Aubrey Burkett v. Ulrich Barn Builders, LLC ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00392-CV
AUBREY BURKETT,
Appellant
v.
ULRICH BARN BUILDERS, LLC,
Appellee
From the County Court at Law No. 1
Johnson County, Texas
Trial Court No. 2011-00237
MEMORANDUM OPINION
Appellant, Aubrey Burkett, challenges a summary judgment granted in favor of
appellee, Ulrich Barn Builders, LLC (“Ulrich”). The dispute centers on a purported
employment contract between Burkett and Ulrich. In two issues, Burkett asserts that
the trial court: (1) erred in granting summary judgment in favor of Ulrich based on the
conclusion that the purported employment contract was not an enforceable contract;
and (2) abused its discretion in failing to sustain his objections to Ulrich’s summary-
judgment motion. We affirm.
I. BACKGROUND
On or about September 17, 2007, Burkett entered into an agreement with Ulrich
regarding employment. The agreement, which takes the form of a memorandum
though it is entitled “Employment Contract,” provided the following, in its entirety:
This contract between Ulrich Barn Builders, LLC (hereafter referred to as
UBB) and Aubrey Burkett (hereafter referred to as employee).
Pay Specifications:
Medical allowance $80 per weekly pay period
First three months of employment:
Base Salary $750
3-6 months of employment:
Base Salary $850
6-12 months of employment:
Base Salary $850
Commission 1% of total sales managed
After 1 year of employment:
Base Salary $700
Commission 1% of total sales managed
2 Weeks paid vacation after 1 year. Holidays are considered vacation
time.
3 Weeks paid vacation after 5 years. Holidays are considered vacation
time.
4 Weeks paid vacation after 10 years. Holidays are considered vacation
time.
General Employee Guidelines: Please refer to Employee Handbook.
Nowhere in the document is a term of employment stated, nor did the memorandum
expressly state that Burkett was a contract employee for Ulrich. In any event, both
Burkett and David Ulrich, the president of Ulrich, signed the document.
Burkett v. Ulrich Barn Builders, LLC Page 2
On April 14, 2011, Burkett filed suit against Ulrich, asserting a claim for breach of
contract and seeking damages for back pay, future pay, and unreimbursed expenses. 1
In his original petition, Burkett contended that he began working for Ulrich in
September 2007; however, in June 2009, his salary was reduced to a base of $500 per
week and his health insurance allotment was cancelled. According to Burkett, Ulrich
represented that this was a temporary adjustment in Burkett’s salary, which would be
corrected in a “short period of time.” Eighteen weeks later, Burkett’s salary was further
reduced to $300 per week. Burkett complained about the salary reduction and was
allegedly told that he could work three days a week for $10 per hour until business
picked back up. Shortly thereafter, Burkett’s employment was terminated.
On June 20, 2011, Ulrich filed a summary-judgment motion, in which it asserted
that it was entitled to judgment as a matter of law because Burkett was an “at will”
employee and the memorandum did nothing to alter that status. However, Ulrich did
not specifically note that it was seeking a summary judgment on traditional grounds,
and it did not attach any evidence to its motion.
Burkett subsequently filed a response and objections to Ulrich’s motion, arguing
that Ulrich failed to specify whether the motion was a traditional or no-evidence motion
for summary judgment and that Ulrich failed to specifically state the elements as to
which there is no evidence. Burkett also complained that Ulrich did not attach any
1 Burkett’s damage claims are premised on the assumption that the memorandum was an
employment contract and that Ulrich was required to strictly comply with the memorandum regarding
salary and expenses.
Burkett v. Ulrich Barn Builders, LLC Page 3
evidence to its motion. In his response, Burkett contended that there are fact issues
precluding summary judgment regarding his claim for breach of the memorandum.
Without a hearing, the trial court overruled Burkett’s objections and granted
Ulrich’s summary-judgment motion. In its final judgment, the trial court specifically
determined “that the Exhibit attached to Plaintiff’s Original Petition does not constitute
a contract.” As such, the trial court ordered that Burkett take nothing from Ulrich.
Burkett later filed a “Motion for New Hearing” and a motion for new trial, both of
which were denied. This appeal followed.
II. BURKETT’S OBJECTIONS TO ULRICH’S SUMMARY-JUDGMENT MOTION
In his second issue, Burkett argues that the trial court abused its discretion in
overruling his objections to Ulrich’s summary-judgment motion. Specifically, Burkett
contends that Ulrich’s summary-judgment motion fails because Ulrich did not: attach
the agreement as evidence; specifically state whether it was a traditional or no-evidence
motion; support the motion with affidavits; and list the elements of its claim for
summary judgment. For the reasons listed below, we disagree.
A. Standard of Review
We review a trial court’s ruling on an objection to summary-judgment evidence
for an abuse of discretion. Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 567
(Tex. App.—Fort Worth 2008, pet. denied); Doncaster v. Hernaiz, 161 S.W.3d 594, 601
(Tex. App.—San Antonio 2005, no pet.) (citing Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998)). A trial court abuses its discretion if it acts arbitrarily and
unreasonably, that is, without reference to any guiding rules or principles. Cire v.
Burkett v. Ulrich Barn Builders, LLC Page 4
Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004); Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241-42 (Tex. 1985). Merely because a trial court may decide a discretionary
matter differently than the appellate court does not demonstrate an abuse of discretion.
Cire, 134 S.W.3d at 838-39.
B. Discussion
With regard to Burkett’s contention that Ulrich’s summary-judgment motion
failed to attach affidavits, we note that Texas Rule of Civil Procedure 166a(b)
specifically provides the following, in pertinent part: “A party against whom a
claim . . . is asserted . . . may, at any time, move with or without supporting affidavits
for a summary judgment in his favor as to all or any part thereof.” TEX. R. CIV. P.
166a(b). Therefore, it was not incumbent upon Ulrich to attach affidavits to its
summary-judgment motion. See id.
In addition, Burkett’s complaint about Ulrich’s failure to attach the agreement to
its summary-judgment motion also fails because the trial court determines a motion for
summary judgment based on the pleadings on file at the time of the hearing, or filed
thereafter and before judgment with permission of the court. See Spin Doctor Golf, Inc. v.
Paymentech, L.P., 296 S.W.3d 354, 361 (Tex. App.—Dallas 2009, pet. denied) (citing Tex.
R. Civ. P. 166a(c)); see also Elmakiss v. Hughes, No. 12-09-00269-CV, 2010 Tex. App. LEXIS
6185, at **4-5 (Tex. App.—Tyler July 30, 2010, pet. denied) (mem. op.). Here, the
memorandum was already on file with the trial court because Burkett had attached it to
his original petition. See TEX. R. CIV. P. 59, 74. As such, Ulrich was not obligated to
attach another copy of the memorandum to its summary-judgment motion for
Burkett v. Ulrich Barn Builders, LLC Page 5
consideration by the trial court. See TEX. R. CIV. P. 59, 74, 166a(c); Spin Doctor Golf, Inc.,
296 S.W.3d at 361; see also Elmakiss, 2010 Tex. App. LEXIS 6185, at **4-5.
Further, Burkett’s objection that Ulrich failed to specify whether the motion was
a traditional or no-evidence motion for summary judgment also fails. Though Ulrich
did not explicitly state whether the motion was a traditional or no-evidence motion for
summary judgment, we note that the two summary-judgment standards are distinct;
therefore, we must determine which type of summary judgment is at issue. Compare
TEX. R. CIV. P. 166a(c), with TEX. R. CIV. P. 166a(i). In Grimes v. Reynolds, the Fourteenth
Court of Appeals held that “[s]ince a motion that does not clearly and unambiguously
state it is being filed under Rule 166a(i) does not give the non-movant notice that the
movant is seeking a no-evidence summary judgment, we will construe it as a traditional
motion under Rule 166a(c).” 252 S.W.3d 554, 558 (Tex. App.—Houston [14th Dist.]
2008, no pet.); see Adams v. Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, 420 (Tex.
App.—Houston [14th Dist.] 2003, no pet.); Michael v. Dyke, 41 S.W.3d 746, 750 (Tex.
App.—Corpus Christi 2001, no pet.) (holding that when a motion for summary
judgment fails to unambiguously state it is filed under Rule 166a(i) and does not strictly
comply with the requirements of that rule, it will be construed as a traditional motion
for summary judgment). This presumption corresponds with how the parties and the
trial court treated the motion. We therefore conclude that Ulrich’s summary-judgment
motion was brought on traditional grounds.
Finally, we disagree with Burkett’s argument that Ulrich failed to explain its
entitlement to summary judgment. See TEX. R. CIV. P. 166a(c) (“The motion for
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summary judgment shall state the specific grounds therefor.”). In the motion, Ulrich
specifically stated that the memorandum was not an enforceable employment contract
because it lacked termination language and did not alter Burkett’s “at will” employee
status. According to Ulrich, because the memorandum was unenforceable as an
employment contract, Ulrich was entitled to judgment as a matter of law with respect to
Burkett’s breach of contract claim. Based on our reading of the summary-judgment
motion, we cannot say that Ulrich failed to “state the specific grounds therefor.” See id.;
see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340 (Tex. 1993)
(“Grounds may be stated concisely, without detail and argument. But they must at
least be listed in the motion.”); Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992)
(holding that an appellate court will not affirm a summary judgment on a ground not
specifically presented in a motion for summary judgment).
Because we do not find any of Burkett’s objections to be meritorious, we cannot
conclude that the trial court abused its discretion in overruling the objections. See
Malone, 972 S.W.2d at 43; Paciwest, Inc., 266 S.W.3d at 567; Doncaster, 161 S.W.3d at 601.
Burkett’s second issue is overruled.
III. THE MEMORANDUM
In his first issue, Burkett argues that the trial court erred in granting summary
judgment in Ulrich’s favor because the memorandum was an enforceable employment
contract that required Ulrich to pay him salary plus bonuses, which Ulrich allegedly
failed to do. Ulrich counters that the trial court properly concluded that the
Burkett v. Ulrich Barn Builders, LLC Page 7
memorandum was not an enforceable contract because it did not alter the presumption
that Burkett was an “at will” employee.
A. Standard of Review
We review the grant or denial of a traditional summary judgment de novo. See
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005); Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). A movant is entitled to summary
judgment if he demonstrates that no genuine issues of material fact exist and that he is
entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); see also Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The movant bears the burden of
proof in a traditional motion for summary judgment, and all doubts about the existence
of a genuine issue of material fact are resolved against the movant. See Sw. Elec. Power
Co., 73 S.W.3d at 215. We take as true all evidence favorable to the non-movant, and we
indulge every reasonable inference and resolve any doubts in the non-movant’s favor.
See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
We will affirm a traditional summary judgment only if the record establishes that
the movant has conclusively proved its defense as a matter of law or if the movant has
negated at least one essential element of the plaintiff’s cause of action. IHS Cedars
Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). A matter is
conclusively established if reasonable people could not differ as to the conclusion to be
drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Only
when the movant has produced sufficient evidence to establish its rights to summary
judgment does the burden shift to the non-movant to come forward with competent
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controverting evidence raising a genuine issue of material fact with regard to the
element challenged by the defendant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223
(Tex. 1999).
B. Breach of Contract
In his original petition, Burkett asserted a breach of contract cause of action. A
breach of contract occurs when a party fails to perform an act that it has explicitly or
impliedly promised to perform. Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 299 (Tex.
App.—Dallas 2009, no pet.). The elements of a breach-of-contract claim are: (1) the
existence of a valid contract between the plaintiff and defendant; (2) the plaintiff’s
performance or tender of performance; (3) the defendant’s breach of the contract; and
(4) the plaintiff’s damage as a result of that breach. Id. Ulrich’s summary-judgment
motion attacked the first element, asserting that the memorandum upon which Burkett
relied was not an enforceable contract. See id. Thus, in analyzing this issue, we must
examine the language of the memorandum to determine whether it is enforceable.
C. Contract Interpretation and Employment Contracts
The construction and meaning of an unambiguous contract is a question of law.
Ganske v. Spence, 129 S.W.3d 701, 707 (Tex. App.—Waco 2004, no pet.). In construing the
written agreement, the primary concern of the court is to ascertain the true intentions of
the parties as expressed within the four corners of the instrument. Coker v. Coker, 650
S.W.2d 391, 393 (Tex. 1983); see Calpine Producer Servs., L.P. v. Wiser Oil Co., 169 S.W.3d
783, 787 (Tex. App.—Dallas 2005, no pet.). We consider the entire writing and attempt
to harmonize and give effect to all the provisions of the contract by analyzing the
Burkett v. Ulrich Barn Builders, LLC Page 9
provisions with reference to the whole agreement. Frost Nat’l Bank v. L&F Distribs., Ltd.,
165 S.W.3d 310, 312 (Tex. 2005) (per curiam).
D. Discussion
In his original petition, Burkett contended that the memorandum constituted an
employment contract, thus obligating Ulrich to pay him the salary amounts listed.
Texas follows the rule of at-will employment, under which employment for an
indefinite term may be terminated at will and without cause. Schroeder v. Tex. Iron
Works, Inc., 813 S.W.2d 483, 489 (Tex. 1991). A Texas employer may fire an employee at
will for good cause, bad cause, or no cause at all. Montgomery County Hosp. Dist. v.
Brown, 965 S.W.2d 501, 502 (Tex. 1998). Under Texas law, we presume that Burkett
remained an at-will employee throughout his employment with Ulrich. See Fed. Express
Corp. v. Dutchmann, 846 S.W.2d 282, 283 (Tex. 1993). Burkett must prove that Ulrich
expressly, clearly, and specifically agreed to modify his at-will status. See Brown, 965
S.W.2d at 503. To modify the at-will employment relationship, an employer must
unequivocally manifest a definite intent to be bound not to terminate an employee
except under clearly specified circumstances. Midland Judicial Dist. Cmty. Supervision &
Corr. Dep’t v. Jones, 92 S.W.3d 486, 487 (Tex. 2002) (per curiam).
In Jones, for example, the plaintiff was given a memorandum stating the
compensation she would receive, raises anticipated over the next year, and that the
salary figures were “contingent upon [her] future performance evaluations and
available county funding.” 92 S.W.3d at 487. The memorandum did not state that the
employment could be terminated only for specific reasons. Id. The supreme court held
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that the memorandum did not reflect an “intent to be bound not to terminate her
employment except under clearly specified circumstances.” Id. Thus, summary
judgment was proper in favor of the employer. Id.
The memorandum in this case did not state with any specificity the terms of the
employment. See Durckel v. St. Joseph Hosp., 78 S.W.3d 576, 581 (Tex. App.—Houston
[14th Dist.] 2002, no pet.) (“General statements about working conditions, disciplinary
procedures or termination rights are not sufficient to change the at-will employment
relationship; rather, the employer must expressly, clearly, and specifically agree to
modify the employee’s at-will status.”); see also C.S.C.S., Inc. v. Carter, 129 S.W.3d 584,
591 (Tex. App.—Dallas 2003, no pet.) (holding that an employment contract for a term
may still be at will if the agreement allows termination for any reason); Curtis v. Ziff
Energy Group, Ltd., 12 S.W.3d 114, 118 (Tex. App.—Houston [14th Dist.] 1999, no pet.)
(same). Nowhere in the memorandum did Ulrich express an unequivocal intent to be
bound “not to terminate [Burkett’s] employment except under clearly specified
circumstances.” See Jones, 92 S.W.3d at 487. The memorandum simply provided a
summary of Burkett’s medical allowance, vacation time, and salary. See Ed Rachal
Found. v. D’Unger, 207 S.W.3d 330, 332 (Tex. 2006) (per curiam) (“Standing alone, an
agreement to pay at a stated rate is not enough [to alter the at-will employment
relationship]; if it were, there would be very few at-will employees.”).
Based on our reading of the memorandum, there is no language altering the at-
will employment relationship between Burkett and Ulrich. See Jones, 92 S.W.3d at 487;
see also Brown, 965 S.W.2d at 503. And because the memorandum did not alter the at-
Burkett v. Ulrich Barn Builders, LLC Page 11
will employment relationship between the parties, we cannot say that it was an
enforceable contract upon which Burkett could rely for his breach-of-contract claim. See
Jones, 92 S.W.3d at 488; see also Fuller v. Haynes, Nos. 13-07-00763-CV, 13-07-00764-CV,
2009 Tex. App. LEXIS 7838, at *11 (Tex. App.—Corpus Christi Oct. 8, 2009, no pet.)
(mem. op.). Accordingly, we conclude that Ulrich established its right to summary
judgment on Burkett’s breach-of-contract claim, and Burkett did not raise an issue of
material fact. See TEX. R. CIV. P. 166a(c); see also Sw. Elec. Power Co., 73 S.W.3d at 215. As
such, we cannot say that the trial court erred in granting summary judgment in favor of
Ulrich. See Mason, 143 S.W.3d at 798; see also Jackson, 157 S.W.3d at 816 n.7; Knott, 128
S.W.3d at 215-16. Burkett’s first issue is overruled.
IV. CONCLUSION
Having overruled both of Burkett’s issues on appeal, we affirm the judgment of
the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 21, 2012
[CV06]
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