Leach v. Conoco, Inc.

• Decision Date: 16 February 1995
• Docket Number: No. 01-94-00661-CV,01-94-00661-CV
• Citation: 892 S.W.2d 954
• Parties: Colin P. LEACH and Marianthe Leach, Appellants, v. CONOCO, INC., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 954

892 S.W.2d 954

Colin P. LEACH and Marianthe Leach, Appellants, v. CONOCO, INC., Appellee.

No. 01-94-00661-CV.

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

Feb. 16, 1995.

Darah S. Headley, Houston, for appellants.

Victoria Phipps, Houston, for appellee.

Before HUTSON-DUNN, WILSON and TAFT, JJ.

OPINION

HUTSON-DUNN, Justice.

In this employment dispute case, the appellants, Colin P. Leach and Marianthe Leach, appeal the trial court's rendering of a take-nothing summary judgment on their claims of promissory estoppel and fraud against the appellee, Conoco, Inc. In three points of error, the appellants contend that the trial court erred in rendering summary judgment for the following reasons: (1) the Statute of Frauds does not apply to the appellants' claims of promissory estoppel; (2) the Statute of Frauds does not apply to the appellants' claims of fraud; and (3) the trial court erred in rendering summary judgment on Mrs. Leach's causes of action since she was not a Conoco employee. We affirm the judgment of the trial court.

I. Summary of facts

Colin Leach was employed by Conoco from September 1984 through January 1993. In March of 1991, Conoco offered him a supervisory position with Conoco Norway, Inc., and he accepted the offer. Although both the offer and acceptance were in the form of written letters, neither letter mentioned the duration of Leach's employment with Conoco Norway, Inc. Leach commenced his assignment in Norway in April of 1991. However, on July 16, 1991, Leach was advised that his assignment had been terminated, and he was transferred back to his former position in Houston, Texas. Leach continued to work for Conoco until January of 1993, when he requested a voluntary severance package and retired early.

A. The Leaches' petition

In their original petition, the Leaches alleged that they were entitled to recover on the theories of promissory estoppel and fraud. Specifically, they made the following factual allegations. Agents of Conoco represented to Mr. Leach that his transfer from Houston to Norway would last for four years and would require relocation of both Mr. Leach and his family. Mr. Leach accepted the transfer because the Leaches wished to increase their earnings and save approximately $320,000 over the four-year assignment for their children's college education fund.

Mr. Leach commenced his assignment in Norway in April of 1991, but Mrs. Leach temporarily retained her job in Houston in order to make necessary preparations for the family's move to Norway. On June 26, 1991, Mr. Leach advised his supervisor, R.J. Myers, that Mrs. Leach was resigning from her job in Houston, and Mr. Leach was returning to the United States to help her prepare for the move to Norway. At this time, Myers knew that Mr. Leach was being transferred back to the United States but did not tell Mr. Leach. Mrs. Leach resigned her employment on June 28, 1991, in order to prepare for the relocation planned for July 29, 1991. On July 16, 1991, less than three months after he began his assignment in Norway, Mr. Leach was transferred back to his former position in Houston.

The Leaches alleged that they incurred detriment in the following ways resulting from their reliance upon Conoco's representations regarding Mr. Leach's transfer: (1) Mrs. Leach resigned from her former employment as a computer software design engineer and was unable to regain comparable employment in Houston for six months; (2) the Leaches were required to transport one of their automobiles to Norway and back; (3) in May and June of 1991, Mrs. Leach and the children made a three week trip to Norway at the Leaches' own expense so that she could locate suitable employment in her field before the family's move; (4) the Leaches released the nanny who cared for their children in anticipation of the move and placed the children in temporary day care; and (5) the Leaches purchased numerous items that were unnecessary in Houston but recommended before moving to Norway.

The Leaches requested the following in their prayer for damages: (1) actual damages, consisting of lost earnings and savings, salary, and out-of-pocket unreimbursed expenses in an amount not less than $351,000; (2) compensation for emotional distress in an amount not less than $175,000; (3) punitive damages; and (4) costs of court.

B. Conoco's answer to the Leaches' petition

Conoco generally denied all of the allegations in the Leaches' original petition and asserted numerous affirmative defenses, including the Statute of Frauds.

C. Conoco's motion for summary judgment

In its motion for summary judgment, Conoco asserted that the Leaches' causes of action for promissory estoppel and fraud were barred by the Statute of Frauds because they were based upon an oral promise that could not be performed within one year. Specifically, Conoco argued that a claim for promissory estoppel is barred by the Statute of Frauds unless, unlike the present case, there is an additional promise to put into writing the oral agreement upon which the plaintiff is suing.

D. The Leaches' response to Conoco's motion for summary judgment

The Leaches, in their response to Conoco's motion for summary judgment, contended that the Statute of Frauds did not apply to their claims for promissory estoppel because they were not attempting to rely upon a written contract as the basis of their claims against Conoco. Additionally, they argued that the Statute of Frauds did not bar their causes of action for fraud because Mrs. Leach was not an employee relying upon a contract between herself and Conoco as the basis of her claim against Conoco.

E. The summary judgment evidence

The summary judgment evidence submitted by all parties consisted of documents, affidavits, and excerpts of deposition testimony of Mr. and Mrs. Leach. Considering all of the exhibits together, the summary judgment evidence establishes the following facts: L.C. Arnwine of Conoco wrote Mr. Leach on March 1, 1991, and confirmed Conoco's verbal offer to transfer Mr. Leach to Norway. However, the letter did not mention the duration of Mr. Leach's assignment in Norway. Mr. Leach accepted the assignment in a writing, dated March 12, 1991, which also did not state the assignment's duration.

Meyers stated in an affidavit that he had never said that Mr. Leach would be in Norway for four years, and he was not aware that anyone else had made such a representation. Meyers stated that Conoco's policy was not to offer a specific term of employment.

Mr. and Mrs. Leach testified as to the following in deposition: Mr. Leach admitted that he had nothing in writing stating that his assignment in Norway would last for four years. Although he claimed that Conoco's agents orally promised him a four-year assignment, Mr. Leach testified that they never promised to reduce this to writing. Mr. Leach testified Conoco promised him a four-year assignment after he expressed concerns whether his wife could "maintain her employability" in Norway.

Mr. Leach stated that agents of Conoco decided to transfer him from Norway back to Houston before they notified him of the transfer on July 16, 1991; he referred to documents produced by Conoco in discovery that allegedly indicated his transfer was being discussed before July 16. Mrs. Leach also referred to these documents in her deposition and claimed that they indicated that, as of June 4, 1991, certain Conoco agents knew about the potential of sending Mr. Leach back to Houston. Mrs. Leach quit her job on June 28, 1991, in anticipation of the move to Norway, and she did not return to her former employment upon learning that her husband had been transferred back to Houston. Mr. Leach stated that he told Meyers before leaving for the United States on June 26, 1991, that he was returning to help his wife pack up her office.

Mr. Leach testified that, for the duration of his assignment in Norway, Conoco promised him an increased base salary of $6,655 per month, which after adding an "overseas compensation calculation," totalled at a net salary of $9,267 per month. Further, he testified that this amount was exclusive of income taxes and housing and utility expenses, which had already been deducted by the company before arriving at Mr. Leach's net salary figure. Mr. Leach added that Conoco paid for most of his moving costs and that, upon returning to Houston, he retained the $6,655 per month base salary that he had received as a result of his transfer to Norway. Additionally, Mr Leach admitted that, at the time he was transferred from Norway back to Houston, his family had not yet moved there nor had their house been sold. Finally, Mr. Leach testified that his decision to take an early retirement from Conoco was voluntary.

Mr. Leach stated that the $351,000 in actual damages sought in his original petition were calculated in the following manner: (1) $320,000 represented the amount of savings that the Leaches planned to accumulate if they both lived and worked in Norway for four years; (2) $24,000 represented the resulting damage to Mrs. Leach's "employability"; ¹ and (3) $7,000 represented miscellaneous expenses. These expenses included paid vacation time that Mrs. Leach lost by quitting her previous job and earnings that she would have made in her previous employment had she not made a job-hunting trip to Norway in May and June of 1991.

II. Standard of review for summary judgments

In a summary judgment proceeding brought by a defendant, the movant must present summary judgment proof establishing, as a matter of law, that there is no genuine issue of material fact on one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). Alternatively, a defendant may obtain a summary judgment on the plaintiff's cause of action by moving for summary judgment on an affirmative defense and proving all of the essential elements of its defense as a matter...