Gerstacker v. Blum Consulting Engineers, Inc.

• Decision Date: 24 August 1994
• Docket Number: No. 05-93-00791-CV,05-93-00791-CV
• Citation: 884 S.W.2d 845
• Parties: Stuart T. GERSTACKER, Appellant v. BLUM CONSULTING ENGINEERS, INC., Appellee.
• Court: Texas Court of Appeals

Page 845

884 S.W.2d 845

Stuart T. GERSTACKER, Appellant v. BLUM CONSULTING ENGINEERS, INC., Appellee.

No. 05-93-00791-CV.

Court of Appeals of Texas Dallas.

Aug. 24, 1994.

Robert J. Reagan, Dallas, for appellant.

Theodore J. Riney, and Catherine Clifton, Dallas, for appellee.

Before KINKEADE, MALONEY and ROSENBERG, JJ.

OPINION

ROSENBERG, Justice.

Stuart T. Gerstacker appeals a summary judgment for Blum Consulting Engineers, Inc. in this suit based on an employment relationship. In eight points of error, Gerstacker contends that the trial court erred in (i) striking Gerstacker's summary judgment affidavit, and (ii) granting Blum's motion for summary judgment. We reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

Gerstacker filed suit against Blum alleging causes of action for (1) breach of contract, (2) promissory estoppel, and (3) fraud. Gerstacker's petition alleges that Blum sought to employ Gerstacker as an engineer. According to Gerstacker, he inquired about whether he was in danger of being laid-off if he accepted employment with Blum. Gerstacker explained that he would have to uproot himself from Ohio and move to Texas if he accepted a position. In response to his inquiry, Blum orally promised to employ him "during [his] good performance and satisfactory performance of his duties." Gerstacker also alleged that Blum promised him that if the company experienced hard economic times, Gerstacker's salary might be reduced but he would not be laid-off. Gerstacker asserted that based on Blum's oral assurances, he accepted employment with Blum and moved to Dallas. Four months after Gerstacker began employment, Gerstacker claims that Blum experienced a business downturn and terminated Gerstacker because of "lack of work."

Blum moved for summary judgment on Gerstacker's causes of action as alleged in the petition based on its affirmative defense of statute of frauds. Blum filed no summary judgment evidence. Gerstacker filed a response to Blum's motion for summary judgment, attaching his supporting affidavit. Gerstacker's affidavit did not contain a statement that the facts recited in it were true and correct. Blum objected to Gerstacker's affidavit because it (1) contained evidence that would not be otherwise admissible in court and (2) did not state that the facts contained in the affidavit were true and correct. The trial court sustained Blum's objections to Gerstacker's affidavit and struck Gerstacker's affidavit by a written order. The trial court, considering only the pleadings in the cause, granted Blum's motion for summary judgment on all Gerstacker's causes of action based on the statute of frauds.

GERSTACKER'S AFFIDAVIT

In his first four points of error, Gerstacker contends that the trial court erred in sustaining Blum's objection to and striking Gerstacker's affidavit because (1) his affidavit was not fundamentally defective, (2) it was not necessary for him to specifically state that the matters contained in the affidavit were "true and correct," (3) the affidavit was based on personal knowledge, set forth facts admissible in evidence, and affirmatively showed that the affiant was competent to testify to the matters stated therein, and (4) the affidavit was not inadmissible hearsay. Blum contends that the trial court correctly sustained its objection to Gerstacker's summary judgment affidavit because it was not competent summary judgment evidence and was based on hearsay.

Summary judgment affidavits shall (1) be made on personal knowledge, (2) set forth facts as would be admissible in evidence, and (3) affirmatively show that the affiant is competent to testify to the matters stated therein. TEX.R.CIV.P. 166a(f). An affidavit is insufficient unless the statements in it are direct and unequivocal and perjury can be assigned upon them. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). One making an affidavit must swear or affirm under oath that the facts stated are true. Brown Found. v. Friendly Chevrolet Co., 715 S.W.2d 115, 117 (Tex.App.--Dallas 1986, writ ref'd n.r.e.).

Gerstacker states in his affidavit that the facts are based on personal knowledge, but he does not state that the facts are true. In Brownlee, the Texas Supreme Court held a summary judgment affidavit insufficient because it did not "positively and unqualifiedly represent the 'facts' as disclosed in the affidavit to be true and within [the affiant's] personal knowledge." 665 S.W.2d at 112; see also Brown Found., 715 S.W.2d at 117. Gerstacker's affidavit is insufficient because it does not state whether the facts contained in the affidavit are true and, therefore, perjury cannot be assigned to it. See Brownlee, 665 S.W.2d at 112. The trial court correctly sustained Blum's objection and struck Gerstacker's affidavit. We overrule Gerstacker's second point of error. Because we conclude that the trial court correctly sustained Blum's objection and struck Gerstacker's affidavit because it did not state that the facts contained in it were true, we do not address Gerstacker's points of error one, three, and four. See TEX.R.APP.P. 90(a).

MOTION FOR SUMMARY JUDGMENT

In Gerstacker's fifth through eighth points of error, he contends that the trial court erred in granting summary judgment for Blum because there exists a fact issue and his causes of action are not barred by the statute of frauds. Blum asserts that there is no issue of material fact and that the statute of frauds bars Gerstacker's causes of action for breach of contract, promissory estoppel, and fraud. Blum claims that Gerstacker's fraud claim only restates his breach-of-contract claim and that Gerstacker cannot avoid the statute of frauds in a breach-of-contract case by pleading fraud.

A trial court may render summary judgment only if the pleadings, depositions, admissions, and affidavits on file show that no genuine issue exists regarding any material fact and that the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990). Summary judgment is designed to eliminate unmerited claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on fact issues. Compton v. Calabria, 811 S.W.2d 945, 949 (Tex.App.--Dallas 1991, no writ) (citing Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952)).

In reviewing the summary judgment evidence, we apply the following standards:

1. The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law 2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant is taken as true; and

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

In Texas, at-will employment exists when the parties do not limit the ability of either the employer or employee to terminate employment at their will. Goodyear Tire & Rubber Co. v. Portilla, 879 S.W.2d 47, 47 (Tex.1994). However, the at-will doctrine only applies absent a specific contractual provision to the contrary. East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 78, 10 S.W. 99, 104 (1888). When Blum agreed not to fire Gerstacker except for good cause, ¹ Blum removed the employment relationship from the at-will category. ² We now consider whether the contract, as alleged, falls within the statute of frauds.

The statute of frauds is set forth in section 26.01 of the Texas Business and Commerce Code and provides, in pertinent part:

(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is

(1) in writing; and

(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.

(b) Subsection (a) of this section applies to:

. . . . .

(6) an agreement which is not to be performed within one year from the date of making the agreement;

....

TEX.BUS. & COM.CODE ANN. § 26.01 (Vernon 1987). The statute of frauds requires that certain specified classes of contracts be in writing to be enforceable. Barbouti v. Munden, 866 S.W.2d 288, 294 (Tex.App.--Houston [14th Dist.] 1993, no writ). Whether a contract falls within the statute of frauds is a question of law. Bratcher v. Dozier, 162 Tex. 319, 321, 346 S.W.2d 795, 796 (1961); Barbouti, 866 S.W.2d at 294; Eisenbeck v. Buttgen, 450 S.W.2d 696, 700 (Tex.Civ.App.--Dallas 1970, no writ). The statute of frauds is an affirmative defense. See TEX.R.CIV.P. 94.

If an oral contract can, from the terms of the agreement, be performed within one year, it is not within section 26.01(b)(6) of the statute of frauds. Miller v. Riata Cadillac Co., 517 S.W.2d 773, 775 (Tex.1974); Chevalier v. Lane's, Inc., 147 Tex. 106, 111, 213 S.W.2d 530, 532 (1948). Section 26.01(b)(6) of the statute of frauds bars only oral contracts that cannot be completed within one year. Niday v. Niday, 643 S.W.2d 919, 920 (Tex.1982). Where the term of performance is uncertain such as a contract that merely provides for the performance of a particular act that can conceivably be performed within one year, section 26.01(b)(6) does not apply, however improbable performance within one year may be. Hall v. Hall, 158 Tex. 95, 99, 308 S.W.2d 12, 15 (1957). Indefinite-term employment contracts are considered performable within one year and therefore do not fall within section 26.01(b)(6) of the statute of frauds. Miller, 517 S.W.2d at 775.

However, the mere fact that duration of performance is implied in a contract does not necessarily keep the contract from being within the statute of frauds. In Hall, the employee was retained under an indefinite-term employment contract to develop a sales territory. The employee's petition alleged that his oral contract would...