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 1999-08

James Wegner v. Dell Computer Corporation and Ken Hashman ( 1999 )


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    TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





    ON MOTION FOR REHEARING





    NO. 03-99-00028-CV

    James Wegner, Appellant


    v.



    Dell Computer Corporation and Ken Hashman, Appellees







    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

    NO. 98-03154, HONORABLE MARGARET COOPER, JUDGE PRESIDING

    We withdraw our original opinion and judgment issued July 15, 1999, and substitute this one in its place.

    James Wegner, appellant, appeals from a summary-judgment order favoring Dell Computer Corporation ("Dell") and Ken Hashman, appellees. Wegner sued Dell claiming wrongful termination based on breach of contract and violation of public policy. Wegner also sued Hashman, his supervisor at Dell, claiming Hashman tortiously interfered with his employment contract. The trial court granted Dell's special exception to Wegner's breach of contract claim based on public policy and rendered summary judgment against Wegner on his remaining claims. Wegner appeals, arguing in four points of error that the trial court erred in rendering summary judgment on his causes of action and abused its discretion by both denying Wegner's motion to continue the summary judgment hearing and granting Dell's special exception. We will affirm in part and reverse and remand in part the judgment of the trial court.



    BACKGROUND

    In the spring of 1993, Wegner accepted employment with Dell. From 1993 until 1997, the record indicates that Dell and Wegner viewed their employment relationship positively. Dell awarded Wegner numerous stock option and bonus opportunities. However, by September 1997, the employment relationship had deteriorated. Dell placed Wegner on a ninety-day "Performance Improvement Plan" to address deficiencies in his job performance. Subsequently, Hashman, Wegner's supervisor, terminated Wegner before he completed the probationary period.

    In his wrongful termination suit against Dell, Wegner alleged Dell breached his employment contract. In addition, Wegner alleged Dell violated public policy by terminating him to prevent his collection of "soon-to-mature" stock options. He also sued Hashman, alleging Hashman tortiously interfered with his employment contract. Dell answered that Wegner was an at-will employee and, as such, could be fired with or without cause, and that Hashman, as its agent, could not, as a matter of law, tortiously interfere with Wegner's employment contract. Dell also specially excepted to Wegner's allegation of a public policy violation on the ground that such a violation had no basis in law. The trial court sustained this special exception. Dell and Hashman then moved for, and were granted, summary judgment. In four points of error, Wegner claims that the trial court erred: (1) by granting summary judgment on Wegner's breach of contract claim against Dell because a material question existed as to whether Wegner's employment contract was for a specified period of time, thereby requiring good cause for termination; (2) by awarding summary judgment to Hashman on Wegner's claim of tortious interference; (3) by not granting Wegner's motion to continue the summary judgment hearing; and (4) by granting Dell's special exception dismissing Wegner's claim of wrongful discharge based on public policy.



    DISCUSSION

    Wegner's first two points of error argue that the trial court erred in granting summary judgment. Summary judgment is proper only if Wegner could not succeed as a matter of law on any claim pleaded. See Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983). In reviewing the trial court's grant of summary judgment in this case, the standards for review are well established: (1) Dell has the burden of demonstrating that no genuine issue of material fact exists and is thus entitled to judgment as a matter of law; (2) in deciding if there is a disputed material fact that would preclude summary judgment, the evidence favorable to Wegner will be taken as true; and (3) every reasonable inference must be indulged in favor of Wegner and any doubt resolved in his favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).



    Breach of Contract

    Wegner argues in his first point of error that his employment contract with Dell was for a specified term, not at will, and that the trial court improperly granted summary judgment to Dell. We disagree. All employment relationships in Texas are presumed at will unless there is a specific agreement to the contrary. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998); Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993). Employment at will may be terminated with or without cause. Montgomery County, 965 S.W.2d at 502; Byars v. City of Austin, 910 S.W.2d 520, 523 (Tex. App.--Austin 1995, writ denied) (citing Federal Express, 846 S.W.2d at 283). Any modification of at-will employment must be based upon an unequivocal statement by the employer not to terminate the employee except under clearly specified circumstances. Id. One cannot imply such a modification; it must be done expressly. Byars, 910 S.W.2d at 523.

    Dell argues that the instant cause presents the typical case for the application of Texas's employment-at-will doctrine. Dell points out that, not only was there no express or specific agreement between Dell and Wegner that he was anything other than an at-will employee, but, in addition, Dell explicitly informed Wegner of his at-will status on numerous documents signed by Wegner:



    • Wegner's application for employment: "I understand and agree that my employment is for no definite period and may, regardless of the date or interval of payment of my wages or salary, be terminated at any time without any previous notice or obligation on the part of the company";

    • Wegner's employment agreement which accompanied Dell's offer of employment: "My employment at Dell is for no specified period of time. Either I or Dell may terminate my employment at any time for any reason, with or without cause";

    • Wegner's stock option agreements of August 24 and November 22, 1993, and March 2, 1994: "This agreement and the option granted do not imply that your employment with [Dell] will continue for any specified period of time";

    • Wegner's Performance Improvement Plan: "This is not a guarantee that your employment with Dell will be continued through this ninety (90) day time frame, since Dell retains its usual right to terminate employment at any time for any lawful reason."


    Dell argues that these signed statements evidence Wegner's at-will status and the lack of a contractual agreement for a specified term. Dell further argues that since this was an employment-at-will relationship, Montgomery County clearly governs this case and Dell remained free to discharge Wegner with or without cause.

    Wegner counters that these employment documents create a fact dispute as to whether he and Dell had a contractual relationship for a specified period of time. Wegner urges that we interpret the initial letter from Dell offering employment as an offer for a one-year employment contract, which was subsequently renewed through Dell memoranda. (1) Wegner specifically relies on the following communications from Dell to create a contract for a specified term: language in his offer letter notifying him that he would be eligible for an annual bonus; additional language in his offer letter notifying him that he would receive a signing bonus and moving expense reimbursement, both contingent upon remaining in Dell's employ for at least one year; language in the stock option offerings and agreements notifying him that such purchases could be made incrementally over a number of years; memos from Dell management announcing that Wegner would be eligible for fiscal-year bonus programs; and, language in the Performance Improvement Plan which informed Wegner that the Improvement Program was ninety days in duration.

    In support of his contention that the initial offer of employment created a one-year contract, Wegner directs this Court to Dallas Hotel Co. v. Lackey, 203 S.W.2d 557 (Tex. Civ. App.--Dallas 1947, writ ref'd n.r.e.). In Lackey, the court held that a letter from Dallas Hotel offering employment to the plaintiff constituted a one-year employment contract. Id. at 559. After moving to Dallas, plaintiff was presented with and signed an employment agreement containing employment-at-will language; this was the first mention of such an arrangement by the employer. The court found that the parties manifested their intent to form a contract for one year based on the contents of the initial offer letter. Id. at 561-62. While the letter was silent as to the duration of employment, it contained a guarantee of a bonus at the end of the first year; the court found that this guarantee provided the duration element of the employment contract. Id. The court found the parties mutually intended a one-year employment contract based on the letter; because the letter specifically outlined the nature of their employment relationship, it controlled over the general language of the company's generic employment agreement. Id. at 561.

    Wegner relies on language in his offer of employment that refers to his eligibility for an annual bonus to bring this case within the holding of Lackey. But his reliance on Lackey is misplaced; the present case is clearly distinguishable. The plaintiff in Lackey was guaranteed a bonus at the end of his first year of employment. Id. at 559. Wegner was merely informed in the offer letter that he would be eligible for such a bonus. Dell never guaranteed Wegner a bonus. As for the signing bonus and moving expense reimbursement, they were contingent on Wegner remaining in Dell's employ for one year; such an offer cannot be read as a guarantee. See Montgomery County, 965 S.W.2d at 502; see also Byars, 910 S.W.2d at 523. Far from manifesting an intent to form a one-year employment contract, Dell provided explicit and unambiguous documentation of its intention to hire Wegner as an at-will employee. Dell notified Wegner of its intention on the application for employment, before Wegner ever received the offer letter. Dell again notified Wegner of his at-will status through the employment agreement included with the offer letter. There exists no evidence that Dell ever manifested an intent to create a binding employment contract for a specified term, and, thus, we find Lackey inapposite to the present situation.

    We now examine the specificity of the statements upon which Wegner relies as the basis for his alleged contract. An employer can only modify the employment-at-will relationship by specific, express statements. Montgomery County, 965 S.W.2d at 502; Byars, 910 S.W.2d at 523. Indefinite assurances, encouragements, and comments cannot be the basis of a formal agreement limiting the at-will status of an employee. Montgomery County, 965 S.W.2d at 502. There is nothing sufficiently definite in any of the statements relied upon by Wegner to satisfy this legal requirement. In addition, most of the vague statements relied upon by Wegner are contained in documents that explicitly and unambiguously affirm his status as an at-will employee; such statements cannot be the basis of a contract of employment for a specified term. See Hurt v. Standard Oil Co., 444 S.W.2d 342, 346 (Tex. Civ. App.--El Paso 1969, no writ) (plaintiff cannot rely on parts of documents making vague assurances of job security while disregarding parts of the same documents unfavorable to his position). The remaining statements upon which Wegner relies, namely the letters informing him of his participation in fiscal-year bonus plans, are far too indefinite to constitute the clear, specific, and express statements required for an employer to modify the employment at-will relationship. See Montgomery County, 965 S.W.2d at 502; see also Byars, 910 S.W.2d at 523.

    We find that Wegner failed, as a matter of law, to raise a material question of fact that he was anything more than an at-will employee of Dell. However, a fact issue does remain as to whether Dell fired Wegner for cause. Wegner argues that he is entitled to several fringe benefits absent his being terminated for cause. (2) The employment agreement issued by Dell and signed by Wegner states:



    Should Dell terminate my employment, unless for cause, it may do so effective after two weeks notice, or effective immediately if Dell pays severance compensation equal to two weeks of my basic salary or wages. Termination for cause may be effective immediately without payment of any compensation.





    After reviewing the record, we cannot say in a summary judgment context, that Dell terminated Wegner for cause as a matter of law. Therefore, we overrule Wegner's first point of error as to his at-will employment status, but sustain the point insofar as it raises a fact issue concerning severance compensation.



    Tortious Interference

    Wegner next asserts as error the trial court's grant of summary judgment on his tortious interference claim. Hashman is entitled to summary judgment if he disproves one element of the claim as a matter of law. See Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex. 1998). The elements of tortious interference with a contract are: (1) the existence of a contract subject to interference; (2) willful and intentional interference; (3) interference that proximately caused damage; and (4) actual damage or loss. Id. Hashman, as an agent of Dell, argues that Wegner cannot prove as a matter of law the "willful and intentional interference" element of tortious interference. To satisfy this element for the purpose of summary judgment, Wegner must raise a material question of fact that Hashman acted solely in his own interest, disregarding the interests of Dell. See id. at 457. Mixed motives seeking to further both corporate and personal interests are insufficient to establish liability. See id. In considering this issue, we look to the corporation's evaluation of the agent's actions. See id. Since Dell has not complained of Hashman's behavior in placing Wegner on a Performance Improvement Plan and subsequently firing him, Hashman cannot be held to have acted contrary to Dell's interest. See id. In fact, Dell has actively defended Hashman's actions. Wegner fails to raise a material issue of fact that Hashman willfully and intentionally interfered with his employment contract; Hashman was therefore entitled to summary judgment. Accordingly, we overrule Wegner's second point of error.



    Abuse of Discretion

    Wegner's remaining two points of error charge that the trial court abused its discretion in granting a special exception and overruling Wegner's motion for continuance. An abuse of discretion takes the form of an arbitrary and unreasonable use of discretion by the trial court where the trial court acted without regard to any guiding rule or principle. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-43 (Tex. 1985). In determining whether the trial court abused its discretion, this Court will not simply substitute its own judgment for that of the trial court. See Downer, 701 S.W.2d at 241-43.

    In his fourth point of error, Wegner argues that the trial court abused its discretion by granting Dell's special exception; he argues that Texas law recognizes an exception to the employment-at-will doctrine based on the public policy against terminating employees to prevent them from collecting various corporate benefits. However, as the law currently stands, there exists only one exception to the employment-at-will doctrine in Texas--discharge of an employee for refusing to commit an illegal act. See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). Wegner relies on McClendon v. Ingersoll-Rand Co. in support of his contention that his situation represents an additional exception to the employment-at-will doctrine. 779 S.W.2d 69, 70-71 (Tex. 1989) (employees can recover if principal reason for discharge was employer's desire to avoid paying pension benefits), rev'd, 498 U.S. 133 (1990) (holding this cause of action preempted by the Employee Retirement Income Security Act of 1974), opinion withdrawn on remand, 807 S.W.2d 577 (Tex. 1991). Wegner's reliance on McClendon is not persuasive. The Texas Supreme Court has withdrawn its McClendon opinion on remand. See McClendon, 807 S.W.2d at 577. Additionally, this Court has since held that Sabine Pilot remains the only exception to the employment-at-will doctrine. See Doe v. Smithkline Beecham Corp., 855 S.W.2d 248, 254 (Tex. App.--Austin 1993), aff'd as modified, 903 S.W.2d 347 (1995).

    The record presents no claim that Dell discharged Wegner for refusing to engage in criminal activity; thus, the Sabine Pilot exception to the employment-at-will doctrine does not apply to the present case. In reviewing the grant of Dell's special exception by the trial court, we note that the trial court correctly applied the law. The trial court has broad discretion in ruling on special exceptions, and its ruling will not be disturbed absent an abuse of discretion. Slentz v. American Airlines, Inc., 817 S.W.2d 366, 368 (Tex. App.--Austin 1991, writ denied). We cannot say that in applying the law, the trial court acted arbitrarily or without reference to any guiding principle. Therefore, we overrule Wegner's fourth point of error.

    Wegner's third point of error claims that the trial court abused its discretion in not granting him a continuance of the summary-judgment hearing. Denial of a motion to continue a proceeding will not be overturned absent a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Roob v. Von Beregshasy, 866 S.W.2d 765, 767 (Tex. App.--Houston [1st Dist.] 1993, writ denied). Wegner cites no violations of either law or court procedure that would indicate that the trial court acted arbitrarily or without regard to any guiding principle, and the record does not indicate any such arbitrary action by the trial court. Accordingly, we overrule Wegner's third point of error.



    CONCLUSION

    Under Texas law, Wegner was an at-will employee as a matter of law. However, because a fact issue remains as to whether Wegner was terminated for cause, we reverse that portion of the take-nothing judgment regarding the question of termination for cause and any commensurate benefits, and remand to the trial court for further proceedings. The judgment is in all other respects affirmed.





    Mack Kidd, Justice

    Before Justices Jones, Kidd and Patterson

    Affirmed in Part; Reversed and Remanded in Part

    Filed: August 26, 1999

    Do Not Publish

    1. Wegner argues that the contract formed by his offer of employment was renewed yearly, either impliedly by Dell's silence or explicitly by Dell's letters announcing Wegner's eligibility for fiscal-year bonus programs. Wegner further argues that this contract, as renewed, entitled him to employment with Dell until February 1, 1998. Additionally, Wegner argues that since stock options announced in his initial offer of employment were to mature on April 5, 1998, he was entitled to either employment until that date or the award of those options. Due to our disposition of the case, we need not reach these arguments.

    2. Dell argues that Wegner's pleadings are insufficient to support his claim for severance pay. After reviewing the pleadings, we find them sufficiently specific to put Dell on notice regarding this claim. See Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993) ("A petition is sufficient if a cause of action or defense may be reasonably inferred from what is specifically stated.").

    ting Dell's special exception; he argues that Texas law recognizes an exception to the employment-at-will doctrine based on the public policy against terminating employees to prevent them from collecting various corporate benefits. However, as the law currently stands, there exists only one exception to the employment-at-will doctrine in Texas--discharge of an employee for refusing to commit an illegal act. See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). Wegner relies on McClendon v. Ingersoll-Rand Co. in support of his contention that his situation represents an additional exception to the employment-at-will doctrine. 779 S.W.2d 69, 70-71 (Tex. 1989) (employees can recover if principal reason for discharge was employer's desire to avoid paying pension benefits), rev'd, 498 U.S. 133 (1990) (holding this cause of action preempted by the Employee Retirement Income Security Act of 1974), opinion withdrawn on remand, 807 S.W.2d 577 (Tex. 1991). Wegner's reliance on McClendon is not persuasive. The Texas Supreme Court has withdrawn its McClendon opinion on remand. See McClendon, 807 S.W.2d at 577. Additionally, this Court has since held that Sabine Pilot remains the only exception to the employment-at-will doctrine. See Doe v. Smithkline Beecham Corp., 855 S.W.2d 248, 254 (Tex. App.--Austin 1993), aff'd as modified, 903 S.W.2d 347 (1995).

    The record presents no claim that Dell discharged Wegner for re