Totman v. Control Data Corp.

• Decision Date: 30 April 1986
• Docket Number: No. 2-85-022-CV,2-85-022-CV
• Citation: 707 S.W.2d 739
• Parties: James M. TOTMAN, Appellant, v. CONTROL DATA CORPORATION, a Delaware Corporation, Robert R. Burns and Phillip E. Hartliep, Appellees.
• Court: Texas Court of Appeals

Page 739

707 S.W.2d 739

James M. TOTMAN, Appellant, v. CONTROL DATA CORPORATION, a Delaware Corporation, Robert R Burns and Phillip E. Hartliep, Appellees.

No. 2-85-022-CV.

Court of Appeals of Texas,

Fort Worth.

April 30, 1986.

T.A. Sneed & Associates, T.A. Sneed, Dallas, for appellant.

Jackson, Walker, Winstead, Cantwell & Miller, John B. Nelson, Frank C. Vecella, Fred D. Wilshusen, Dallas, for appellee.

OPINION ON MOTION FOR REHEARING

FENDER, Chief Justice.

In appellees' Motion for Rehearing they contend that this court correctly affirmed the summary judgment concerning the contract cause of action but incorrectly reversed concerning the fraudulent inducement cause of action. Appellees contend that appellant did not assign a point of error regarding the granting of the summary judgment concerning the fraudulent inducement cause of action. We are now convinced that appellees are correct and that our partial reversal was based on unassigned error. See El Paso Environ. Systems v. Filtronics, 609 S.W.2d 810, 813 (Tex.Civ.App.--El Paso 1980, writ ref'd n.r.e.). Accordingly, we grant appellees' motion for rehearing. The original opinion and judgment issued March 12, 1986 is withdrawn and the following opinion is substituted therefor.

This is an appeal from an order granting summary judgment in favor of Control Data Corporation, hereinafter CDC, Robert R. Burns, a Vice President of CDC, and Phillip Hartliep, Personnel Manager of CDC, appellees, who were defendants below.

We affirm.

Appellant, an employee of CDC, filed suit alleging wrongful discharge from employment. Appellant, in his brief, alleged that in a letter of August 3, 1981, Phillip Hartliep confirmed appellant's promotion to the status of manager. Appellant also contends that the letter said, "this letter represents the sole agreement between you and Control Data Corporation. It, including any brochures, provided to you by the personnel department ... constitutes and expresses the entire agreement regarding your employment." [Emphasis ours.]

Appellant, in his original petition, alleged that CDC "represented to [him] that his employment would be continuous and terminable by CDC only for just and sufficient cause and only after a series of definite steps towards rehabilitation or salvage of the employee had been taken and failed, including notice of any deficiencies and implementation of a plan to improve any deficient performance." He further alleged that these representations were confirmed by CDC in its handbook entitled "Control Data Corporation Personnel Policies and Procedures." It is apparently appellant's contention that this handbook constituted part of his contract with CDC because it was a "brochure" from the personnel department, as referred to in Phillip Hartliep's letter of August 3, 1981.

Appellant also alleged in his original petition a second cause of action: that CDC fraudulently induced appellant, through the same representations (that he would not be fired without just cause and without steps to rehabilitate him), a) to take a two-year post in Moscow, U.S.S.R., which caused great hardship to appellant in both his personal and professional lives, and b) to decline and refrain from seeking other employment opportunities.

Appellees answered and then filed a motion for summary judgment alleging that they were entitled to judgment as a matter of law. Appellees' motion alleged that 1) the uncontradicted summary judgment evidence established that a necessary element of appellant's cause of action was missing in that appellant had no employment contract with appellees which provided for a definite time for performance and that there was no agreement or understanding, written or oral, regarding the length of his employment; 2) there was no fraudulent inducement because the representations made in the employee handbook concerning limitations on their ability to discharge employees were not a) contractual limitations, b) intended to be implemented as the sole means to terminate employment contracts, or c) given to appellant in his capacity as an employee but instead were given to him in his capacity as manager; and 3) therefore, no genuine issue of material fact remained.

Appellant filed a response and cross-motion for summary judgment. However, the affidavit containing the applicable employee handbook provisions attached to appellant's motion was defective because it failed to contain a jurat and so was not proper summary judgment evidence. See First State Bank of San Diego v. County of Duval, 567 S.W.2d 271, 273 (Tex.Civ.App.--Waco 1978, writ ref'd n.r.e.). Appellees filed a written motion specifying the defects contained within the affidavit the day before the hearing. Subsequent to the judgment, appellant filed an amended affidavit, but the record does not indicate whether this was done with leave of Court.

The trial court sustained appellees' Motion for Summary Judgment. The order granting summary judgment does not state the reasons why it was granted. Although appellant, in his brief, contends that the trial judge, at the hearing, gave a reason for the granting of the summary judgment: that the measure of damages under both Texas and Minnesota law is so indefinite that an appropriate charge to the jury could not be made, this cannot be accepted as fact because 1) the record before us does not support appellant's contention, and 2) appellees have disputed any and all of appellant's assertions of fact.

Appellant assigns three points of error in his brief and an additional three points in his reply brief. They are as follows: 1) that the trial court erred under the applicable choice of law rules of the State of Texas in failing to apply Minnesota's substantive law to questions relating to the formation of an employment contract; 2) the trial court erred in failing to hold under the applicable Minnesota law that the Control Data Corporation personnel handbook provisions are enforceable as an employment contract; 3) the trial court erred in failing to hold under the applicable Minnesota law that the measure of damages for breach of an employment contract for an indefinite term is lost wages from time of contract violation to date of trial; 4) the law of the State of Minnesota was properly before the trial judge in this matter, considered by the trial judge, and erroneously interpreted; 5) there is no dispute as to the authenticity of appellee Control Data's personnel policy manual provisions relating to employee performance improvement plans, etc., which were attached to appellant's original petition in this case and those provisions are properly before this court; and 6) contrary to appellees' claim, appellant's deposition and the attached documents indicate that he received appellee's (CDC) handbook before becoming a manager and as a regular employee of the defendant, Control Data Corporation. [Emphasis ours.]

The appellant had two methods of preserving any error of the trial court in granting summary judgment to insure appellate consideration of that error. The Texas Supreme Court has stated that the best method would be a point of error which simply complains, "[t]he trial court erred in granting the motion for summary judgment." Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). Such a point of error would comply with Rule 418 of the Texas Rules of Civil Procedure and would allow appellant to brief all the possible grounds upon which summary judgment should have been denied. Id. The alternative method is to list as a separate point of error each ground that the movant failed to prove as a matter of law upon which the trial court might have based its judgment. Id.

Once appellees established their right to summary judgment, it was appellant's duty to expressly present to the trial court a reason why summary judgment should not be granted, and then to support his contention with competent summary judgment evidence. Cf. Klafehn v. Fain, 643 S.W.2d 227, 228 (Tex.Civ.App.--Fort Worth 1982, writ ref'd n.r.e.). Then, on appeal from the granting of the summary judgment, it was appellant's duty to challenge all possible grounds upon which the summary judgment could have been granted. See Malooly Brothers, 461 S.W.2d at 121.

We will liberally construe appellant's points of error as challenging the trial court's granting of the summary judgment concerning the contract cause of action. See O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976).

The purpose of the summary judgment rule is to provide a procedure for disposing of a case when no genuine issues of fact exist, but rather only questions of law are involved. McNabb v. Kentucky Central Life Ins. Co., 631 S.W.2d 253, 254 (Tex.App.--Fort Worth 1982, no writ); Clutts v. Southern Methodist University, 626 S.W.2d 334, 335 (Tex.App.--Tyler 1981, writ ref'd n.r.e.). To establish his right to a summary judgment, the moving party has the burden to demonstrate that no material fact issues exist in the case, and therefore he is entitled to a judgment as a matter of law. Town North Nat. Bank v. Broaddus, 569 S.W.2d 489, 494 (Tex.1978); Wooldridge v. Groos Nat. Bank, 603 S.W.2d 335, 337 (Tex.Civ.App.--Waco 1980, no writ). The question on appeal is not whether the summary judgment proof presented raises material fact issues with regard to the essential elements of a cause of action or defense, but whether the evidence presented to the trial court establishes, as a matter of law, no genuine material fact issue exists as to one or more of the essential elements of plaintiff's cause of action. Wilcox v. St. Mary's University of San Antonio, 531 S.W.2d 589, 593 (Tex.1975); Pack v. City of Fort Worth, 552 S.W.2d 895, 897 (Tex.Civ.App.--Fort Worth), writ ref'd n.r.e. per curiam, 557 S.W.2d 771 (Tex.1977).

Issues not specifically raised before the trial court will not be considered as grounds for reversal. Central Tex. Decorating v. Mutual Sav. Inst., 607 S.W.2d 314,...