Figueroa v. West

• Court: Texas Court of Appeals
• Writing for the Court: Before BARAJAS; BARAJAS
• Citation: Figueroa v. West, 902 S.W.2d 701 (Tex. App. 1995)
• Decision Date: 29 June 1995
• Docket Number: No. 08-94-00177-CV,08-94-00177-CV
• Parties: Anabelle FIGUEROA, Appellant, v. Kirby WEST, Appellee.

Page 701

902 S.W.2d 701

Anabelle FIGUEROA, Appellant, v. Kirby WEST, Appellee.

No. 08-94-00177-CV.

Court of Appeals of Texas El Paso.

June 29, 1995.

A.J. Pope, Midland, for appellant.

Robert E. Motsenbocker, Shafer, Davis, McCollum, Ashley, O'Leary & Stoker, Inc., Odessa, for appellee.

Before BARAJAS, C.J., and McCLURE and CHEW, JJ.

OPINION

BARAJAS, Chief Justice.

Anabelle Figueroa appeals a directed verdict in favor of Appellee. ¹ Appellant sued Appellee for wrongful termination based on the breach of alleged oral and written contacts, fraud, negligence, and deceptive trade practices. At the close of Appellant's case-in-chief, Appellee moved for a directed verdict, and the trial court granted it as to all causes of action. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Appellant began working for Appellee in 1981. In 1986, Appellee distributed to Appellant and other employees an employee handbook stating that they could be terminated at any time with or without cause. The hand book specifically provided that it did not constitute a contract, and it was in no way intended to alter the at-will status of the employees. It described itself as merely a guide to and brief explanation of company policies. Appellee acknowledged in writing that she had received the handbook and was responsible for knowledge of its contents. After a series of disciplinary problems, which resulted in numerous oral and written warnings of increasing severity, Appellant was discharged in 1988.

II. DISCUSSION

Appellant attacks the judgment of the trial court in eight points of error. In her first point of error, Appellant claims the trial judge erred by failing to recuse himself from the case. In an argument completely devoid of citation to case law, Appellant claims that the trial judge had a duty to recuse himself on his own motion. Whether or not he did, Appellant has waived any error on this ground because she failed to raise it below. If recusal is not raised by proper motion in the trial court, it is waived. Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 559 (Tex.App.--Beaumont 1993, writ denied); Humble Exploration Co. v. Browning, 677 S.W.2d 111, 114 (Tex.App.--Dallas 1984, writ ref'd n.r.e.), cert. denied, 475 U.S. 1065, 106 S.Ct. 1376, 89 L.Ed.2d 602 (1986). Appellant never filed a motion to recuse the trial judge, nor did she otherwise draw the trial court's attention to the matter. She therefore waived the issue and cannot raise it for the first time on appeal. Accordingly, we overrule her first point of error.

In her second through fourth points of error, Appellant claims the trial court erred by instructing a take-nothing verdict on her claims for damages based on written and oral contracts. In reviewing the granting of an instructed verdict, we must determine whether there is any evidence of probative force to raise a fact issue on the material questions presented. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). We consider all of the evidence in a light most favorable to the party against whom the verdict was instructed and disregard all contrary evidence and inferences. Szczepanik v. First S. Trust Co., 883 S.W.2d at 649; White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983). We give the losing party the benefit of all reasonable inferences created by the evidence. Szczepanik v. First S. Trust Co., 883 S.W.2d at 649; White v. Southwestern Bell Tel. Co., 651 S.W.2d at 262. If there is any conflicting evidence of probative value on any theory of recovery, an instructed verdict is improper and the case must be reversed and remanded for determination of that issue by a jury. Szczepanik v. First S. Trust Co., 883 S.W.2d at 649; White v. Southwestern Bell Tel. Co., 651 S.W.2d at 262. This is essentially a "no evidence" standard. Thus, if there is more than a scintilla of evidence to support each element of any of Appellant's causes of action, an instructed verdict was improper. See Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402, 412 (Tex.App.--El Paso 1994, writ ref'd); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App.--El Paso 1992, no writ).

The long-standing rule in Texas is that an employee without a written employment contract is an at-will employee, and the employment relationship is terminable at any time by either party, with or without cause. Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex.1993); Vida v. El Paso Emp. Fed. Credit Union, 885 S.W.2d 177, 180 (Tex.App.--El Paso 1994, no writ); East Line & R.R.R. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888). Certain statutory restrictions and one judicial exception to this rule exist, but current Texas law generally allows an employer to discharge an employee for a good reason, a bad reason, or no reason at all. Vida v. El Paso Emp. Fed. Credit Union, 885 S.W.2d at 180-81.

In numerous cases, discharged employees have attempted to recover for breach of contract by alleging that their employers' personnel manuals contained enforceable promises altering the at-will relationship. See Federal Express Corp. v. Dutschmann, 846 S.W.2d at 283; Vida v. El Paso Emp. Fed. Credit Union, 885 S.W.2d at 180; Hicks v. Baylor Univ. Med. Ctr., 789 S.W.2d 299, 303 (Tex.App.--Dallas 1990, writ denied); Berry v. Doctor's Health Facilities, 715 S.W.2d 60, 61 (Tex.App.--Dallas 1986, no writ); Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d 536, 539 (Tex.App.--Corpus Christi 1982, no writ). Texas courts have generally rejected this theory, particularly where a specific disclaimer in the employee handbook warns the employee that the manual is intended to provide guidelines only and does not create contractual rights. Appellee's handbook contains several such provisions, which we outline above. We therefore conclude that the disclaimer cases control the instant case.

Although courts usually find that general statements about working conditions, disciplinary procedures, or termination rights are not sufficient to change the at-will employment relationship, a handbook may modify the at-will relationship if it specifically and expressly curtails the employer's right to terminate the employee. McAlister v. Medina Elec. Coop., Inc., 830 S.W.2d 659, 664 (Tex.App.--San Antonio 1992, writ denied); Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403, 406 (Tex.App.--Beaumont 1987, writ ref'd n.r.e.). The manual must restrict the at-will relationship in a meaningful and special way. Vida v. El Paso Emp. Fed. Credit Union, 885 S.W.2d at 181; Stiver v. Texas Instruments, Inc., 750 S.W.2d 843, 846 (Tex.App.--Houston [14th Dist.] 1988, no writ). The handbook must contain a specific contractual term altering at-will status. Vida v. El Paso Emp. Fed. Credit Union, 885 S.W.2d at 181; Johnson v. Ford Motor Co., Inc., 690 S.W.2d 90, 93 (Tex.App.--Eastland 1985, writ ref'd n.r.e.); Maus v. National Living Ctrs., Inc., 633 S.W.2d 674, 675 (Tex.App.--Austin 1982, writ ref'd n.r.e.); see also Whitehead v. University of Texas Health Science Ctr., 854 S.W.2d 175, 181 (Tex.App.--San Antonio 1993, no writ).

Here, in addition to the effective disclaimers, the handbook fails to alter the at-will employment relationship in any meaningful way. The handbook merely reduces Appellee's employment policies to writing for the benefit and convenience of employees. The employment policies were unilaterally set by Appellee and obligated it to do very little. Thus, Appellant could have been fired for virtually any reason, good, bad, trivial, or otherwise. There existed no written employment contract between the parties, and Appellee therefore did not breach a written contract when it discharged Appellant. Accordingly, we overrule Appellant's second through fourth points of error to the extent they rely on the alleged breach of a written contract.

Appellant next claims that Appellee's personnel manager admitted at trial that an oral contract existed between Appellant and Appellee. The manager, Mary Duley, offered the following testimony when examined at trial by Appellant's attorney:

Q. Do you deny that Mrs. Figueroa had an oral contract with Kirby?

A. Yes.

Q. You deny that?

A. Yes.

Q. And what kind of an agreement did she have?

A. We have no contracts with any employees.

Q. I'm asking you, do you have an oral contract that if she came to work and did her work, that y'all would pay her for it?

A. Yes.

Q. So that was oral, wasn't it?

A. Yes.

Q. And you're just, there's a feud as to whether there was one in writing, is this correct?

A. Yes.

Q. But you're not going to deny that there was an oral agreement?

A. That we would pay her for her work.

Q. Was there any oral agreement concerning those handbooks?

A. I'm sorry, I don't understand.

Q. Well, did y'all have an agreement if she followed these rules and regulations, she could be employed there, but if she didn't, she'd have to get off the premises?

A. Right.

Q. So to that extent, we're not in a debate with whether she had an oral agreement--

A. Right.

Q. --with Kirby West?

A. No.

Appellant apparently would have us believe that the foregoing testimony is blatantly contradictory, Duley first denying then admitting the existence of a contract, and that it sufficed to submit the issue to the jury on the theory that the jury could have chosen to disbelieve her first denial. We disagree. First, Duley only admitted that Appellant had to follow certain company policies in order to be retained as an employee. All employers have policies the violation of which will result in termination. That these policies and their roles are well defined does not produce an enforceable contract. Duley only admitted that Appellant would be terminated for violating certain policies, not that any of these policies saddled Appellee with a contractual obligation. Alternatively, we note that the questions that elicited positive responses from Duley referred to...