Dech v. Daniel, Mann, Johnson & Mendenhall

• Decision Date: 17 March 1988
• Docket Number: No. 01-86-00419-CV,01-86-00419-CV
• Citation: 748 S.W.2d 501
• Parties: 108 Lab.Cas. P 55,883 Robert W. DECH, III, Appellant, v. DANIEL, MANN, JOHNSON & MENDENHALL, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 501

748 S.W.2d 501

108 Lab.Cas. P 55,883

Robert W. DECH, III, Appellant, v. DANIEL, MANN, JOHNSON & MENDENHALL, Appellee.

No. 01-86-00419-CV.

Court of Appeals of Texas Houston (1st Dist.).

March 17, 1988.

Edward S. Hubbard, Bracewell & Patterson, Clinton P. Hackney, Kennedy, Burleson & Hackney, Houston, for appellant.

Eugene M. Nettles, Houston, for appellee.

Before JACK SMITH, LEVY and HOYT, JJ.

OPINION

JACK SMITH, Justice.

This is an appeal from the trial court's take-nothing judgment in which the appellant sought damages for the alleged breach of an employment contract by the appellee.

The appellant, Mr. Dech, sought employment as an architect. In the spring of 1982, he interviewed with the appellee, Daniel, Mann, Johnson & Mendenhall ("DMJM") and accepted its offer of employment. On April 4, 1982, the appellant wrote a letter to the appellee in which he expressed pleasure in his decision to accept a position with them. In the same letter, however, he requested a written confirmation of his position with the appellee, as well as the agreed upon salary of $28,000 per year, for the first year. On April 8, 1982, the appellee sent a letter to the appellant stating:

[t]his letter is meant to confirm your acceptance of a position as staff architect at Daniel, Mann, Johnson & Mendenhall (DMJM) in our Houston based offices. Your salary will be $28,000 per annum in this position. We will expect to see you the first part of May.

The appellant commenced his employment on April 27, 1982, but was terminated approximately 20 weeks later in September. This termination stemmed from a slow down in architectural work that caused the appellee to cease concentrating on architectural projects. The appellant sought employment elsewhere and obtained other employment in April 1983.

The appellant contends that he had a contract for employment for a period of one year with the appellee and that the appellee breached this contract, which resulted in his failure to receive $13,192.57, the balance of his annual salary. He further asserts that the appellee agreed to pay his moving expenses and owes him $767.99 to cover his move from Florida to Texas and $250.00 to cover his apartment security deposit that he forfeited because of his move.

After the appellant made demand for payment for his losses, the appellee refused to pay, and the appellant filed the present suit. Trial to a jury resulted in a verdict favorable to the appellee. The court entered final judgment for the appellee, denied the appellant's motion for new trial, and the appellant perfected his appeal.

The appellant contends in his first, third, fourth, and fifth points of error that the trial court erred because: 1) as a matter of law, the letter of April 8, 1982 was a contract for a definite period of time; 2) as a matter of law, the letter and factual circumstances constituted a contract for a definite period of time; 3) it admitted parol evidence creating ambiguity; and 4) it allowed the jury to construe an unambiguous instrument.

To support his contention, the appellant relies on the legal theory that: "where one is employed to work at so much per year, month, or week, the agreement imports a contract of hiring for the period of time mentioned in respect to the measure of time for the payment to be received." Dallas Hotel Co. v. McCue, 25 S.W.2d 902, 905 (Tex.Civ.App.--Dallas 1930, no writ). In two of the progeny cases, however, there was a written instrument construed as the contract, Culkin v. Neiman-Marcus Co., 354 S.W.2d 397 (Tex.Civ.App.--Fort Worth 1962, no writ) (written offer of employment), and Dallas Hotel Co. v. Lackey, 203 S.W.2d 557 (Tex.Civ.App.--Dallas 1947, writ ref'd n.r.e.) (letter attached to and made part of agreement), and in Dallas Hotel Co. v. McCue, 25 S.W.2d at 902 (in which testimony raised a fact issue about the duration of contract), the court held that it was not error for the trial court to submit an issue on the duration of the oral employment contract.

The key question in the instant case is when the contract was consummated. The appellant contends in his pleadings that the contract was formed on April 8, 1982, the date of the letter from the appellee to the appellant. However, the letter states that it is merely a confirmation of the appellant's prior acceptance. "Where an unambiguous writing had been entered into between the parties, courts will look only to the language of the agreement to determine the intent of the parties." Amistand, Inc. v. Frates Communities, Inc., 611 S.W.2d 121, 127 (Tex.Civ.App.--Waco 1980, writ ref'd n.r.e.). The appellant also contends that the April 8, 1982 letter is the entire agreement. However, his pleadings and the evidence belie this contention because he also claims that his agreement with the appellee included an agreement to cover his moving and other expenses, and there is no mention of these expenses in the April 8th letter.

Although the letter vitiates any Statute of Frauds defense, it is not the contract. See Adams v. Abbott, 151 Tex. 601, 254 S.W.2d 78 (1952). The employment agreement was reached at the appellant's interview meeting with the appellee's representatives. The two letters that followed were letters affirming that an oral agreement had been reached at the interview. The evidence makes it clear that the parties disagree about what their original agreement had been. Thus, it was for the jury, as the finder of fact, to determine the intentions of the parties. Erskine v. Wilson, 27 Tex. 117, 119 (1863). It was not error for the judge to allow the jury to determine the intentions as to the duration of the contract after considering all the evidence presented. Dallas Hotel Co. v. McCue, 25 S.W.2d at 906.

The appellant's first, third, fourth, and fifth points of error are overruled.

The appellant contends in his second point of error that the trial court erred in refusing to submit his instructions to the jury on the definition of the term "agreement" in the context of an employment agreement.

The appellant has failed to preserve his error. Tex.R.App.P. 74(f) requires an argument to include: (1) a fair condensed statement of the facts pertinent to such points; and (2) such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. The appellant has failed to provide argument on this point. He has preserved nothing for review.

The appellant's second point of error is overruled.

The appellant asserts in his sixth point of error that the trial court erred in admitting the testimony of Ms. Audrey Crader to establish the customs in the commercial architectural industry for employment agreements. He contends specifically that those customs were not specifically pled by the appellee.

The appellant failed to specifically object to the lack of pleadings when he made his trial objection to Ms. Crader's testimony. He objected only on grounds of her qualifications as an expert to offer such testimony and as to relevancy. His objection on appeal fails to comport with his objection at trial, preserving nothing for this Court's review. Tex.R.App.P. 52(a).

The appellant's sixth point of error is overruled.

In light of our holding on the appellant's liability issues, we need not address the appellant's seventh, eighth, and ninth points of error.

The trial court's judgment is affirmed.

LEVY, Justice, dissenting.

My disagreement with the majority is in its treatment of a legal question--the existence and terms of an oral contract of employment- --as a question of fact, thus authorizing the jury to have determined the contract's duration as a function of the parties' intentions.

In its letter of April 8, 1982, confirming Dech's acceptance as staff architect with the firm, the appellee stated, inter alia, "Your salary will be $28,000 per annum in this position. We will expect to see you the first part of May." And, in answer to Dech's earlier request for some indication as to when his "first review" might occur, as Dech delicately reminded his future employer, "at which time you [appellee] indicated additional consideration...