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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-1691
Summary Calendar
FLOYD THOMAS,
Plaintiff-Appellee,
VERSUS
OLD WORLD TRADING COMPANY, INC.,
Defendant-Appellant.
No. 92-1815
Summary Calendar
FLOYD THOMAS,
Plaintiff-Appellant,
VERSUS
OLD WORLD TRADING COMPANY, INC.,
Defendant-Appellee.
Appeals from the United States District Court
For the Northern District of Texas
(4:88-CV-880)
(August 10, 1993)
Before HIGGINBOTHAM, SMITH, and DeMoss, Circuit Judges.
PER CURIAM:*

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1. FACTS AND PROCEDURAL HISTORY
This appeal urges us to overturn the factual findings and
conclusions of law made by the district court following a bench
trial on June 1, 1992. At trial Floyd Thomas sought to prove that
he was entitled to an annual bonus from his former employer, Old
World Trading, Inc., claiming that Old World had orally promised
him the bonus as part of his salary when he accepted employment and
had impliedly renewed that promise by its conduct. Old World
argued that the bonus was never guaranteed, but rather that it was
given out annually at the employer's discretion, based on the
overall profitability of the company together with the individual
performances of the sales personnel receiving the bonuses. Thomas
countered that, while the amount of the bonuses to be awarded was
discretionary on the part of Old World, nonetheless the giving of
the bonus itself was not discretionary, but rather part of the
compensation scheme of Old World's sales force.
The district court found that Old World's representatives made
promises to Thomas creating an enforceable obligation to pay annual
bonuses and that its conduct impliedly renewed the promises for the
previously completed fiscal year of employment. Based on this
finding, the trial court awarded Thomas an annual bonus in the
amount of $6,880.50. Old World has appealed the trial court's
judgment as being "clearly erroneous," claiming that the district
court made a mistake in finding that the company promised to pay an
annual bonus to Thomas. Old World argues further that, even if
such promises were made, they were not sufficiently definite or
certain to be enforceable. Thomas has cross-appealed, arguing that
the trial court erred in awarding him only $6,880.50 as his bonus,

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1 The Federal Rules of Civil Procedure dictate our standard of
review of the trial court's findings, even though this is a
diversity action with substantive law deriving from the State of
Texas. See Hanna v. Plumer, 380 U.S. 460, 471-74 (1965).
3
instead of the $30,000 he claimed at trial. After reviewing the
record and the findings of the trial court, we hold that the
district court did not clearly err in its factual findings, and
that it correctly applied Texas law to the facts of the case;
accordingly, we affirm.
II. DISCUSSION
Federal Rule of Civil Procedure 52 allow us to overturn a
factual finding of the trial court only if such finding is "clearly
erroneous." Fed. R. Civ. P. 52(a).1 Therefore, we can only
reverse the district court's findings if after reviewing the record
we are "left with the definite and firm conviction that a mistake
has been committed." United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948); Hague v. Liberty Mutual Insurance Co.,
571 F.2d 262, 264 (5th Cir. 1978). When the evidence will support
a conclusion either way, a trial judge's choice between two
permissible views of the weight of the evidence cannot be clear
error. See United States v. Yellow Cab Co., 338 U.S. 338, 342
(1949); Chaney v. City of Galveston, 368 F.2d 774, 776 (5th Cir.
1966).
The evidence in this case consists almost entirely of
testimony, since there was no written contract of employment and no
documentation indicating the nature of the disputed bonus.
However, the evidence showed that, from 1974 to 1988, Thomas was

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2 See Marine Inspection Serv., Inc. v. Alexander, 553 S.W.2d
185, 188 (Tex. Civ. App.--Houston [1st Dist.] 1977) ("A promise to
pay additional compensation may be implied from business usage or
custom, if the employment agreement was entered into with reference
thereto, and where under attendant circumstances it was the
reasonable understanding of both parties that extra compensation
would be paid."
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the only employee ever to have been denied a bonus. Joe Reardon,
the vice-president of sales of Old World, as well as Thomas himself
testified that the bonus was an important part of the salary
structure at Old World, and Reardon testified that in recruiting
salesman he told them that "a bonus was payable on an annual
basis." Thomas testified that a representative of Old World told
him at his initial employment interview that he would be paid an
annual bonus, the amount of which would be determined based on his
performance and overall company profitability for the preceding
fiscal year. On the other hand, Tom Hurvis, chairman of Old World,
testified that the company did not guarantee a bonus, but only
awarded them if the company's profits allowed it.
After hearing the evidence, the trial court found that Thomas
had performed his duties in an "above average" manner, and that he
had earned his bonus for his last year of employment. It also
found that Old World promised Thomas a bonus and that this promise
was impliedly renewed by Old World's course of conduct in paying
bonuses every year.2 Based on our review of the record, we find
that there was sufficient evidence to support a finding for Thomas,
and that therefore the trial court's findings were not "clearly
erroneous."
As its second point on appeal, Old World contends that

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assuming it promised to pay Thomas an annual bonus, that promise
was too indefinite and uncertain to be enforceable against the
company. They argue that the promise was too contingent, being
dependent upon company profitability and individual performance, as
well as lacking any determinable formula for measuring the amount
of the bonus. We review de novo the trial court's conclusion of
law on this point, and we affirm.
In Lone Star Steel Co. v. Scott, 759 S.W.2d 144 (Tex.App. --
Texarkana 1988), the court wrote, "[i] is recognized [in Texas law]
that the failure of a contract to specify the amount of payment
does not render it ineffective." There, an employee claimed a
right to payment for a cost saving suggestion which he submitted
and which the company adopted. In holding that the company had
entered a legally-binding obligation to pay for such suggestions if
adopted, the court rejected the argument that a contract could not
exist merely because the amount to be paid remained uncertain and
solely in the discretion of the company. The court held
"[a]lthough the determination of what is reasonable was placed in
the discretion of Lone Star's suggestion committee, the committee
cannot void the contract by refusing to exercise that discretion."
Lone Star, 759 S.W.2d at 152-53. In the present case, like in Lone
Star, the fact that Old World retained sole discretion to set the
amount of bonuses does not allow it to escape its obligation to pay
Thomas his bonus, especially where, as here, there was a factual
basis--the past relationship of bonus to salary--from which the
court could infer what was the reasonable intent of the parties as

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to the amount of the bonus.
In a similar vein, we reject Thomas's cross-appeal, wherein he
disputes the trial court's measure of the bonus award. The
district court rejected Thomas's proposed measure, which was based
on the ratio between Thomas's total earnings and the total earnings
of Joe Reardon, who was employed as an Old World salesman during
Thomas's tenure. The court reasoned that Reardon worked a
different sales region and consistently grossed higher sales
volumes than Thomas, and also that a bonus of $30,000 would be
nearly three times greater than any bonus Thomas had previously
received. The trial court opted to determine Thomas' bonus award
as a percentage of his salary, based on the percentage relationship
of his bonus to his salary in previous years.
We find that the trial court properly inferred that the
parties intended the bonus measure to be "a reasonable amount," in
the absence of sufficient evidence from either party showing how
the employer actually determined bonuses. Under Texas law, "the
failure of a contract to specify the amount of payment does not
render it ineffective. In such a case the law will imply that a
reasonable amount was intended." Lone Star, 759 S.W.2d at 152.
Consequently, the district court's factual determination of what
"reasonable amount" was intended by the parties, and which was
based on the past actions of the parties must also stand.
III. CONCLUSION
The trial court was not "clearly erroneous" in concluding that
Old World promised Thomas it would pay him an annual bonus, and

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that Old World impliedly renewed this promise by its actions.
Likewise, such a promise is not unenforceable simply because the
amount to be paid was left to the discretion of Old World. And
absent the exercise of Old World's discretion in determining the
amount and absent any evidence as to the intended formula for
determining the amount, the trial court properly determined from
the evidence a "reasonable amount," which was based on past
bonuses.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.

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