employee with no limitations

on that status. 136
When the employer or the employee can avoid performance of a
promise by exercising a right to terminate the at-will relationship, which
Venegas v. American Energy Services, 302 S.W.3d 299, 302 (Tex. 2009).
Ritchie v. Rupe, 443 S.W.3d 856, 885-86 (Tex. 2014)(internal citations omitted).
134 Ritchie, 443 S.W.3d at 86; Sawyer v. E.I. DuPont De Nemours and Co., 430 S.W.3d
396, 403 (Tex. 2014).
135 Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642, 644 (Tex. 1994), abrogated on
other grounds by Marsh USA Inc. v. Cook, 354 S.W.3d 764, 773-75 (Tex. 2011).
136 It takes no imagination to predict Buc-ees response were Rieves fired within the 54
months and claimed the 2010 Agreement was not at-will but rather, had a term of 54
months based on the same provisions Buc-ees relies on here.
132
133
25
each is perfectly free to do with or without reason at any time, the promise
is illusory and cannot support an enforceable contract. 137
Consideration for a promise, by either the employee or the
employer in an at-will employment (sic), cannot be dependent
on a period of continued employment. Such a promise would
be illusory because it fails to bind the promisor who always
retains the option of discontinuing employment in lieu of
performance. When illusory promises are all that supports a
purported bilateral contract, there is no contract. 138
Rieves was not required to remain employed and Buc-ees was not required
to maintain that employment and pay Rieves. Any promises to remain
employed or provide six months notice were illusory.
The only
consideration for the bilateral 2010 Agreement was and remained illusory.
No consideration supports the 2010 Agreement and no valid contract
existed which Rieves could breach by leaving.
5.
Because no Breach of the 2010 Agreement Occurred,
the Liquidated Damages Provision cannot be enforced
The elements of a breach of contract claim are: (1) the existence of a
valid contract; (2) the plaintiff performed or tendered performance; (3) the
defendant breached the contract; and (4) the plaintiff was damaged as a
result of the breach. 139 There was no valid contract, there was no breach,
Sawyer, 430 S.W.3d at 401.

Light, 883 S.W.2d at 644-45; J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 228
(Tex. 2003); Sawyer, 430 S.W.3d at 401-02.
139 Southwell v. University of the Incarnate Word 974 S.W.2d 351, 354-55 (Tex.
App.San Antonio 1998, pet. denied).
137
138
26
and Buc-ees suffered no damages as a result of any alleged breach. As

there was no breach of the 2010 Agreement, its liquidated damages
provision cannot be enforced. Buc-ees is not and was not entitled to an
affirmative finding of breach of contract or enforcement of the liquidated
damages provision.
To the contrary, Rieves was entitled to summary
judgment on Buc-ees breach of contract counterclaim. Because both Bucees and Rieves sought summary judgment on this claim, this Court may
render a decision that Buc-ees take nothing by way of its breach of contract
counterclaim.
C.
The Liquidated Damages Provision Is Alternatively
Unenforceable because it Constitutes a Penalty
A term fixing unreasonably large liquidated damages is void as a
penalty. 140 This presents a question of law for the Court. 141
All agree that to be enforceable as liquidated damages the damages
must be uncertain and the stipulation must be reasonable. 142
Even
competent parties cannot contract without limits. 143 Just compensation is

all that is permitted for breach of contract. 144
140
141
142
143
144
TEX. BUS. & COMM. CODE 1.718(a) (Tex. UCC).

Phillips v. Phillips, 820 S.W.2d 785, 788 (Tex. 1991).
Stewart, 245 S.W.2d at 486.
27
For the liquidated damages provision to be enforced, it must be

determined:
(1) that the harm caused by the breach is incapable or difficult
of estimation, and;
(2) that the amount of liquidated damages called for is a
reasonable forecast of just compensation. 145
If the amount stipulated in the liquidated damages clause is shown to be
disproportionate to actual damages [the court] should declare that the
clause is a penalty and limit damages to actual damages. 146
Here, Buc-ees is not concerned with any actual damages resulting
from Rieves resignation.
Rather, Buc-ees simply fixes damages at
whatever was paid to Rieves during her employment, an amount which

increases each month regardless of any purported actual harm or just
compensation and which Buc-ees unilaterally decreased on summary
judgment. Even if the harm from leaving ones employment was incapable
of or difficult to estimate, the amount claimed here is unreasonable because
it is wholly divorced from any harm caused by the departure. Of course, as
Rieves was an at-will employee, Buc-ees could suffer no harm from her
Phillips, 820 S.W.2d at 788.

Magill v. Watson, 409 S.W.3d 673, 679 (Tex. App.Houston [1st Dist.] 2013, no
pet.).
145
146
28
departure as she was free to leave. No fact issue exists as the provision is
void on its face as a penalty and may be so declared in Rieves favor. 147
D. The
Term
and
Repayment
Provisions
are
Unenforceable because they constitute a Restraint of Trade
which does not satisfy the Reasonableness Standards of
Covenants Not to Compete under Texas Law
1.
The Texas Supreme Court has Held that Damage
Provisions such as those in the 2010 Agreement are
Restraints
of
Trade
and
are
Subject
to
the
Reasonableness Standards of Covenants not to Compete
The argument that Rieves was not restrained because she was an atwill employee; free to work for anyone she chose ignores the facts and the
Texas Supreme Court. The spirit and intent of the retention pay is to
oblige with a minimum term and a specified written notice. 148 Wingert
wrote:
After having carefully processed on the content of it, our take is
that what you are essentially saying is that you have a job offer.
We understand the circumstances you describe around this job
offer but its still a job offer.
Kelley consider the implications to the Company to accept
harming our business to facilitate your help with another.
Ironically, the paragraphs in your employment contract were
written to prevent this very thing from even being a
consideration on your part. 149
147
148
149
See Phillips, 820 S.W.2d at 788 and Magill, 409 S.W.3d at 680-81.
CR000229.
CR000338.
29
Wingert clearly identifies the purpose of the paragraphs as seeking to

restrain Reives employment mobility.
Covenants that place limits on
former employees professional mobility are restraints on trade 150

An argument that Rieves was not restrained because she slipped the
restraint is, in addition to being circular, intellectually, if not simply,
dishonest. An argument that no restraint existed on Rieves as a former
employee ignores the facts and the intent of the provisions at issue which
was to keep Rieves from becoming a former employee until at least
February 25, 2014.
The Texas Supreme Court applied the covenant not to compete
reasonableness standard to an employee who was not restrained from
working for anyone he chose in Mann Frankfurt Stein & Lipp v. Fielding,
289 S.W.3d 844, 846 (Tex. 2009). Fielding entered a contract which stated
that, if he left and subsequently provided services to a client of his former
employer, he was required to purchase the client. 151 Thus, Fielding was not
expressly prohibited from leaving and working for the client.
He was
subject to a penalty if he did so. Fielding had to make the financial decision
if providing the services warranted paying his former employer.
The Texas Supreme Court held:
150
151
Marsh USA, 354 S.W.3d at 768.

Fielding, 289 S.W.3d at 846.
30
[A] damages provision affecting the right to render personal

services operates as a restraint of trade and must be judged by
the reasonableness standards for covenants not to compete 152
It simply gets no clearer.
Even in Haass, the employee was not prohibited from leaving. 153 He
was simply subject to a penalty if he did so and provided services to a
former client. 154 Haass notes, Analyzing damage provisions affecting the
right to render personal services as covenants not to compete in restraint of
trade is consistent with our prior cases. 155 One such case is Frankiewicz v.
National Comp Associates, 633 S.W.2d 503 (Tex. 1982).
In Frankiewicz, the Texas Supreme Court expressly rejected the
argument that the damages provision should be considered independently
and did not constitute a covenant not to compete because the former agent
was free to compete as long as he was willing to forego renewal
commissions. 156 This rejected argument is precisely Buc-ees argument
here; Rieves was free to leave and work for whomever she wished, as long
as she was willing to forego $66,720.29.
The trial court should have
rejected the argument just as the Texas Supreme Court did.
152
153
154
155
156

Haass, 818 S.W.2d at 385-86.
31
The Connecticut Supreme Court recognized the true impact of

provisions such as those at issue here.
The total prohibition against competition, enforced by a
forfeiture of accrued benefits, subjecting the employee to an
economic loss undoubtedly is designed to deter competition.
Although paragraph 11(f) is not a direct restraint of trade in that
the plaintiffs are not precluded from engaging in their chosen
profession, we are persuaded that the consequences of
forfeiture, at the very least, enkindle a restraining influence,
albeit in a subtle fashion. although such a restraint may be
indirect, its effects hardly can be deemed subtle. We would be
unduly formalistic if we were to invalidate a covenant not to
compete that was in direct restraint of trade, but approve a
forfeiture provision that indirectly accomplished the same
result. 157
A persons right to use [her] own labor in any lawful employment is
one of the first and highest of civil rights. 158 Texas companies do not
have free rein to, by contract, indenture an employee 159
Unreasonable limitations on employees abilities to change
employers could hinder legitimate competition between
businesses and the mobility of skilled employees.
The
legislature passed [The Texas Free Enterprise and Antitrust
Act] to prohibit restrictions on employee mobility that impede
competition, while allowing employers and employees to agree
to reasonable restrictions on mobility that are ancillary to or
part of a valid contract having a primary purpose that is
unrelated to restraining competition between the parties. 160
Deming v. Nationwide Mut. Ins. Co., 905 A.2d 623, 638-39 (Conn. 2006) (emphasis
original).
158 Marsh, 354 S.W.3d at 776.
159
Marsh, 354 S.W.3d at 788 (Willett, J., concurring in judgment); Indentured
servitude was abolished in 1865. U.S. CONST. amend. XIII 1.
160 Nacogdoches Heart Clinic, P.A. v. Pokala, No. 12-11-00133-CV, 2013 WL 451810, at
* 4 (Tex. App.Tyler, Feb. 6, 2013, pet. denied).
157
32
Buc-ees may be many things, but above the law it is not. In Haass,
the Texas Supreme Court directly stated that damage provisions such as
Buc-ees must be analyzed under the reasonableness standard of covenants
not to compete.
2.
The
2010
Agreement
does
not
satisfy
the
Reasonableness Standards of Covenants not to Compete
The 2010 Agreement is devoid of anything remotely satisfying the
reasonableness standard of covenants not to compete. It is devoid of time
limitation, geographic limitation, and scope limitation. 161 There are no
protectable business interests the restraint is designed to protect. 162 Even if
limitationed as to time, scope, and geography, the restraint (inability to
leave to work for any other employer, anywhere, doing anything) imposed
is significantly greater than necessary to protect any legitimate business
interest Buc-ees could divine. 163 While all are missing, the absence of just
one is fatal to a covenant. 164 Leaving all that aside, the restraint still fails as
there is no otherwise enforceable agreement the provisions are ancillary
to. 165 The only agreement is an at-will employment agreement containing
only illusory promises.
It is and was Buc-ees burden to show the
See Marsh, 354 S.W.3d at 771; TEX. BUS. & COMM. CODE 15.50(a).
DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 685 (Tex. 1990).
163 TEX. BUS. & COMM. CODE 15.50(a).
164 APRM, Inc. v. Hartnell, No. 01-01-00831-CV, 2002 WL 1435995, at * 4 (Tex. App.
Houston [1st Dist.] July 3, 2002, no pet.).
165 See Marsh, 354 S.W.3d at 771; TEX. BUS. & COMM. CODE 15.50(a).
161
162
33
provisions satisfy the reasonableness standard. 166 Buc-ees did not and
cannot. The trial court erred by granting summary judgment ruling that
the provisions at issue do not constitute a restraint of trade and/or that
they satisfy the reasonableness standards for covenants not to compete.
The trial courts ruling must be reversed. Further, as the provisions do, in
fact, constitute an unenforceable restraint of trade, this Court should rule
thus as a matter of law.
E.
The 2010 Agreement and its Provisions are Unconscionable
because they are Grossly One-Sided
A contract is unconscionable if, given the parties general
commercial background and the commercial needs of the
particular trade or case, the clause involved is so one-sided that
it is unconscionable under the circumstances existing when the
parties made the contract. 167
Unconscionability is to be determined in light of a variety of factors, which
aim to prevent oppression and unfair surprise; in general, a contract will be
found unconscionable if it is grossly one-sided. 168 Whether a contract is
contrary to public policy or unconscionable at the time it is formed is a
question of law. 169 Because a trial court has no discretion to determine
what the law is or apply the law incorrectly, its clear failure to properly
166
167
168
169
DeSantis, 793 S.W.2d at 685; TEX. BUS. & COMM. CODE 15.51(b).
In re Poly-America, LP, 262 S.W.3d 337, 348 (Tex. 2008).
Poly-America, 262 S.W.3d at 348.
Poly-America, 262 S.W.3d at 349.
34
analyze or apply the law of unconscionability constitutes an abuse of

discretion. 170 The trial court abused its discretion.
The 2010 Agreement begins by purporting to allow Buc-ees to recoup
money paid its at-will employees for their services. The 2010 Agreement
limits the employees at-will employment rights and imposes a restraint of
trade but leaves Buc-ees at-will employment rights unchecked. The 2010
Agreement seeks to forestall an employees asserting rights under the
Federal Fair Labor Standards Acts overtime provisions despite the
employee being required to work at least 48 hours a week. 171
If the
employee or anyone else obtains a determination that Additional

Compensation constitutes wages under the Fair Labor Standard Act, the
employee is required to repay all Additional Compensation. 172
The
employee is required to waive their right to a jury for any claim. 173
Regardless of where the employee lives or works, all disputes are to be
submitted to either Brazoria County, Texas courts or the United States
District Court for the Southern District of Texas, Houston Division. 174 If a
conflict or apparent conflict between the 2010 Agreement or any other
document arises which cannot be resolved between the parties, Buc-ees,
170
171
172
173
174
Poly America, 262 S.W.3d at 349.

CR000421-22; CR000569, 3.04.
CR000569, 3.04.
CR000569-70, 5.01.
CR000569-70, 5.01.
35
in its sole discretion shall determine what term applies based on what
Buc-ees meant. 175 The employee is to hold Buc-ees harmless, indemnify
and reimburse it for any damages, penalties, losses, or litigation expenses
Buc-ees may incur due to any act, omission, and/or commission by the
employee. 176
Buc-ees purports to require the employee pay Buc-ees
attorney fees, costs, or expenses incurred in any litigation in which Buc-ees

sues to enforce the 2010 Agreement or in which Buc-ees defends itself, in
whole or in part, based on the Agreement. 177 Buc-ees can change the
calculation of net profits retroactively and adjust the employees pay
accordingly to recoup for that change. 178 Although, despite contractually
obligating itself to pay a percentage of net profits to the employee as
Retention Pay, Buc-ees can change the percentage, cancel the payment, or
modify the payment at its sole discretion. 179
In return, Buc-ees merely undertakes the illusory obligation of
paying the employee. Buc-ees makes no effort to explain the commercial
need for such a one-sided employment contract for an assistant manager in
a convenience store.
175
176
177
178
179
CR000570, 6.04.
CR000570, 6.07.
CR000570, 6.08.
CR000570, 6.09.1; 6.09.2.
CR000568, 2.01, 3.01.
36
When Rieves sought to change the percentage split, she was

refused. 180 Splitting the agreed compensation between regular pay and
Additional Compensation and Retention Pay was not a choice presented to
Rieves. 181 There was no discussion concerning the remaining provisions of
the 2010 Agreement. Likewise, there was no discussion of the substantive
aspect of the 2010 Agreement, namely the legitimate commercial reasons
justifying the terms of the 2010 Agreement. 182
To be entitled to summary judgment, Buc-ees was required to
demonstrate there is no genuine issue of material fact concerning both the
procedural aspects of the 2010 Agreement and the substantive aspects at
the time the 2010 Agreement was entered into. 183
In determining whether a contract is unconscionable, [the
court] must examine (1) the entire atmosphere in which the
agreement was made; (2) the alternatives, if any, available to
the parties at the time the contract was made; (3) the nonbargaining ability of one party; (4) whether the contract was
illegal or against public policy; and (5) whether the contract was
oppressive or unreasonable. 184
CR002081-82.
CR001402.
182 Ski River Development, Inc. v. McCalla, 167 S.W.3d 121, 136 (Tex. App.Waco
2005, pet. denied).
183 McCalla, 167 S.W.3d at 136.
184 McCalla, 167 S.W.3d at 136.
180
181
37
Buc-ees fell far short of establishing there is no evidence or no question of

material fact as to the procedural aspects of the 2010 Agreement and wholly
failed to support summary judgment on the substantive aspects.
F.
The Trial Court Erred in Granting Summary Judgment
on Rieves Claims of Unjust Enrichment, Quantum Meruit,
Breach of Contract
When Rieves discussed becoming employed by Buc-ees, she
expressly stated she would not accept unless she earned at least what she
made in her prior employment.
Rieves was promised at least $55,000.00
a year when she started and at least $62,500.00 thereafter. 185

performed by providing services to Buc-ees.
Rieves
Buc-ees knew Rieves
expected to be paid for her services. If it is determined that Buc-ees is

somehow entitled to recover Additional Compensation and Retention Pay,
Rieves is entitled to receive what was promised and what induced her to
accept and continue her employment with Buc-ees. To deny this to her
unjustly enriches Buc-ees as it benefited from Rieves labor but need not
compensate her as promised, a promise on which Rieves relied. For the
same reasons, Rieves is entitled to recover in quantum meruit.
Further, if there was an enforceable contract between Rieves and Bucees, it was only an oral at-will employment agreement, the written 2010
Agreement being unenforceable. The terms of the oral agreement were
185
CR002081-82.
38
Rieves agreement to be an at-will employee and Buc-ees agreement to pay

Rieves $55,000.00 her first year and $62,500.00 a year subsequently.
Rieves performed by providing services to Buc-ees. Buc-ees was obligated
to pay Rieves as agreed and any diminution of that amount is in breach of
this oral at-will employment contract.
G. The Trial Court Erred in Granting Summary Judgment
on Rieves Claims of Failure to Mitigate, Estoppel, Quasiestoppel, and Waiver
Buc-ees may not recover damages it could have avoided through
reasonable care. 186
Buc-ees asserts Rieves did not earn Additional
Compensation or Retention Pay despite their payment to her. Buc-ees paid

Rieves monthly, expressly represented and reflected the payments as
earnings internally, on Rieves paycheck stubs, and to the United States
Government, withholding and, presumably, paying withholdings on the
funds as earnings to Rieves. 187 Buc-ees put no restrictions on the funds or
otherwise took any step signifying that the funds were not earned.
Buc-ees could have, if it desired to follow the language of its
contracts, withheld the funds until they were to be paid or earned on the
completion of the employment term.
Buc-ees could have placed
restrictions on the use of the funds it now claims belong to it and which
Pinson v. Red Arrow Freight Lines, 801 S.W.2d 14 (Tex. App.Austin 1990, no
writ).
187 CR000584; CR000602-618.
186
39
were paid without restriction.
Buc-ees did not.
Rather, Buc-ees
affirmatively paid Rieves and treated it as earnings. Buc-ees did so with

full knowledge of the contract terms concerning payment and earning.
Moreover, by affirmatively taking no steps to restrict or otherwise
ensure retention of the funds, Buc-ees encouraged and expected their use
and expenditure. In fact, according to its pleadings, Buc-ees encouraged
the use of the funds because:
it strengthens the value of this incentive bonus by paying it up
front, rather than at the end of the retention period, meaning
that employees who meet their retention obligations not only
enjoy the extra compensation, but the actual amount of
compensation is increased because of the time value of
money. 188
As a result, Buc-ees waived the condition precedent of remaining employed
before payment or earning of the funds and is estopped from asserting a
contrary position.
For the same reasons, Buc-ees failed to mitigate its asserted actual
damages.
H. The Trial Court Erred in Awarding Attorney Fees to
Buc-ees
Buc-ees sought attorney fees via three avenues.
First under
provisions of the 2009 and 2010 Agreements. Second, under Texas Civil
Practice & Remedies Code chapter 38, and third, equitably for defending
188
CR000621.
40
against Rieves declaratory judgment claims. Buc-ees is not entitled to

attorney fees under any of the three.
First, the 2009 Agreement was wholly superseded by the 2010
Agreement with two exceptions which do not include the attorney fee
provision of the 2009 Agreement. 189
Second, paragraph 6.08 of the 2010 Agreement is fatally ambiguous
in that it is unclear whether it is intended to be a recitation of Texas Civil
Practice & Remedies Code 38.001 et seq. which requires Buc-ees prevail
on any breach of contract claim, is intended to be a prevailing party
attorney fees provision, or is intended to be a one-sided attorney fees
provision designed to prevent, along with other provisions of the 2010
Agreement, Rieves from seeking to enforce her legal rights.
Third, failure to prevail on its breach of contract counterclaim negates
any relief to the extent the provision is merely a recitation of chapter 38. By
virtue of its counter-claim, Buc-ees did not defend itself, in whole or in
part, based on the 2010 Agreement. Rather, Buc-ees affirmatively claimed
and made demand that the 2010 Agreement entitles it to recovery. To the
extent Buc-ees is deemed to have defended itself in whole or in part, based
on the 2010 Agreement, then the provision is an unenforceable one-sided
attorney fee provision as discussed infra.
189
CR000571, 6.06.
41
Fourth, given the other terms of the 2010 Agreement including: its
general abrogation of Rieves at-will employment rights; its illegal attempt
to obtain waiver of Rieves overtime rights (3.04); its waiver of jury trial
(5.01); its self-serving attempt to fix jurisdiction and venue (6.03); its
assignment of the ability to declare the meaning and intent of the 2010
Agreement solely to Buc-ees (6.04, 6.05, & 6.08); and its overbroad
indemnity provision (6.07), the attorney fees provision is part of an
unconscionable contract and for that reason and independently, is an
unconscionable one-sided fee shifting provision. Either in combination or
singly it is unenforceable. 190
Moreover, at least in the context of arbitration agreements, the Texas
Supreme Court recognizes that fee-splitting provisions which operate to
prohibit employees from fully and effectively vindicating statutory rights
are not enforceable. 191 Paragraph 6.08 is more insidious. Wasek asserts
the intent of the provision is to require the employee bear all attorney fees
and costs regardless of who the prevailing party is. 192
The provision
purports to shift all attorney fees and costs in an effort to prevent full and
effective vindication of the employees rights. A provision purporting to
require an employee bear both her own and Buc-ees attorney fees and costs
190
191
192
See Venture Cotton Coop v. Freeman, 435 S.W.3d 222, 231-32 (Tex. 2014).
See Poly America, L.P., 262 S.W.3d at 356.
CR000518-20.
42
win, lose, or draw is a penalty. Further, this is not a contract between two
sophisticated commercial entities, it is simply a contract between one
sophisticated entity and a person applying to be an assistant manager in a
convenience store.
Fifth, as the 2010 Agreement and paragraph 6.08 lack consideration,
each is unenforceable.
Sixth, Buc-ees is not entitled to recover attorney fees for defending
against Rieves declaratory judgment action. Given that seeking declaratory
judgment was the only recourse Rieves had in challenging the payment
provisions on which Buc-ees relies, it is neither equitable nor just to award
Buc-ees attorney fees incurred in defending her claim.
Rieves was
presented with a demand by Buc-ees leaving her three choices; pay Bucees $66,720.29; wait for Buc-ees to make good on its promise to sue her if
she failed; or ask a Court to declare the provisions on which Buc-ees relies
unenforceable.
Punishing Rieves for choosing the third, as Texas law
expressly allows, is neither equitable nor just.

Finally, because the provisions Buc-ees seeks to enforce are restraints
of trade and must be construed as covenants not to compete, Buc-ees
attorney fees claim is preempted by Texas Business & Commerce Code
15.51 and 15.52.
Buc-ees seeks to enforce the restraint of trade, the

43
enforceability of which is controlled by Texas Business & Commerce Code

Civil Practice & Remedies Code 15.50 et seq. This statute preempts an
award of attorney fees under both Texas Civil Practice & Remedies Code
chapter 38 and common law. 193 As a result, if Rieves is successful on her
restraint of trade claim then Buc-ees attorney fees claims are preempted
and must come under the Covenants not to Compete Act or not at all.
IV.
CONCLUSION
The freedom of Texas employees to determine who receives the
benefit of their labor is one of the most precious rights of Texas citizens.
Buc-ees seeks approval of a system under which Texas employers may
impose a financial penalty not only on those who wish to leave, but those it
fires. Buc-ees seeks to impose a system under which Texas employers need
not comply with the reasonableness standards required of covenants not to
compete in Texas to prevent employees from competing. Rather, in order
to prevent an employee from providing services to another employer, the
employer merely requires the employee to pay to leave.
This is
Perez v. Texas Disposal Systems, Inc., 103 S.W.591, 592-94 (Tex. App.San Antonio
2003, no pet)(chapter 38); Glattly v. Air Starter Components, Inc., 332 S.W.3d 620,
644-45 (Tex. App.Houston [1st Dist.] 2011, pet. denied)(common law); and Franklink,
Inc. v. GJMS Unlimited, Inc., 401 S.W.3d 705, 707-12 (Tex. App.Houston [14th Dist.]
2013, no pet.)(chapter 38 but noting attorney fees under both chapter 398 and common
law preempted).
193
44
fundamentally contrary to the freedoms Texans and Americans are

supposed to enjoy and, thankfully, the Texas Supreme Court and the Texas
Legislature has rejected such a scheme. This Court should not approve of
the trial courts creation of the Buc-ees exception to the Texas at-will
employment doctrine and the prohibition on contracts operating as a
restraint of trade.
V.
PRAYER
WHEREFORE, PREMISES CONSIDERED, appellant Kelley Rieves
respectfully requests this Court reverse the judgments below including the
granting of summary judgment in Buc-ees, Inc.s favor on its breach of
contract counterclaim. Rieves respectfully requests this Court reverse the
denial of her summary judgment on the claim and that this Court render a
decision in her favor that, as a matter of law, Buc-ees breach of contract
claim is denied with prejudice and that Buc-ees shall take nothing by way
of its breach of contract counterclaim. Kelley Rieves further respectfully
requests this Court vacate the award of damages to Buc-ees and vacate the
award of attorney fees, interest, costs, and expenses awarded to Buc-ees.
Kelley Rieves additionally respectfully requests this Court declare that the
provisions at issue are unenforceable remand this case for further
45
proceedings not inconsistent with this Courts declaration, including for

determination of Rieves entitlement to attorney fees, costs, and expenses
and for any other proceedings necessary in conformity with this Courts
declaration or opinion.
Kelley Rieves additionally requests this Court
reverse summary judgment on all other claims on which it was granted

below.
Rieves respectfully requests she recover all costs and expenses
incurred in this appeal and for such further and additional relief to which
she may be entitled at law or in equity regardless of whether such relief was
specifically requested in this prayer.
Respectfully submitted,
BERG FELDMAN JOHNSON, LLP
By:
/s/ Bruce Johnson

Bruce Johnson
State Bar of Texas No.: 00794029
4203 Montrose, Suite 150
(713)526-0200
(832)615-2665 facsimile
bjohnson@bergfeldman.com
ATTORNEY FOR KELLEY RIEVES
46
CERTIFICATE OF SERVICE
the
Appellants Brief was served on the following via electronic service on

day of March 2016.
11th
Joy M. Soloway
Jeffrey S. Wolff
Appellants Brief was served on the following via United States
Certified Mail, RRR on the 11th day of March 2016.
Randy E. Moore
The Moore Law Firm
Elizabeth Lieb
H. Tracy Richardson
Buc-ees, Ltd.
327 FM 2004
/s/ Bruce Johnson
Bruce Johnson
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the
undersigned certifies that the word count for the portions of the Brief of the
Appellant required to be included in the word count is 9,687. This count is
based on the word count of the computer program used to prepare the
Appellants Brief.
/s/ Bruce Johnson
Bruce Johnson
47
APPENDIX
A.
Final Judgment
B.
Order Granting Summary Judgment
C.
2009 Agreement
D.
2010 Agreement
E.
F.
G.
Texas Business & Commerce Code 15.50-.52
48

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Rieves vs. Buc-Ee's

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IDENTITY OF PARTIES AND COUNSEL

Appellant and Appellant counsel:

Appellee and Appellees counsel:

The End of Rieves Buc-ees Employment7

The Financial Impact on Rieves.12

Summary of the Argument....14

Standard of Review ..18

The 2010 Agreement was a Bilateral Contract..24

Venegas v. American Energy Services, 302 S.W.3d 299 (Tex. 2009)..25

STATEMENT OF THE CASE

At heart this is a restraint of trade case

presenting the question of whether, notwithstanding Texas Business and

On September 21, 2015, Buc-ees filed a Motion to Reconsider the

Oral argument will provide this Court the opportunity to

IV. The trial court erred in failing to grant summary judgment in

The trial court erred in awarding damages to Buc-ees, Ltd.

VI. The trial court erred in granting summary judgment in favor of

The trial court erred in awarding attorney fees to Buc-ees.

XI. The trial court erred by granting summary judgment in favor of

Rieves was an at-will

CR000365-66; CR000570 6.02.

Thats what the contract states. Yes, sir. 21

However, Drennan neither reached that issue nor

CR000227 (in reference to the repayment provisions).

That the New York choice-of-law provisions in the executive

Drennan, 452 S.W.3d at 321.

Entering into contracts was a condition of Rieves

employment. 32 Wasek handled the contracts for Buc-ees. 33

This was stated in the 2009

The End of Rieves Buc-ees Employment

On April 22, 2012, Rieves sent an e-mail concerning her desire to

The circumstances were, at least in part, the prospect of repaying the

To consider the implications before they leave. Yes, sir.

Wingert identifies the

incentive. It is the implications Wingert wants a departing employee to

Buc-ees wanted employees who were subject to notice and

payment provisions to think long and hard about leaving. 82 Underscoring

The Financial Impact on Rieves

Payment of $66,720.29 was not financially possible. 84

$66,720.29 Buc-ees demanded equated to more than Rieves netted in pay

In 2009, Rieves netted

$13,587.06. 85 In 2010, Rieves net was $49,141.35. 86 In 2011, Rieves netted

Buc-ees obtained judgment against Rieves for $48,687.46 in actual

The trial court denied Rieves summary judgment on Buc-ees breach

Because there was no breach, the liquidated damages

provision did not apply. As a result, no valid enforceable contract existed,

Alternatively, the liquidated damages provision

constitutes an unenforceable penalty. Either way, Buc-ees was not entitled

Damage provisions limiting the right to engage in personal services

The provisions of the 2010

Agreement were expressly designed and intended to limit Rieves ability to

of the 2010 Agreement benefit Buc-ees and negate Rieves rights.

addition to negating Rieves at-will employment rights and imposing a

Haass, 818 S.W.2d at 382.

Compensation should be included as wages for purposes of overtime pay.

successfully obtains earnings from Rieves, it has been unjustly enriched

Failure to Mitigate, Estoppel, Quasi-estoppel, and Waiver

Failure to Mitigate, Estoppel, Quasi-estoppel, and Waiver because Buc-ees

proposes. The attorney fee provision of the 2009 Agreement is superseded

A matter-of-law summary judgment is proper only when the movant

each element of movants cause of action. 101

On appeal, all evidence