Carter Russell v. Dana Sadler and Dr. Performance, LLC

Opinion issued June 9, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00843-CV
———————————
CARTER RUSSELL, Appellant/Cross-Appellee
V.
DANA SADLER AND DR. PERFORMANCE, LLC, Appellees/Cross-
Appellants

On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court Case No. 342-348797-23

MEMORANDUM OPINION

The parties to this case signed a contract entitled “Consulting Agreement.”

The parties agree that the contract:

• has a 5 year term,
• allows for early termination upon 30 days’ notice, and

• requires the company to pay the consultant a monthly fee of $10,000.

But they disagree about what happens to the $10,000 monthly fee in the event of

early termination. Do those payments stop? Or do they last all five years?

This disagreement surfaced after the company gave notice of termination in

the first year, and the company stopped paying the monthly fee. The consultant sued

for breach of contract. In his primary argument, he says that the company paid him

for most of the first year but not the rest of the 5-year term, so the company owes

him $530,000. In his secondary argument, he says that he should at least recover two

payments of $10,000, because he went unpaid for the last two months before the

termination notice took effect. The company maintained that it owes nothing. It

moved for summary judgment and sought attorney’s fees under the contract’s

prevailing party clause.

The trial court granted the company’s motion. The final judgment denies any

recovery for breach of contract, but it also denies any recovery of attorney’s fees

despite having made the company the prevailing party. The consultant appealed on

his contract claim, and the company cross-appealed in pursuit of its attorney’s fees.1

1
Pursuant to its docket-equalization authority, the Texas Supreme Court transferred
this appeal from the Court of Appeals for the Second District of Texas to this Court.
See TEX. GOV’T CODE § 73.001(a) (“[T]he supreme court may order cases
transferred from one court of appeals to another at any time that, in the opinion of
the supreme court, there is good cause for the transfer.”). We are obligated to follow
2
We reverse and remand.

Background

The facts that matter largely appear in the contract itself. The contract runs

between two parties: (1) Carter Russell, and (2) Dana Sadler, individually and doing

business as Dr. Performance, LLC. We will refer to them as Russell and Dr.

Performance, except when quoting from the contract, which calls Russell “the

Consultant” and Dr. Performance “the Company.”

Entitled “CONSULTING AGREEMENT,” the contract has a date of January

13, 2023. It starts with recitals, which explain that “the Company manufactures and

sells certain types of automobile and truck engine enhancing components” and that

“the Company desires to retain Consultant to serve as a consultant to the Company

and to compensate Consultant for previous services rendered and not previously

compensated by Company.”

Article 1 creates a contractual engagement term lasting for five years and

contemplates that the parties could renew or extend this term. Article 2 states the

consulting duties to be performed, which include “acquiring additional Buyer[s] of

the Company’s products,” finding additional investors, and “attempting to find one

or more Buyers of the Company.” Articles 3 and 4 address compensation. These two

that court’s decisional law, but we are unaware of any conflict in the decisional law
between that court and this one on the issues discussed here. See TEX. R. APP. P.
41.3.
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articles drive the dispute because Russell perceives a conflict in how they handle

early termination. The pertinent clauses read as follows:

3.01 Compensation. As compensation for services hereunder, the
Company agrees to pay Consultant and Consultant agrees to provide
consulting services from the start date until this agreement is terminated
and to be paid as follows:
1. Company shall pay Consultant the sum of $10,000.00 on
the 13th of each month during the Engagement Term. This
obligation shall continue during the engagement period
(including all extensions thereto) as long as Consultant is
providing consulting services to the Company;
2. Company shall pay Consultant 4% of the Gross Sales Price
that the Company receives from the sale of all or any part
of its business to a Buyer or Buyers that Consultant
identifies or introduces to the Company that results in the
sale of all or any portion of the Company to the Buyer or
Buyers.
....
4.01 Termination.
This Agreement may be terminated at the election of either
Company or Consultant, for any or no reason, upon 30 days written
notice to the non-terminating party. Consultant shall be entitled to the
fees set forth in Section 3.01 of this Agreement through the
Engagement Term regardless of when this Agreement is terminated.

Last of all, Article 5 contains various general provisions, one of which is a

prevailing party clause: “If any action at law or in equity is necessary to enforce or

interpret any of the rights or obligations under this Agreement, the prevailing party

shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in

addition to any other relief to which the prevailing party may be entitled.”

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Russell filed this suit for breach of contract. He alleged that Dr. Performance

terminated the contract on August 18, 2023, which it had a right to do, but stopped

paying him the monthly fee, which it did not. He sought over $500,000 in damages

“for the remainder of the 5 years.”

Dr. Performance moved for summary judgment. It asserted that the contract

does not require payment of the monthly fee after termination. Further, the motion

sought around $79,000 in attorney’s fees for trial court work, plus conditional

awards of appellate fees of $25,000 in the court of appeals, $10,000 at the petition

for review stage, and $20,000 for merits briefing.

Dr. Performance submitted an order granting summary judgment for the court

to sign. Although the court signed the order, it did so only after striking out the

paragraphs that awarded attorney’s fees. Thus, the final judgment sent both sides

home with no recovery of anything. Both sides appealed.

Interpretation of Consulting Agreement

In his sole issue on appeal, Russell argues that the Consulting Agreement is

ambiguous because sections 3.01 and 4.01 conflict, and therefore he raised a fact

issue on the true intention of the parties relating to compensation. He also argues

that a fact issue exists concerning the amount Dr. Performance owes him under the

agreement for consulting services performed in August 2023 and September 2023,

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after Dr. Performance sent notice of termination but before termination became

effective.

A. Standard of Review and Governing Law on Contract Interpretation

We review a trial court’s summary judgment ruling de novo. Mosaic

Baybrook One, L.P. v. Simien, 674 S.W.3d 234, 252 (Tex. 2023). A party moving

for traditional summary judgment bears the burden to establish that no genuine issue

of material fact exists and it is entitled to judgment as a matter of law. Id. When

determining whether the nonmovant raised a fact issue, we take as true all evidence

favorable to the nonmovant, indulge every reasonable inference in favor of the

nonmovant, and resolve any doubts in the nonmovant’s favor. Id.

The dispute about the summary judgment here reduces to one of contract

interpretation: Russell sees the contract as ambiguous and thus unfit for summary

judgment, while Dr. Performance sees it as unambiguous.

Contract interpretation involves several familiar principles. First, courts will

enforce an unambiguous contract as written, and we do not consider extrinsic

evidence bearing on the parties’ subjective intent. U.S. Polyco, Inc. v. Tex. Cent.

Bus. Lines Corp., 681 S.W.3d 383, 387 (Tex. 2023) (per curiam); Cmty. Health Sys.

Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017) (“An unambiguous

contract will be enforced as written, and parol evidence will not be received for the

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purpose of creating an ambiguity or to give the contract a meaning different from

that which its language imports.” (quotation omitted)).

Second, when construing a contract, we consider the entire agreement and, to

the extent possible, harmonize and give effect to all contractual provisions so that

none will be rendered meaningless. Occidental Permian, Ltd. v. Citation 2002 Inv.

LLC, 689 S.W.3d 899, 905 (Tex. 2024); Devon Energy Prod. Co. v. Sheppard, 668

S.W.3d 332, 343 (Tex. 2023). If, after applying the pertinent rules of construction,

the contract can be given a definite or certain legal meaning, it is unambiguous, and

we construe it as a matter of law. Frost Nat’l Bank v. L&F Distribs., Ltd., 165

S.W.3d 310, 312 (Tex. 2005) (per curiam); see Devon Energy Prod., 668 S.W.3d at

343.

Third, an ambiguity does not arise merely because the parties disagree and

advance competing constructions of the contract. Devon Energy Prod., 668 S.W.3d

at 343; see U.S. Polyco, 681 S.W.3d at 389. Instead, a contract is ambiguous if it is

“reasonably susceptible to more than one meaning” such that courts cannot give it a

certain or definite legal meaning or interpretation. Scout Energy Mgmt., LLC v.

Taylor Props., 704 S.W.3d 544, 547–48 (Tex. 2024) (per curiam) (quoting Coker v.

Coker, 650 S.W.2d 391, 393 (Tex. 1983)). Whether a contract is ambiguous is a

question of law for the court. Id. at 548.

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Finally, “business” contracts bring into play a preference for pragmatism:

courts construe contracts from a utilitarian standpoint bearing in mind the particular

business activity sought to be served and avoiding unreasonable constructions when

possible and proper. Point Energy Partners Permian, LLC v. MRC Permian Co., 669

S.W.3d 796, 805 (Tex. 2023); Plains Expl. & Prod. Co. v. Torch Energy Advisors

Inc., 473 S.W.3d 296, 305 (Tex. 2015); Hooks v. Samson Lone Star, Ltd. P’ship, 457

S.W.3d 52, 63 (Tex. 2015).

B. Analysis

Russell and Dr. Performance clash over sections 3.01 and 4.01. Section 3.01

provides for the $10,000 monthly fee. It then speaks to the timeline: “This obligation

shall continue during the engagement period (including all extensions thereto) as

long as Consultant is providing consulting services to the Company.” This link

between the payments and the provision of services seems to indicate that the

payments come to an end when the services come to an end.

But Russell points to the words of section 4.01: “Consultant shall be entitled

to the fees set forth in Section 3.01 of this Agreement through the Engagement Term

regardless of when this Agreement is terminated.” In his view, this clause conflicts

with section 3.01 by dictating that termination will not cut off his right to

compensation. Ergo, the conflict makes the contract ambiguous, and that in turn

makes the summary judgment untenable. See Rosetta Res. Operating, LP v. Martin,

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645 S.W.3d 212, 219 (Tex. 2022) (“When a contract contains an ambiguity, the

granting of a motion for summary judgment is improper because the interpretation

of the instrument becomes a fact issue.” (quoting Coker, 650 S.W.2d at 394)).

Dr. Performance protests that under Russell’s reading, he could have given

his notice of termination as soon as the contract got underway, and he would still

have a right to be paid for the full five years. Dr. Performance finds that result so

absurd as to expose Russell’s reading as unreasonable.

Dr. Performance further would resolve any tension between sections 3.01 and

4.01 by giving priority to section 3.01 under a pair of interpretive preferences. First,

there is the preference for the more specific as controlling over the general. See Wal-

Mart Stores, Inc. v. Xerox State & Loc. Sols., Inc., 663 S.W.3d 569, 587 (Tex. 2023)

(“Consistent with our long-established precedent that provisions should be

considered together and harmonized, when possible, so that none will be rendered

meaningless, a specific contract provision controls over a general one.” (quotation

omitted)). Second, there is the preference for the earlier as controlling over the later.

See Coker, 650 S.W.2d at 393 (stating that when harmonizing contractual

provisions, “terms stated earlier in an agreement must be favored over subsequent

terms”).

In our view, the harmonization canon resolves the whole problem. If there is

a way to harmonize sections 3.01 and 4.01, we have an obligation to do so.

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Fortunately, these two sections can coexist. The $10,000 monthly fee in section 3.01

has a specific lifespan: it runs only as long as the consulting services continue. That

is the upshot of the sentence right after the one that creates the obligation to pay the

$10,000 every month: “This obligation shall continue . . . as long as . . . .” Thus,

when section 3.01 refers to “[t]his obligation,” it means the obligation to pay the

$10,000 monthly fee.

But the contract created the possibility of other fees, more like royalties on

the sale of petroleum, or a realtor’s commission on the sale of a house. The second

payment obligation in section 3.01 is the 4% fee for finding someone who buys the

business or a part of the business. Nothing in section 3.01 says that the 4% fee

disappears if the consulting stops. Nor is there any economic reason for linking the

4% to consulting services. Hence, under section 4.01, the duty to pay the 4% lives

on even if the consulting ceases: “Consultant shall be entitled to the fees set forth in

Section 3.01 of this Agreement through the Engagement Term regardless of when

this Agreement is terminated.”

If Russell finds a buyer for part of the business while the Consulting

Agreement is in effect, he has a right to a 4% fee on that sale, even if the parties

terminate the Consulting Agreement before the sale closes. The right to these fees

does not disappear with termination of the agreement.

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For the preceding reasons, the termination of the agreement brought an end to

Russell’s right to the $10,000 monthly fee, but not the right to 4% of the gross sale

proceeds from any sale to a buyer found by Russell. We conclude that we can give

the Consulting Agreement a definite or certain legal meaning, and therefore the

agreement is unambiguous and can be construed as a matter of law. To the extent

that the trial court adopted Dr. Performance’s reading of the agreement, the court

ruled correctly.

This holding about contract interpretation does not resolve the entirety of

Russell’s contract claim. Even if he does not have a right to monthly payments for

the full five years, Russell says that fact issues still exist about the amount Dr.

Performance owed him. Russell submitted an affidavit as summary judgment

evidence. In this affidavit, he averred that he provided consulting services to Dr.

Performance throughout 2023. Dr. Performance paid him $10,000 per month. But

on August 17, 2023, Dr. Performance notified Russell that it was terminating the

agreement, which would become effective 30 days after the notice. He avers: “After

my termination date I was not paid including for the months of August and

September 2023.”

Dr. Performance did not dispute this evidence. It objected to this evidence as

self-serving, conclusory, and irrelevant, but the trial court did not rule on the

objections. Nor were the objections any good: Russell’s statement that he “was not

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paid including for the months of August and September 2023” is an assertion of

fact.2 See Chagoya v. Vilchis, No. 01-22-00864-CV, 2024 WL 3417049, at *6 (Tex.

App.—Houston [1st Dist.] July 16, 2024, no pet.) (mem. op. on reh’g) (concluding

that plaintiff’s statements that he loaned defendant money and paid other funds to

defendant to repair plaintiff’s vehicle but defendant did not repair vehicle or repay

loan were “all assertions of fact, not unsupported conclusions or inferences”); see

also Eberstein v. Hunter, 260 S.W.3d 626, 629 (Tex. App.—Dallas 2008, no pet.)

(affidavit calculating amounts of unpaid contractual alimony payments for four

specific time periods and stating aggregate amount of unpaid payments was not

conclusory because statements recited facts based on personal knowledge).

At oral argument, Dr. Performance suggested an additional pathway to

concluding that it does not owe Russell any more of the $10,000 payments. Dr.

Performance pointed to the affidavit of Dana Sadler as establishing that Russell was

paid up until he received the 30-day notice of termination and that he stopped

performing consulting services at that point. Ergo, his failure to perform any further

services means that he has no right to be paid anything more.

However, this suggested pathway runs afoul of the record.

2
“An objection that an affidavit is conclusory raises a defect of substance, which can
be raised for the first time on appeal.” Tex. Health Harris Methodist Hosp. Fort
Worth v. Featherly, No. 02-24-00572-CV, 2025 WL 3723946, at *15 n.18 (Tex.
App.—Fort Worth Dec. 23, 2025, no pet.) (mem. op.).
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Dr. Performance filed a traditional motion for summary judgment and thus

had the burden of proof to establish its entitlement to judgment as a matter of law.

Russell’s affidavit states that he “was not paid including for the months of August

and September 2023.” He does not specify precisely when he performed the relevant

consulting services or precisely when he received all the payments, but he also states:

“I performed consulting services pursuant to the Agreement on behalf of the

Defendants . . . . I was paid $10,000 a month by Defendants until I was terminated

by Dana Sadler. On or about August 17, 2023, I was terminated which would be 30

days after the notice. Attached as Exhibit C is the August 17, 2023 notice of

termination.”

Dana Sadler’s affidavit acknowledges that “[f]or eight months, Russell

provided consulting services,” but she does not specify precisely when he provided

services or when the various payments occurred. After referring to those eight

months, she goes on to say: “During this time period, I and/or Dr. Performance paid

Russell his monthly consulting fee of $10,000 each month.” She then “became

dissatisfied with Russell’s work” and provided examples of Russell’s actions that

led her to terminate the agreement. After reciting that she emailed the notice of

termination on August 18, 2023, she indicates that Russell provided no more services

after the 30-day period ran: “The termination became effective on September 17,

2023, and since that time, Russell has not provided any more consulting services to

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Dr. Performance.” None of this evidence conclusively establishes that Russell quit

providing consulting services during the 30-day period between the notice (in

August) and the effective date of termination (in September).

Hence, the trial court improperly granted summary judgment on the issue of

the amount owed. It follows that we cannot affirm, even though we have rejected

Russell’s broader position about ambiguity and contract interpretation. Given the

reversal on the narrower issue of the monthly fees for August and September 2023,

there is no need to reach Dr. Performance’s cross-appeal regarding its entitlement to

attorney’s fees as the prevailing party.3 The trial court may consider the prevailing

party issue afresh once there is a resolution about payments for August and

September 2023.

We sustain Russell’s sole issue in part.

3
In particular, we do not prejudge which side would “prevail” if Russell were to win
in his pursuit of two monthly payments of $10,000 despite losing on his pursuit of
the monthly payments for the rest of the 5-year term. See Intercontinental Grp.
P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 655 (Tex. 2009) (“Whether a
party prevails turns on whether the party prevails upon the court to award it
something, either monetary or equitable.”); Severs v. Mira Vista Homeowners
Ass’n, Inc., 559 S.W.3d 684, 708 (Tex. App.—Fort Worth 2018, pet. denied) (noting
that “prevailing party” analysis is different for successful defendant as opposed to
successful plaintiff).
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Conclusion

We reverse the trial court’s summary judgment order and remand for further

proceedings consistent with this opinion.

David Gunn
Justice

Panel consists of Justices Gunn, Caughey, and Morgan.

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