Opinion issued=20
March 6, 2008
In =
The
Court of=20
Appeals
For =
The
First =
District of=20
Texas
NO. =
01-06-00590-CV
PHILIP J. MCGEE,=20
Appellant
V.
ABRAMS TECHNICAL SERVICES, INC. AND =
ABRAMS=20
TECHNICAL SERVICES INTERNATIONAL, INC.,=20
Appellees
On Appeal from the 215th District=20
Court
Harris County, =
Texas
Trial Court Cause =
No.=20
2003-54414
MEMORANDUM =
OPINION
<=
/SPAN>Appellant,=20
Phillip J. McGee, appeals from a summary =
judgment=20
rendered in favor of appellees, Abrams Technical Services, =
Inc. and=20
Abrams Technical Services International, Inc. (collectively =
=E2=80=9CAbrams=E2=80=9D). In=20
his sole issue, McGee asserts that the trial court erred by =
granting=20
summary judgment in favor of Abrams on McGee=E2=80=99s breach of =
contract claim.=20
We conclude that the trial court properly granted summary judgment =
because=20
McGee presented no evidence of breach. We affirm the judgment of =
the trial=20
court.
Background
<=
/SPAN>In=20
September 2002, McGee contacted Kevin Tolentino, a recruiter for =
Abrams,=20
about a potential job opportunity. Tolentino responded that El =
Paso=20
Corporation, a client of Abrams, was seeking a mechanical engineer =
to work=20
on a project in Aruba. After discussing the position with Suren =
Chuckaree,=20
a representative of El Paso, McGee was hired for the position. =
McGee=20
entered into an employment contract with Abrams and then began =
working in=20
Aruba that same month.
<=
/SPAN>The=20
contract signed by the parties stated that the term of employment =
was one=20
year, subject to the terms of the agreement. The contract provided =
six=20
circumstances in which the employment contract could terminate =
prior to=20
the one year term, including (1) completion of the project as =
determined by Abrams; (2) for any reason by either party =
during the=20
two-month trial period; (3) for cause by Abrams; =
(4) without=20
cause by Abrams; (5) resignation by McGee; and =
(6) revocation or=20
denial of work permit. McGee stated that he understood these =
provisions of=20
the contract.
<=
/SPAN>Once=20
he arrived in Aruba, McGee had limited contact with Abrams, =
instead being=20
supervised by Chuckaree and other El Paso employees. In early =
November,=20
McGee asked Tolentino what he needed to do to take leave to be =
with his=20
wife when she gave birth to their child in Honduras in December. =
Tolentino=20
responded that McGee only needed to get permission from his =
supervisors at=20
El Paso. McGee then asked Chuckaree for permission to take a =
17-day,=20
unpaid leave. Chuckaree approved McGee=E2=80=99s request for =
leave.
<=
/SPAN>Before=20
leaving Aruba on leave, McGee met with Chuckaree to discuss the =
status of=20
all of his projects. McGee also ordered materials for one of his =
projects=20
so that he could =E2=80=9Ccomplete [the project] when [he] =
returned from [his]=20
leave.=E2=80=9D Prior to leaving Aruba, McGee left no personal =
belongings at the=20
office and moved out of the house where he was living. McGee =
received=20
payment for all of the hours he worked, including the day he =
traveled to=20
the United States on his way to Honduras. When McGee arrived in =
Honduras,=20
he learned that his wife had lost the baby that same day. =
<=
/SPAN>About=20
a week after he arrived in Honduras, McGee emailed Chuckaree, with =
a copy=20
sent to Tolentino, to inform him that he was ready to return to =
work=20
earlier than expected because of his child=E2=80=99s stillbirth. =
Two days later,=20
McGee emailed Tolentino, stating that he had not received a =
response from=20
Chuckaree and that he =E2=80=9Cassume[d] =
that . . . there=20
[was] no further interest in [his] services at the present =
time.=E2=80=9D=20
Tolentino responded that he would follow up with Chuckaree to =
=E2=80=9Cfind out if=20
they still need[ed his] services.=E2=80=9D
<=
/SPAN>McGee=20
spent the holidays with his wife and her family in Honduras. He =
emailed=20
Chuckaree again, with a copy to Tolentino, to =
=E2=80=9Cclarify=E2=80=9D that he was still=20
available for work. The following day, he sent another email to =
Tolentino,=20
stating that he was =E2=80=9Cassuming that [his] services [we]re =
no longer=20
required.=E2=80=9D Tolentino responded that he had not heard from =
Chuckaree and=20
was not aware of any requests by El Paso for services. Ted Abrams, =
the=20
president of Abrams, stated that, after receiving no response from =
Chuckaree, he determined McGee=E2=80=99s responsibilities on the =
El Paso project=20
in Aruba were completed in January.
<=
/SPAN>In=20
April, McGee contacted Tolentino to verify Chuckaree=E2=80=99s =
email address, and=20
Tolentino responded that he had forwarded all of McGee=E2=80=99s =
emails to=20
Chuckaree and that =E2=80=9Cthey may have just ran out of =
work.=E2=80=9D McGee did not=20
communicate further with Chuckaree or Tolentino. Abrams has not =
sent, nor=20
has it been asked to provide, a mechanical engineer in Aruba, =
since McGee=20
originally went in September 2002.
<=
/SPAN>In=20
September 2003, McGee filed this suit, naming Abrams and El Paso =
as=20
defendants. In his suit, McGee asserted claims for breach of =
contract and=20
vicarious liability against Abrams, as well as claims for tortious =
interference with a contract, intentional infliction of emotional=20
distress, fraudulent misrepresentation, and fraudulent inducement =
against=20
both Abrams and El Paso. Abrams filed a motion for summary =
judgment for=20
all claims against it. The trial court granted the motion with =
respect to=20
McGee=E2=80=99s claims for breach of contract and intentional =
infliction of=20
emotional distress, but denied the motion as to all other claims. =
McGee=20
nonsuited all the remaining claims against Abrams, except the =
breach of=20
contract that is the subject of this appeal. McGee does not appeal =
the=20
summary judgment for the claim for intentional infliction of =
emotional=20
distress. McGee and El Paso later jointly agreed to dismiss with =
prejudice=20
all claims against El Paso.Summary=20
Judgment
<=
/SPAN>In=20
his sole issue, McGee asserts that the trial court erred by =
granting=20
summary judgment in favor of Abrams on McGee=E2=80=99s breach of =
contract claim.=20
We review summary judgments de novo. Valence Operating Co. v.=20
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). After adequate time =
for=20
discovery, a party may move for summary judgment on the ground =
that there=20
is no evidence of one or more essential elements of a claim. Tex. R. Civ. P. 166a(i). =
Once the=20
movant specifies the elements on which there is no evidence, the =
burden=20
shifts to the nonmovant to raise a fact issue on the challenged =
elements.=20
Id. A grant of summary judgment under Rule 166a(i) will be =
affirmed=20
=E2=80=9Cwhen (1) there is a complete absence of evidence of =
a vital fact,=20
(2) the court is barred by rules of law or of evidence from =
giving=20
weight to the only evidence offered to prove a vital fact, =
(3) the=20
evidence offered to prove a vital fact is no more than a =
scintilla, or=20
(4) the evidence conclusively establishes the opposite of a =
vital=20
fact.=E2=80=9D King Ranch, Inc. v. Chapman, 118 S.W.3d 742, =
751 (Tex. 2003)=20
(internal quotation marks omitted); Mathis v. RKL =
Design/Build, 189=20
S.W.3d 839, 844 (Tex. App.=E2=80=94Houston [1st Dist.] 2006, no =
pet.). More than a=20
scintilla of evidence exists when the evidence =E2=80=9Cwould =
allow reasonable and=20
fair-minded people to differ in their conclusions.=E2=80=9D =
Forbes Inc. v.=20
Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. =
2003).
<=
/SPAN>To=20
successfully assert a claim for breach of contract, a party must =
show=20
(1) the existence of a valid contract; (2) performance =
or=20
tendered performance by the plaintiff; (3) breach of the =
contract by=20
the defendant; and (4) damages sustained by the plaintiff as =
a result=20
of the breach. Valero Mktg. & Supply Co. v. Kalama =
Int=E2=80=99l,=20
L.L.C., 51 S.W.3d 345, 351 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2001, no=20
pet.). Whether a party has breached a contract is a question of =
law for=20
the court. Meek v. Bishop, Peterson & Sharp, P.C., 919 =
S.W.2d=20
805, 808 (Tex. App.=E2=80=94Houston [14th Dist.] 1996, writ =
denied). =E2=80=9CA breach=20
occurs when a party fails or refuses to do something he has =
promised to=20
do.=E2=80=9D Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2003, no pet.) (citing Townewest Homeowners =
Ass=E2=80=99n, Inc. v.=20
Warner Commc=E2=80=99n Inc., 826 S.W.2d 638, 640 (Tex. =
App.=E2=80=94Houston [14th=20
Dist.] 1992, no writ)).
<=
/SPAN>The=20
trial court granted summary judgment on the grounds that McGee =
produced no=20
evidence of breach by Abrams. McGee asserts that he produced =
evidence=20
sufficient to raise an issue of material fact on the element of =
breach.=20
Specifically, he contends he presented evidence that (A) the=20
employment contract was for a term of one year, he was not =
employed for=20
one year, and therefore Abrams breached the contract; (B) his =
projects were not complete, and therefore Abrams had no grounds =
for=20
termination under the =E2=80=9CProject Completion=E2=80=9D section =
of the employment=20
contract; and (C) Abrams breached the contract because it =
refused to=20
allow McGee to return to Aruba to complete his project. We address =
each of=20
these assertions.
A. =
Whether=20
Contract Required Employment for One-Year Term
<=
/SPAN>We=20
disagree with McGee=E2=80=99s assertion that the contract required =
him to be=20
employed for a one-year term and was breached by McGee=E2=80=99s =
failure to employ=20
him for one year. Although the agreement mentioned a =
one-year-term, the=20
employment arrangement described was an at-will employment=20
relationship.
<=
/SPAN>Texas=20
follows the employment-at-will doctrine. Montgomery County =
Hosp. Dist.=20
v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). Thus, in an =
employment=20
contract, when a term of service is left to the discretion of =
either=20
party, is left indefinite, or is terminable by either party, =
either party=20
may end the employment at will and without cause. Hussong v. =
Schwan=E2=80=99s=20
Sales Enters., Inc., 896 S.W.2d 320, 324 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1995, no writ). To show that a contract alters the at-will=20
employment relationship, =E2=80=9Cthe writing must, =E2=80=98in a =
meaningful and special=20
way,=E2=80=99 limit the employer=E2=80=99s right to terminate the =
employment at will.=E2=80=9D=20
Id. at 324=E2=80=9325 (quoting Lee-Wright, Inc. v. =
Hall, 840 S.W.2d=20
572, 577 (Tex. App.=E2=80=94Houston [1st Dist.] 1992, no writ)). =
Further, the=20
contract must =E2=80=9Cunequivocally indicate [the =
employer=E2=80=99s] definite intent to=20
be bound not to terminate the employee except under clearly =
specified=20
circumstances.=E2=80=9D Brown, 965 S.W.2d at 502; see =
also Miller=20
v. Raytheon Aircraft Co., 229 S.W.3d 358, 375 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2007, no pet.). When the contract of employment is for a =
term, as=20
opposed to at will, the employer has the burden of showing good =
cause for=20
the discharge. Lee-Wright, 840 S.W.2d at 578.
<=
/SPAN>Though=20
the contract stated that the length of the assignment was one =
year, it=20
also unequivocally provided that the contract was terminable at =
will by=20
either party. Abrams had the option of terminating McGee =
=E2=80=9Cwithout cause,=E2=80=9D=20
and McGee could resign at any point with two weeks notice. Abrams =
also had=20
the right to terminate the contract if it determined =
McGee=E2=80=99s=20
responsibilities were complete. A contract that contains a stated =
term of=20
employment but also contains an unambiguous voluntary termination =
clause=20
does not =E2=80=9Cunequivocally indicate=E2=80=9D an intent to =
alter the at-will=20
employment relationship. See Brown, 965 S.W.2d at 502; =
see also=20
Hussong, 896 S.W.2d at 324=E2=80=9325. Under the terms of the =
agreement, McGee=20
was an at-will employee of Abrams. The contract, therefore, was =
not=20
breached by Abrams=E2=80=99s failure to employ McGee for the =
entire year. See=20
Hussong, 896 S.W.2d at 324.
B. =
Whether McGee=E2=80=99s=20
Responsibilities were Complete
<=
/SPAN>McGee=20
also asserts that the contract was not terminated in accordance =
with the=20
=E2=80=9CProjection Completion=E2=80=9D section of the agreement. =
The contract stated that=20
Abrams could terminate the agreement =E2=80=9Cupon completion of =
[McGee=E2=80=99s]=20
responsibilities in relation to the =
project . . . as=20
determined by [Abrams] . . . .=E2=80=9D In =
support of its=20
motion for summary judgment, Abrams provided an affidavit from Ted =
Abrams=20
in which he stated that he, as president of the company, =
determined that=20
McGee=E2=80=99s responsibilities with respect to the project in =
Aruba were=20
completed as of January 2003. In response, McGee offered two =
pieces of=20
evidence: (1) his own deposition, in which he states that he =
had not=20
completed his projects before he left Aruba to travel to Honduras =
and=20
wanted to return to Aruba to work, and =
(2) Tolentino=E2=80=99s deposition in=20
which Tolentino states that he had no knowledge of whether McGee =
was=20
terminated, that he had not been able to contact Chuckaree =
regarding=20
McGee, and that he did not receive another request for a =
mechanical=20
engineer for the Aruba project after September 2002.
<=
/SPAN>Because=20
the contract specifically provided that Abrams was the party to =
determine=20
whether McGee=E2=80=99s =E2=80=9Cresponsibilities in relation to =
the project=E2=80=9D were=20
complete, McGee=E2=80=99s statement that he believed he had not =
completed his=20
projects prior to leaving Aruba is not relevant to the issue of =
whether=20
the =E2=80=9CProject Completion=E2=80=9D clause had been properly =
exercised. Additionally,=20
McGee=E2=80=99s desire to return to work in Aruba is not =
indicative of a breach by=20
Abrams. The contract unambiguously provides that whether =
McGee=E2=80=99s=20
responsibilities were completed was to be determined by Abrams =
alone.=20
See GT & MC, Inc. v. Tex. City Ref., Inc., 822 S.W.2d =
252,=20
255=E2=80=9356 (Tex. App.=E2=80=94Houston [1st Dist.] 1991, writ =
denied) (holding that=20
contract is not ambiguous if contract is worded so that it can be =
given=20
definite meaning or interpretation).
<=
/SPAN> McGee=20
claims in his brief that Tolentino stated that McGee was not =
terminated in=20
accordance with the contract. However, that is not an accurate=20
characterization of Tolentino=E2=80=99s deposition. In his =
deposition, Tolentino=20
stated that he had no knowledge of whether a determination had =
been made=20
by Abrams as to the completion of McGee=E2=80=99s job =
responsibility and that he=20
had never been involved in such determinations. Contrary to =
McGee=E2=80=99s=20
assertions, Tolentino does not state that McGee was not terminated =
in=20
accordance with the terms of the contract.
<=
/SPAN>Because=20
the plain terms of the agreement allowed Abrams alone to determine =
whether=20
McGee=E2=80=99s work was complete, McGee=E2=80=99s belief about =
his work does not create a=20
fact issue.
C. =
Whether Abrams=20
Refused to Allow Him to Return to Aruba
<=
/SPAN>McGee=20
contends that he presented evidence that Abrams breached the =
contract=20
because it refused to allow McGee to return to Aruba to complete =
his=20
project. The only evidence offered in support of this claim was =
McGee=E2=80=99s=20
stated desire to return to Aruba and Tolentino=E2=80=99s statement =
that he=20
attempted, but was unable, to make contact with Chuckaree after =
McGee left=20
Aruba. Tolentino=E2=80=99s failure to get in touch with Chuckaree, =
despite=20
repeated attempts by email and telephone, is no evidence that =
Abrams=20
refused to allow McGee to return to Aruba. Cf. Dorsett, 106 =
S.W.3d=20
at 217. Further, it is no evidence of breach because the plain =
terms of=20
the agreement allowed Abrams to let McGee go without cause or when =
Abrams=20
determined McGee=E2=80=99s work was complete.
<=
/SPAN>We=20
hold that McGee offered no more than a scintilla of evidence in =
support of=20
his breach of contract claim. See Mathis, 189 S.W.3d at =
844. We=20
overrule appellant=E2=80=99s sole issue.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
&=
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p; =
; Elsa=20
Alcala
&=
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p; =
; Justice
Panel consists of Justices Taft, Keyes, =
and=20
Alcala. |