Rieves vs. Buc-Ee's Reply

ACCEPTED
14-15-01061-cv
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/18/2016 4:20:44 PM
CHRISTOPHER PRINE
CLERK
No. 14-15-01061-CV
FILED IN
In The Court of Appeals 14th COURT
OF APPEALS
HOUSTON, TEXAS
For The Fourteenth Court of Appeals 5/18/2016
District
4:20:44 PM
CHRISTOPHER A. PRINE
Houston, Texas
Clerk
KELLEY RIEVES,
Appellant,
v.
BUC-EES, LTD.,
Appellee.
FROM THE 23RD JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS
CAUSE NO. 73332
HONORABLE BEN HARDIN, PRESIDING
BRIEF OF APPELLEE
NORTON ROSE FULBRIGHT US LLP
Jeffrey S. Wolff
[email protected]
State Bar No. 21865900
Joy M. Soloway
[email protected]
Seth Isgur
[email protected]
1301 McKinney, Suite 5100
Houston, TX 77010-3095
Telephone:
(713) 651-5151
Telecopier: (713) 651-5246
Counsel for Appellee
Buc-ees, Ltd.
ORAL ARGUMENT CONDITIONALLY REQUESTED
LIST OF PARTIES AND COUNSEL

Appellant:
Kelley Rieves
Trial Counsel for Appellant:
Bruce Johnson
Berg Feldman Johnson Bell, LLP
4203 Montrose, Suite 150
Houston, TX 77006
Telephone:
(713) 526-0200
Telecopier:
(832) 615-2665
Appellate Counsel for Appellant:
Bruce Johnson
Houston, TX 77006
Telephone:
(713) 526-0200
Telecopier:
(832) 615-2665
Appellee:
Buc-ees, Ltd.
Trial Counsel for Appellee:
Jeffrey S. Wolff
Seth Isgur
Norton Rose Fulbright US LLP
Telephone:
(713) 651-5151
Telecopier:
(713) 651-5246
Appellate Counsel for Appellee:
Jeffrey S. Wolff
Joy M. Soloway
Seth Isgur
Norton Rose Fulbright US LLP
Telephone:
(713) 651-5151
Telecopier:
(713) 651-5246
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TABLE OF CONTENTS
Page
LIST OF PARTIES AND COUNSEL...................................................................... i
TABLE OF AUTHORITIES .................................................................................. iv
STATEMENT OF THE CASE ............................................................................... ix
STATEMENT REGARDING ORAL ARGUMENT ..............................................x
ISSUE PRESENTED .............................................................................................. xi
INTRODUCTION ....................................................................................................1
STATEMENT OF FACTS .......................................................................................1
I.
The Parties ............................................................................................1
II.
Following Negotiations of an Employment Contract (the 2009

Contract), Rieves Joins Buc-ees as an Assistant Manager .................2
III.
Rieves Negotiates a Second Employment Contract with Bucees (the 2010 Contract) .......................................................................4
IV.
After Resigning from Buc-ees, Rieves Eschews Her

Contractual Obligations by Refusing to Return the Unearned
Incentive Pay ........................................................................................7
V.
Procedural History................................................................................8
SUMMARY OF ARGUMENT ..............................................................................10

STANDARD OF REVIEW ....................................................................................12
ARGUMENT ..........................................................................................................13
I.
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Summary Judgment Was Properly Granted in Favor of Bucees on Contract Validity, Rievess Breach, and Damages................13
A.
The Employment Contracts Were Supported by NonIllusory Consideration ..............................................................14
B.
The Retention Pay Provision in the 2010 Contract Does

Not Restrain Trade or Prevent Rieves from Competing
with Buc-ees, and Is Instead an Enforceable Forfeiture
Provision ..................................................................................19
1.
Forfeiture Provisions Are Enforceable ..........................19
2.
Rieves Relies on Inapposite Cases ................................25
ii
3.
Mr. Wingerts Email and Testimony Is of No

Relevance .......................................................................27
C.
The 2010 Contract Is Not Unconscionable ..............................29
D.
The Summary Judgment Evidence Conclusively Proves

that Rieves Breached the Employment Contracts by
Repudiating Her Forfeiture Obligations ..................................35
E.
Buc-ees Sustained Actual Damages; Rievess Liquidated

Damages Argument Fails .........................................................36
F.
Rievess Other Contract Claims and Affirmative

Defenses Were Properly Disposed of by Summary
Judgment ..................................................................................39
G.
Rieves Waived Any Complaint Regarding the 2009

Contract ....................................................................................40
II.
The Trial Court Correctly Granted Buc-ees Summary

Judgment on Rievess Claims for Unjust Enrichment, Quantum
Meruit, and Breach of Contract ..........................................................42
III.
The Fees Awards Are Proper and Should Be Upheld ........................44
PRAYER FOR RELIEF .........................................................................................48

CERTIFICATE OF WORD COMPLIANCE.........................................................49
CERTIFICATE OF SERVICE ...............................................................................49
APPENDIX A
81266839
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson,
209 S.W.3d 644 (Tex. 2006) ............................................................15, 16, 17, 18
Bocquet v. Herring,
972 S.W.2d 19 (Tex. 1998).................................................................................45
C.S.C.S., Inc. v. Carter,
129 S.W.3d 584 (Tex. App.Dallas 2003, no pet.) ..........................................24
Cameron Intl Corp. v. Guillory,
445 S.W.3d 840 (Tex. App.Houston [1st Dist.] 2014, no pet.) ......................24
Clark v. Lauren Young Tire Ctr. Profit Sharing Trust,
816 F.2d 480 (9th Cir. 1987) ..............................................................................23
Contl Carbon Co. v. Natl Union Fire Ins. Co.,
No. 14-11-00162-CV, 2012 Tex. App. LEXIS 2937
(Tex. App.Houston [14th Dist.] Apr. 17, 2012, no pet.)
(mem. op.) ...........................................................................................................42
De La Calzada v. Am. First Natl Bank,
(Tex. App.Houston [14th Dist.] Feb. 7, 2008, no pet.) ..................................45
Deming v. Nationwide Mut. Ins. Co.,
905 A.2d 623 (Conn. 2006) .........................................................................26, 27
Dollgener v. Robertson Fleet Servs., Inc.,
527 S.W.2d 277 (Tex. App.Waco 1975, writ refd n.r.e.) ............22, 23, 25, 27
Dresser-Rand Co. v. Bolick,
(Tex. App.Houston [14th Dist.] July 18, 2013, pet. denied)
(mem. op.) .....................................................................................................28, 38
ExxonMobil Corp. v. Drennen,
452 S.W.3d 319 (Tex. 2014) .......................................................................passim
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iv
Fletcher v. Energy Res. Tech. GOM, Inc.,

(Tex. App.Houston [1st Dist.] Aug. 23, 2012, no pet.)
(mem. op.) ...........................................................................................................29
Fortune Prod. Co. v. Conoco, Inc.,
52 S.W.3d 671 (Tex. 2000).................................................................................44
Frankiewicz v. Natl Comp. Associates,
633 S.W.2d 505 (Tex. 1982) ..............................................................................25
Frankoff v. Norman,
448 S.W.3d 75 (Tex. App.Houston [14th Dist.] 2014, no pet.) .....................43
G&H Towing Co. v. Magee,
347 S.W.3d 293 (Tex. 2011) (per curiam) .........................................................31
Gearhart v. Nationwide Mut. Ins. Co.,
No. 27396, 2015 Ohio App. LEXIS 2831 (Ohio Ct. App. July 22,
2015) ...................................................................................................................27
Green v. Intl Inc. v. Solis,
951 S.W.2d 384 (Tex. 1997) ..............................................................................45
In re H.E. Butt Grocery Co.,
17 S.W.3d 360 (Tex. App.Houston [14th Dist.] 2000,
orig. proceeding) .................................................................................................44
In re Masonite Corp.,
997 S.W.2d 194 (Tex. 1999) (orig. proceeding) ................................................30
In re Palm Harbor Homes, Inc.,
195 S.W.3d 672 (Tex. 2006) ..............................................................................34
In re Poly-America, L.P.,
In re Prudential Ins. Co. of Am.,
Jacobs v. Satterwhite,
65 S.W.3d 653 (Tex. 2001) (per curiam)......................................................12, 41
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Johnson & Higgins of Tex., Inc. v. Kenneco Energy Inc.,

962 S.W.2d 507 (Tex. 1998) ..............................................................................39
Kachina Pipeline Co. v. Lillis,
471 S.W.3d 445 (Tex. 2015) ..............................................................................28
King Ranch, Inc. v. Chapman,
118 S.W.3d 742 (Tex. 2003) ..............................................................................13
Light v. Centel Cellular Co. of Tex.,
883 S.W.2d 642 (Tex. 1994).. ............................................................................18
Lopez v. Munoz, Hockema & Reed, L.L.P.,
22 S.W.3d 857 (Tex. 2000).................................................................................39
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844 (Tex. 2009) .......................................................................passim
Marsh USA Inc. v. Cook,
354 S.W.3d 764 (Tex. 2011) ..................................................................18, 23, 24
Mitchell v. Lawson,
444 S.W.2d 192 (Tex. Civ. App.San Antonio 1969, no writ) ........................18
Morris v. Schroder Capital Mgmt. Intl,
481 F.3d 86 (2nd Cir. 2007) (per curiam) ..........................................................23
Oliphant Fin. LLC v. Angiano,
295 S.W.3d 422 (Tex. App.Dallas 2009, no pet.) ..........................................12
Peat Marwick Main & Co. v. Haass,
818 S.W.2d 381 (Tex. 1991) ..............................................................................26
Phila. Indem. Ins. Co. v. White,
No. 14-0086, 2016 Tex. LEXIS 373 (May 13, 2016) ........................................34
Republic Underwriters Ins. Co. v. Mex-Tex, Inc.,
150 S.W.3d 423 (Tex. 2004) ..............................................................................43
Saba Zi Exploration, LP v. Vaughn,
448 S.W.3d 123 (Tex. App.Houston [14th Dist.] 2014, no pet.) ...................14
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vi
San Jacinto River Auth. v. Duke,

783 S.W.2d 209 (Tex. 1990) (per curiam) ...................................................12, 41
Schlumberger Tech. Corp v. Blaker,
859 F.2d 512, 516 (7th Cir. 1998) ......................................................................22
Ski River Development, Inc. v. McCalla,
167 S.W.3d 121 (Tex. App.Waco 2005, pet. denied) ..............................32, 33
Star-Telegram, Inc. v. Doe,
915 S.W.2d 471 (Tex. 1995) ..................................................................12, 30, 44
Sudan v. Sudan,
145 S.W.3d 280 (Tex. AppHouston [14th Dist.] 2004),
revd on other grounds, 199 S.W.3d 291 (Tex. 2006) (per curiam) ..................12
Sun Exploration & Prod. Co. v. Benton,
728 S.W.2d 35 (Tex. 1987).................................................................................39
Tatom v. Ameritech Corp.,
305 F.3d 737 (7th Cir. 2002) ..............................................................................23
Tex. Assn of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993) ..............................................................................30
Truly v. Austin,
744 S.W.2d 934 (Tex. 1988) ..............................................................................44
Valence Operating Co. v. Dorsett,
164 S.W.3d 656 (Tex. 2005) ..............................................................................13
Venture Cotton Coop. v. Freeman,
435 S.W.3d 222 (Tex. 2014) ..............................................................................32
Viad Corp v. Houghton,
No. 98-cv-6706, 2010 U.S. Dist. LEXIS 61679 (N.D. Ill. June 22,
2010) ...................................................................................................................23
White v. Aguirre, Inc.,
(Tex. App.Dallas, May 15, 2002, no pet.) ......................................................29
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vii
Williams v. Williams,
569 S.W.2d 867 (Tex. 1978) ..............................................................................31
Wood Motor Co. v. Nebel,
150 Tex. 86, 238 S.W.2d 181 (1951) .................................................................34
Rules and Statutes
Tex. Bus. & Com. Code Ann. 15.50(a) ................................................................24
Tex. Civ. Prac. & Rem. Code 37.009 .............................................................44, 46
Tex. Civ. Prac. & Rem. Code 38.001 .............................................................44, 46
Tex. R. App. P. 33....................................................................................................46
Tex. R. App. P. 38.1(i) .............................................................................................43
Tex. R. App. P. 38.2(a)(2) .......................................................................................13
Tex. R. App. P. 38.3.................................................................................................42
Tex. R. Civ. P. 166a .................................................................................................31
Tex. R. Civ. P. 216 ...................................................................................................31
Other Authorities
Blacks Law Dictionary 443 (10th ed. 2014) ..........................................................24
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viii
STATEMENT OF THE CASE

Nature of the Case:
This is a dispute between an employee, Appellant

Kelley Rieves, and her former employer, Appellee
Buc-ees, Ltd. (Buc-ees). Rieves was a Bucees employee for three years. The terms of her
employment were set forth in two negotiated
contracts, each setting forth conditions she had to
satisfy to earn and retain certain incentive pay.
After resigning from Buc-ees, Rieves filed this
lawsuit seeking a declaratory judgment that the
incentive pay repayment provisions were
unenforceable. CR7. She amended her petition
several times to plead additional claims, including
claims for unjust enrichment, quantum meruit, and
breach of contract. E.g., CR842, 852, 859-60,
2560; SCR4. Buc-ees denied Rievess claims and
filed a counterclaim to recover the incentive pay it
had paid to Rieves but which she failed to return,
even though she had not met the conditions that
would have entitled her to keep the money. CR17.
Rieves asserted several affirmative defenses to
Buc-ees counterclaim. CR48, 2281.
Trial Court:
23rd District Court, Brazoria County, Texas,

Honorable Ben Hardin, Presiding.
Course of Proceedings:
Buc-ees filed two separate motions for summary

judgment. CR76, 712. Rieves filed her own
motion for summary judgment. CR1576.
Disposition:
The case was resolved by summary judgment in

Buc-ees favor. 2SCR4 (order granting Buc-ees
first motion for summary judgment); CR2586
(order granting Buc-ees second motion for
summary judgment); CR2584 (order denying
Rievess motion for summary judgment); CR2588
(Final Judgment).
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ix
STATEMENT REGARDING ORAL ARGUMENT

Buc-ees does not believe that oral argument is warranted. While the record
is somewhat voluminous for a case decided on summary judgment, the facts are
not complex and the law is settled.
However, Rieves has asked for oral argument and if the Court decides to
have argument, Buc-ees would like to participate.
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ISSUE PRESENTED
Whether the trial court correctly granted summary judgment in favor of Bucees and properly denied Rievess motion for summary judgment.
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xi
INTRODUCTION
Rievess Statement of the Case, Introduction, and Statement of Facts are
misleading and argumentative. For example, Buc-ees counterclaim did not assert
that Rieves breached her employment contract by resigning. Rieves Br. (RB) ix;
see also id. 24, 26. Buc-ees counterclaim asserted that Rieves breached her
employment contract by not returning unearned retention pay. CR17. Had Rieves
returned that pay, Buc-ees would have had no basis to file its counterclaim. Nor
was Rieves required to pay to terminate her employment. RB 1 (Buc-ees
required Rieves pay it to leave.). Instead, Rieves, as an at-will employee, was
free to end her employment with Buc-ees at any time and work for whomever she
wanted. CR140, 142, 147.
Other argumentative, untrue, and misleading statements in Rievess Brief
will be discussed in context below.
STATEMENT OF FACTS
I.
The Parties
Buc-ees is likely well known to the Court. It is a privately-owned chain of
convenience stores that has become a Texas phenomenon. CR107.

Rieves holds a degree in restaurant and hotel management from Texas Tech
University. CR115. After graduating from college, Rieves worked for the Pappas
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Company and then TGI Fridays. CR115-17. She also continued her education by
pursuing her MBA, focusing on HR and business law. CR313.
II.
Following Negotiations of an Employment Contract (the 2009

Contract), Rieves Joins Buc-ees as an Assistant Manager
In 2009 (while still employed with TGI Fridays), Rieves and Buc-ees began
discussing the possibly of her joining Buc-ees. CR119-22. As part of these

discussions, Rieves interviewed with Buc-ees co-founder and co-owner, Don
Wasek. CR107, 125-30, 266.
Following those discussions, Rieves accepted a position as assistant manager
at Buc-ees store in Cypress. CR19, 140. She also entered into an employment
contract with an effective date of August 25, 2009 (the 2009 Contract). Under
the 2009 Contract, Rieves would be paid an hourly wage of $14. CR142. But that
was not all. In addition to her regular hourly wage, the 2009 Contract provided
that Rieves would receive Additional Compensation in the amount of $1,528.67
per month. Id. However, the Additional Compensation was conditional: although
she would receive the Additional Compensation monthly, she agreed she would
return it if she did not: (1) remain employed by Buc-ees for 60 months; or
(2) provide six months written notice of her departure. Id. Specifically, the 2009
Contract stated:
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ARTICLE 3
Additional Compensation
3.02. For the additional compensation to be paid Employee under
paragraph 3.01, Employee shall be required to work for Employer a
minimum of 60 months from the Effective date of this Agreement
and shall also provide Employer with a minimum 6 months written
separation notice. 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 Additional
Compensation to Employer.
Repayment of the Additional
Compensation shall be made pursuant to the terms contained in
Paragraph 3.03 of this Agreement. In other words, in the event
Employees employment with Employer, its successors or assigns
terminates for any reason, with or without cause, and the above
requirements are not meet [sic] by Employee, Employee will be
required to repay all of the additional compensation received.
Id. (emphasis added) (hereafter Additional Compensation Provision).
These terms were not imposed on Rieves. Instead, she and Wasek built
the contract and c[a]me up with payment terms together. CR124, 127. They
had a whole discussion over several hours about her compensation package,
including how the package would include both a regular hourly wage and
conditional, Additional Compensation.
CR128-30, 133.
Rieves was even
permitted to choose how her compensation package would be divided between a

regular hourly wage and the conditional, Additional Compensation, and she
understood that her total compensation would be more if she chose a higher
percentage of the compensation to be in the form of conditional, Additional
Compensation. CR126, 128. Rieves selected the highest percentage of Additional
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Compensation that Wasek offereda 70-30 split, with 70% being the regular
hourly wage and the remaining 30% the conditional, Additional Compensation.
CR128, 131-32.1
Rieves also had a choice of selecting three or five years as the time period
she would need to remain with Buc-ees to earn the conditional Additional
Compensation. CR129. Rieves chose five years. CR129, 142.
As a result of these negotiations, Rieves would potentially be paid more by
Buc-ees than any of her previous employers had paid her and that her subsequent
employer would pay her. CR2505, 2511.
Although Rieves had an employment contract, she was an at-will employee
(as stated in the 2009 Contract) and if she decided to resign, she was not subject to
any non-compete restrictions. She could work wherever and for whomever
she chose. CR140, 142, 147.
III.
Rieves Negotiates a Second Employment Contract with Buc-ees (the

2010 Contract)
In 2010, Rieves signed a new employment contract (the 2010 Contract
and, collectively with the 2009 Contract, the Employment Contracts) that
1
Rieves focuses on certain testimony from various Buc-ees witnesses characterizing the
Incentive Pay provisions as proof that the purpose of the Incentive Pay provisions was to
restrain trade. See RB 9-11 (and heading The Express Purpose of the Repayment
Provisions was to Restrain Employees). Because Rievess appeal does not concern the
proper interpretation of the Employment Contracts, and because she abandoned her
fraud-based claims (see Table of Claims attached hereto), neither partys intent is at issue
in this appeal. See infra.
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retained her status as an at-will employee and increased her pay to $862.75 per
week ($44,863 per year). CR147. In addition to the stated salary, the 2010
Contract provided that Rieves would also receive Retention Pay, which included
an amount that would be advanced monthly (calculated as 1.2652% of the stores
profit) and a one-time payment of $1,000.
Id.
Rieves agreed to return the
Retention Pay if she remained with Buc-ees for fewer than 48 months or failed to
provide six months written separation notice. This obligation is found in Section
3.02 of the 2010 Contract, which states:
ARTICLE 3
Retention Pay
3.02. For the Retention Pay to be earned by Employee under
Paragraph 3.01, Employee shall be required to work for Company a
minimum of 48 months from the Effective date of this Agreement and
shall also provide Company with a minimum 6 months written
Separation Notice to be given only after Employee fulfills required
minimum number of months worked. 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. Company has the right to apply any
pay, bonus or compensation due Employee to the repayment of
Retention Pay. Repayment of Retention Pay shall be made pursuant
to the terms contained in Paragraph 3.03 of this Agreement. 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.
CR147 (emphasis added) (hereafter Retention Pay Provision).
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Like the 2009 Contract, the 2010 Contract was not imposed on Rieves, but
was the result of negotiations. With respect to the period of time that Rieves was
required to remain employed by Buc-ees to be entitled to the Retention Pay,
Rieves testified that Wasek: [A]sked me if I wanted to do 12 months on the
contract or the remaining 48 ones. And I said 48. CR131. Rieves further admits
that she had a reasonable amount of say with respect to how the 2010 Contract
was structured, the process was interactive, and she was comfortable with [the]
terms. CR132-33. Summarizing her two meetings with Wasek in which the
Employment Contracts were negotiated, Rieves explained:
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Q.
Okay. And I think what you said to me earlierand correct me

if Im wrongwas that walking out of these two meetings, you
were comfortable with the financial arrangement.
A.
Uh-huh.
Q.
And, in fact, you had active dialogue and were a participant in

determining these numbers.
A.
Uh-huh.
Q.
That you could have had aa 12-month minimum. Right?
A.
Uh-huh.
Q.
And that youyou made the decision not to.
A.
Right.
CR135; see also CR1405-06. (For convenience, the Additional Compensation

under the 2009 Contract and the Retention Pay under the 2010 Contract will be
referred to collectively as Incentive Pay.)2
The 2010 Contract superseded the 2009 Contract except that Rievess
obligation to return any unearned Additional Compensation under the 2009
Contract survived. CR150, 6.6; see also RB 21, 41.
IV.
After Resigning from Buc-ees, Rieves Eschews Her Contractual

Obligations by Refusing to Return the Unearned Incentive Pay
In early 2012, Rieves spoke with an old friend about joining his company,
AlphaGraphics, Inc. CR138. Rieves initially declined: I told him I couldnt go

work for him because of this [Buc-ees] contract. CR136. Nonetheless, she
interviewed for the job and was offered a position in March 2012. CR136-37.
On April 22, 2012, Rieves informed Buc-ees that she was considering the
AlphaGraphics offer, even though it would pay less. CR139. She claimed to
want to do the right thing and that she respect[ed] [her] contract with Buc-ees.
CR336. At Buc-ees request, Rieves agreed to think over her friends offer for 30
days and to meet with Wasek before making a final decision. CR137. That
meeting occurred in late May, during which Wasek explained to Rieves that if she
left before the term was complete, she would owe Buc-ees approximately $66,000
2
Rievess claim that her request to Wasek that she be allowed to change the split between
salary and Retention Pay (RB 6, 37) ignores that she made this request in September
2010 (CR685), which was a month after she signed the 2010 Contract. CR151.
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in unearned Incentive Pay, and asked if she was prepared to pay that amount or if
AlphaGraphics would pay it on her behalf. CR138-39.
Rieves answered that question with her actions. She resigned from Buc-ees
effective July 12, 2012, and did not return the unearned Incentive Pay. CR158.
Yet, there is no doubt that Rieves failed to perform her contractual obligations and
she does not pretend otherwise:
Q.
Okay. Ininbased on what you just saidand correct me if

Im wrong. Based on that language, you did not, then, earn the
retention pay. Is that true or false?
A.
True.
CR134 (emphasis added). Rather than fulfil her contractual obligation to return the
unearned pay, Rieves sought to escape her obligations at the courthouse.
V.
Procedural History
In July 2013, Rieves filed this lawsuit, seeking a judgment declaring that the
Incentive Pay provisions are unenforceable. CR7. She amended her petition four
times to assert several additional claims, including her claim that Buc-ees
breached a promise to pay her more than she was paid by her previous employer,
and claims for unjust enrichment and quantum meruit. E.g., CR842, 2560.
In addition to generally denying Rievess claims, Buc-ees filed a
counterclaim for breach of contract, seeking to recover the Incentive Pay and its
attorneys fees. CR16. Rieves asserted an array of affirmative defenses to Bucees counterclaim, which she added to over time. CR48, 2281.
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On January 8, 2015, Buc-ees filed a motion for partial summary judgment

(traditional) on Rievess claims and affirmative defenses that the Incentive Pay
provisions were unenforceable.
CR76; see id. at CR88 (heading in Buc-ees
motion: The Incentive Pay Provisions Are Forfeiture Provisions, Not Covenants
Not to Compete, Restraints of Trade, or Liquidated Damages/Penalties).
(Rievess opposition can be found at CR162.) The trial court granted Buc-ees
motion. 2SCR4.
On June 23, 2015, Buc-ees filed a second motion for summary judgment
(traditional and no evidence) on (1) its breach of contract counterclaim, i.e., that
Rieves breached the 2009 and the 2010 Employment Contracts, (2) Rievess many
affirmative defenses, and (3) Rievess claims for breach of contract claim, quantum
meruit, and unjust enrichment. CR712. In her response (CR864), Rieves confined
her arguments to the 2010 Contract. E.g., CR869 (arguing that Buc-ees failed to
establish any breach of the 2010 agreement); CR875 (arguing that the 2010
Contract is an unenforceable bilateral contract).
On July 17, 2015, Rieves filed her own motion for summary judgment in
which she sought summary judgment on Buc-ees breach of contract counterclaim
(but only on Buc-ees counterclaim that she breached the 2010 Contract, not on
Buc-ees counterclaim for breach of the 2009 Contract) and on certain of her
affirmative claims, including her claim that she was entitled to keep the Incentive
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Pay under a quantum meruit theory, and her request for declaratory judgment that
the 2010 Contract is unenforceable. CR1576.
On November 16, 2015, the trial court (1) granted Buc-ees second summary
judgment motion, (2) denied Rievess motion for summary judgment, and
(3) signed a final judgment. CR2584, 2586, 2588. The final judgment awards
Buc-ees damages in the amount of $48,687.46, pre- and post-judgment interest,
attorneys fees, and court costs. CR2588.
SUMMARY OF ARGUMENT
Central to Rievess position throughout the course of this litigation is that
she should be able to keep pay she did not earn. But the facts and law are against
her. On the facts, Rieves agrees she did not earn the Incentive Pay and there is no
dispute that she has failed to return the unearned pay. On the law, Rieves has yet
to identify any cognizable legal theory on why she should not be bound by her
contract. That she allegedly does not have the money (RB 12-13) is, of course, no
defense.3 She is also no different than any employee who is given a signing bonus
but is required to repay it if he or she does not stay with the company for the
3
Because this is a straightforward contract dispute, Rievess claim that she is unable to
return the unearned Incentive Pay to Buc-ees (RB 12-13) deserves no consideration.
Inability to pay damages is not a defense to a breach of contract claim. Likewise, that the
amount she was required to return was nearly half of her total earnings (RB 13) is a
consequence of Rievess election to increase her overall compensation by choosing to
have a substantial percentage of her compensation be in the form of conditional,
compensation. CR126, 128, 131-33, 135. Plainly put, that Rieves has remorse about the
terms of the contract she negotiated is of no relevance to this appeal.
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10
designated period. Rievess several arguments that the Incentive Pay provisions
are invalid each fail.
The Employment Contracts are supported by adequate
consideration, the Incentive Pay provisions do not effect an unreasonable restraint

of trade, are not covenants not to compete, do not constitute unenforceable
liquidated damage provisions, and are not unconscionable. Further, the summary
judgment evidence conclusively established that Rieves breached her obligations.
Thus, the trial court was correct in granting Buc-ees summary judgment on its
breach of contract claim and on Rievess declaratory judgment action, and in
denying Rievess motion for summary judgment on Buc-ees breach of contract
claim.
The trial court also properly denied Rievess motion for summary judgment
on her unjust enrichment, quantum meruit, and breach of contract claims but
regardless, Rieves failed to comply with briefing rules, thus waiving her argument.
Rieves has another waiver problem as well. Below, and in this Court,
Rieves confines her arguments to the 2010 Contract, even though (1) Rieves
sought a declaratory judgment that the Incentive Pay provisions in both
Employment Contracts were unenforceable, and (2) Buc-ees breach of contract
claim encompassed both the 2009 Contract and the 2010 Contract. Therefore, the
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11
only issue before the Court is the enforceability of the Retention Pay Provision in
the 2010 Contract.4
Because Rieves has failed to show error, the trial courts judgment should be
affirmed.
STANDARD OF REVIEW
The standard for review of a traditional summary judgment is well
established. When the trial court does not state the basis for its decision in its
order, the reviewing court must affirm on any meritorious ground asserted in the
motion. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). Thus,
Rieves was required to challenge every ground asserted in Buc-ees motions in her
brief. Id.; see also Sudan v. Sudan, 145 S.W.3d 280, 289-90 (Tex. App.Houston
[14th Dist.] 2004) (when an appellant fails to challenge one of the grounds upon
which summary judgment was granted by the trial court, they waive error), revd
on other grounds, 199 S.W.3d 291 (Tex. 2006) (per curiam); see generally
Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 423 (Tex. App.Dallas 2009, no
4
To aid the Court, attached at Appendix A is a chart identifying the grounds in the
parties respective motions, where the response to those grounds can be found, and the
pages of Rievess Appellants Brief complaining of the trial courts rulings pertaining to
those grounds. Appendix A also identifies the claims and affirmative defenses that had
been advanced by Rieves but which she has since abandoned (e.g., fraud, violation of the
Pay Day Act). Any claim asserted below but not included in Rievess appeal is waived.
Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001) (per curiam) (grounds of
error not asserted by points of error or argument in the court of appeals are waived)
(quoting San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex. 1990) (per
curiam)).
59317228
12
pet.) (appellant must attack all independent bases that support a complained of
ruling or judgment).
The standard of review of a no-evidence summary judgment is also well
established. A no-evidence summary judgment is essentially a directed verdict
granted before trial, to which a legal sufficiency standard of review applies. King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
When both parties move for summary judgment on the same issues and the
trial court grants one motion and denies the other, the appellate court reviews both
parties summary judgment evidence and determine all questions presented.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Review of a summary judgment is de novo. Id.
ARGUMENT
I.
Summary Judgment Was Properly Granted in Favor of Buc-ees on

Contract Validity, Rievess Breach, and Damages5
To prevail on a breach of contract claim, a party must establish the following
elements: (1) a valid contract existed between the plaintiff and the defendant,
(2) the plaintiff tendered performance or was excused from doing so, (3) the
Unfortunately, it is not practical for Buc-ees to respond to Rievess issues or arguments

in the order she presents them. Tex. R. App. P. 38.2(a)(2). For example, Rievess claim
that the Incentive Pay provisions are unenforceable liquidated damage provisions is the
subject of several issues (e.g., nos. I.3-.4, II, III, IV.3.-.4) and addressed in various
sections of her argument (e.g., RB 19-20, 23, 26-28). Nonetheless, where it makes sense
to do so, Buc-ees has attempted to follow her organization.
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13
defendant breached the terms of the contract, and (4) the plaintiff sustained
damages as a result of the defendants breach. Saba Zi Exploration, LP v. Vaughn,
448 S.W.3d 123, 129 n.10 (Tex. App.Houston [14th Dist.] 2014, no pet.).
In determining whether Buc-ees was entitled to summary judgment on its
breach of contract counterclaim and that it was also entitled to summary judgment
on Rievess declaratory judgment claim (which asserted that the Employment
Contracts were not enforceable), the trial court had to decide whether a valid
contract existed. More specifically, it had to decide whether the Employment
Contracts were supported by non-illusory consideration, whether they were
unenforceable restraints of trade or covenants not to compete, or unconscionable as
Rieves claimed.
The trial court also had to decide whether the evidence
conclusively established that Rieves breached the Employment Contracts and

whether Buc-ees conclusively proved it sustained actual damages resulting from
that breach and conclusively proved the amount of its actual damages. The trial
court decided these issues correctly in Buc-ees favor and Rieves has failed to
show otherwise.
A.
The Employment Contracts Were Supported by Non-Illusory

Consideration
Rieves argues that the 2010 Contract was supported only by illusory
consideration and is, therefore, unenforceable. RB 25-26; see also CR875. The
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14
trial court correctly determined that Rievess illusory consideration argument

lacked merit as a matter of law. CR736-40 (Buc-ees motion); CR2586 (order).
According to Rieves, [w]hen the employer or the employee can avoid
performance of a promise by exercising a right to terminate the at-will relationship,
which each is perfectly free to do with or without reason at any time, the promise is
illusory and cannot support an enforceable contract.
quotations omitted).
RB 25-26 (internal
But this argument ignores a critical fact:
once Rieves
received the Incentive Pay, Rieves could not avoid performance of her promise to
forfeit the Incentive Pay by terminating the at-will relationship.
Two recent Texas Supreme Court cases are dispositive: Alex Sheshunoff
Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006), and Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009). In Johnson,
an at-will employee (Johnson) signed an agreement containing both a covenant not
to compete and a provision stating that he would receive training and confidential
information. 209 S.W.3d at 646-47. After receiving training and confidential
information, Johnson left the company and breached the covenant not to compete.
Id. The trial court and court of appeals held that the covenant not to compete was
unenforceable because the employers promise of training and confidential
information was illusory considerationi.e., that because Johnson was an at-will
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15
employee, his employer could have fired him before providing the training or
information. Id. at 647-48.
The Texas Supreme Court reversed the lower courts and held that the
covenant not to compete was enforceable. Id. at 657. In reaching this holding, the
Court explained that although the employers promise to provide training and
confidential information was initially illusory, the promise became an enforceable,
unilateral contract capable of supporting a covenant not to compete when the
employer performed its promise by providing the training and information. Id. at
651.
The Texas Supreme Court revisited this issue in 2009, when it once again
reversed the lower courts holdings that a covenant not to compete was
unenforceable because it was supported by illusory consideration. Fielding, 289
S.W.3d 844. Fielding, an at-will employee, signed an agreement stating that upon
his departure: (1) he would not disclose confidential information; and (2) if he
performed work for any of his employers (Mann Frankfort) clients, he was
required to pay a fee to Mann Frankfort (the client purchase provision). Id. at
845. Fielding resigned and filed suit seeking a declaratory judgment that the client
purchase provision was unenforceable under the Texas Covenants Not to Compete
Act. The lower courts held that the client purchase provision was unenforceable
because there was no consideration. In reversing the lower courts, the Texas
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16
Supreme Court explained that Mann Frankforts promise to provide confidential

information, although initially illusory (as it could have fired Fielding before
providing the information), became sufficient consideration for the client purchase
provision when Mann Frankfort performed its promise by providing the
information:
Mann Frankforts implied promise to provide Fielding with
confidential information when he was employed in 1995 was
illusory because Mann Frankfort had the option of terminating
Fieldings employment prior to giving him access to confidential
information. Nevertheless, the parties still formed an otherwise
enforceable agreement as contemplated by Section 15.50 when
Mann Frankfort performed its illusory promise by actually
providing confidential information.
Id. at 852 (emphasis added).
Johnson and Fielding are indistinguishable from the present facts. In all
three instances, the employers made promises to at-will employees: the promises
to provide confidential information in Johnson and Fielding, and Buc-ees promise
to provide conditional, Incentive Pay to Rieves.
In all three instances, the
employers promises were initially illusory, as they could have avoided

performance by terminating the at-will relationship prior to performing. But in all
three instances, the employers performed their illusory promises by providing the
confidential information (as in Johnson and Fielding) or Incentive Pay (as with
Buc-ees). Having performed, the employers promises were no longer illusory,
but instead represented adequate consideration that supported, and rendered
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17
enforceable, the employees corresponding promises to refrain from competition

(as in Johnson and Fielding) or forfeit the unearned Incentive Pay (as here).6
Rieves neglects to cite Johnson or Fielding in arguing that the 2010 Contract
lacked adequate consideration.7
Instead, Rieves cites to the Texas Supreme
Courts earlier decision in Light v. Centel Cellular Co. of Texas, 883 S.W.2d 642
(Tex. 1994). RB 25-26. This reliance is misplaced, as Lightincluding the
portions on which Rieves relieshas been largely overruled.
Johnson, 209
S.W.3d at 646 (Today we modify our holding in Light and hold that an at-will
employees non-compete covenant becomes enforceable when the employer
performs the promises it made in exchange for the covenant.); Marsh USA Inc. v.
Cook, 354 S.W.3d 764, 779-80 (Tex. 2011) (explaining the various ways in which
Fielding and Johnson had already overruled Light, further overruling Light on
additional points, and concluding with the doctrine [of stare decisis] has little
force as we have questioned Light each time we have discussed it).
6
In addition to the Employment Contracts, Buc-ees and Rieves were also parties to a
Non-Disclosure, Non-Disparagement and Confidentiality Agreement, pursuant to which
Buc-ees promised to provide Rieves with confidential and proprietary information, and
Rieves agreed not to disclose that information. CR2328, 2508. As established in
Johnson and Fielding, this promise became non-illusory consideration when Buc-ees
provided confidential information to Rieves.
CR2328, 2370-71.
Moreover,
notwithstanding that it is contained in a separate contract, the consideration in the NonDisclosure, Non-Disparagement and Confidentiality Agreement is proper consideration
in exchange for Rievess obligation to forfeit the unearned Incentive Pay. See Mitchell v.
Lawson, 444 S.W.2d 192, 196 (Tex. Civ. App.San Antonio 1969, no writ) (holding
that consideration under one contract extends to related contracts).
7
Rieves cites Fielding for another point. RB 30-31. See infra at n.10.
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18
B.
The Retention Pay Provision in the 2010 Contract Does Not

Restrain Trade or Prevent Rieves from Competing with Buc-ees,
and Is Instead an Enforceable Forfeiture Provision
Rieves also argues that there is no valid contract because the Term and
Repayment Provisions constitute restraints of trade subject to the reasonableness
standards applicable to covenants not to compete. RB 29-34; see also CR187-203,
878-79, 884. The trial court correctly rejected her argument. CR88-103 (Buc-ees
motion); 2SCR4 (order).
1.
Forfeiture Provisions Are Enforceable
Rievess position that the Retention Pay provision constitutes an illegal

restraint of trade because it violates restrictions applicable to non-compete
provisions is doomed by many Texas cases which stand for the settled proposition
that provisions like those at issue here are not properly characterized as covenants
not to compete or provisions that restrain competition, but are instead enforceable
forfeiture provisions.
Most recently, in ExxonMobil Corp. v. Drennen, 452 S.W.3d 319 (Tex.
2014), the plaintiff, William Drennen, worked for Exxon for over 30 years. Id. at
322. He received incentive compensation under a variety of programs, some of
which involved shares in the company with delayed delivery provisions (e.g., 50%
of the shares delivered three years after a grant, and 50% delivered seven years
after a grant). Id. The programs contained termination provisions that allowed
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19
Exxon to terminate outstanding awards under certain conditions, including

Drennens engaging in detrimental activity. Id. Detrimental Activity was
defined as acceptance . . . of duties to a third party under circumstances that
create a material conflict of interest. Id. (citation omitted). Material conflict of
interest, in turn, included becoming employed by an entity that regulates, deals
with, or competes with the Corporation or an affiliate. Id. (citation omitted).
In December 2006, Drennen was told by his supervisor that he was being
terminated. Id. Drennen was informed that, so long as he did not work for one of
Exxons
four
major[]
competitors
(Shell,
BP,
ChevronTexaco,
or
ConocoPhillips), his deferred compensation should remain unaffected. Id. In the

spring of 2007, Drennen informed his supervisor that he had been offered a
position at Hess Corporation (another of Exxons competitors). Id. at 323. His
supervisor informed him that accepting that position would make it highly likely
that he would forfeit his incentives awards. Id. Despite this, Drennen accepted the
job at Hess in July of 2007. Id. Shortly thereafter, Drennens supervisor sent him
a letter cancelling his incentive awards, explaining that Hess is a direct competitor
of ExxonMobil so there is a material conflict of interest, constituting detrimental
activity. Id.
Drennen filed suit against Exxon, claiming that the forfeiture provision was
an illegal noncompete agreement. The trial court entered judgement in favor of
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20
Exxon.
This Court reversed, holding that the forfeiture conditions were
unreasonable covenants not to compete, which were unenforceable under Texas

law as a matter of public policy. The Texas Supreme Court reversed and rendered
judgment in favor of Exxon, holding that the forfeiture provision in a deferred
compensation plan is not a noncompete agreement under Texas law.
In upholding Exxons deferred compensation plan, the Supreme Court ruled
that there is a difference between an employers desire to protect an investment,
which would be obtained through a noncompete agreement, and an employers
desire to reward loyalty, which was obtained through the deferred compensation
plan.
Id. at 327.
A classic non-compete agreement that is predicated on
protect[ing] the investment an employer has made in an employee, ensuring that

the costs incurred to develop human capital are protected against competitors who,
having not made such expenditures, might appropriate the employers investment
may be invalidated in certain circumstances under Texas law.
Id. at 328.
Forfeiture provisions conditioned on loyalty, however, do not restrict or prohibit

the employees future employment opportunities.
Id. (emphasis added).
Therefore, forfeiture provisions in an employment agreement do not violate Texas

public policy because they serve to reward employees for continued employment
and loyalty. Id. While Drennen did not analyze whether forfeiture clauses are
unreasonable restraints of trade under Texas law, because that was a separate
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21
question the Court reserve[d] for another day (id. at 329), other courts have
answered that question, against Rievess position in this case.
In Dollgener v. Robertson Fleet Services, Inc., 527 S.W.2d 277 (Tex.
App.Waco 1975, writ refd n.r.e.), the court examined the enforceability of a
profit-sharing plan that provided benefits to employees, while stating that those
benefits would be immediately forfeited if the employee became employed by a
competitor.
Dollgener went to work for a competitor and when his former
employer denied him his profit-sharing benefits, he filed suit and argued that the
forfeiture provision was an unenforceable covenant not to compete. Id. at 278.
The court rejected this argument, explaining:
The question of whether forfeiture provisions like the one before us in
noncontributory profit-sharing pension trusts are effectually covenants
not to compete and are in restraint of trade has not been decided in
Texas. However, a clear majority of courts of other jurisdictions have
held that such clauses, though unrestricted in time and territory, are
not subject to the same considerations of public policy that relate to
covenants not to compete, and that they are not in restraint of trade.
Id. at 278-79 (emphasis added). The court adopted the view of this clear majority
of courts in holding that the provision requiring the forfeiture of Dollgeners
profit-sharing plan benefits was enforceable. Id. at 280.8
For similar holdings reached by courts in other jurisdictions, see, e.g., Schlumberger
Tech. Corp v. Blaker, 859 F.2d 512, 516 (7th Cir. 1998) (Forfeiture contracts leave the
ex-employee free to make a living as he chooses. The former employee accepts the
money (and refrains from competition) only when the total income from the package plus
noncompetitive employment exceeds the income he could earn from competitive
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22
The Retention Pay provision in the 2010 Contract (and if considered, the
Additional Compensation provision in the 2009 Contract) fits squarely within the
holdings in Drennen and Dollgener.
Rieves did not promise to refrain from
competing with Buc-ees or to remain employed by Buc-ees. Instead, Rieves

agreed that, in exchange for her loyalty, she would receive additional
compensation in the form of non-contributory Incentive Pay. Nothing in either
contract restricted Rievess right to future employment, but rather forced her to
choose between working elsewhere and forfeiting the Incentive Pay or staying with
Buc-ees and keeping the Incentive Pay. CR140, 142, 147.
Indeed, in another context, the Texas Supreme Court expressly recognized
that an employers interest in link[ing] the interests of a key employee with the
companys long-term business interests is an interest worthy of protection. Marsh
employment. Having such a choice does not threaten loss of livelihood, so New York
and the majority of other states that have considered the question enforce these
agreements.) (Easterbrook, J.); see also Morris v. Schroder Capital Mgmt. Intl, 481
F.3d 86, 88 (2nd Cir. 2007) (per curiam) (the employee choice doctrine assumes that an
employee who voluntarily leaves his employment makes an informed choice between
forfeiting his benefits or retaining the benefits by avoiding competitive work); Clark v.
Lauren Young Tire Ctr. Profit Sharing Trust, 816 F.2d 480, 482 (9th Cir. 1987)
(forfeiture clause in ERISA pension plan is not like a non-compete provision in an
employment contract which may unreasonably restrain trade or restrict an employees
ability to earn a livelihood); Tatom v. Ameritech Corp., 305 F.3d 737, 745 (7th Cir. 2002)
(A provision that calls for the forfeiture of a bonus in the form of stock options does not
strike us as an unreasonable restrain on competition.); Viad Corp v. Houghton, No. 98cv-6706, 2010 U.S. Dist. LEXIS 61679, at *14 (N.D. Ill. June 22, 2010) (An agreement
provision under which an employee who joins a competitor forfeits a bonus does not have
the makings of a traditional, disfavored covenant not to compete, because it does not
prevent post-termination employment, but only discourages it by working a forfeiture of
an economic advantage.).
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23
USA Inc., 354 S.W.3d at 777. The Incentive Pay provisions here are also worthy
of protection because they link the interests of a key employee with the companys
long-term business interests. CR2350-53. And, because the provision allows the
employee to make an informed economic choice, it is a reasonable way to promote
the legitimate interests of the company.
Yet another reason that the Incentive Pay provisions are not covenants not to
compete is that nothing in the Employment Contracts authorized Buc-ees to obtain
an injunction prohibiting Rieves from working for AlphaGraphics (or any other
employer), nor did Buc-ees seek that relief.9
And not to beat a dead horse, but a covenant not to compete is a promise,
usually in a sale-of-business, partnership, or employment contract, not to engage in
the same type of business for a stated time in the same market as the buyer,
partner, or employer. Blacks Law Dictionary 443 (10th ed. 2014); see Tex. Bus.
& Com. Code Ann. 15.50(a); Marsh USA Inc., 354 S.W.3d at 768. As noted
above, Rieves was free to move from job to job, and she so admitted during her
deposition. CR140 (Q. Okay. Is there any restriction of where you can work
when you leave Buc-ees? A. No. Q. Is there any restriction of geographically
9
Of course, in the typical case where an employee violates a non-competition provision,

the former employer seeks an injunction preventing the employee from doing so. E.g.,
Cameron Intl Corp. v. Guillory, 445 S.W.3d 840, 841 (Tex. App.Houston [1st Dist.]
2014, no pet.); C.S.C.S., Inc. v. Carter, 129 S.W.3d 584, 588 (Tex. App.Dallas 2003,
no pet.).
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24
where you can work once you leave Buc-ees? A. Geographic? No.). Thus,
consistent with Drennen and Dollgener, the provisions that Rieves agreed to,
provisions that reward and are conditioned upon her loyalty, are enforceable. They
violate neither the Covenant Not to Compete Act nor common law restrictions on
covenant-not-to-compete provisions.
Rieves thus has a round-peg, square-hole problem. She is trying to take her
forfeiture/repayment obligations for her unearned pay (round peg) and make them
fit into noncompete/restraint of trade jurisprudence (square hole). The trial court
appropriately understood the difference between the two types of provisions and
rejected her argument.
2.
Rieves Relies on Inapposite Cases
Rievess reliance on certain Texas Supreme Court opinions for her position
that the forfeiture aspect of her 2010 Contract is a restraint of trade is misplaced.
For example, in Frankiewicz v. National Computer Associates, 633 S.W.2d 505
(Tex. 1982) (RB 31), the Court noted that where a contract includes a forfeiture
provision of benefits the employee had already earned (renewal commissions) and
allows the former employer to obtain an injunction to prevent the employee from
working for the competition, restraint of trade jurisprudence may render the
agreement unenforceable. Frankiewicz, 633 S.W.2d at 506-07. But here, as noted
above, the 2010 Contract contains no provision allowing Buc-ees to seek
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25
enforcement of a non-compete obligation through injunctive relief, nor did Bucees attempt to do so.
Nor does Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381 (Tex. 1991)
(RB 31), advance Rievess argument. In that case, a damages provision (not a
forfeiture provision) was triggered if the plaintiff left the accounting firm and took
clients with him at any time during the first 24 months after separation, i.e., if he
competed with his former employer. 818 S.W.2d at 385-86 (noting that even when
there is no express provision prohibiting the departing employee from competing,
where the conduct for which damages are assessed is competing, the provision is
virtually the same as a covenant not to compete). Rievess forfeiture of her
Retention Pay is not triggered by any act of competition.10 Had Rieves exited the
work force after leaving Buc-ees in July 2012, she would still have been obligated
to return the unearned Incentive Pay.
Equally unhelpful to Rieves is Deming v. Nationwide Mutual Insurance Co.,
905 A.2d 623 (Conn. 2006) (RB 32). The contract in that case provided that
plaintiffs forfeited their commissions and deferred compensation if they competed
with the defendant after cancellation of their contracts. Deming, 905 A.2d at 627,
634. Again, Rievess forfeiture of Incentive Pay is not triggered by competition.
Moreover, the Connecticut court noted that two views have emerged as to
10
Rieves also cites to Fielding in this section of her argument, but the quote at the top of
page 32 of her brief that she represents is from Fielding is actually from Haass.
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26
whether forfeiture provisions are restraints of trade with the majority view being
that forfeiture provisions are not analyzed as restraints of trade. It further noted
that Texas is in the majority view. Id. at 634-35 (citing Dollgener). Finally, other
courts construing the same provision in the Nationwide contract before the
Connecticut court have upheld its enforceability as a valid forfeiture provision not
subject to covenant not to compete scrutiny. E.g., Gearhart v. Nationwide Mut.
Ins. Co., No. 27396, 2015 Ohio App. LEXIS 2831, at *13 (Ohio Ct. App. July 22,
2015) (collecting cases); see id. at *23 (Carr, J., dissenting).
In sum, none of Rievess authorities should give the Court any pause in
upholding the trial courts summary judgment on Buc-ees counterclaim.
3.
Mr. Wingerts Email and Testimony Is of No Relevance
On April 22, 2012, Rieves advised her district manager by email that she
was considering taking another job and asked him to forward the email to Don
Wasek, Buc-ees co-owner and co-founder (and the person with whom Rievess
had negotiated her contracts) and Greg Wingert, the Director of Operations for
Buc-ees. CR266, 336. Rieves twice quotes Mr. Wingerts email response. RB 9,
29 (quoting from CR338). But how Mr. Wingert characterized the Incentive Pay
provisions, either in his responsive email or during his deposition (RB 11-12), is of
no import in this case; there is no dispute about the proper interpretation of the
Incentive Pay provisions and the trial court was never asked to interpret them. Cf.
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27
Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015) (noting that [a]t
issue here . . . is the trial courts construction of a provision in an agreement).
Rather, here the issue for the trial court as raised by the parties pleadings was the
validity of the provisions and, assuming their validity, whether Rieves breached
and whether recoverable damages resulted from that breach.
*
Simply put, Buc-ees is not aware of, and Rieves has cited no Texas case
that has applied a non-compete analysis when considering the enforceability of a
forfeiture provision that is not triggered by competing with the former employer.
Under the analysis contained in the more recent Texas Supreme Court decisions,
the forfeiture provision in Rievess 2010 Contract (and her 2009 Contract) is not
properly analyzed as a restraint of trade nor as a covenant not to compete. It is
simply neither. It is like many features in employment contracts or contracts
related to employment that impose conditions on the recipient for benefits. Indeed,
it is certainly not unusual for an employer to impose eligibility requirements on
incentive pay or benefits provisions. E.g., Dresser-Rand Co. v. Bolick, No. 14-1200192-CV, 2013 Tex. App. LEXIS 8867 (Tex. App.Houston [14th Dist.]
July 18, 2013, pet. denied) (mem. op.) (discussed infra; affirming summary
judgment and enforcing a contract that required an employee to reimburse his
employer a moving stipend when he decided not to stay employed for a specified
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28
duration); Fletcher v. Energy Res. Tech. GOM, Inc., No. 01-11-00553-CV, 2012
Tex. App. LEXIS 7034 (Tex. App.Houston [1st Dist.] Aug. 23, 2012, no pet.)
(mem. op.) (affirming summary judgment for employer; employees were not
entitled to incentive pay because they failed to stay the required term); White v.
Aguirre, Inc., No. 05-00-00503-CV, 2002 Tex. App. LEXIS 3438, at *12-13 (Tex.
App.Dallas, May 15, 2002, no pet.) (affirming summary judgment for employer;
employee had forfeited right to incentive bonus because, although he was
employed during the bonus calculation period, he was not employed on the
payment date).
The trial court thus correctly rejected Rievess restraint of trade and
covenant not to compete arguments, in all of their various permutations.
C.
The 2010 Contract Is Not Unconscionable
Rieves also claims that the Retention Pay provision in the 2010 Contract is
unenforceable because it is procedurally and substantially unconscionable, or onesided, asserting a laundry list of why that is so. RB 34-38; see also CR892-95.
The trial court was right to reject these claims too. CR742-43 (Buc-ees motion);
CR2586 (order).
Rieves begins her argument by asserting that the 2010 Contract allows Bucees to recoup money paid to at-will employees for their services. RB 35. That is
misleading at best. At no time did Buc-ees require that Rieves forfeit her salary;
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29
salary is distinct from incentive pay. Rievess next claim, that the 2010 Contact
limits her at-will employment rights and imposes a restraint of trade (id.), has
already been addressed. See supra.
Rievess arguments that the jury waiver provision and the venue selection
provision render the 2010 Contract unconscionable (RB 35) also fail. First, Rieves
ignores that Buc-ees moved for summary judgment on these affirmative defenses
on the basis that Rieves impermissibly sought an advisory opinion regarding issues
that are not in dispute. CR740-41. Tex. Assn of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 444 (Tex. 1993) (Texas Constitution prohibits courts from issuing
advisory opinions that decide abstract questions of law that do not bind the
parties). Because Rieves fails to address this independent basis for summary
judgment anywhere in her appellate brief, the summary judgment should be
upheld. Star-Telegram, 915 S.W.2d at 473 (appellant is required to challenge
every ground asserted in support of order).
Even if Rievess waiver problem were ignored, none of her arguments have
any legal basis. For example, Rieves is foreclosed from challenging the venue
provision when she herself chose to file suit in Brazoria County, consistent with
the venue provision. In re Masonite Corp., 997 S.W.2d 194, 197-98 (Tex. 1999)
(orig. proceeding) (holding that plaintiffs could not challenge the venue that they
selected in filing suit). Her jury waiver arguments fare no better. First, the
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30
provision is enforceable. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 132-35
(Tex. 2004) (orig. proceeding). Second, Rieves never sought a jury trial (see Tex.
R. Civ. P. 216) and the case was decided on summary judgment, meaning that even
if she had requested a jury, she would not be entitled to one regardless of her
contractual waiver of that right. Tex. R. Civ. P. 166a; G&H Towing Co. v. Magee,
347 S.W.3d 293, 296-97 (Tex. 2011) (per curiam) (purpose of summary judgment
rule is to allow courts to summarily end a case).
Rievess argument that Section 3.04 of the 2010 Contract violates the Fair
Labor Standards Act, allegedly rendering the contract unconscionable (RB 35-36),
is also unavailing. Even if that argument had merit,11 and it does not, Rieves
ignores that Section 6.05 of the 2010 Contract contains a severability provision.
CR149 (providing that [i]f one or more of the provisions of this Agreement are
determined by a court of competent jurisdiction to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions of this Agreement
shall nevertheless be binding on and enforceable by and between the parties
hereto); see generally Williams v. Williams, 569 S.W.2d 867, 871 (Tex. 1978)
(unconscionable portion of the contract can be severed as long as it does not
constitute the essential purpose of the agreement).
11
The law in effect when Rieves was employed provided that salaried workers earning
$455 a week or $23,660 annually were not entitled to overtime. Rievess base salary,
exclusive of her Retention Pay under her 2010 Contract, was $862 weekly or $44,863
annually. CR147.
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Rievess claim that the indemnity provision in the 2010 Contract (Section
6.07) renders it unconscionable (RB 36) ignores that Buc-ees did not sue for
indemnity and expressly disclaimed that it was doing so. CR744 (To the extent
that Buc-ees pleadings can be construed as seeking to enforce any indemnity
provisions, Buc-ees stipulates, pursuant to Rule 165 of the Texas Rules of Civil
Procedure, that it is hereby abandoning any claim to enforce any indemnity
provisions.).
In any event, to prove substantive unconscionability, Rieves was required to
at least raise a fact issue on her claim that the 2010 Contract is so one-sided that
no man in his senses and not under delusion would make on the one hand, and as
no honest man and fair man would accept on the other. Venture Cotton Coop. v.
Freeman, 435 S.W.3d 222, 228 (Tex. 2014) (internal quotations omitted). Not
only did she fail to raise a fact issue, but Buc-ees presented evidence conclusively
establishing that Rieves made a reasonable and measured decision when she
selected a combination of base and incentive pay that would yield the greatest
compensation. CR128, 131-32.
Tellingly, in none of the cases cited by Rieves did the plaintiff negotiate the
contract at issue. For example in Ski River Development, Inc. v. McCalla, 167
S.W.3d 121, 136 (Tex. App.Waco 2005, pet. denied) (RB 37), a jury finding that
a lease was unconscionable was affirmed. The evidence showed that at the time
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32
the lease was executed, the lessees were in dire financial straits, they felt that
they had no choice but to sign, and felt they could not change anything in the
lease before signing it.
Id. at 137.
That is nearly the opposite of the
uncontroverted facts presented here. Rieves testified that she was not looking for a
job and did not need a job when she entered into the 2009 Contract. CR2098.
Rieves also testified that she negotiated her 2009 and 2010 Contracts, that there
was an active dialogue, and that she alone decided the split between base and
incentive compensation. CR128, 131-33, 135. Rieves further testified that she
felt she could have said no to the proposed arrangement and she also
characterized the split that she negotiated as entirely reasonable:
Q. (By Ms. Lieb) And did you -- when you left Dons office and
having come to -- and after having a dialogue with him and having a
discussion about those numbers, were you in agreement with those
numbers?
A. Yes.
Q. Okay. Did you feel that you had had an opportunity to say, I
dont like those numbers?
A. Yes.
Q. Did you believe that the numbers were reasonable?
A. Yes.
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CR1405-06.12
On facts such as these, where the plaintiff has admitted that she was under
no duress when entering into the contract, where she negotiated the terms that she
now claims are onerous, to Buc-ees knowledge, no court has held the contract to
be unconscionable. Indeed, such a holding would conflict with bedrock Texas law,
requiring that contracts be upheld. See generally Philadelphia Indem. Ins. Co. v.
White, No. 14-0086, 2016 Tex. LEXIS 373, *1 (May 13, 2016) (Texass strong
public policy favoring freedom of contract is firmly embedded in our
jurisprudence.): Wood Motor Co. v. Nebel, 150 Tex. 86, 93, 238 S.W.2d 181, 185
(1951) ([I]f there is one thing which more than another public policy requires it is
that men of full age and competent understanding shall have the utmost liberty of
contracting, and that their contracts when entered into freely and voluntarily shall
be held sacred and shall be enforced by Courts of justice.).
To raise a fact issue on procedural unconscionability, Rieves was required to
present probative evidence that the contract negotiations were tainted by
oppression and unfairness. See In re Palm Harbor Homes, Inc., 195 S.W.3d 672,
679 (Tex. 2006).
Rieves presented no evidence that the negotiations were
oppressive or unfair. Rather, again, the evidence instead established that Wasek
See also id. at CR127 (Q. Okay. If you completely disagreed with his numbers, could
you tell Don that? A. Yes. Q. If you completely disagreed with Don number -- Dons
numbers, would you have signed a contract? A. No.).
12
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was honest in negotiating the Employment Contracts,13 that the negotiations were
interactive, and that Rieves (a college graduate and working towards an MBA)
selected many of the contractual terms that she now alleges to be unconscionable.
CR128, 131-32.14
D.
The Summary Judgment Evidence Conclusively Proves that

Rieves Breached the Employment Contracts by Repudiating Her
Forfeiture Obligations
The uncontroverted evidence submitted with Buc-ees Second Motion for

Summary Judgment established that Rieves was obligated under the Employment
Contracts to forfeit the unearned Incentive Pay, and that she breached this
obligation. CR746, 788, 793; see also CR816-17, 10-11. Indeed, Rieves
concedes that she never repaid the unearned money:
Q. Did you keep money from Buc-ees that you did not earn, based
on this contract?
A. Iyes.
CR780; see also CR1415 (again admitting that she breached).
Unable to point to any evidence that would raise a fact issue on the element
of breach, Rieves first argues that she made no promise to repay Buc-ees.
13
CR779 (Q. Okay. So lets -- lets go a little further. Up until this day, as we sit here
today, has Don [Wasek] ever been dishonest with you? A. Not that I know of.).
14
Rievess argument that the fee shifting provision in the 2010 Contract (Section 6.08) is
unconscionable is addressed in Section III infra.
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35
RB 24. Of course that is not true. She made a specific promise (twice) to forfeit
any unearned Incentive Pay. CR142, 147.
Rieves then resorts to setting up and defeating a strawman. According to
Rieves, her breach was not her refusal to comply with the forfeiture provision but
her departure from Buc-ees. E.g., RB 23-24. She then argues that, since she was
an at-will employee, her departure from Buc-ees does not amount to a breach. RB
19 (Because Rieves was an At-will Employee . . ., No Breach Resulted from her
Departure . . . .). As Buc-ees has never contended that Rieves breached the
Employment Contracts by leaving Buc-ees employment, this line of argument by
Rieves is misdirected and certainly does not show error in the judgment.
In sum, because Buc-ees alleged that Rievess breach was her failure to
forfeit the unearned Incentive Pay,15 and Buc-ees established this breach as a
matter of law, Rieves has failed to show error in the trial courts judgment.
E.
Buc-ees Sustained Actual

Damages Argument Fails
Damages;
Rievess
Liquidated
Rieves also argues that Buc-ees did not sustain any actual damages as a
result of her breach of the Employment Contracts, and that instead of seeking
actual damages, Buc-ees is seeking to recover unenforceable penalties or
15
E.g., CR20-21 (Buc-ees counterclaim asserting that Rieves breached the contracts by
failing to return her Additional Compensation and Retention Pay); CR746 (Buc-ees
second motion for summary judgment asserting that Rieves breached the Employment
Contracts by refusing to repay the Incentive Pay).
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36
liquidated damages. RB 20-23, 26-27. These arguments are directed at the same
mischaracterization discussed abovei.e., that the breach was Rievess departure
from Buc-ees, as opposed to Rievess refusal to forfeit and repay the unearned
Incentive Pay.16
Rieves also argues that Buc-ees shows no loss or damages actually
sustained due to Rievess departure. RB 23. But again, Rieves did not breach the
Employment Contracts by leaving Buc-ees employment, and Buc-ees does not
seek any damages associated with this non-existent breach.
Instead, Rieves
breached the Employment Contracts by repudiating her obligation to forfeit and

repay the unearned Incentive Pay, and Buc-ees establishedagain, through
uncontroverted evidencethat it suffered actual damages as a result of this breach.
CR746, 817, 2325-26.
Specifically, Buc-ees incurred actual damages in the
amount of $63,330.21, which represents the unearned Incentive Pay (net of taxes17
that were withheld, plus interest on that net amount) that Rieves was obligated, but
refused, to forfeit. Id.
16
Rieves also states that Buc-ees relies on a liquidated damages provision (RB 23),
which is untrue. Buc-ees has never characterized the Incentive Pay provisions as
liquidated damages provisions.
17
Buc-ees sought and obtained recovery only of the net amount of Incentive Payi.e.,
the total amount of Incentive Pay that Rieves received and is obligated to repay, less the
taxes that were withheld on the Incentive Pay (plus interest on that net amount). CR746,
817.
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37
Moreover, Rievess argument that Buc-ees actual damages should be recast

as unenforceable liquidated damages or penalties is contrary to this Courts opinion
in a closely analogous case. In Bolick, 2013 Tex. App. LEXIS 8867, Bolick
executed an agreement in which he promised to repay Dresser-Rand his relocation
expenses if his employment terminated within one year of the relocation. Id. at *12. Bolick quit less than a year after relocating, but repudiated his obligation to
repay the $30,000 in relocation expenses Dresser-Rand incurred on his behalf, and
argued that the repayment obligation constituted unreasonable liquidated damages
or a penalty. Id. at *2, *8. This Court rejected Bolicks argument and held that the
$30,000 was agreed compensation that Bolick was contractually obligated to
repay. Id. at *11 (Because the obligation was not a liquidated damages provision,
it cannot be an unenforceable penalty.). In doing so, the Court appropriately
treated the repayment obligation as a straightforward contractual matter. Id.
The same result is warranted with respect to the Incentive Pay provisions,
whichlike the repayment obligation that was upheld in Bolickdo not impose
any damages or penalties upon Rieves, but instead represent agreed compensation
that Rieves is contractually obligated to repay.
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F.
Rievess Other Contract Claims and Affirmative Defenses Were

Properly Disposed of by Summary Judgment18
To prove estoppel, Rieves was required to prove that Buc-ees made a false
representation to her, that she did not know the true facts, and that she reasonably
relied on the misrepresentation to her detriment. Johnson & Higgins of Tex., Inc.
v. Kenneco Energy Inc., 962 S.W.2d 507, 515-16 (Tex. 1998). To prove quasi
estoppel, Rieves was required to prove that Buc-ees accepted a benefit from her,
that Buc-ees present position is inconsistent with its position when it accepted the
benefit, and that it would be unconscionable to allow Buc-ees to maintain its
present position. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864
(Tex. 2000).
To prove waiver, Rieves was required to prove that Buc-ees
intentionally relinquished a known right or engaged in conduct inconsistent with

claiming that right. Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37
(Tex. 1987). As to each of these claims/defenses, Buc-ees moved for summary
judgment on no evidence and traditional grounds. CR728-30.
Rievess argument on these claims is that Buc-ees is precluded from
requiring her to return her unearned Incentive Pay because Buc-ees neither
withheld the funds nor placed restrictions on how she used the funds. RB 39-40.
Neither allegation fits any of the elements that she had to prove to survive
18
In this section of its Brief, Buc-ees responds to those claims and defenses listed in
heading G of Rievess brief: failure to mitigate, estoppel, quasi estoppel and waiver.
RB 39-40.
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39
summary judgment.
Moreover, each contract required that Buc-ees pay the
Incentive Pay monthly (CR142, 147), and it is undisputed that Buc-ees did exactly
that. Also baseless is Rievess assertion that Buc-ees counterclaim proves it
encouraged her to use the funds. RB 40. Nothing in Buc-ees counterclaim
supports this assertion. Instead, the portion Rieves quotes shows only that Bucees increased the value of Incentive Pay by paying it upfront, allowing Rieves to
enjoy the time value of the money.
Rievess mitigation argument appears to be the same as her waiver and
estoppel argumentsthat Buc-ees could have mitigated its damages by not paying
Rievess until the end of the period, rather than paying the Incentive Pay monthly.
RB 39. Buc-ees knows of no case where a mitigation argument was successfully
asserted when a defendant paid the plaintiff on the schedule set forth in the parties
contract. Rieves appears to be arguing that Buc-ees should have breached the
contract to mitigate its damages.
Her argument makes no sense and is not
anchored in any jurisprudence known to Buc-ees.

G.
Rieves Waived Any Complaint Regarding the 2009 Contract
Buc-ees sued Rieves for breach of the 2009 Contract and the 2010 Contract.
CR21. And Rieves pleaded that both the Additional Compensation provision in
the 2009 Contract and the Retention Pay provision in the 2010 Contract were
unenforceable. E.g., CR2567 (Fourth Amended Petition seeking a declaratory
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40
judgment that the Additional Compensation/Retention Pay Repayment

Provisions are, an Illegal, Void, Unconscionable, and Unenforceable Restraint of
Trade).
However, Rievess appellate complaints are confined to the 2010 Contract.
E.g., RB xii-xvi, 14-16, 24-26, 29, 33-34, 42.19 The only exception is Rievess
issue no. X.1, complaining that the trial court erred in awarding attorneys fees to
Buc-ees under the superseded 2009 Agreement. RB xv; see also id. at 17, 41.
Because Rieves has lodged no complaint directed to that portion of the
judgment adjudicating Buc-ees claim that she breached the 2009 Contract, that
part of the judgment must be affirmed. Jacobs, 65 S.W.3d at 655-56 (grounds of
error not asserted by points of error or argument in the court of appeals are
waived) (quoting San Jacinto River Auth., 783 S.W.2d at 209-10).
Any argument by Rieves that the 2010 Contract supersedes the 2009
Contract would fail. As she admits, the 2010 Contract only supersedes parts of the
2009 Contract. RB 41. As stated in Section 6.06 of the 2010 Contract, the
Additional Compensation provision in the 2009 Contract expressly survived and
remained in force following the execution of the 2010 Contract. RB 41 (noting
19
For example, Rievess Issues state: The trial court erred in determining on summary
judgment that the 2010 Agreement was enforceable. . . . The trial court erred in granting
summary judgment determining that the liquidated damages provision of the 2010
Agreement did not constitute an unenforceable penalty. . . . The trial court erred in
determining on summary judgment that non-illusory consideration supported the 2010
Agreement and the repayment provisions. RB xii-xiii (emphasis added).
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41
that 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); see id. at 21 (quoting Section 6.06 of the 2010 Contract).
Any attempt by Rieves to raise the issue in her reply brief will be too late.
Contl Carbon Co. v. Natl Union Fire Ins. Co., No. 14-11-00162-CV, 2012 Tex.
App. LEXIS 2937, at *10 (Tex. App.Houston [14th Dist.] Apr. 17, 2012, no
pet.) (mem. op.) (it is well-settled that Rule 38.3 of the Texas Rules of Appellate
Procedure does not allow an appellant to include in a reply brief a new issue in
response to a matter pointed out in the appellees brief but not raised in the
appellants original brief).20
II.
The Trial Court Correctly Granted Buc-ees Summary Judgment on

Rievess Claims for Unjust Enrichment, Quantum Meruit, and Breach
of Contract
Rievess complaint that the trial court erred in granting summary judgment
on her claims for unjust enrichment, quantum meruit and breach of contract
(RB 38-39) fail for myriad reasons.21 As a threshold issue, Rieves fails to cite any
20
Buc-ees arguments stated herein all apply equally to the 2009 Contract. Therefore,
even if the Court were inclined to consider whether the trial court correctly granted Bucees summary judgment on claims and defenses concerning that agreement, the judgment
should be affirmed.
21
Rieves moved for summary judgment on her claim for quantum meruit (CR1576,
1584), but she has not appealed the denial of her motion in that respect and has only
challenged the granting of Buc-ees summary judgment motion on her quantum meruit
claim. RB xii-xvi, Issue VIII (stating: The trail [sic] court erred in granting summary
judgment on Rievess unjust enrichment, quantum meruit, and breach of contract
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42
case law and therefore has waived these complaints. Tex. R. App. P. 38.1(i);
Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.
2004); Frankoff v. Norman, 448 S.W.3d 75, 87-88 (Tex. App.Houston [14th
Dist.] 2014, no pet.).22 Second, although Rievess heading (heading F) mentions
unjust enrichment (RB 38), her brief fails to include an argument on that claim
(i.e., with citations to authorities and the record) and therefore, the complaint is
waived for this additional reason as well.
If these appellate arguments are considered despite her waiver, the
arguments have no merit. The factual basis of all three claims was that Buc-ees
allegedly orally promised Rieves that she would earn at least what she had earned
in her prior employment, that she would be paid a certain sum for her first year,
and would be paid a greater sum in subsequent years. CR2570, 2578; see also RB
38-39. Yet, Rievess own testimony proves that Buc-ees did in fact pay her more
than she had been paid by any prior employer and she was paid more under the
2010 Contract than she had been paid under the 2009 Contract. CR142, 147, 2505,
2511. Had Rieves not breached, then she would not have forfeited the unearned
Incentive Pay and she would have in fact been paid more by Buc-ees than by any
previous employer. Having herself breached, Rieves cannot now complain that
claims.).
22
Rievess sole record cite is to her declaration. RB 38 n.185 (citing CR2081).
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43
Buc-ees failed to perform its end of the bargain. Moreover, the alleged oral
promises that inform these three claims are extrinsic to the Employment Contracts
and vary the contracts, and for that reason, the claims fail. In re H.E. Butt Grocery
Co., 17 S.W.3d 360, 369 (Tex. App.Houston [14th Dist.] 2000, orig. proceeding)
(parol evidence rule bars consideration of any claim that varies an integrated
contract).
And of course, there is no claim for quantum meruit or for unjust enrichment
when a written contract exists. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671,
684 (Tex. 2000) (there can be no recovery for unjust enrichment if the same
subject is covered by [the] express contract) (citation and internal quotations
omitted); Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988) (plaintiff who seeks to
recover the reasonable value of services rendered is permitted to recover in
quantum meruit only when there is no express contract covering those services).
The summary judgment can be affirmed on any of the foregoing bases. StarTelegram, 915 S.W.2d at 473.
III.
The Fees Awards Are Proper and Should Be Upheld

Buc-ees sought to recover its reasonable and necessary attorneys fees
under the Employment Contracts, and under Chapters 37 and 38 of the Texas Civil
Practice and Remedies Code. CR22, 747, 790, 796. Buc-ees proved the amount
of its reasonable and necessary attorneys fees. CR820, 832. Rievess countered
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44
that any determination on the issue of attorneys fees was premature, although she
included some theories on which she might contest the validity of the contractual
fee shifting provision. CR891-92. She never controverted Buc-ees evidence of
necessity or reasonableness.23 The trial court awarded Buc-ees the amount in
reasonable and necessary fees it had requested through the trial proceeding and
conditional fees for appeal. CR748-49, 820, 832, 2589. These awards were
proper. Green v. Intl Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997) (a party that
prevails on a breach of contract claim and recovers damages is entitled to
attorneys fees under Section 38.001(8)); De La Calzada v. Am. First Natl Bank,
No. 14-07-00022-CV, 2008 Tex. App. LEXIS 880, at *12 (Tex. App.Houston
[14th Dist.] Feb. 7, 2008, no pet.) (attorneys uncontroverted statements regarding
the reasonableness of a legal fee may support summary judgment); Bocquet v.
Herring, 972 S.W.2d 19, 21 (Tex. 1998) (trial courts have discretion to award fees
that are equitable and just for declaratory judgment claims).
Rieves asserts many arguments against the fee awards, but once again, she
fails to show error in the judgment.24 Rieves first argues that fees should not be
recoverable under the 2009 Contract because that contract was superseded by the
23
In her motion for summary judgment (denied) Rieves asked for an award of fees
through trial of $160,000 (CR2247), which is four times the amount of attorneys fees
sought and recovered by Buc-ees (CR747-48, 2588).
24
A fee award under the Declaratory Judgment Act is reviewed for an abuse of
discretion. Bocquet, 972 S.W.2d at 21.
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45
2010 Contract. RB 41. Rievess argument ignores that Section 6.06 of the 2010
Contract specifically states that the Additional Compensation provision from the
2009 Contract shall continue to exist unless Employee complies with all the terms
of this Agreement. CR150. As established above, Rieves failed to comply with
the terms of the 2009 Contract and therefore the Additional Compensation
provision in the 2009 Contract continue[d] to exist and she breached that
provision, making her liable for attorneys fees, if not under the fee shifting
provision of the 2009 or 2010 Contract, then under Chapter 38 (or under Chapter
37). Also, Rieves did not make this argument below (CR890-91) and therefore it
should not be considered. Tex. R. App. P. 33.
Equally unavailing is Rievess argument that Section 6.08 of the 2010
Contract is ambiguous because it is supposedly unclear whether it is a recitation of
Chapter 38 or a one-sided fee shifting provision. The Court need not address
this argument because the fee award can be upheld on the basis of Chapter 38
alone. In other words, because Buc-ees was the prevailing party and met the other
requirements of Chapter 38, the fee award should be affirmed.25
25
Rievess argument that the fee awards should not be affirmed under the Declaratory
Judgment Act, Chapter 37 of the Texas Civil Practice and Remedies Code (RB 43)
because it would supposedly be inequitable to shift fees under that statute, similarly need
not be reached because the fee awards can be affirmed under Chapter 38. But Rievess
claim that she should not be [p]unis[ed] for pursuing a declaratory judgment because it
was her only recourse Rieves had in challenging the payment provisions, if correct,
would mean that a prevailing party could never recover fees under the declaratory
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46
Respectfully, Buc-ees does not understand Rievess third argument. To the

extent that she is claiming that Buc-ees is not entitled to fees under Chapter 38
because Buc-ees did not prevail on its breach of contract counterclaim (RB 41),
the argument misfires because Buc-ees did prevail on its breach of contract
counterclaim. CR746 (Buc-ees motion); CR2586 (order).
Rievess argument that in the arbitration context courts have refused to
enforce fee splitting provisions (RB 42) misreads Texas law. Instead, in In re
Poly-America, L.P., 262 S.W.3d 337 (Tex. 2008) (orig. proceeding), the Texas
Supreme Court refused to hold that fee splitting provisions pertaining to arbitration
are per se unenforceable, holding instead that a complaining party is required to
proffer some evidence that they will likely incur arbitration costs in such an
amount as to do deter enforcement of statutory rights in the arbitral forum. Id. at
356. There is no such evidence here.
The remainder of Rievess attack against the fee award retreads her earlier
arguments, including that the Employment Contracts are unconscionable and that
the Incentive Pay provisions must be construed as covenants not to compete (RB
43-44), have each already been addressed above.
Those arguments are
incorporated herein by reference.
judgment statute. Once again, her arguments go too far and have no basis in the law (and
she cites no law).
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Accordingly, the fee awards (through judgment and conditional fees for
appeal) should be affirmed.
PRAYER FOR RELIEF
Appellee Buc-ees, Ltd. asks that the trial courts judgment be affirmed. It
asks for all other relief to which it may be justly entitled.
Respectfully submitted,
NORTON ROSE FULBRIGHT US LLP
By:
/s/ Joy M. Soloway

Jeffrey S. Wolff
[email protected]

Joy M. Soloway
[email protected]

Seth Isgur
[email protected]
Telephone: (713) 651-5151
Telecopier: (713) 651-5246
Counsel for Appellee Buc-ees, Ltd.
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CERTIFICATE OF WORD COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
counsel in reliance upon the word count of the computer program used to prepare
this document certifies that this brief contains 12,277 words, excluding the words
that need not be counted under Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Joy M. Soloway
JOY M. SOLOWAY
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of May 2016, Appellee served a copy of
this Brief by electronic service (via File Time) upon the following counsel of
record:
Mr. Bruce Johnson
Houston, TX 77006
Telephone: (713) 526-0200
Telecopier: (832) 615-2665
VIA EMAIL ONLY ([email protected])
Counsel for Appellant Kelley Rieves
/s/ Joy M. Soloway
JOY M. SOLOWAY
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49
APPENDIX A
Table of Claims, Counterclaims, and Defenses as
Asserted and Addressed in Summary Judgment Motions
Claims, Defenses, &
Counterclaims
Raised in Buc-ees
Partial MSJ
(CR76)?
Raised in Buc-ees
Second MSJ
(CR712)?
Raised in Rievess
MSJ (CR1576)?
Raised in
Appellants Brief?
Yes (CR746-49)
Yes (CR15761601)26
Yes (pp. 19-29, 3839)
Buc-ees Original Counterclaim (CR17)

Breach of Contract (CR21-22)
No
Rievess Claims (Fourth Amended Petition; CR2560)

Declaratory Judgment: incentive
pay provisions illegal, void, and
unenforceable restraint of trade
(CR2567-68)
Yes (CR88-103)
No
No
Yes (pp. 29-34)
Declaratory Judgment: incentive

pay provisions are unenforceable
penalty or liquidated damages
(CR2569-70)
Yes (CR91-94)
No
No
Yes (pp. 19-21, 2629)
26
Rieves did not move for summary judgment on any issues relating to her 2009 Contract with Buc-ees, but
instead limited her arguments to her 2010 Contract. Likewise, Rievess Appellants Brief does not lodge any
complaints directed to the 2009 Contract but instead asserts various issues with respect to the 2010 Contract.
59317228
Raised in Buc-ees
Partial MSJ
(CR76)?
Raised in Buc-ees
Second MSJ
(CR712)?
Raised in Rievess
MSJ (CR1576)?
Raised in
Appellants Brief?
Declaratory Judgment: requiring

repayment violates Texas Pay Day
Law (CR2570)
No
Yes (CR726-27)
No
No; abandoned on
appeal
Declaratory Judgment: enforcing

incentive pay provisions would
unjustly enrich Buc-ees (CR257071)
No
Yes (CR727-28)
Unclear27
Yes (pp. 38-39)
Declaratory Judgment: Buc-ees

waived its right to seek repayment
(CR2571-72)
No
Yes (CR728-29)
No
Yes (pp. 17, 38-40)
Declaratory Judgment: Buc-ees is

estopped from seeking repayment
(CR2572-73)
No
Yes (CR729-30)
No
Yes (pp. 17, 39-40)
Claims, Defenses, &

Counterclaims
27
Rieves moved for summary judgment on her Declaratory Judgment Claim that the 2010 Agreement in Whole
and Its Specific Terms are Unconscionable. CR1592-1601. In that section of her motion, Rieves argued that
various provisions of the contract were procedurally and/or substantively unconscionable, but she did not expressly
argue that the contract (or specific terms thereof) are unconscionable because they result in unjust enrichment. It is,
therefore, unclear as to whether she moved for summary judgment on her claim that the incentive pay provisions are
Unconscionable because they Result in an Unjust Enrichment to Buc-ees (CR2570).
59317228
Raised in Buc-ees
Second MSJ
(CR712)?
Raised in Rievess
MSJ (CR1576)?
Raised in
Appellants Brief?
Declaratory Judgment: Section 6.08 No

of 2010 Contract (addressing
attorneys fees) is unenforceable
(CR2573)
Yes (CR730-31)
Yes (CR1595)
Yes (pp. 34-38, 4044)
Fraud (CR2576-78)
No
Yes (CR731-34)
No
No; abandoned on
appeal
Fraudulent Inducement (CR257678)
No
Yes (CR731-34)
No
No; abandoned on
appeal
Negligent Misrepresentation
(CR2576-78)
No
Yes (CR731-34)
No
No; abandoned on
appeal
Breach of Contract (CR2578)
No
Yes (CR734-36)
No
Yes (pp. 38-39)
Quantum Meruit (CR2578-79)
No
Yes (CR734-36)
Yes (CR1584-1585) Yes (pp. 38-39)
Yes (CR736-40)
Unclear28
Claims, Defenses, &

Counterclaims
Raised in Buc-ees
Partial MSJ
(CR76)?
Rievess Defenses (Fourth Amended Answer; CR2281)

No consideration (CR2282-84)
No
28
Yes (pp. 25-26)
Rieves argued in her Motion for Summary Judgment that she was entitled to summary judgment on Buc-ees
breach of contract counterclaim because the 2010 Agreement Fails for Want of Consideration (CR1583), but she
did not expressly move for summary judgment on her affirmative defenses of no consideration or illusory
consideration (CR2282-84).
59317228
Raised in Buc-ees
Partial MSJ
(CR76)?
Raised in Buc-ees
Second MSJ
(CR712)?
Raised in Rievess
MSJ (CR1576)?
Raised in
Appellants Brief?
No
Yes (CR736-40)
Unclear (see FN 3)
Yes (pp. 25-26)
Yes (CR88-103)
Incentive pay provisions are
unconscionable, illegal,
unenforceable, and void restraints of
trade/covenants not to compete
(CR2284-2287)
No
No
Yes (pp. 29-34)
Violation of Texas Pay Day Law

(CR2287)
No
Yes (CR726-27)
No
No; abandoned on
appeal
Attorney fee provision is

unconscionable (CR2288)
No
Yes (CR730-31)
Yes (CR1595)
Yes (pp. 34-38, 4044)
Attorney fee provision is vague and

ambiguous (CR2288)
No
Yes (CR730-31)
No
Yes (p. 41)
No
Provisions re: jury waiver, venue,
jurisdiction, and are unconscionable
(CR2288)
Yes (CR740-42)
Yes (CR1592-1601) Yes (pp. 34-38)
Entire 2010 Contract is

unconscionably one-sided
(CR2288-2290)
No
Yes (CR742-43)
Yes (CR1592-1601) Yes (pp. 34-38)
Estoppel (CR2290-91)
No
Yes (CR729-30)
No
Claims, Defenses, &

Counterclaims
Illusory consideration (CR2282-84)
59317228
Yes (pp. 39-40)
Raised in Buc-ees
Partial MSJ
(CR76)?
Raised in Buc-ees
Second MSJ
(CR712)?
Raised in Rievess
MSJ (CR1576)?
Raised in
Appellants Brief?
Quasi-Estoppel (CR2291-92)
No
Yes (CR729-30)
No
Yes (pp. 39-40)
Waiver (CR2292-93)
No
Yes (CR728-29)
No
Yes (pp. 39-40)
Breach of Contract (CR2293)
Second MSJ
Yes (CR734-36)
No
Yes (pp. 38-39)
Fraud (CR2293-94)
No
Yes (CR731-34)
No
No; abandoned on
appeal
Fraudulent Inducement (CR229394)
No
Yes (CR731-34)
No
No; abandoned on
appeal
Negligent Misrepresentation
(CR2293-94)
No
Yes (CR731-34)
No
No; abandoned on
appeal
Promissory Estoppel (CR2294)
No
Yes (CR729-30)
No
Yes (pp. 39-40)
Failure to Mitigate (CR2294-95)
No
Yes (CR743)
No
Yes (pp. 39-40)
Incentive pay provisions are

unenforceable liquidated damages
or penalty (CR2295)
Yes (CR91-94)
No
No
Yes (pp. 19-21, 2629)
Unjust enrichment (CR2296)
No
Yes (CR727-28)
No
Yes (pp. 38-39)
Claims, Defenses, &

Counterclaims
59317228
Raised in Buc-ees
Second MSJ
(CR712)?
Raised in Rievess
MSJ (CR1576)?
Raised in
Appellants Brief?
Indemnity provision is not

No
applicable and ineffective (CR2296)
Yes (CR743-44)
No
Yes (pp. 36, 42)
Rieves is entitled to an offset

(CR2296-97)
Yes (CR744)
No
No; abandoned on
appeal
Claims, Defenses, &

Counterclaims
59317228
Raised in Buc-ees
Partial MSJ
(CR76)?
No

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ACCEPTED

ORAL ARGUMENT CONDITIONALLY REQUESTED

LIST OF PARTIES AND COUNSEL

Trial Counsel for Appellant:

Appellate Counsel for Appellant:

Trial Counsel for Appellee:

Appellate Counsel for Appellee:

The Parties ............................................................................................1

Following Negotiations of an Employment Contract (the 2009

After Resigning from Buc-ees, Rieves Eschews Her

SUMMARY OF ARGUMENT ..............................................................................10

The Employment Contracts Were Supported by NonIllusory Consideration ..............................................................14

The Retention Pay Provision in the 2010 Contract Does

Forfeiture Provisions Are Enforceable ..........................19

Rieves Relies on Inapposite Cases ................................25

Mr. Wingerts Email and Testimony Is of No

The 2010 Contract Is Not Unconscionable ..............................29

The Summary Judgment Evidence Conclusively Proves

Buc-ees Sustained Actual Damages; Rievess Liquidated

Rievess Other Contract Claims and Affirmative

Rieves Waived Any Complaint Regarding the 2009

The Trial Court Correctly Granted Buc-ees Summary

The Fees Awards Are Proper and Should Be Upheld ........................44

PRAYER FOR RELIEF .........................................................................................48

Fletcher v. Energy Res. Tech. GOM, Inc.,

Johnson & Higgins of Tex., Inc. v. Kenneco Energy Inc.,

San Jacinto River Auth. v. Duke,

STATEMENT OF THE CASE

This is a dispute between an employee, Appellant

23rd District Court, Brazoria County, Texas,

Buc-ees filed two separate motions for summary

The case was resolved by summary judgment in

STATEMENT REGARDING ORAL ARGUMENT

convenience stores that has become a Texas phenomenon. CR107.

Following Negotiations of an Employment Contract (the 2009

discussing the possibly of her joining Buc-ees. CR119-22. As part of these

Rieves was even

permitted to choose how her compensation package would be divided between a

Rieves Negotiates a Second Employment Contract with Buc-ees (the

Rieves agreed to return the

Okay. And I think what you said to me earlierand correct me

And, in fact, you had active dialogue and were a participant in

That you could have had aa 12-month minimum. Right?

And that youyou made the decision not to.

CR135; see also CR1405-06. (For convenience, the Additional Compensation

After Resigning from Buc-ees, Rieves Eschews Her Contractual

AlphaGraphics, Inc. CR138. Rieves initially declined: I told him I couldnt go

Okay. Ininbased on what you just saidand correct me if

On January 8, 2015, Buc-ees filed a motion for partial summary judgment

CR76; see id. at CR88 (heading in Buc-ees

The Employment Contracts are supported by adequate

consideration, the Incentive Pay provisions do not effect an unreasonable restraint

Summary Judgment Was Properly Granted in Favor of Buc-ees on

Unfortunately, it is not practical for Buc-ees to respond to Rievess issues or arguments