Cecil v. Hydorn , 1987 Tex. App. LEXIS 6619 ( 1987 )

OPINION

REEVES, Justice.

Evelyn Cecil, appeals by writ of error a default judgment entered in favor of Michael B. Hydom against her and two other non-appealing defendants.

Hydorn sued Cecil, Evelco Corporation and Reaching Out Corporation for breach of an employment contract. In his petition Hydom sought to recover damages actually sustained as a result of the contract breach, damages for impairment of credit rating, attorney’s fees and both pre-judgment and post-judgment interest.

The petition was filed on March 27, 1984 and service of process was had upon appellant on May 22, 1984.

On June 20, 1984, a default judgment was entered against all defendants as a result of their failure to answer or appear. The judgment provided for joint and several liability against the defendants.

On December 12, 1984, appellant filed her petition for writ of error. Neither Evelco Corporation nor Reaching Out Corporation has challenged the default judgment.

Appellant raises three points of error. First, that the original petition filed by appellee failed to state a cause of action against her. Second, that it was error to enter an award for attorney’s fees, because the original petition stated no cause of action for such- an award. Third, that the trial court erred in awarding damages for loss of credit rating because there was no evidence to support such an award.

A meager statement of facts consisting of nine typewritten pages of testimony accompanied the appellate record. The statement of facts contained only the testimony of appellee.

We address Cecil’s first contention challenging the sufficiency of Hydorn’s petition to state a cause of action against her.

The petition states in pertinent part: On or about October 3, 1983, plaintiff and defendants entered into an employment agreement to employ plaintiff as director of chemistry and research for defendant Evelco Corporation for a period of two years at a salary of $22,500.00 per annum, payable twice monthly ... Exhibit “A,” a letter executed by Polly C. Kreitz, vice president of defendant Evelco Corporation, attached hereto and meant to be incorporated herein as if set forth fully and verbatim, evidences this two year employment agreement.

Appellant argues that the pleading failed to state a cause of action against her individually because the attached exhibit, upon which Hydorn based his cause of action, neither mentioned her nor contained her signature.

Appellant relies upon the rule holding that where an obligation alleged in the pleading does not conform to the writing exhibited as a basis thereof, the document rather than the pleading controls. The rule has been more correctly stated in such cases as Davis v. Nichols, 124 S.W.2d 881 (Tex.Civ.App.—Dallas 1939, no writ); Paul v. Houston Oil Co. of Texas, 211 S.W.2d 345 (Tex.Civ.App.—Waco 1948, writ ref’d n.r.e.); Lewis v. Pittman, 191 S.W.2d 691 (Tex.Civ.App.—Eastland 1945, no writ); Supreme Camp of the American Woodmen v. Summers, 134 S.W.2d 315 (Tex.Civ.App.—Waco 1939, no writ), thusly:

It is always the duty of the plaintiff to allege facts sufficient to make out a pri-ma facie cause of action, and where his declarations or complaint are sufficient, but in conflict with the written instruments copied, in extenso, in his petition, such declarations or complaint are mere conclusions of the pleader and must yield to the terms and conditions of the written instruments.

Davis, 124 S.W.2d at 884. Thus the rule can only have application to the instant case if the allegations in appellee’s petition are conflicted, contradicted or varied with the attached exhibit.

Examination of the exhibit attached reveals such a conflict. Hydom’s petition alleged that he and Cecil entered into an employment agreement evidenced by Exhibit A attached to the petition. However, the exhibit showed no such agreement between them. It neither mentioned Cecil nor contained her signature in any capacity. Consequently, we sustain Cecil’s first point of error insofar as her personal liability for damages resulting from the breach of the employment contract.

However, because the petition stated a cause of action for moving expenses separate from the cause of action based upon the employment contract, Cecil remains personally liable for those expenses as reflected in the final judgment. In addition to the employment agreement, Hydorn alleged that Cecil and the other defendants agreed to “absorb all reasonable moving costs and interview expenses incurred pursuant to the above referenced employment agreement.” Later, the petition specifically sought $543.02 for interview expenses and $1,391.52 for moving expenses. The court’s final judgment awarded damages for moving expenses, but not for interview expenses. Therefore, Cecil remains personally liable for $1,391.52 in moving expenses.

We reverse that portion of the judgment finding Evelyn Cecil personally liable to Michael Hydorn for damages resulting from the breach of the employment contract. We sustain that part of the judgment finding Evelyn Cecil personally liable for $1,391.52 in moving expenses. As modified, we reverse and render.

CANTU, J., dissents.