Day & Zimmermann, Inc. v. Hatridge

• Decision Date: 12 May 1992
• Docket Number: No. 6-91-077-CV,6-91-077-CV
• Citation: 831 S.W.2d 65
• Parties: 127 Lab.Cas. P 57,639 DAY & ZIMMERMANN, INC., Appellant, v. Ben HATRIDGE, Appellee.
• Court: Texas Court of Appeals

Page 65

831 S.W.2d 65

127 Lab.Cas. P 57,639

DAY & ZIMMERMANN, INC., Appellant, v. Ben HATRIDGE, Appellee.

No. 6-91-077-CV.

Court of Appeals of Texas Texarkana.

May 12, 1992.

John R. Mercy, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellant.

Thomas R. Newman, Texarkana, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Day & Zimmermann, Inc. appeals from a judgment in favor of Ben Hatridge in a wrongful discharge case.

Day & Zimmermann contends that the trial court lacked jurisdiction over the case because the events occurred on a federal enclave; that the cause of action was preempted by the Labor-Management Relations Act; that Hatridge's implied employment contract was unenforceable because it was not in writing; and that Hatridge did not establish a cause of action for wrongful discharge because he was employed on an at-will basis.

Day & Zimmermann also contends the trial court erred in allowing Hatridge to recover for a breach of a duty arising from a special relationship and in instructing the jury that "Longevity of employment creates an expectation of longevity which constitutes a verbal contract of employment." Day & Zimmermann further contends that there was no or insufficient evidence to support the jury's findings that (1) there was a contract separate and apart from the collective bargaining agreement, (2) there was an oral, written, or implied promise by Day & Zimmermann that Hatridge's employment would not be terminated without good cause, and (3) Day & Zimmermann terminated Hatridge's employment without good cause. Finally, Day & Zimmermann urges that the jury's failure to find that Hatridge voluntarily resigned was against the great weight and preponderance of the evidence.

Hatridge brings two cross-points of error. He contends the trial court erred in failing to set aside jury findings which were against the great weight and preponderance of the evidence and in admitting irrelevant evidence.

Day & Zimmermann hired Hatridge in 1962. In 1984, Janice Hampton, an inspector at the plant, complained about Hatridge's conduct of taking parts out of the reject bin and putting them back on the line. After a series of verbal exchanges and incidents, Hatridge, as a gesture of disrespect, dropped his pants in Hampton's presence.

A disciplinary hearing was held on August 1, 1984. It was determined that Hatridge had violated Day & Zimmermann's Rules of Conduct 1.543, Offensive Acts of Sexual Behavior, and 1.546, Falsification of Fact During Investigation. Hatridge was given the choice to resign, and keep considerable accrued vacation and sick leave benefits, or to be terminated and lose the benefits. Hatridge decided to keep the benefits and he did not pursue a union appeal or grievance procedure.

On July 24, 1986, Hatridge filed this suit. Summary judgment was granted to Day & Zimmermann on the basis of Section 301 preemption (Labor-Management Relations Act, 29 U.S.C.A. § 185 (West 1978)); this Court reversed that summary judgment in Hatridge v. Day & Zimmermann, Inc., 789 S.W.2d 654 (Tex.App.-Texarkana 1990, no writ). The case was then tried to a jury which found for Hatridge and awarded him $64,029.20 in damages.

Initially, Day & Zimmermann contends that the trial court lacked jurisdiction because the events giving rise to the action occurred on a federal enclave. By deed, Texas ceded to the United States exclusive jurisdiction over the Lone Star Army Ammunition Plant where this cause arose, reserving concurrent jurisdiction for the service of civil and criminal process.

Day & Zimmermann argues that the federal courts have exclusive jurisdiction over actions arising on federal enclaves. The cases cited in support of this contention, however, concerned whether particular state statutes and taxes were applicable to federal enclaves. ¹ They did not decide which court system had jurisdiction of actions arising on federal land.

State courts can have jurisdiction over an action arising on a federal enclave if the cause of action is transitory. Red Top Cab Co. v. Capps, 270 S.W.2d 273 (Tex.Civ.App.-Austin 1954, writ ref'd n.r.e.). Such actions can be maintained wherever there is in personam jurisdiction over the parties. Schaff v. Ellison, 255 S.W. 680 (Tex.Civ.App.-San Antonio 1923, writ ref'd); see also, Ohio River Contract Co. v. Gordon, 244 U.S. 68, 37 S.Ct. 599, 61 L.Ed. 997 (1917).

An action on a contract is transitory. Cole v. Lee, 435 S.W.2d 283, 287 (Tex.Civ.App.-Dallas 1968, writ dism'd); 20 AM.JUR.2D Courts § 126 (1965). The present action alleges a breach of contract; therefore it is transitory and the State court had jurisdiction. Day & Zimmermann's first point of error is overruled.

We shall next address Day & Zimmermann's eighth and ninth points of error, in which it contends that there was no evidence to support the jury's finding of an oral, written, or implied contract, apart from the union contract, that provided that Hatridge could not be terminated without good cause. In ruling on these points, we shall discuss issues raised by Day & Zimmermann's contentions that the alleged contract fell within the statute of frauds and that Hatridge's claim was preempted by federal law.

In reviewing the legal sufficiency of the evidence, this Court must consider only the evidence and reasonable inferences from the evidence that tend to support the jury's finding and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518 (Tex.1988).

Subject to one narrow exception, Texas adheres to the doctrine of employment at will, under which employment for an indefinite term may be terminated by either party at will, with or without cause. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 489 (Tex.1991); East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99 (1888). Valid contractual limitations on the right to terminate may, of course, be imposed by agreement of the parties. United Transportation Union v. Brown, 694 S.W.2d 630, 632 (Tex.App.-Texarkana 1985, writ ref'd n.r.e.). To establish a cause of action for wrongful discharge, an employee must prove that he and his employer entered into a contract that specifically provided that the employer did not have the right to terminate the employment at will. Webber v. M.W. Kellogg Co., 720 S.W.2d 124, 127 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.).

The Webber court also stated that the contract must be in writing. ² The writing requirement, however, stems from TEX.BUS. & COM.CODE ANN. § 26.01(b)(6) (Vernon 1987), which provides that an agreement not performable within one year from the date of making falls within the statute of frauds. The plaintiff in Webber alleged a contract guaranteeing him employment until retirement. Such a contract cannot be performed within one year (unless the employee will retire within one year), and must therefore be in writing to be enforceable. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d at 489.

Hatridge does not, however, maintain there was an agreement that he would be employed until retirement, only that he would not be terminated without good cause. An agreement that an employee will not be terminated without good cause could be considered performable within one year. See Ramos v. Henry C. Beck Co. 711 S.W.2d 331, 336 (Tex.App.-Dallas 1986, no writ); Kelley v. Apache Products, Inc., 709 S.W.2d 772, 774 (Tex.App.-Beaumont 1986, writ ref'd n.r.e.). We need not decide whether the alleged agreement must have been in writing to be enforceable, however, because Hatridge produced no evidence of an oral or implied promise that he would not be terminated without good cause.

As the only evidence of a contract between himself and Day & Zimmermann, Hatridge points out that he completed a job application and that Day & Zimmermann sent him its Rules of Conduct, an insurance policy, and a verification of retirement plan. It is well established, however, that an application for employment, handbooks, copies of the employer's policies, and other similar documents do not constitute an agreement or contract that limits the employer's right to terminate the employment at will. Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403, 406 (Tex.App.-Beaumont 1987, writ ref'd n.r.e.); Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d 536, 539 (Tex.App.-Corpus Christi 1982, no writ).

Hatridge argues that Day & Zimmermann imposed a limitation on its right to terminate by a provision of its Rules of Conduct stating, "It is contrary to Company policy for an employee to be unjustly penalized; therefore, no disciplinary action will be taken without due and proper investigation. During the investigation the accused employee will be given full opportunity to present his own defense." Under Texas law, however, such a statement of company policy, unaccompanied by an express agreement, does not create contractual rights. Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 413 (Tex.App.-Corpus Christi 1988, no writ).

In Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, the plaintiff urged that his employer's policies and procedures manual created an implied agreement not to terminate without good cause. The court held that the manual did not even raise a fact issue whether there was an agreement not to terminate without good cause.

In Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d at 406, the court rejected the argument that an employer's disciplinary policy constituted a promise that the employer would discipline or terminate only in conformity with the policy. The court held that, in order to remove the case from the general employment-at-will rule, the contract must in a meaningful and special way provide that the employer does not have the right to terminate the employment at will.

In Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d at 539, the court held there was no evidence of any express agreement which dealt with procedures for discharge...