Opinion issued=20
June 19, 2008
In=20
The
Court of =
Appeals
For The
First District of=20
Texas
NO. =
01-07-00438-CV
STANLEY RUSSELL=20
COLEMAN, Appellant
V.
LYNN =
A. REVAK,=20
REVAK TURBOMACHINERY SERVICES, INC., REVAK ETNERPRISES, INC., =
L-MART=20
INTERNATIONAL CORPORATION, REVAK CONTROLS CORPORATION, TURBO =
STORAGE=20
SERVICE COMPANY, AND REVAK ENERGY, INC.,=20
Appellees
On =
Appeal from the=20
11th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2006-35477
MEMORANDUM =
OPINION
<=
/SPAN>This=20
appeal arises from the termination of appellant Stanley Russell =
Coleman=E2=80=99s=20
(=E2=80=9CColeman=E2=80=9D) employment with appellees, Lynn A. =
Revak, Revak Turbomachinery=20
Services, Inc., Revak Enterprises, Inc., L-Mart International =
Corporation,=20
Revak Controls Corporation, Turbo Storage Service Company, and =
Revak=20
Energy, Inc. (collectively, =E2=80=9CRevak=E2=80=9D). Coleman sued =
Revak for breach of=20
contract and common law fraud. The trial court granted =
Revak=E2=80=99s motion for=20
summary judgment. In two issues, Coleman argues that the trial =
court erred=20
in granting summary judgment in favor of Revak because (1) the =
motion for=20
summary judgment did not set forth the grounds for granting the =
motion=20
and/or the grounds set forth lacked the specificity required as a =
matter=20
of law and (2) there were genuine issues of material fact created =
by=20
Coleman=E2=80=99s affidavit that precludes summary judgment on his =
breach of=20
contract and common law fraud claims. We affirm. =
Factual=20
Background ![3DFootnote](3D"")
Prior to being employed by Revak, =
Coleman was a=20
consultant based in Nederland, Texas who occasionally performed =
consulting=20
services for Revak. Eventually, Revak offered Coleman a full-time=20
employment position in Houston. Revak assured Coleman that, if he =
accepted=20
the job offer, Coleman could only be terminated for cause and that =
it=20
would not be an at will position. Revak repeated this assurance =
more than=20
once. In reliance on these representations, Coleman accepted the =
job=20
offer, shut down his business in Nederland, and relocated with his =
wife to=20
Houston.
Shortly after beginning his employment =
with Revak,=20
Coleman completed an employment application. In the application =
Coleman=20
put his initials by the following =
acknowledgment:
I understand that nothing contained in =
the=20
application or conveyed to me during any interview that may be =
granted is=20
intended to create an employment contract, implied or explicit, =
between=20
the Revak Companies and me. In addition, I understand and agree =
that if I=20
am employed, my employment relationship with the Revak Companies =
is=20
strictly voluntary and at our mutual will. I understand that if =
employed,=20
my employment is for no definite period and may be terminated at =
any time,=20
with or without prior notice, with or without cause or reason, at =
the=20
option of either me or the Revak Companies, and that no promises =
or=20
representations contrary to the foregoing are binding on the Revak =
Companies unless made in writing and signed jointly by the =
President/CEO=20
and me.
After Coleman was hired, Revak continued =
to=20
represent to Coleman that his position was not at will. After 40 =
months of=20
employment, Revak eventually terminated Coleman without cause.=20
<=
/SPAN>Coleman=20
sued Revak for breach of contract and common law fraud. Revak =
moved for=20
summary judgment based upon the statute of frauds, the statute of=20
limitations, and the fact that Coleman was an at will employee as=20
evidenced by his acknowledgment in the employment application. =
Without=20
stating its reasons, the trial court granted Revak=E2=80=99s =
motion for summary=20
judgment. This appeal timely followed.
Standard of=20
Review
Our review of a trial court=E2=80=99s =
decision to grant=20
summary judgment is de novo. Valence Operating Co. v. =
Dorsett, 164=20
S.W.3d 656, 661 (Tex. 2005). In a traditional summary judgment =
motion, the=20
movant must show that there is no genuine issue of material fact =
and that=20
he is entitled to judgment as a matter of law. Tex R. Civ. P. 166a(c);=20
Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, =
645=E2=80=9346 (Tex. 2000).=20
When a defendant moves for traditional summary judgment, the =
summary=20
judgment evidence must either (1) disprove at least one element of =
the=20
plaintiff=E2=80=99s cause of action or (2) conclusively establish =
each essential=20
element of its affirmative defense, thereby defeating the =
plaintiff=E2=80=99s=20
cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. =
1995).=20
In deciding whether a disputed material fact issue precludes =
summary=20
judgment, we take evidence favorable to the nonmovant as true, and =
indulge=20
every reasonable inference and resolve any doubts in favor of the=20
nonmovant. Provident Life & Accid. Ins. Co. v. Knott, =
128=20
S.W.3d 211, 215 (Tex. 2003). When, as here, the trial court does =
not=20
specify the grounds upon which it ruled, the summary judgment may =
be=20
affirmed if any of the grounds stated in the motion is =
meritorious. W.=20
Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); =
Mayes v.=20
Goodyear Tire & Rubber Co., 144 S.W.3d 50, 55 (Tex. =
App.=E2=80=94Houston=20
[1st Dist.] 2004, no pet.).
Discussion
Grounds for Summary=20
Judgment
<=
/SPAN>In=20
his first issue, Coleman contends that the court erred in granting =
Revak=E2=80=99s=20
motion for summary judgment because the motion did not expressly =
present=20
the grounds for summary judgment in its motion. Coleman argues =
that the=20
motion was =E2=80=9Cso vague and incomplete that the bases for =
dismissing [his]=20
causes of action were indecipherable.=E2=80=9D Coleman argues that =
the motion was=20
required to specify =E2=80=9Chow each conclusion is reached or =
supported by the=20
evidence.=E2=80=9D We disagree.
Rule 166a(c) of the Texas Rules of Civil =
Procedure=20
provides that a motion for summary judgment must =E2=80=9Cstate =
the specific=20
grounds therefor.=E2=80=9D Tex. R. Civ. P.=20
166a(c); Stiles v. Resolution Trust Corp., 867 =
S.W.2d 24, 26=20
(Tex. 1993). While the grounds =E2=80=9Cmust at least be listed in =
the motion,=E2=80=9D=20
they =E2=80=9Cmay be stated concisely, without detail and =
argument.=E2=80=9D McConnell=20
v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340 (Tex. =
1993). A=20
movant is not required to specifically describe how evidence in =
support of=20
the motion justifies a summary judgment; merely identifying a =
theory of=20
liability or defense will suffice. See, e.g., =
Conquistador=20
Petroleum, Inc. v. Chatham, 899 S.W.2d 439, 441=E2=80=9342 =
(Tex. App.=E2=80=94Eastland=20
1995, writ denied) (Court found that the following statement alone =
regarding an affirmative defense was sufficient to satisfy the=20
requirements of Rule 166a(c): =E2=80=9C[Defendant] moves for =
summary judgment=20
against [Plaintiff] on the affirmative defense of unenforceability =
pursuant to the Rule against Perpetuities.=E2=80=9D). =
Grounds are sufficiently specific if =
they give=20
=E2=80=9Cfair notice=E2=80=9D to the nonmovant of the claim =
involved. City of Roanoke=20
v. Town of Westlake, 111 S.W.3d 617, 633 (Tex. =
App.=E2=80=94Ft. Worth 2003,=20
pet. denied). Where the grounds are ambiguous, unclear or =
otherwise=20
lacking in specificity, the nonmovant must specially except to the =
form of=20
the motion and give the movant an opportunity to amend before the=20
nonmovant can complain about this issue on appeal. McConnell, =
858=20
S.W.2d at 341. The failure to specially except will result =
in the=20
waiver of this issue on appeal. Conquistador Petroleum, =
Inc.,=20
899 S.W.2d at 442.
<=
/SPAN>Here,=20
Revak=E2=80=99s motion complies with the mandates of Rule 166a(c) =
by expressly=20
setting forth the specific grounds for summary judgment. The =
motion gives=20
Coleman notice that the motion addresses all claims asserted in =
this=20
action and states that =E2=80=9CColeman=E2=80=99s claims are =
barred and denied by the=20
Statute of Frauds [Business & Commerce Code Sec. 26.01(b)(6)] =
and by=20
the Statute of Limitations and especially by the above cited =
paragraph 4=20
of the Employment Application signed May 22, 2000.=E2=80=9D =
Specifically, Coleman=20
had fair notice that his at will status was being asserted as =
defense to=20
his claims. The cited paragraph refers to the initialed =
acknowledgement=20
that Coleman has no employment contract with Revak and is an at =
will=20
employee. Coleman did not file a special exception to the grounds =
for=20
summary judgment stated in the motion as =E2=80=9Cvague,=E2=80=9D =
=E2=80=9Cincomplete,=E2=80=9D=20
=E2=80=9Cindecipherable,=E2=80=9D or otherwise lacking in =
specificity. Accordingly,=20
Coleman has waived his right to argue on appeal that the grounds =
in the=20
motion lacked sufficient specificity. See McConnell, 858 =
S.W.2d at=20
342=E2=80=9343; Conquistador Petroleum, Inc., 899 =
S.W.2d at=20
442.
<=
/SPAN>As=20
part of his first issue, Coleman also asserts that the trial court =
erred=20
in considering his employment application as summary judgment =
evidence=20
because he objected to its admissibility on grounds that Revak did =
not=20
establish =E2=80=9Ca proper predicate for its =
authenticity.=E2=80=9D To raise this issue=20
on appeal, Coleman was required not only to make this objection, =
but to=20
secure a ruling on his objection by the trial court. Hou-Tex, =
Inc. v.=20
Landmark Graphics, 26 S.W.3d 103, 112 (Tex. =
App.=E2=80=94Houston [14th Dist.]=20
2000, no pet.). The record does not demonstrate that Coleman =
secured a=20
ruling on his objection to the employment application. Therefore, =
Coleman=20
has waived any complaint on appeal.
<=
/SPAN>We=20
hold that the grounds for summary judgment set forth in the motion =
are=20
sufficient to satisfy the requirements of Rule 166a(c) and Coleman =
has=20
waived his right to complain on appeal the lack of specificity of =
those=20
grounds. We overrule Coleman=E2=80=99s first issue. =
<=
/SPAN>Issue=20
of Material Fact
<=
/SPAN>In=20
his second issue, Coleman contends that the affidavit attached to =
his=20
response to Revak=E2=80=99s motion for summary judgment raises =
issues of material=20
fact that preclude summary judgment on his breach of contract and =
common=20
law fraud claims. Coleman argues that the affidavit sets forth =
facts=20
showing that he was not an at will employee and that Revak =
continued to=20
make material misrepresentations to him regarding his tenure both =
before=20
and after he accepted the job offer and that these facts defeat =
the=20
motion. We disagree.
<=
/SPAN>Assuming,=20
as we must, all of the facts in Coleman=E2=80=99s affidavit =
concerning his=20
employment status and the representations Revak made to him are =
true,=20
Revak was entitled to summary judgment on Coleman=E2=80=99s breach =
of contract and=20
fraud claims. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 =
S.W.2d 546,=20
548=E2=80=9349 (Tex. 1985). To establish a claim for breach of =
contract, Coleman=20
must first establish the existence of a valid contract. =
Williams v.=20
First Tenn. Nat=E2=80=99l Corp., 97 S.W.3d 798, 802=E2=80=9303 =
(Tex. App.=E2=80=94Dallas 2003,=20
no pet.). Coleman asserts that, based on the oral representations =
made by=20
Revak, Coleman had an oral contract with Revak that he would not =
be fired=20
except for cause. However, Revak=E2=80=99s assurances and =
representations to=20
Coleman were too indefinite to constitute an employment contract =
limiting=20
Revak=E2=80=99s right to terminate Coleman. See Montgomery =
County Hosp. Dist.=20
v. Brown, 965 S.W.2d 501, 502=E2=80=9303 (Tex. =
1998).
For more than a century, the general =
rule in Texas=20
has been that, absent a specific agreement to the contrary, =
employment may=20
be terminated by the employer or the employee at will, for good =
cause, bad=20
cause, or no cause at all. Fed. Express Corp. v. =
Dutschmann,=20
846 S.W.2d 282, 283 (Tex. 1993); East Line & =
R.R.R. Co.=20
v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888). A promise,=20
acceptance of which will form a contract, =E2=80=9Cis a =
manifestation of intention=20
to act or refrain from acting in a specified way, so made as to =
justify a=20
promisee in understanding that a commitment has been =
made.=E2=80=9D Restatement (Second) of Contracts =C2=A7 2(1) =
(1981). General=20
statements like those allegedly made by Revak simply do not =
justify the=20
conclusion that the speaker intends to make a binding contract of=20
employment. See Brown, 965 S.W.2d at 502. For such a =
contract to=20
exist, the employer must unequivocally indicate a definite intent =
to be=20
bound not to terminate the employee except under clearly specified =
circumstances. Id. General comments that an employee will =
not be=20
discharged as long as his work is satisfactory do not in =
themselves=20
manifest such intent. Id. Neither do statements that an =
employee=20
will be discharged only for =E2=80=9Cgood reason=E2=80=9D or =
=E2=80=9Cgood cause=E2=80=9D when there is no=20
agreement on what those terms encompass. Id. Without such =
agreement=20
the employee cannot reasonably expect to limit the =
employer=E2=80=99s right to=20
terminate him. Id. Accordingly, Coleman cannot establish an =
essential element of his breach of contract claim, the existence =
of a=20
valid contract, and the trial court did not err in granting =
summary=20
judgment on this claim. Id. The basis of Coleman=E2=80=99s =
fraud claim is=20
that Revak terminated him without cause after making repeated=20
misrepresentations to Coleman that he could be terminated only for =
cause.=20
As discussed above, the summary judgment evidence establishes that =
there=20
was no contract between Revak and Coleman altering =
Coleman=E2=80=99s at will=20
status with Revak. See Brown, 965 S.W.2d at 502 (holding =
employment=20
is presumed to be at will absent specific contrary agreement). We =
have=20
held that an =E2=80=9Cat will=E2=80=9D employee is barred from =
bringing a cause of action=20
for fraud against his employer based upon the employer=E2=80=99s =
decision to=20
discharge the employee. Miller v. Raytheon Aircraft Co., =
229=20
S.W.3d. 358, 381 (Tex. App.=E2=80=94Houston [1st Dist.] =
2007, no pet.);=20
see also Brown v. Swett & Crawford of Tex., Inc., 178 =
S.W.3d=20
373, 379=E2=80=9380 (Tex. App.=E2=80=94Houston [1st Dist.] 2005, =
no pet.) (holding that=20
status as at will employee precludes claim for fraudulent =
inducement as=20
matter of law). Accordingly, Coleman=E2=80=99s fraud claim is =
precluded as a=20
matter of law because Coleman=E2=80=99s employment was at will. =
The trial court=20
did not err in granting summary judgment on this =
claim.
We hold that the affidavit does not =
raise a=20
genuine issue as to any material fact that =
would defeat=20
summary judgment. We overrule issue two.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
George C. Hanks, Jr.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Nuchia, =
Alcala, and=20
Hanks
|