File: 021678F - From documents transmitted: 06/28/2004

AFFIRM and Opinion Filed June 28, 2004


In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-02-01678-CV
............................

EVAN BROWN, Appellant

V.

ALCATEL USA, INC. F/K/A DSC COMMUNICATIONS CORPORATION, Appellee

.............................................................
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-596-97
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MEMORANDUM OPINION

Before Justices Wright, Richter and Lang
Opinion By Justice Richter

        Appellant Brown appeals from a summary judgment in favor of appellee Alcatel. In four issues he claims the trial court erred: (1) in granting summary judgment because there were disputed issues of material fact, (2) in granting a “perpetual injunction,” (3) in abusing its discretion by granting a portion of the res of the suit as a discovery sanction, and (4) in awarding attorney's fees. In a fifth issue, Brown claims the judgment is void because the court lacked subject matter jurisdiction. We affirm. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. Tex. R. App. P. 47.1.
I. BACKGROUND
        Brown was employed in 1987 by DSC Communications Corporation, now known as Alcatel. Upon his hire, he was required to sign an employment agreement, pledging to provide the company with all information concerning any discoveries or inventions he made or conceived while in its employ which related to the nature of the company's business. In early 1996, Brown conceived the “Solution.” The Solution was purportedly a methodology to reverse engineer and convert low-level computer code into high-level code. The ultimate benefit of the Solution was that older computer code could be converted where it would run on newer computer hardware platforms. The Solution involved a complex algorithm that would encompass some 400 pages of single spaced type were it reduced to writing.
        After Brown conceived the Solution, he sent a memorandum to his immediate supervisor on April 19, 1996. The memorandum stated, in part:
I have developed a method of converting machine executable binary code into high level source code form using logic and data abstractions. The purpose of this idea is to take existing executable programs and “reverse engineer” the intelligence from the programs and “re-code” the intelligence into a portable high level language.

Brown sent this memorandum in an effort to secure a release of the Solution from Alcatel, as required by the employee agreement   See Footnote 1 . In response, Alcatel demanded Brown provide full disclosure of the Solution as required by the employment agreement. When Brown failed to cooperate, he was terminated. Alcatel filed suit soon thereafter.
II. SUMMARY JUDGMENT STANDARD OF REVIEW
        The standard of review in summary judgment cases is well-established. See Tex. R. Civ. P. 166a(c); Black v. Victoria Lloyds Insurance Co., 797 S.W.2d 20, 23 (Tex. 1990). In reviewing a summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference in favor of the nonmovant is allowed, and all doubts are resolved in his favor. Nixon, 690 S.W.2d at 548-49. To prevail on summary judgment, a defendant as movant must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Hoover v. Gregory, 835 S.W.2d 668, 671 (Tex. App.-Dallas 1992, writ denied). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston, 589 S.W.2d at 678. A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. See Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).
III. PURPORTED ISSUES OF MATERIAL FACT
        In his first issue, Brown claims material issues of disputed fact exist, which preclude the granting of summary judgment. The gist of his claim is that the Solution is not complete and concrete to the point at which it is a viable concept. He asserts much more research and labor is required to render the Solution practical and useful. He claims the Solution has not been fully “made or conceived,” which would trigger the contractual provisions of the employment agreement. As an additional fact issue, Brown claims the employment agreement contract was not supported by consideration, violates public policy, is ambiguous, and is unconscionable.
A. Validity of Employment Agreement
        Brown claims there is no consideration to support the employment contract because Alcatel could fire him at any time since he was an at-will employee. Thus, he claims Alcatel's promise of continued employment and payment of wages was illusory. Relying on the Texas Supreme Court's opinion in Light v. Centel Cellular Co., 883 S.W.2d 642 (Tex. 1994), he claims “when illusory promises are all that support a bilateral contract, there is no contract.” Id. at 645.
        Brown reads Light too narrowly. Light recognized the situation where a unilateral contract could still be formed even where one promise is illusory. Id. at 645 n. 6. In this situation, the non- illusory promise can serve as the offer, which the promisor who made the illusory promise can accept by performance. Id. The fact the employer was not bound to perform because it could have fired the employee is irrelevant; if it has performed, it has accepted the employee's offer and created a binding unilateral contract. Id.
        Here, Alcatel employed Brown for a period of ten years after he signed the employee agreement and paid him a salary during that time. The evidence shows that Brown's continued employment was conditioned on his signing the employee agreement. The continued employment and payment of salary, which would not have occurred but for Brown signing the employee agreement, was Alcatel's performance under the unilateral contract. See In re Halliburton, 80 S.W.3d 566, 569 (Tex. 2002). Thus, a unilateral contract, though it is not mutual at the time it was made, becomes enforceable if the party seeking to enforce the contract has performed, conferring even a remote benefit on the other party. Cherokee Communications, Inc. v. Skinny's, Inc., 893 S.W.2d 313, 316 (Tex. App.-Eastland 1994, writ denied). Accordingly, there was consideration to support the unilateral contract in this case.
        Brown's claim that the contract violates public policy, is ambiguous, and is unconscionable likewise fails. Brown did not urge these arguments in his response or amended response to Alcatel's summary judgment motion and has therefore waived them. Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c); City of Houston, 589 S.W.2d at 676.
B. The Status of the “Solution”
        Brown repeatedly claims there is a fact issue that the Solution was not an invention, or even a conception falling under the terms of the employment agreement. However, he claimed in his April 1996 memo to management, “I have developed a method of converting machine executable binary code into high level source code form using logic and data abstractions. . . .” Brown has not presented any other credible evidence to contradict this assertion.
        Brown also claims Alcatel was not in the business of designing software, but was in the telecommunications business. Thus, the employment agreement is not applicable to the Solution. However, the evidence in the record establishes that Brown managed the group at Alcatel charged with maintaining and developing automated conversion tools for converting high-level code to low- level code. The record further shows that one of Brown's job functions was to manually convert Alcatel's existing low-level code to high-level code. The evidence shows Alcatel twice investigated automated conversion tools in 1993 and 1995. In addition, in 1993, Brown managed the employee charged with investigating the low-level to high-level automated code conversion process and received a status report on his research on October 18, 1993.
        We do not believe the court below erred in concluding Alcatel, pursuant to the employment agreement, “owns full legal right, title and interest to the process and/or method” that is known as the Solution. We overrule Brown's first issue in its entirety.
IV. PERPETUAL INJUNCTION
        In his second issue, Brown claims the trial court erred by granting a “perpetual injunction” against Brown's further development of the Solution. The judgment provides, “Evan Brown cannot further develop or market the Solution to anyone other than Alcatel.” Since we have concluded the trial court did not err by awarding the Solution to Alcatel, Brown's claim has no merit. We overrule Brown's second issue.
V. DISCOVERY SANCTION
        The trial court awarded Alcatel a 20% interest in the Solution as a graduated sanction after Brown repeatedly failed to comply with discovery. In his third issue, Brown claims the trial court abused its discretion in ordering the sanction. Due to our conclusion the trial court properly awarded 100% of the Solution to Alcatel in summary judgment, this claim is rendered moot. E.g., In re Salgado, 53 S.W.3d 752, 757 (Tex. App.-El Paso 2001, no pet.) (If a judgment cannot have a practical effect on an existing controversy, the issue or case is moot.) We overrule Brown's third issue.
VI. ATTORNEY'S FEES
        In his fourth issue, Brown claims the trial court erred in awarding attorney's fees to Alcatel or, in the alternative, the fees awarded were not reasonable. Brown did not raise this issue in the trial court. Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal of a summary judgment. Tex. R. Civ. P. 166a(c); City of Houston, 589 S.W.2d at 676. Accordingly, we overrule Brown's fourth issue.
VII. SUBJECT MATTER JURISDICTION
        In his fifth and final issue, Brown claims the final judgment is void because it does not show it was rendered in the proper district court. During the pendency of the case, the cause was assigned to the sitting judge of the 219th Judicial District Court to be heard in the 199th Judicial District Court. There is no dispute the sitting judge was authorized to hear the case, but Brown claims error because the judgment reflects the judge signed the document as judge of the 219th District Court, as opposed to judge of the 199th District Court.
        Brown bases his argument on Alexander v. Russell, 699 S.W.2d 209 (Tex. 1985). However, Alexander was a family law case governed by former section 11.05 of the Texas Family Code. That provision, re-codified at section 155.001(c), governing continuing court jurisdiction in family law cases, has no applicability to the instant dispute. Tex. Fam. Code Ann. § 155.001(c) (Vernon 2002).
        District judges may exchange districts or hold court for each other when they consider it expedient. Tex. Const. art. V, § 11; Tex. R. Civ. P. 330(e); European Crossroads' Shopping Ctr. v. Criswell, 910 S.W.2d 45, 51 (Tex. App.-Dallas 1995, writ denied). The trial court has discretion to decide when to transfer a case. Tex. Const. art. V, § 11; Tex. R. Civ. P. 330(e); European Crossroads, 910 S.W.2d at 51. The trial court may exchange or transfer a case on its own initiative. European Crossroads, 910 S.W.2d at 51. Exchange or transfer does not require a formal order. Id. The minutes of the court do not need to show the reason for the exchange. Id. A litigant does not have a protected proprietary interest in having his case heard by a particular judge or a particular court. Id. We use an abuse of discretion standard to review the trial court's decision to transfer a case, exchange benches, or hold court for each other. Id.
        In Gaspard v. Gaspard, 582 S.W.2d 629, 630-31 (Tex. Civ. App.-Beaumont 1979, no writ),
one issue was that the judge of the 58th District Court wrongfully exercised jurisdiction because he tried the case as the 58th District Court and not as the “presiding judge of the 317th Judicial District Court.” In Gaspard, after the case was brought before the Judge of the 58th District Court, the judge signed several orders as “Presiding Judge” of the 317th Judicial District Court and entered the final judgment as “Presiding Judge.” Id. at 631. Finding the jurisdictional argument had no merit, the court concluded it was immaterial as to whether the judge tried the case as the Judge of the 58th District Court or as “Presiding Judge” of the 317th Judicial District Court. Id. Citing article 5, section 11 of the Texas Constitution, the Gaspard court concluded the trial judge could act in either capacity. Tex. Const. art. V, § 11; Gaspard, 582 S.W.2d at 631.
        Because a transfer or exchange does not require a formal order, the order allegedly transferring this case is not in the record before us, the parties agree the proper judge heard the case, and the fact that Brown appeared and litigated the case for over five years - himself filing documents in both the 199th Judicial District Court, as well as the 219th Judicial District Court - we conclude that there was no reversible error on the basis of improper subject matter jurisdiction. We overrule Brown's fifth and final issue.
VIII. CONCLUSION
        Having overruled all of appellant Brown's issues, we affirm the judgment of the trial court.


                                                        
                                                        MARTIN RICHTER
                                                        JUSTICE

021678F.P05

Footnote 1
The agreement specifically required Brown to notify the company in writing before making disclosure of any invention or idea that could be construed as outside the scope of the agreement.
File Date[06/28/2004]
File Name[021678F]
File Locator[06/28/2004-021678F]