[signed]=20
3-08-01 =
Marilyn=20
Wachel Date
<=
/SPAN>=E2=80=9CShortly=20
thereafter,=E2=80=9D ![3DFootnote](3D"")
A&O advised Wachel that her =
new=20
position was being eliminated. Wachel was not terminated at that =
time, but=20
was reassigned, working fewer hours and earning less money than =
previously=20
agreed upon. Wachel nevertheless continued to work under the new=20
conditions until, in late April of 2002, A&O terminated =
Wachel=E2=80=99s=20
employment. Wachel=E2=80=99s counterclaim alleged a breach based =
on her demotion=20
and subsequent employment termination.
<=
/SPAN> Mustang=20
filed a counterclaim against A&O, seeking a declaratory =
judgment that=20
the non-compete agreements signed by A&O=E2=80=99s employees =
were invalid.=20
Further, Mustang sought a declaration that A&O had no trade =
secrets=20
that could be misappropriated. In response, A&O filed a =
general denial=20
and special exceptions to the declaratory judgment action, =
asserting that=20
it was duplicative of the controlling issues in A&O=E2=80=99s =
petition. No=20
hearing was held, and no ruling was obtained on the special=20
exceptions.
<=
/SPAN>A&O=20
filed a motion for summary judgment on both Mustang=E2=80=99s and =
Wachel=E2=80=99s=20
counterclaims. A&O asserted that Wachel=E2=80=99s employment =
was an at-will=20
relationship and that the memorandum on which Wachel relied to =
assert her=20
claims was not an enforceable employment contract. A&O =
asserted that=20
Mustang=E2=80=99s claims were redundant of issues already before =
the trial court=20
and that its counterclaim did not assert a claim for affirmative =
relief.=20
<=
/SPAN>Mustang=20
filed a First Amended Original Counterclaim along with its =
response to=20
A&O=E2=80=99s summary judgment motion clarifying that it =
sought declaratory=20
relief not only as to A&O=E2=80=99s =E2=80=9Cexisting =
covenants not to compete . . .=20
but [also as to] all A&O=E2=80=99s covenants not to compete =
executed by former=20
and existing A&O employees and contractors which have not =
expired or=20
otherwise been declared valid or invalid.=E2=80=9D Mustang also =
attempted to=20
broaden the declaratory action by requesting a judicial =
declaration =E2=80=9Cthat=20
all of the business of A&O, as it concerns mounted patrol and =
other=20
security related services, including any procedure, method, =
technique,=20
design, records, customer lists, and other information that =
A&O claims=20
are trade secrets are not, in fact, trade secrets, as that term is =
defined=20
in law, nor are such confidential, unique or proprietary and that =
such are=20
not entitled to protection by law.=E2=80=9D
<=
/SPAN>On=20
September 19, 2005, A&O filed a reply indicating that =
Mustang=E2=80=99s=20
attempt to defeat A&O=E2=80=99s summary judgment motion by =
merely broadening=20
the scope of its requested declarations should be rejected by the =
Court.=20
A&O contended that Mustang=E2=80=99s declaratory action =
remained redundant of=20
A&O=E2=80=99s claims and, to the extent that Mustang tried to =
seek additional=20
affirmative relief, such claims were impermissibly seeking an =
advisory=20
opinion under the Uniform Declaratory Judgment Act.
<=
/SPAN>After=20
considering the parties=E2=80=99 pleadings and oral arguments, the =
trial court=20
granted A&O=E2=80=99s summary judgment motions and dismissed =
Wachel=E2=80=99s and=20
Mustang=E2=80=99s counterclaims. Subsequently, the trial court =
granted A&O=E2=80=99s=20
non-suit of its entire case. Wachel and Mustang seek review of the =
dismissal of their counterclaims. Standard of =
Review
=
We=20
review summary judgments de novo. Valence Operating =
Co. v.=20
Dorsett,=20
164 S.W.3d 656, 661 (Tex. 2005). Traditional summary judgment is =
proper=20
only when the movant establishes that there is no genuine issue of =
material fact and that the movant is entitled to judgment as a =
matter of=20
law. Tex. R. Civ. P.=20
166a(c). The motion must state the specific grounds relied =
upon for=20
summary judgment. Id. In other words, =
we will not=20
affirm a summary judgment on a ground not included in the motion =
for=20
summary judgment. Travis v. City of Mesquite, 830 S.W.2d =
94, 100=20
(Tex. 1992). In reviewing a traditional summary judgment, we must =
indulge=20
every reasonable inference in favor of the nonmovant, take all =
evidence=20
favorable to the nonmovant as true, and resolve any doubts in =
favor of the=20
nonmovant. Valence, 164 S.W.3d at=20
661.
=
When, as here, a =
summary=20
judgment does not specify the grounds on which it was granted, we =
will=20
affirm the judgment if any one of the theories advanced in the =
motion is=20
meritorious. Joe v. Two Thirty =
Nine Joint=20
Venture,=20
145 S.W.3d 150, 157 (Tex. 2004). Declaratory judgments decided by =
summary=20
judgment are reviewed under the same standards of review that =
govern=20
summary judgments generally. Lidawi v. =
Progressive County=20
Mut. Ins. Co., 112 S.W.3d 725, =
730 (Tex.=20
App.=E2=80=94Houston [14th Dist.] 2003, no pet.); see Tex. Civ. Prac. & Rem. Code =
Ann.=20
=C2=A7=20
37.010 (Vernon=20
1997).
Mustang=E2=80=99s =
Counterclaim
A. Did Mustang assert claims for =
relief beyond=20
those asserted by A&O?
=
A&O=20
moved for summary judgment against Mustang=E2=80=99s counterclaim =
on the sole=20
basis that Mustang sought relief that was redundant of issues =
already=20
before the trial court and did not qualify as claims for =
affirmative=20
relief. In its first issue, Mustang complains that the trial court =
erred=20
in granting summary judgment because Mustang=E2=80=99s claims were =
supportable=20
independent of A&O=E2=80=99s original petition.
=
The =E2=80=9CDeclaratory =
Judgment Act is=20
not available to settle disputes alreadypending before a=20
court,=E2=80=9D=20
and =
it cannot=20
be used as a vehicle for defendants to obtain attorney=E2=80=99s =
fees merely for=20
resisting the plaintiff=E2=80=99s right to recover. =
BHP Petroleum Co. =
v.=20
Millard,=20
800 S.W.2d 838, 841 (Tex. 1990); =
HECI Exploration =
Co.=20
v.ClajonGas Co., 843 S.W.2d 622, =
638=E2=80=9339=20
(Tex. App.=E2=80=94Austin 1992, writ denied). The Texas Supreme =
Court carved out=20
an exception to this rule applicable when the counterclaim seeks a =
true=20
declaration of an ongoing and continuing relationship and when the =
counterclaim =
asserts relief=20
having =E2=80=9Cgreater=20
ramifications=E2=80=9D=20
than =
the=20
original suit. Anderson v. New =
Prop Owners=E2=80=99=20
Ass=E2=80=99n of Newport, Inc., 122 S.W.3d 378, =
390=E2=80=9391 (Tex.=20
App.=E2=80=94Texarkana 2003, no pet.).
=
=E2=80=9CA counterclaim has =
greater=20
ramifications than the original suit if it seeks affirmative=20
relief.=E2=80=9D=20
Howell v.=20
Mauzy, 899=20
S.W.2d 690, 706 (Tex. App.=E2=80=94Austin 1994, writ denied). To =
state a claim for=20
affirmative relief, a defendant must allege a cause of action =
=E2=80=9Cindependent of the =
plaintiff=E2=80=99s claim on which the defendant could recover =
benefits,=20
compensation, or relief, even if the plaintiff were to abandon or =
fail to=20
establish his cause of action.=E2=80=9D Gen. =
Land Office v. OXY=20
U.S.A., Inc., 789 S.W.2d 569, =
570 (Tex.=20
1990). For=20
example, in the context of suits asserting breaches of contracts =
or deeds,=20
declaratory counterclaims seeking construction of such instruments =
may=20
constitute claims for affirmative relief because, in contrast to a =
=E2=80=9Cone-time=20
occurrence=E2=80=9D=20
giving rise to=20
the plaintiff=E2=80=99s suit, they concern the parties=E2=80=99 =
ongoing and future=20
relationship. BHP Petroleum=20
Co., 800=20
S.W.2d at 840=E2=80=9342; Indian Beach Prop. =
Owners=E2=80=99=20
Ass=E2=80=99n v. Linden, 222 S.W.3d 682, =
702 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2007, no pet.).
=
Mustang=20
relies on BHP Petroleum Co. =
v.=20
Millard to=20
support its assertion that its counterclaim has greater =
ramifications than=20
A&O=E2=80=99s original petition=E2=80=99s claims. In BHP =
Petroleum, the=20
plaintiff sued the defendant for breach of the =E2=80=9Ctake-or-pay=E2=80=9D =
obligations of a =
gas=20
purchase contract. Id. at 842. The =
defendant=20
counterclaimed, seeking a declaratory judgment =E2=80=9C[t]hat events have =
occurred=20
which constitute force majeure, as the parties agreed to define =
the term,=20
or other causes not reasonably within the control of ANR and its=20
customers, which have =
affected and will=20
continue for the foreseeable future to affect ANR=E2=80=99s takes =
of natural gas=20
under the Contracts. . . . =E2=80=9D =
Id. =
(emphasis in=20
original). The=20
court held that because the gas purchase contract was an ongoing =
and=20
continuing relationship, the defendant=E2=80=99s counterclaim for =
a declaratory=20
judgment was a cause of action on which the defendant could =
recover=20
benefits, compensation, or relief if the plaintiff abandoned or =
failed to=20
establish its causes of action. Id. The =
defendant=E2=80=99s=20
counterclaim sought an interpretation of the gas purchase =
contract, which=20
would have the effect of defining the obligations of the parties =
under=20
that contract in the future. Id.=20
=
The=20
parties in BHP Petroleum had a continuing, contractual=20
relationship, and the defendant=E2=80=99s declaratory judgment =
action asked for a=20
declaration interpreting provisions of the contract and declaring =
the=20
respective rights and obligations of the parties under their =
continuing=20
contract. Id. at 840; see also Indian Beach Prop. =
Owners=E2=80=99=20
Ass=E2=80=99n, 222=20
S.W.3d at 702 (holding that, =
although=20
counterclaim appeared to be nothing more than denial of =
plaintiff=E2=80=99s cause=20
of action, =E2=80=9Cbecause it involves the interpretation of deed =
restrictions,=20
[the defendants] . . . stated a cause of action on which they =
could=20
recover benefits, compensation, or relief if [the plaintiff] =
abandoned or=20
failed to establish its cause of action.=E2=80=9D).
=
In=20
this case, there is no contract between Mustang and A&O and no =
evidence that the parties are engaged in a continuing relationship. =
Because there=20
is no on-going relationship, resolution of some future dispute =
through a=20
declaratory judgment would not have been proper. See Nat=E2=80=99l =
Enter., Inc. v.=20
E.N.E. Props., 167 S.W.3d 39, =
43=E2=80=9344 (Tex.=20
App.=E2=80=94Waco 2005, no pet.); Howell v. =
Mauzy, 899=20
S.W.2d 690, 707 (Tex. App.=E2=80=94Austin 1994, writ denied); =
HECI Exploration=20
Co., 843=20
S.W.2d at 639; John Chezik Buick =
Co. v.=20
Friendly Chevrolet Co., 749 S.W.2d 591, =
594 (Tex.=20
App.=E2=80=94Dallas 1988, writ denied); =
see also Newman Oil =
Co. v.=20
Alkek, 614=20
S.W.2d 653, 653=E2=80=9355 (Tex. Civ. App.=E2=80=94Corpus Christi =
1981, writ ref=E2=80=99d=20
n.r.e.). Thus, any =
declarations=20
sought by Mustang beyond those pleaded by A&O were not the =
proper=20
subject of a declaratory judgment action. We hold that the trial =
court err=20
by rendering summary judgment on the ground that Mustang failed to =
assert=20
a claim for broader relief than that sought by A&O. We =
overrule=20
Mustang=E2=80=99s first issue.
B. Was dismissal with prejudice=20
proper?
=
In=20
its second issue, Mustang asserts that the trial court lacked =
jurisdiction=20
to dismiss its counterclaims =E2=80=9Cwith prejudice.=E2=80=9D =
Mustang contends that=20
A&O=E2=80=99s assertion that Mustang failed to assert a claim =
for affirmative=20
relief is the equivalent of asserting that Mustang sought a claim =
over=20
which the trial court lacked jurisdiction. Without argument or =
reference=20
to any authority, Mustang contends that dismissal should have been =
for=20
want of jurisdiction and, therefore, without prejudice. =
=
Mustang=E2=80=99s=20
second issue is inadequately briefed. See Tex. R. App. P. 38.1(h). =
Furthermore, in its reply brief, Mustang acknowledges that =
=E2=80=9Cthe mere=20
failure of a petition to state a cause of action does not show a =
want of=20
jurisdiction in the court.=E2=80=9D We overrule Mustang=E2=80=99s =
second=20
issue.
Wachel=E2=80=99s =
Counterclaim
=
In=20
their third issue, appellants contend that the trial court erred =
in=20
granting summary judgment on Wachel=E2=80=99s counterclaim because =
=E2=80=9CWachel did not=20
sue A&O for wrongful termination.=E2=80=9D In issue four, =
appellants assert=20
that =E2=80=9CWachel was entitled to sue A&O for its failure =
to perform under=20
the Salary Agreement for the duration that Wachel was an=20
employee.=E2=80=9D
=
A&O=E2=80=99s=20
motion for summary judgment alleged that Wachel had an at-will=20
relationship with A&O and that, due to the nature of the =
employment=20
relationship, there could be no employment agreement that would =
=E2=80=9Climit the=20
ability of either employer or employee to terminate the employment =
at=20
will.=E2=80=9D But at-will employees can contract with their =
employers on matters=20
that do not affect the at-will nature of the relationship. =
Light v.=20
Centel Cellular Co. of Tex., 883 S.W.2d 642, 644 (Tex. 1994). =
The=20
question, then, is whether Wachel=E2=80=99s agreement affected the =
at-will nature=20
of her relationship with A&O.
=
Wachel=20
contends that, as long as she was employed by A&O, she was =
entitled to=20
receive the benefits enumerated in the February 27 memorandum. =
However,=20
even when a valid employment agreement exists, an employer may =
modify the=20
agreement simply by notifying the employee of the change and the=20
employee=E2=80=99s acceptance of the change. See In re Dillard =
Dep=E2=80=99t Stores,=20
Inc., 198=20
S.W.3d 778, 780 (Tex. 2006); Hathaway v. Gen. =
Mills, Inc=20
., 711=20
S.W.2d 227, 229 (Tex. 1986). If the employee =
continues=20
working with knowledge of the changes, then he has accepted them =
as a=20
matter of law. Dillard =
Dep=E2=80=99t=20
Stores, 198=20
S.W.3d at 780; Hathaway, 711 S.W.2d at=20
229.=20
=
The Texas Supreme =
Court has=20
specifically held that if an employer unequivocally notifies an =
employee=20
of a change and the employee continues to work, even under =
protest, the=20
employee has accepted the change. See Dillard =
Dep=E2=80=99t=20
Stores, 198=20
S.W.3d at 780=E2=80=9381 (holding that employee who refused to =
sign form=20
acknowledging new arbitration policy but continued working =
accepted policy=20
as matter of law). Wachel did not choose to quit her job with =
A&O or=20
to pursue legal remedies for breach of an employment agreement at =
the time=20
that her job description changed. See Hathaway, 711 S.W.2d at =
229. By=20
continuing to work for A&O, Wachel accepted the new terms of =
her=20
employment as a matter of law. See Dillard =
Dep=E2=80=99t=20
Stores, 198=20
S.W.3d at 780; Hathaway, 711 S.W.2d at =
229;=20
accord=20
In re =
Dallas=20
Peterbilt, Ltd., 196 S.W.3d 161, =
163 (Tex.=20
2006); In re=20
Halliburton Co., 80 S.W.3d 566, =
568=E2=80=9369 (Tex.=20
2002).
=
In=20
essence, at the time of her demotion, Wachel was =
=E2=80=9Cfired=E2=80=9D from the position=20
to =
which she=20
previously had been promoted and =E2=80=9Cre-hired=E2=80=9D in a =
new position. The terms=20
of the employment agreement did not affect Wachel=E2=80=99s =
at-will employment=20
relationship with A&O and, therefore, did not apply to her =
=E2=80=9Cnew=E2=80=9D=20
position. Therefore, Wachel failed to raise a genuine issue of =
material=20
fact in her claim against A&O. The trial court did not err in=20
rendering summary judgment on Wachel=E2=80=99s counterclaim. We =
overrule issues=20
three and four.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Tim=20
Taft
Justice
Panel consists of =
Justices=20
Taft, Hanks, and=20
Higley.