Vice v. E. Tex. Mun. Util. Dist.
| Decision Date | 20 April 2023 |
| Docket Number | 12-21-00225-CV |
| Parties | TOMMY VICE, APPELLANT v. EAST TEXAS MUNICIPAL UTILITY DISTRICT, APPELLEE |
| Court | Texas Court of Appeals |
Appeal from the 114th District Court of Smith County, Texas (Tr.Ct.No. 18-0793-B)
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Tommy Vice appeals the trial court's order granting Appellee East Texas Municipal Utility District's (ETMUD) motion for summary judgment and denying his motion for summary judgment. Vice raises seven issues on appeal. We affirm.
Vice began working for ETMUD in 1990. In April 2008, Vice entered into a ten-year employment agreement with ETMUD, upon the approval of its board of directors, to work as its general manager. Among other things, the contract provided that Vice shall, at all times, "faithfully, industriously[,] and to the best of his ability, experience[,] and talents[,] perform all [his] duties to the reasonable satisfaction" of ETMUD. The agreement further set forth that ETMUD could terminate the agreement with or without cause,[1] but in the event of termination without cause, ETMUD was required to pay Vice's compensation for the remaining term of the agreement.
In 2011, Vice and ETMUD agreed to the amendment of "certain terms and provisions" of the 2008 agreement. The amendment, which ETMUD suggests that Vice represented to the board was approved by ETMUD's legal counsel, also was approved by ETMUD's board of directors.[2] The amendment extends the term of the original agreement until April 7 2028, and, most notably, in Section 6.5, provides as follows:
6.5 Payment Upon Termination. Employee devoted his life to the successful development of this District and therefore, if for any reason Employee's employment with Employer is terminated (including termination resulting from the dissolution of Employer), or (Employee's authorities duties, responsibilities) or (status, including job title[] is materially altered in such a way as to induce discord or amounting to an effective termination, or (becoming partly or completely disabled as a result of job related activities whether singular or accumulated effect)[,]Employee shall be entitled to, and Employer shall be obligated to deliver to Employee all compensation identified in Employee's Employment Agreement under Item 3 Compensation, (Section 3.1 and 3.3 and 3.4) as if the contract and Employee's employment were completely satisfied without interruption for the full term agreed upon in this Amendment. Payment for (Section 3. l and 3.3 and 3.4), shall be made in a one-time lump-sum and shall be due upon the termination of Employee's employment with Employer.
In 2016, the ETMUD board became concerned about Vice's management and performance. As the board's concerns grew in the ensuing year, Vice became less cooperative and took actions suggesting he wished to shield his conduct from scrutiny, such as locking board member Mike Danapas out of the ETMUD offices to prevent his accessing ETMUD financial records. Ultimately, Vice resigned before the October 26, 2017 board meeting and claimed he was owed a lump sum payment of more than $1,000,000 comprising his compensation through April 2028 pursuant to the amended agreement. Following his resignation, Vice never returned to ETMUD or otherwise performed his employment duties.
As a result, ETMUD suspended the October 26, 2017 board meeting so that it could evaluate Vice's claims. Within days, the board placed Vice on paid administrative leave and began an investigation into his conduct with the aid of an accountant and an information technology expert to determine whether he breached the employment agreement. During this time, Vice's legal counsel sent a letter to ETMUD dated February 12, 2018, in which he, on Vice's behalf, gave "final notice of his resignation." The first phase of ETMUD's investigation concluded on March 12, 2018. On March 14, counsel for ETMUD sent a letter to Vice demanding that he return all property belonging to ETMUD still in his possession and setting forth that had Vice not resigned, based on the findings of its investigation, it would have terminated his employment based on his materially breaching the agreement.
Vice filed the instant suit on March 31, 2018, in which he alleged that ETMUD was liable to him for compensation through April 7, 2028, "regardless of when or why Vice's employment ended" and that its failure to so compensate him amounted to a breach of the 2008 employment agreement as amended. ETMUD answered and filed a counterclaim. Thereafter, Vice filed both no-evidence and traditional motions for summary judgment. ETMUD also filed a motion for summary judgment, in which it argued (1) the contract at issue lacks consideration, (2) the contract is unconscionable, (3) Vice materially breached the agreement, thereby excusing ETMUD's continued performance, and (4) the liquidated damages claim amounts to an unenforceable penalty. The trial court considered the motions on submission and, ultimately, signed an order by which it granted ETMUD's motion for summary judgment, ordered that Vice take nothing by his suit, and dismissed Vice's claims with prejudice. The trial court also signed an order denying Vice's traditional motion for summary judgment. Thereafter, the trial court severed Vice's claim against ETMUD from ETMUD's counterclaims, and this appeal followed.
When, as here, the parties have filed competing and/or cross-motions seeking summary judgment, and the trial court grants one and denies the other; we review both motions and render the judgment the trial court should have rendered. See Houle v. Casillas, 594 S.W.3d 524, 541 (Tex. App.-El Paso 2019, no pet.). The movant for traditional summary judgment 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. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant who conclusively negates at least one essential element of the nonmovant's cause of action is entitled to summary judgment as to that cause of action. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Likewise, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. Id. Once the movant establishes a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). The only question is whether an issue of material fact is presented. See Tex. R. Civ. P. 166a(c).
When reviewing summary judgments, we perform a de novo review of the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.-Tyler 2008, pet. denied).
Further, all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c). If the trial court's order granting summary judgment does not specify the grounds relied on for its ruling, we will affirm it if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). Thus, when an appellant fails to negate each ground on which the judgment could have been granted, we must affirm. Flores v. Hull Assocs. N., LP, 657 S.W.3d 68, 75 (Tex. App.-El Paso 2022, no pet.).
In his first issue, Vice argues that the trial court erred in granting ETMUD's motion for summary judgment and denying his motion on the implied basis that the employment agreement, as amended, lacked consideration.
In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); see also Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). To achieve this objective, we must examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. See Coker, 650 S.W.2d at 393; CBI Indus., 907 S.W.2d at 520. No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument. See Coker, 650 S.W.2d at 393; CBI Indus., 907 S.W.2d at 520; Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193, 196 (Tex. 1962).
If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe the contract as a matter of law. Coker, 361 S.W.2d at 393. The interpretation of an unambiguous contract is a question of law, which we review de novo. See MCI Telecomm. Corp. v Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999). Ambiguity does not arise simply because the parties advance conflicting interpretations of the contract; rather, for an ambiguity to exist, both interpretations must be reasonable. Lopez v. Munoz,...
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