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Affirmed and Memorandum Opinion filed April 24, 2007.



In The


Fourteenth Court of Appeals



NO. 14-05-00992-CV










On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 2003-64475



M E M O R A N D U M   O P I N I O N

Appellant Anthony Perkins sued appellee William Ulrich doing business as Morrison Homes (AMorrison@)[1] for breach of contract and various tort and quasi-contract claims.  Perkins also sued Ulrich individually on the tort and quasi-contract claims.  Morrison moved for summary judgment on its and Ulrich=s behalf, which the trial court granted as to all claims and then rendered a final take-nothing judgment.  Perkins appeals, contending that material fact issues preclude summary judgment.  Because Morrison showed that it and Ulrich are entitled to judgment as a matter of law, we affirm.

I.  Factual and Procedural Background

William Ulrich, former President of Morrison Homes, offered Anthony Perkins a position as a senior sales associate for new homes in August 2001, and Perkins accepted.  Ulrich and Perkins agreed that Perkins would receive a two percent commission on all sales.  On August 13, 2001, Perkins began working for Morrison and signed an acknowledgment in Morrison=s employee handbook that his employment could be terminated by either party with or without cause or notice.  The acknowledgment also provided that Morrison could Arevise, rescind or modify [its policies] at any time@ and that Perkins would be bound by any such change.  That same day, Perkins signed an acknowledgment stating that he had received a copy of the company=s ASales Staffing and Compensation Policy.@[2]  This policy included a section providing that if a sales associate is no longer employed on the date a sale closes, the sales associate will be paid less than a full commission according to a phase-out schedule.  In September 2001, Morrison changed this policy to provide that a sales associate would receive eighty percent of his commission if the sale closed within one month of his employment ending and none if it closed thereafter.  On September 10, 2001, Perkins signed an acknowledgment that this amended compensation policy would be effective January 1, 2002.  This amended compensation policy underlies this dispute.

Morrison terminated Perkins on August 26, 2002 after Perkins had a conflict with a supervisor.  Because some sales had not closed at the time of termination, Perkins did not receive the full commission on all of his sales.  Instead, Morrison paid Perkins according to the amended compensation policy.  When Perkins did not receive his full commission, he sued Ulrich and Morrison for breach of contract, fraud, negligent misrepresentation, fraudulent inducement, and unjust enrichment and quantum meruit.  Perkins does not dispute that Ulrich correctly applied the amended compensation policy.  Rather, he contends the policy does not apply to him because when he accepted the position, Ulrich implicitly agreed to pay him a two percent commission on all sales, regardless of when they were finally closed in relation to termination.  Perkins bases his assumption on Ulrich=s knowledge of Perkins=s past compensation arrangements with other employers.  Perkins admits that there had been no discussion about how termination would affect compensation and that there was no express oral agreement on the issue.

The trial court granted summary judgment as to all claims in favor of Morrison and Ulrich.  In one issue, Perkins claims the trial court erred in granting summary judgment.

II.  Analysis

A.      Standard of Review

Morrison moved for summary judgment on both traditional and no-evidence grounds. See Tex. R. Civ. P. 166a(c), 166a(i).  To prevail on a traditional motion for summary judgment, the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).  If the movant conclusively negates at least one essential element of the cause of action, then he is entitled to summary judgment on that claim.  Grant, 73 S.W.3d at 215.  When we review a summary judgment, we take as true all evidence favorable to the non-movant; we also indulge every reasonable inference and resolve any doubts in favor of the non-movant.  Id.  As to a no-evidence summary judgment motion, the movant must state the specific elements of a cause of action for which there is no evidence.  Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  If the movant has identified specific elements he claims lack evidence, we must then determine de novo whether the non-movant has produced more than a scintilla of probative evidence to raise a genuine issue of material fact.  Allen v. Connolly, 158 S.W.3d 61, 64 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  A no-evidence summary judgment motion must be granted unless the non-movant produces competent summary judgment evidence raising a genuine issue of material fact.  Id

If a trial court does not specify the grounds it relied upon in granting the motion, we will affirm if any of the grounds are meritorious.  Oliphint v. Richards, 167 S.W.3d 513, 516 (Tex. App.CHouston [14th Dist.] 2005, pet. denied).  The trial court below granted the motion on both traditional and no-evidence grounds.  However, because we determine that Morrison was entitled to summary judgment on traditional grounds, we do not reach the no-evidence grounds.

B.      Trial Court Properly Granted Summary Judgment

AAt will employment exists when the parties do not limit the ability of either employer or employee to terminate employment at their will.@  Goodyear Tire & Rubber Co. v. Portilla, 879 S.W.2d 47, 48 n.1 (Tex. 1994).  The parties do not dispute that Perkins was an at-will employee.  However, even in at-will employment situations, the parties can contract on other employment matters except those that would limit the ability of either party to terminate employment at will.  Light v. Centel Cellular Co., 883 S.W.2d 642, 644 (Tex. 1994).  Employers may modify such agreements, but for the modification to be enforceable, the employer must prove both that it notified the employee and that the employee accepted the change.  See In re Dillard Dep=t Stores, Inc., 198 S.W.3d 778, 780 (Tex. 2006) (orig. proceeding); Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986).  To prove notice, an employer asserting the modification must prove that it unequivocally notified the employee of definite changes in employment terms.  Dillard Dep=t Stores, 198 S.W.3d at 780; Hathaway, 711 S.W.2d at 229.  If the employee continues working with knowledge of the changes, then he has accepted them as a matter of law.  Dillard Dep=t Stores, 198 S.W.3d at 780; Hathaway, 711 S.W.2d at 229.

We conclude summary judgment was proper because Morrison proved these two elements as a matter of law as to its amendment to the compensation policy.  Morrison clearly notified all employees, including Perkins, of the change in its compensation policy.  Perkins does not dispute that he knew about the amended compensation policy, but he argues that he did not accept the change.  When he learned of the new policy and was asked to sign the acknowledgment form, Perkins initially refused.  Ulrich told him that if he did not sign, he would not receive the commission he was due, and so Perkins signed the acknowledgment, even though he did not want to do so.[3]  Perkins claims that because he signed under protest, he never accepted the change to the compensation policy.  We disagree.  The Texas Supreme Court has specifically held that if an employer unequivocally notifies an employee of a change and the employee continues to work, even under protest, the employee has accepted the change.[4]  See Dillard Dep=t Stores, 198 S.W.3d at 780B81 (finding that employee who refused to sign form acknowledging new arbitration policy but continued working accepted policy as a matter of law).  Even though he did not like it, Perkins was notified of the change, and he signed the acknowledgment form.  He could have quit his job and pursued legal remedies for any unpaid commissions, but he did not.  See Hathaway, 711 S.W.2d at 229.  Instead, he continued working for nearly a year until he was terminated.  This constitutes acceptance as a matter of law.  See Dillard Dep=t Stores, 198 S.W.3d at 780; Hathaway, 711 S.W.2d at 229; accord In re Dallas Peterbilt, Ltd., 196 S.W.3d 161, 163 (Tex. 2006) (orig. proceeding); In re Halliburton Co., 80 S.W.3d 566, 568B69 (Tex. 2002) (orig. proceeding).  Thus, even if Perkins made a separate, binding agreement regarding post-termination compensation at the time he was hired, his acceptance of the amended compensation policy superseded any such agreement.  See Bell v. Phillips, No. 14-00-01189-CV, 2002 WL 576036, at *7 (Tex. App.CHouston [14th Dist.] Apr. 18, 2002, no pet.) (not designated for publication) (A[B]y continuing with [his employer] and accepting the modifications in the commission structure, [employee] gave up any right to claim anything other than commissions owing under the parties= modified agreement.@); accord Werden v. Nueces County Hosp. Dist., 28 S.W.3d 649, 652 (Tex. App.CCorpus Christi 2000, no pet.); Gamble v. Gregg County, 932 S.W.2d 253, 256 (Tex. App.CTexarkana 1996, no writ).

Perkins does not dispute that Morrison paid him all he was due under the amended compensation policy.  Thus, his claim for breach of contract fails as a matter of law.  Further, because Perkins=s fraud, negligent misrepresentation, and fraudulent inducement claims all relate to his initial compensation arrangement, which was superseded by his acceptance of the amended compensation policy, and because he has been fully paid under that policy, those claims fail as a matter of law as well.  Finally, because an express contract covers the subject of this dispute, Perkins cannot, as a matter of law, recover under an unjust enrichment or quantum meruit theory.  See Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 620 (Tex. App.CHouston [14th Dist.] 2006, pet. denied).  Thus, we conclude the trial court did not err in granting summary judgment.


We overrule appellant=s issue and affirm the trial court=s judgment.



/s/      Leslie B. Yates






Judgment rendered and Memorandum Opinion filed April 24, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

[1]  George Wimpey of Texas Corp. evidently no longer exists and, as discussed in the trial court, was not a proper party to the suit.  No issues in this appeal involve George Wimpey of Texas Corp.  We include its name in the case style only because the parties do so.

[2]  The parties disagree as to whether Morrison actually provided Perkins a copy of the policy at this time.

[3]  Perkins claims he signed the acknowledgment form under duress because Ulrich threatened to withhold his commissions.  To prove economic duress, Perkins must show, among other things, that the threat Adestroys the victim=s free agency and leaves him without a present means of protection.@  Wright v. Sydow, 173 S.W.3d 534, 544 (Tex. App.CHouston [14th Dist.] 2004, pet. denied); see also Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).  Perkins failed to show this.  Perkins could have quit and pursued any legal measures necessary to ensure he recovered any unpaid commissions, but he chose to continue working and planned to Adeal with it later.@  This does not constitute economic duress as a matter of law.  See Wright, 173 S.W.3d at 544 (noting that when the courts can provide the victim adequate protection, there is no duress); ABB Kraftwerke Aktiengesellschaft v. Brownsville Barge & Crane, Inc., 115 S.W.3d 287, 294 (Tex. App.CCorpus Christi 2003, pet. denied) (finding no duress when party could have refused to execute contract and thereby suffered inconvenience, noting that A[t]he mere fact that a person enters into a contract with reluctance, or as a result of the pressures of business circumstances, does not, of itself, constitute economic duress@).

[4]  Perkins relies on Hathaway to argue that his continued employment under protest does not constitute acceptance.  In Hathaway, after the employer changed sales commission rates, the employee complained to a supervisor, who told the employee not to worry about the rate change and that he would take care of it.  See 711 S.W.2d at 229.  The supreme court concluded that because of conflicting signals from management regarding the applicability of the rate change, the employer had never unequivocally notified him of a change.  Id.  Thus, A[w]ithout proof of unequivocal notification, [the employee]=s continued employment under protest did not equal acceptance as a matter of law.@  Id.  In this case, Morrison notified Perkins of the compensation policy amendment, and no one ever suggested that the change would not apply to Perkins.  Indeed, Ulrich told Perkins that he would not be paid until he signed the form acknowledging the change, and Perkins signed it.  Thus, because Morrison unequivocally notified Perkins of the change, Hathaway is distinguishable.