Affirmed and Memorandum Opinion filed July 2, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00278-CV

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FARZAD ASKARI, Appellant

V.

ENDEVCO, INC., Appellee

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 06-34662

M E M O R A N D U M   O P I N I O N

In this breach of contract case, appellant, Farzad Askari, appeals a take-nothing judgment in favor of appellee, EnDevCo, Inc.  In three issues, Askari argues the trial court erred in (1) ruling the contract was unambiguous, (2) disallowing Askari=s parol evidence to explain the contract, and (3) allowing EnDevCo to introduce parol evidence.  Because all dispositive issues of law are settled, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Factual and Procedural Background

On July 11, 2002, Askari executed a consulting agreement with John Adair, then Chief Executive Officer of EnDevCo=s predecessor, Adair International Oil and Gas.  As of July 11, 2002, Askari had been working for Adair International for almost a year, but had not been paid.  The agreement contained the following provisions, among others:

THIS CONSULTING AGREEMENT (the _Plan_) is made the 1^st day of August 2001 among Adair International Oil and Gas, Inc., a Texas Corporation (the _Company_) and Mr. Farzad Askari, who will execute and deliver this Plan on the date of engagement by the execution and delivery of the Counterpart Signature Pages which are in the form as set forth on Exhibit _B_ (the _Consultants_).

WHEREAS, the Board of Directors of the Company has adopted a Consulting Agreement for compensation to consultants who are natural persons; and

WHEREAS the Board of Directors desires that the total compensation of this Plan be up to 903,889 shares of common stock, no par value per share, of the Company; and

WHEREAS, the Company will engage the Consultants to provide services solely at the request of and subject to the satisfaction of its President, and will avail itself to the services of Consultants; and

WHEREAS, a general description of the nature of the services to be performed by the Consultants and the maximum value of such services under this Plan will be listed in the Counterpart Signature Pages; and

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, it is agreed:

Section 1

Compensation Plan

1.1       Engagement. The Company hereby engages the Consultants and the Consultants hereby accept such engagement, subject to the written request of the Company=s President, and agree to perform the services requested solely by the President of the Company to his satisfaction. The services to be performed by the Consultants hereunder shall be personally rendered by the Consultants, and no one acting for or on behalf of the Consultants, except those persons normally employed by the Consultants in rendering services to others.

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1.3       Term. All services to be performed at the request of the Company by the Consultant shall be performed no later than one year from the date hereof, subject to the receipt of the President=s written request to perform such services, at which time this Plan shall terminate, unless otherwise provided herein.

* * *

1.5       Invoices for Services. Each of the Consultants agree to provide the Company, in consideration of the Compensation Shares, with a written invoice detailing the services duly performed and to be performed. Such invoice shall be paid by the Company in accordance with Section 1.4 above.  The submission of an invoice for the services performed by each of the Consultants shall be deemed to be a subscription by the respective Consultants to purchase Compensation shares at the price outlined in Section 1.4 above . . . .

* * *

1.7.      Delivery of Compensation Shares. On submission of an invoice for services performed by the respective Consultants, and duly verified to the satisfaction of the Company, one or more stock certificates representing such Compensation Shares shall be delivered to the respective Consultants . . . .

Exhibit B to the agreement contained a table of the AValue of Certain Services Performed@ from August 2001 through June 2002.  For each of the eleven months, the table listed a salary, a price per share, and a number of shares.  Notes following the table indicated a salary of $5,000 per month from August 2001 until January 2002, and a salary of $6,000 per month from February 1, 2002, until ninety days after a July 26, 2002 shareholders= meeting, with forty percent of the salary taken in stock and sixty percent in cash for each period.  The notes also indicated the agreement was to terminate ninety days after the July 26, 2002 shareholders= meeting if the company did not have adequate cash flow.

Within weeks after Askari signed the agreement, a proxy battle occurred, the company=s name was changed to EnDevCo, Inc., and Chris Dittmar eventually replaced Adair as Chief Executive Officer.  During the year preceding the proxy battle, Adair and another company officer were issuing stock certificates to brokers in Canada, where the stock was sold and proceeds then deposited in Houston accounts, including a joint account held by Adair and his secretary.  The new management team fired all employees who had worked with the Adair team, including Askari.  Askari subsequently sent EnDevCo=s chief operating officer a letter demanding payment.  A copy of the consulting agreement was attached to the letter.  Dittmar ultimately decided there was no basis for Askari=s claim.

Askari sued EnDevCo for breach of the consulting agreement.  He alleged EnDevCo (1) failed to pay revenue-generated bonuses, (2) failed to allow him to continue to serve as a consultant, (3) failed to allow him to have promised job duties and responsibilities, (4) failed to deliver the promised stock ownership, and (5) failed to pay his earnings.^[1]

Trial was to a jury.  During trial, the court sustained both parties= objections to parol evidence.^[2]  Without objection on cross-examination, EnDevCo elicited Adair=s admission that, between August 2001 and July 2002, Adair authorized a corporate policy under which stock was issued, certificates sent to Canadian stockbrokers, the stocks sold, and money deposited into various Houston bank accounts, one of which was a joint account between Adair and his secretary.^[3]  When Askari objected to a question about whether the shareholders= meeting was the start of Adair=s problems relative to the other shareholders, the trial court sustained the objection.

Without objection in closing argument, EnDevCo argued Adair was interested in the litigation and not a credible witness.  Also without objection, EnDevCo referred to Adair=s paying huge sums while saying there was no money to pay Askari and also to Adair=s coming to a deposition at his own expense and waiting in the hall during trial.

In response to Question 1, the single breach-of-contract question, the jury found both Askari and EnDevCo Afail[ed] to comply with the Consulting Agreement of July 11, 2002.@  Having thus answered Ayes,@ to Question 1, the jury was instructed to answer Question 2, in which it was asked what sum of money would fairly and reasonably compensate Askari for  his damages, if any, resulting from EnDevCo=s failure to comply with the agreement.  The  jury answered $49,500 as the fair market value of stock Askari was entitled to receive.

AOn the basis of the jury=s answers to special issues,@ the trial court concluded EnDevCo had Ano liability for the claims made the basis of [the] suit@ and rendered judgment Askari take nothing.  Askari filed a Motion for New Trial.  He asserted, contrary to the trial court=s ruling, that the contract was ambiguous and  parol evidence should have been admitted to show the conditions prescribed in the agreement did not apply to the work already performed as denoted in Exhibit AB@ of the agreement.  Alternatively, Askari argued the evidence conclusively established that he did not breach the contract and that EnDevCo=s counsel engaged in improper jury argument.  Following a hearing, the trial court denied Askari=s motion.

II.  Discussion

A.        Issues One and Two: Whether the Consulting Agreement was Ambiguous, thus Warranting Admission of Parol Evidence

In issue one, Askari argues the consulting agreement was ambiguous as a matter of law.  In issue two, Askari argues the trial court=s disallowance of parol evidence was therefore reversible error.

Courts will enforce an unambiguous contract as written and will not receive parol evidence for the purpose of creating an ambiguity to give the contract meaning different from that which its language imports.  Sacks v. Haden, 266 S.W.3d 447, 450 (Tex. 2008) (per curiam).  A court may consider the parties= interpretation and A>admit extraneous evidence to determine the true meaning of the instrument=@ only when a contract is ambiguous.  Id. (quoting Nat=l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (per curiam)). A>Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered.=@ Id. at 451 (quoting Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)).

A contract is not ambiguous if a court can give the contract a definite or certain meaning as a matter of law.  Columbia Gas, 940 S.W.2d at 589.  Nevertheless, if after application of the pertinent rules of construction, the contract is subject to two or more reasonable interpretations, the contract is ambiguous, and a fact issue exists regarding the parties= intent.  Id.  An ambiguity does not arise, however, simply because the contract lacks clarity or the parties advance conflicting interpretations of the contract. Universal Health Servs., Inc. v. Renaissance Women=s Group, P.A., 121 S.W.3d 742, 746 (Tex. 2003).  For an ambiguity to exist, both interpretations must be reasonable.  Columbia Gas, 940 S.W.2d at 589.  It is for the court to decide whether there is more than one reasonable interpretation of a contract, thereby creating a fact issue concerning the parties= intent.  Id.

Finally, an ambiguity in a contract may be patent or latent.  Nat=l Union, 907 S.W.2d at 520.  A patent ambiguity is evident on the face of the contract.  Id.  In contrast, a latent ambiguity arises when a contract that is unambiguous on its face is applied to the subject matter with which it deals and an ambiguity appears by reason of some collateral matter.  Id.  If a latent ambiguity arises from this application, parol evidence is admissible for the purpose of ascertaining the true intention of the parties as expressed in the agreement.  Id.

Askari argues a latent ambiguity exists when one compares the conditions in Section 1 of the agreement with the contents of the attached Exhibit B.  He contends Athis case is about money and stock already owed,@ and argues the agreement merely memorializes his compensation for work already done as reflected by the August 1, 2001 date the agreement was Amade@ (set forth in the introductory paragraph of the agreement) and the AValue of Certain Services Performed@ from August 2001 through June 2002 (set forth in Exhibit B).  Additionally, Askari argues it is unreasonable to interpret the agreement as requiring him retroactively to satisfy the conditions precedent, i.e., receipt of approval and provision of invoices, for work already performed.

The agreement, however, refers to consultants= providing  Aa written invoice detailing the services duly performed and to be performed@ (emphasis added).  Thus, the agreement requires invoices not only for future, but also past, services C services for which Exhibit B simply provides a value.  There is nothing unreasonable in reading the agreement and Exhibit B together as requiring Askari to provide, if he had not already done so, invoices for work done from August 2001 through June 2002.  There is also nothing unreasonable about reading the agreement and Exhibit B together to require retroactive approval for work already  performed before the company would compensate Askari in the amounts listed in Exhibit B.  Accordingly, we conclude the agreement is not ambiguous.  Askari=s first issue is overruled.

Having concluded the agreement is not ambiguous, we therefore conclude the trial court did not err in excluding parol evidence.^[4]  Askari=s second issue is overruled.

B.  Issue Three:  EnDevCo=s AParol@ Evidence and Closing Argument

In issue three, Askari contends the trial court Acommitted reversible error@ when it allowed EnDevCo to introduce Aparol evidence.@  Specifically, Askari complains that Athe Court let the jury hear numerous accusations of fraud by former CEO John Adair and arguments regarding the proxy battle that occurred before and during the execution of the contract.@  He complains the arguments unfairly discredited Adair as a witness.

Askari cites this court to only three places in the record where the purportedly improper evidence was received or arguments occurred.  Askari first cites EnDevCo=s cross-examination of Adair about whether he was creating stock in the company, sending certificates to Canadian stockbrokers who sold the stock, and arranging for the sales proceeds to be deposited in his accounts.  Askari did not object to a question that elicited Adair=s admission he had engaged in such action.  The trial court sustained two of Askari=s objections and instructed the jury to disregard the answer to the question that was the subject of the second objection.  Askari did not request further relief.^[5]  The court overruled only one of Askari=s objections during this line of questioning, and Askari did not provide a ground for that objection.

Askari next cites questions about the timing of Adair=s proxy problems with the company.  Askari objected once on the ground the question violated the motion in limine and related to parol evidence.  The trial court sustained the objection.  Again, Askari did not request further relief.

Finally, Askari cites EnDevCo=s argument regarding Adair=s alleged interest in the outcome of the litigation.  Askari did not object to the argument.

By failing to object, and by objecting but providing no ground for the objection, or by not requesting further relief when the court sustained his objections, Askari has not preserved the errors of which he complains in issue three.  See Tex. R. Evid. 103(a)(1) (AError may not be predicated upon a ruling which admits . . . evidence unless . . . a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.@); Tex. R. App. P. 33.1 (stating, as prerequisite to presenting complaint for appellate review, record must show complaint was made to trial court by timely request, objection, or motion that stated grounds for ruling that complaining party sought from trial court with sufficient specificity to make trial court aware of complaint, unless the specific grounds were apparent from context); One Call Sys., Inc. v. Houston Lighting & Power, 936 S.W.2d 673, 677 (Tex. App.CHouston [14th Dist] 1996, writ denied) (holding plaintiff waived its objection to inadmissible testimony by failing to request further relief after trial court sustained its objection).

Nevertheless, even if Askari can be said to have preserved the issue he presents on appeal, the issue is without merit.  To the extent Askari is contending the cited evidence and argument were improper under the parol evidence rule, he misapprehends the application of that rule.

When parties have made an unambiguous written agreement with respect to a particular subject matter, the parol evidence rule prohibits the presentation of extrinsic evidence to vary or contradict the terms of a written instrument.  Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 293 (Tex. App.CBeaumont 2005, pet. denied) (citing Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 283 (Tex. 1996)).  EnDevCo=s evidence and argument of which Askari complains, however, were not directed at the meaning of the agreement.  Instead, they were directed at impeaching Adair=s character and showing his bias as a witness.  Askari concedes as much, alleging, AThese improper arguments unfairly discredited John Adair as a witness.@  Thus, Askari=s third issue also fails on the merits.

Accordingly, we overrule Askari=s third issue.

III.  Conclusion

Having overruled Askari=s three issues, we affirm the judgment of the trial court.

/s/        Charles W. Seymore

Justice

Panel consists of Justices Seymore, Brown, and Sullivan.