Stiver v. Texas Instruments, Inc.

• Decision Date: 07 April 1988
• Docket Number: No. C14-87-054-CV,C14-87-054-CV
• Citation: 750 S.W.2d 843
• Parties: 109 Lab.Cas. P 55,915, 3 IER Cases 458 Frank STIVER, Appellant, v. TEXAS INSTRUMENTS, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 843

750 S.W.2d 843

109 Lab.Cas. P 55,915, 3 IER Cases 458

Frank STIVER, Appellant, v. TEXAS INSTRUMENTS, INC., Appellee.

No. C14-87-054-CV.

Court of Appeals of Texas Houston (14th Dist.).

April 7, 1988.

Dennis Reich, Houston, for appellant.

Douglas W. Sanders, Richard R. Brann, Christopher F. Speegle, Houston, for appellee.

Before JUNELL, SEARS and CANNON, JJ.

OPINION

SEARS, Justice.

This is an appeal by writ of error from a summary judgment in favor of Appellee, Texas Instruments, Inc., in Appellant's suit for wrongful termination of employment by Appellee. We affirm.

This suit was originally filed on September 19, 1978. A summary judgment was rendered against Appellant on February 7, 1980, and he appealed by writ of error to the First Court of Appeals. That court reversed the judgment and remanded the case to the trial court on the ground that a summary judgment against Mr. Stiver for failure to state a cause of action was improper until special exceptions to his pleadings were filed and he had been given an opportunity to amend his pleadings. Stiver v. Texas Instruments, Inc., 615 S.W.2d 839, 843 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). Accordingly, on remand Appellee filed special exceptions to Appellant's pleadings. These special exceptions were sustained and Appellant filed his First Amended Original Petition on October 31, 1983, alleging that Appellee was liable for terminating his employment based on: (1) wrongful discharge; (2) breach of an alleged implied covenant of good faith and fair dealing; (3) breach of an express contract for a specific term; and (4) breach of a "contract of satisfaction." Appellee then filed a Second Motion for Summary Judgment which was denied on December 9, 1985. However, when the case was called for trial on November 3, 1986, the Motion for Summary Judgment was reurged and was granted by the trial court. The Summary Judgment Order was signed on December 4, 1986. It is from that judgment that Appellant now appeals.

Appellant asserts two points of error. In his first point of error, Appellant contends the trial court erred in granting Appellee's Motion for Summary Judgment because the facts of this case fall within an exception to the "at will" employment doctrine. He asserts that his pleadings and affidavit were sufficient to raise a material fact issue on whether there was an oral agreement modifying his employment at will status. He argues that Appellant's agents orally represented to him that he would continue to be employed by Appellee until he reached normal retirement age so long as he performed his work satisfactorily and that those representations constitute an oral modification of his employment at will status.

Appellee moved for summary judgment on the basis that Appellant's petition failed to state a cause of action and that a cause of action for wrongful discharge was barred by the employment at will doctrine and the Statute of Frauds. Appellee offered as summary judgment evidence the depositions on file with the court, Appellee's personnel manual entitled "TI and You," the affidavit of Appellee's Manager of Management Services, Mr. Kevin Ellington, who stated that Appellant's oral employment agreement with Appellee was for an indefinite period and was terminable at will, Appellant's deposition testimony acknowledging that his employment was terminable at will by either party, and a written contract entitled "Assignment of Inventions and Company Information Agreement" which was signed by Appellant at the time he was hired. This Agreement states in relevant part:

A. Nothing contained in this agreement shall be construed as impairing my [Stiver's] right or the right of TI to terminate employment hereunder.

B. My obligations under this agreement shall continue whether or not my employment with TI shall be terminated voluntarily or involuntarily, with or without cause.

* * *

* * *

C. This agreement replaces all previous agreements relating to the same or similar matters which I [Stiver] may have entered into with TI with respect to my present and any future period of employment by TI. This agreement may not be modified in any respect by any verbal statement, representation or agreement made by any other employee of TI, or by a written document signed by any employee of TI other than an officer thereof. (Emphasis added.)

In response to the motion, Appellant offered only his own affidavit alleging that he was orally promised by representatives of Appellee that he would be employed by Appellee until retirement age provided he performed his work satisfactorily. He further asserted that his termination was not for just cause but was a result of his filing a complaint with OSHA regarding a safety hazard existing in his office.

We have reviewed the record brought forward on appeal and find that it does not contain Appellant's deposition testimony, relied upon by Appellee in its Motion for Summary Judgment, nor any other depositions, admissions or stipulations filed in this case. Appellant contends that these documents were lost from the case file and were not considered by the trial court when it granted the summary judgment. However, the summary judgment order expressly states:

"[A]fter considering the pleadings, depositions, admissions, affidavits and stipulations of the parties ... there is no genuine issue as to any material fact and Defendant is entitled to judgment as a matter of law."

There is no evidence in the record to support Appellant's assertions.

Appellant has the burden of bringing forward the summary judgment record to prove harmful error which entitles him to reversal. Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex.1982); Chessher v. Southwestern Bell Telephone Co., 671 S.W.2d 901, 903 (Tex.App.--Houston [14th Dist.] 1983), reversed on other grounds, 658 S.W.2d 563 (Tex.1983). When the summary judgment record is incomplete, the reviewing court must assume that the documents omitted support the correctness of the trial court's judgment. Chessher v. Southwestern Bell Telephone Co., 671 S.W.2d at 903; Stiver v. Texas Instruments, Inc., 615 S.W.2d at 842; DeBell v. Texas General Realty, Inc., 609 S.W.2d 892, 893 (Tex.Civ.App.--Houston [14th Dist.] 1980, no writ).

Texas courts follow the traditional rule that absent a specific contract term to the contrary, employment contracts are terminable at will by either party. East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888); Webber v. M.W. Kellogg Co., 720 S.W.2d 124, 127 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.); Johnson v. Ford Motor Co., Inc., 690 S.W.2d 90, 93 (Tex.App.--Eastland 1985, writ ref'd n.r.e.). In order to establish a cause of action for wrongful termination, an appellant must prove that he and his employer had a contract that specifically provided that the employer did not have the right to terminate his employment at will, and that the contract was in writing. Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403, 406 (Tex.App.--Beaumont 1987, writ ref'd n.r.e.); Webber v. M.W. Kellogg Co., 720 S.W.2d at 127. Further, this writing must provide in "a meaningful and special way" that the employer does not have the right to terminate the employment relationship at will. Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d at 406. This requirement of a written contract specifically modifying the common law at will...