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Metromarketing Services3/2/2000
nt to provide protection to the sales representative, not an affirmative defense to the principal. For example, section 35.82 makes it the principal's responsibility to provide the sales representative with a copy of the contract. See § 35.82. Section 35.84 subjects a principal who fails to pay a commission as required by section 35.83 to liability in a civil action for three times the damages sustained by the sales representative, plus reasonable attorneys' fees and costs. See § 35.84. The statute not only prohibits waiver of these statutory protections afforded to the sales representative, but also deems any attempted waiver void. See § 35.86.
Based on the plain reading of its terms and provisions, we find that this legislation, as its name suggests, was clearly enacted to protect the sales representative and not to provide an affirmative defense to the principal. Therefore, HTT was not entitled to rely on the "Sales Representatives" statute as an affirmative defense to MSI's common law breach of contract claim nor was HTT entitled to a summary judgment based upon section 35.81 or its related provisions.
STATUTE OF FRAUDS
In its fifth and sixth issues, MSI contends the trial court erred in granting summary judgment to HTT based on the Texas statute of frauds. MSI first argues that HTT failed to prove all the elements of the statute of frauds. Alternatively, MSI contends that HTT was estopped from asserting the statute of frauds as an affirmative defense.
The Texas statute of frauds provides that "an agreement which is not to be performed within one year from the making of the agreement" is not enforceable unless it is in writing and signed by the party obligated to perform. TEX. BUS. & COM. CODE ANN. § 26.01 (Vernon 1987). Before deciding whether HTT proved all the elements of the statute of frauds necessary to demonstrate its entitlement to summary judgment, we must first determine, as a threshold matter, whether the statute of frauds applies to the agreement in question. The application of the statute of frauds to a given contract is a question of law. See Krueger v. Young, 406 S.W.2d 751, 756 (Tex. Civ. App.--Eastland 1966, writ ref'd n.r.e.).
The statute of frauds does not apply when "the parties do not fix the time of performance and the agreement itself does not indicate that it cannot be performed within one year." Niday v. Niday, 643 S.W.2d 919, 920 (Tex. 1982). Conversely, when, either because of the agreement's terms or the nature of the required acts, the agreement cannot be performed within one year, the statute of frauds applies and renders any non-complying agreement unenforceable. See id. Therefore, where parties enter into a contract without explicitly mentioning a time for performance, we must determine whether the parties intended to complete the contract within a year. See Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, 16 (1957). In making this determination, we frame our inquiry in terms of what is a "reasonable time" to complete performance of the contract measured in days or years "in light of the circumstances before [the parties] at the date of the contract." Id. We imply a "reasonable time" from all the circumstances surrounding the adoption of the agreement, the situation of the parties, and the subject matter of the contract. See Krueger, 406 S.W.2d at 756. What constitutes a "reasonable time" to complete performance depends on the facts of the case. Facts arising after the formation of the contract may not be considered in determining what constitutes a reasonable time for completion of performance. See Hall, 308 S.W.2d at 17; Gerstacker v. Blum Consulting Engineers, Inc., 884 S.W.2d 845, 850 (Tex. App.--Dallas 1994, writ denied
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