Lumpkin v. H & C Communications, Inc.

• Decision Date: 28 July 1988
• Docket Number: No. 01-87-00841-CV,01-87-00841-CV
• Citation: 755 S.W.2d 538
• Parties: 123 Lab.Cas. P 57,139, 3 IER Cases 1019 Ted LUMPKIN, Appellant, v. H & C COMMUNICATIONS, INC. and Harry Schultz, Individually, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 538

755 S.W.2d 538

123 Lab.Cas. P 57,139, 3 IER Cases 1019

Ted LUMPKIN, Appellant, v. H & C COMMUNICATIONS, INC. and Harry Schultz, Individually, Appellees.

No. 01-87-00841-CV.

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

July 28, 1988.

Rehearing Denied Aug. 18, 1988.

J.W. "Don" Johnson, Johnson & Artiz, Houston, for appellant.

James M. Neel, Joseph G. Galagaza, Houston, for appellees.

Before WARREN, LEVY and DUGGAN, JJ.

OPINION

DUGGAN, Justice.

This appeal from the granting of a summary judgment stems from a suit for wrongful discharge brought by the appellant, Ted Lumpkin. The trial court granted appellees' motion for summary judgment on the ground that the appellant failed to state a cause of action.

In a single point of error, Lumpkin urges that the trial court erred in granting the summary judgment because there is, or should be, an implied covenant of good faith and fair dealing inherent in the employer-employee relationship. He asserts that this covenant, applied to the instant case, would give rise to genuine issues of material fact worthy of development at trial.

To sustain a summary judgment, the movant must establish as a matter of law that no genuine issues of material fact exist. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979). A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, plaintiff could not succeed upon any of the theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983).

Appellant acknowledges that Texas has a long history as an employment-at-will state, and that the "at-will" rule is followed by Texas courts. East Line & RRR Co. v. Scott, 72 Tex. 70, 10 S.W. 99 (1888). Appellees concede that both the Legislature and the Texas Supreme Court have created certain exceptions to the rule of at-will employment, but urge that no exception is applicable here. See Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985).

This Court addressed the issue of wrongful discharge in the context of the employment-at-will doctrine in Molder v. Southwestern Bell Telephone Co., 665 S.W.2d 175 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.), where we stated that, absent a specific contract term to the contrary, the doctrine allows an employee to be fired or to quit without liability on the part of the employer or employee, with or without cause.

To establish a cause of action for wrongful termination, an employee must prove that: (1) he and his employer had a contract that specifically provided that the employer did not have the right to terminate the employment contract at will; and (2) the employment contract was in writing. Webber v. M.W. Kellogg Co., 720 S.W.2d 124, 127 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.).

Review of the summary judgment evidence before us shows that appellant was employed only by appellee, H & C Communications, Inc. His employment was for no fixed term and was upon no written agreement; it provided no limitation on either the employee's or his employer's right to terminate the employment relationship at any time, with or without cause or reason. The appellant makes no contention that the record includes any express contract, written or oral, nor does he allege a special circumstance based on any of the exceptions to the general "at-will" rule. See Vallone v. Agip Petroleum Co., 705 S.W.2d 757 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). Accordingly, the granting of the summary judgment was proper. See Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403 (Tex.App.--Beaumont 1987, writ ref'd n.r.e.).

Appellant's contention that this Court should recognize and enforce an implied covenant of good faith and fair dealing in the employer-employee relationship is not a proper matter for our consideration. An intermediate court is duty-bound to follow the Texas Supreme Court's authoritative expressions of the law and to leave changes in the application of common law rules to that court. See Swilley v. McClain, 374 S.W.2d 871, 875 (Tex.1964); Bruno v. Bruno, 589 S.W.2d 179 (Tex.Civ.App.--Waco 1979, writ ref'd n.r.e.). This Court must recognize and apply the Texas Supreme Court's deliberate statement of the law and, by exercising judicial self-restraint, refrain from extending or restricting the scope of the supreme court's declaration. See Watson v. Zep Mfg. Co., 582 S.W.2d 178, 180 (Tex.Civ.App.--Dallas 1979, writ ref'd n.r.e.).

Appellant's sole point of error is overruled. The judgment of the trial court is affirmed.

LEVY, J., dissents.

LEVY, Justice, dissenting.

Once again, this case demonstrates the harshness of the "employment-at-will" doctrine. The material facts here are undisputed. Appellant was employed by KPRC Radio for almost 17 years, ultimately becoming a vice-president and sales manager when, in October 1986, he was fired...