Opinion
No. 09-09-00332-CV
Submitted on May 25, 2010.
Opinion Delivered August 5, 2010.
On Appeal from the 9th District Court Montgomery County, Texas, Trial Cause No. 06-05-04727-CV.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
Appellant, Dr. Jill Taylor, challenges the trial court's rendition of summary judgment in favor of appellee Terri Mele's on Mele's claim for breach of an employment contract. Because we conclude that Mele failed to present any competent summary judgment evidence to overcome the presumption of an at-will employment contract, we reverse in part, affirm the trial court's judgment in part and remand in part for a new trial.
Factual and Procedural Background
In May 2006, Mele filed suit against Taylor for breach of contract, quantum meruit, and "detrimental reliance damages." On October 8, 2007, Mele filed a motion for summary judgment on the breach of contract claim. As evidence, Mele submitted her own affidavit, Taylor's affidavit, a copy of an August 25, 2005, letter Mele received from Taylor, and an affidavit from Mele's trial counsel.
Mele's affidavit states Taylor sent Mele a "letter agreement" around August 26, 2005, that "outlined] the terms of [Mele's] employment." In relevant part, the letter is reproduced here:
This letter will confirm my offer to you and your acceptance contingent upon approval of final contract and referencing. The offer is as follows:
• $100,000 annual salary
• 40/week work schedule comprised of:
Tuesday-Friday from 9 am-6 pm
Saturdays from 9 am — 1 pm
• Malpractice Insurance Coverage
• Personal Health Insurance Coverage
• $5,000 Maximum reimbursable relocation package
• 1 Week paid vacation 1st year, 2 weeks the 2nd
• Non-Contributory 401K Plan to participate in if desired
On behalf of Taylor Family Practice, we look forward to having you join us. You will be a welcomed addition to the clinic and the community!
This offer is pending final contract review and approval.
This letter will act as a binding agreement between Taylor Family Practice and Terri Lynn Mele, Pharm D. until final contract negotiations are complete. By signing this letter you acknowledge acceptance of the opportunity as well as recognize all recruiting efforts for this position will be terminated and no other pharmacists will be considered. Please sign below and immediately fax to Pat Rivera at. . . .
Mele signed and returned the document. The parties do not dispute the authenticity of this letter.
In November 2007, Taylor filed a response to Mele's motion for summary judgment and a cross-motion for summary judgment. Taylor argued that Mele was an at-will employee; therefore, as a matter of law, Taylor was not liable to Mele for damages. In Taylor's affidavit she stated that Mele was "employed as an `at will' consultant." Mele's affidavit is silent as to her status as an at-will employee.
While Mele objected to Taylor's Cross-Motion for Summary Judgment for lack of notice, the record does not show Mele supported or otherwise followed up on her objection. Mele did not file a motion for continuance or a post-trial motion complaining of lack of notice. White v. Wah, 789 S.W.2d 312, 319-20 (Tex. App.-Houston [1st Dist.] 1990, no writ). Based on this record, Mele waived any argument regarding lack of notice.
In November 2007, the trial court granted summary judgment in favor of Mele on the issue of liability. In April 2009, the trial court held a bench trial on the issue of damages. On May 14, 2009, the trial court entered final judgment in favor of Mele. The trial court awarded Mele the following: $16,000 for post-eployment lost wages; $4,000 for relocation expenses; $6,000 for attorney's fees; and $5,000 in attorney's fees for appeal.
On Taylor's request, the trial court submitted findings of fact and conclusions of law. However, the trial court rejected the findings of fact as proposed by Taylor and adopted those proposed by Mele. As findings of fact in this case are not appropriate after the court's rendering of summary judgment, we do not consider them for this appeal on the issue of liability. Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994). Further, we are not bound by the legal conclusions of the trial court. See Pegasus Energy Group, Inc. v. Cheyenne Petrol. Co., 3 S.W.3d 112, 121 (Tex. App.-Corpus Christi 1999, pet. denied).
Standard of Review
We review an order granting a traditional motion for summary judgment de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The movant has the burden of showing, with competent summary judgment evidence, that no genuine issue of material fact exists, and that he or she is entitled to summary judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When a plaintiff moves for summary judgment, she has the burden to conclusively prove all elements of her claims as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). When a defendant moves for summary judgment on plaintiffs cause of action, she has the burden to prove conclusively that the plaintiff has no cause of action by negating at least one element of each of the plaintiffs theories of recovery. See TEX. R. CIV. P. 166a(c); Strather v. Dolgencorp of Tex., Inc., 96 S.W.3d 420, 422 (Tex. App.-Texarkana 2002, no pet.). We resolve every reasonable inference in favor of the non-movant and take all evidence favorable to her as true. See Nixon, 690 S.W.2d at 548-49.
While the appellate court does not generally review the denial of summary judgment, we may review such a denial when both parties move for summary judgment and the trial court grants one motion and denies the other. Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2008). In our review of these cross-motions, we consider the summary judgment evidence presented by each party, determine all questions presented, and render the judgment that the trial court should have rendered. Id.
The trial court granted summary judgment on liability for Mele without specifying the ground or grounds on which it relied. In this circumstance, we will affirm the judgment if any theory advanced in the motion is meritorious and supported by competent summary judgment evidence. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). The appellate court cannot affirm the summary judgment on a ground not presented to the trial court in the motion. Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993); Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992). The reviewing court "cannot `read between the lines, infer or glean from the pleadings or the proof any grounds for granting the summary judgment other than those grounds expressly set forth before the trial court [in the motion for summary judgment]." McConnell v. Southside Indep. Sch. Dist, 858 S.W.2d 337, 343 (Tex. 1993) (quoting Clark v. First Nat' l Bank of Highlands, 794 S.W.2d 953, 956 (Tex. App.-Houston [1st Dist.] 1990, no writ)).
On appeal, Mele urges us to affirm the trial court's summary judgment based on any of the claims in her pleadings; however, Mele's motion for summary judgment raised only one ground, which related to Mele's breach of contract claim. With the exception of a veiled reference in the concluding paragraph of her summary judgment motion, Mele did not move for summary judgment on the other claims she references in her appellate brief, notably "quantum meruit, detrimental reliance, unjust enrichment and further asserted ratification of oral and written agreement. . . ." Mele's motion for summary judgment concludes with the following statement, "Plaintiff asks for summary judgment on all issues, all claims, all theories of damages, and all parties, or in the alternative, for summary judgment that the contract made the basis of this suit is a valid enforceable contract." She then "waives all causes of action and relief not requested" in the motion. Mele presented a motion for summary judgment based only on breach of contract. Therefore, breach of contract is the only theory of recovery for this court to review on appeal.
Applicable Law and Analysis At-Will Employment
In her pleadings before the trial court, Mele contends that Taylor intended to "make a binding contract of employment . . . for no less than a year." Taylor argues that the August 2005 letter constituted an agreement for at-will employment and, therefore, she has no liability for future damages. Mele maintains that she was not an at-will employee, and she was constructively discharged.
Employment in Texas is presumed to be at-will employment. Midland Jud. Dist. Cmty. Supervision Corrs. Dep't v. Jones, 92 S.W.3d 486, 487 (Tex. 2002) (citing Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998)). "`[A]bsent a specific agreement to the contrary, employment may be terminated by the employer or the employee for good cause, bad cause, or no cause at all.'" Id. (quoting Montgomery County Hosp. Dist., 965 S.W.2d at 502).
General statements will not alter at-will employment status. See Midland Jud. Dist., 92 S.W.3d at 487-88. Instead, "the employer must unequivocally indicate a definite intent to be bound not to terminate the employee except under clearly specified circumstances." Montgomery County Hosp. Dist., 965 S.W.2d at 502. "[The] agreement to modify the at-will employment relationship must be `(1) expressed, rather than implied, and (2) clear and specific.'" El Expreso, Inc. v. Zendejas, 193 S.W.3d 590, 594 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (quoting Miksch v. Exxon Corp., 979 S.W.2d 700, 703 (Tex. App.-Houston [14th Dist.] 1998, pet. denied)). "Standing alone, an agreement to pay at a stated rate is not enough; if it were, there would be very few at-will employees." Ed Rachal Found. v. D'Unger, 207 S.W.3d 330, 332 (Tex. 2006).
In Montgomery County Hospital District, the employee testified that she was told orally that as long as she was doing her job she would not be terminated unless there "was a good reason or good cause to fire [her]." 965 S.W.2d at 502. The Texas Supreme Court held that these statements were too vague to overcome the presumption of at-will employment, and they did not rise to the level of an unequivocal indication of the employer's definite intent not to terminate the employee. Id.
In Midland Judicial District, the Court held that general statements in the employer's memo to the employee (providing that the employee's salary increases were contingent on "`future performance evaluations and available county funding'") did not indicate the employer's intent to be bound not to terminate employment. 92 S.W.3d at 487-88. The Court further held that this factual situation was not distinguishable from Montgomery County Hospital District even though Midland Judicial District involved a written representation and Montgomery County Hospital District case involved an oral one.
[T]he principle of Montgomery County is that the employer must unequivocally indicate its intent to be bound not to terminate the employment except under clearly specified circumstances. The written form of CSCD's general statements does not change the fact that they do not unequivocally indicate the required intent.
Midland Jud. Dist., 92 S.W.3d at 488.
In Ed Rachal Foundation, the Court held that the employee's "personal understanding of his contract," or "annual renewals of it in the past" were not unequivocal indications of the employer's intent to be bound throughout that term. 207 S.W.3d at 332.
Mele argues that the August 2005 letter represents a binding agreement between her and Taylor. Mele further argues that the inclusion of the provisions "$100,000 annual salary" and "1 week paid vacation 1st year, 2 weeks the 2nd" indicates a two year employment contract.
Assuming the letter represents a binding agreement between Mele and Taylor, we conclude the terms of the agreement are insufficient to overcome the presumption of Mele's status as an at-will employee. To alter Mele's at-will status, the letter must express Taylor's "unequivocal agreement" to limit her right to terminate Mele. The letter does not contain any provision specific to the term of employment or termination. One provision referenced by Mele concerns compensation calculated annually, and the other references vacation. These provisions, taken separately or together, do not express Taylor's "unequivocal intent to be bound not to terminate" Mele's employment except under clearly specified circumstances. Either party could terminate the employment relationship at any time for good cause, bad cause, or no cause at all, without liability for future lost wages. See, e.g., Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 503 n. 6 (Tex. App.-Houston [14th Dist] 2008, pet. denied). We sustain the issue presented.
Employer's Remaining Contractual Obligations
While we hold the trial court erred in granting Mele's motion for summary judgment, we cannot render judgment on Taylor's cross-motion. Taylor sought summary judgment on the ground that there was no contract and therefore no contractual liabilities.
Even though an employment contract may be terminable at will, the employer may still remain contractually liable to the employee. See Marine Inspection Serv., Inc. v. Alexander, 553 S.W.2d 185 (Tex. Civ. App.-Houston [1st Dist.] 1977, no writ) (noting that a promise to pay additional compensation may be enforceable when an employment agreement referenced the additional compensation and both parties had a reasonable understanding that the additional compensation would be paid).
Here, the parties do not contest the authenticity of the letter. Further, neither party disputes that Taylor agreed to reimburse Mele for her expenses up to $5,000 in relocating from Pennsylvania to Texas. Taylor does not dispute that Mele signed the August 2005 letter agreement and incurred expenses to move to Texas to work, nor does she raise a separate issue challenging the sufficiency of the evidence to support the $4,000 award for relocation expenses. Thus, Taylor has waived any complaint of this award. See TEX. R. APP. P. 33.1. Mele, on the other hand, has not filed a cross-point on appeal challenging the trial court's failure to make an award for the reimbursement of premiums paid for health insurance or malpractice insurance. Likewise, Mele has waived any right to complain of the trial court's failure to award these damages. See TEX. R. APP. P. 38.2.
Therefore, having considered the sole issue raised by Taylor's appeal and, having no cross-appeal by Mele, we reverse the trial court's judgment in part and hold, as a matter of law, the contract in dispute is an agreement for at-will employment; we modify the trial court's judgment to omit the damage award for lost wages; and, we affirm the judgment in part, awarding Mele damages in the amount of $4,000 for relocation expenses. As a consequence of these modifications, because we are reducing the damages awarded, we also reverse the award of attorney's fees and remand for a new trial on that issue. See Barker v. Eckman, 213 S.W.3d 306, 313-15 (Tex. 2006) (holding that when an appellate court reduces a damages award, the issue of attorney's fees should be reversed and the case remanded for a new trial on that issue, unless the appellate court is reasonably certain that the trial court was not significantly influenced by the erroneous damages award). The reduction in the actual damages results in a total award of $4,000 or less than twenty-five percent of the trial court's total award. Therefore, we reverse that portion of the judgment awarding attorney's fees and remand that issue for a new trial and also for recalculation of pre-judgment and post-judgment interest.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.