Winograd v. Willis, A14-89-00622-CV

• Decision Date: 05 April 1990
• Docket Number: No. A14-89-00622-CV,A14-89-00622-CV
• Citation: 789 S.W.2d 307
• Parties: 116 Lab.Cas. P 56,368 Eugene WINOGRAD and Judith Winograd, Individually and doing business as Judwin Properties, Appellants, v. William H. WILLIS, Jr., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 307

789 S.W.2d 307

116 Lab.Cas. P 56,368

Eugene WINOGRAD and Judith Winograd, Individually and doing business as Judwin Properties, Appellants, v. William H. WILLIS, Jr., Appellee.

No. A14-89-00622-CV.

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

April 5, 1990.

Rehearing Denied May 3, 1990.

Charles W. Kelly and Richard T. Howell, Jr., Houston, for appellants.

Michael Y. Saunders and John W. Tavormina, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and MURPHY, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

This is a suit for wrongful termination of an employment agreement. The jury determined that the appellants wrongfully terminated their employment contract with appellee William Willis and awarded Willis $30,333.33 in damages. Appellants bring three points of error, and appellee brings one cross-point. We affirm the trial court's judgment.

In 1981 Marvin Isgur, chief financial officer of appellant Judwin Properties, sought a new controller for the company. This adjustment in personnel was intended as part of the implementation of certain internal company changes recommended in a report prepared for Judwin by the Touche Ross accounting firm. Isgur offered the job to appellee William Willis, and on September 15, 1981, Willis accepted the position as controller with Judwin. In order to accept the new post, it was necessary for Willis to terminate his long-term employment with Way Engineering. Appellee claims that because of his concern about job security at Judwin, he requested and received written affirmation of his employment in the form of a letter. The letter provided in part:

This letter is intended to outline our agreement regarding your employment as controller for the Judwin Companies.

Your employment will commence as soon as possible, but in no event later than October 15, 1981. Your initial compensation package will include the following:

(1) An annual salary of $52,000. paid monthly and pro-rated for the initial month worked. The salary will be reviewed at the end of 1981 for consideration of an increase and/or bonus as appropriate.

Additionally, adjacent to the signature of Marvin Isgur, the letter provided a line for Willis' signature denoting that appellee "Accepted and Agreed" to the terms of the letter. Willis began his duties with Judwin on October 12, 1981. On February 2, 1982, appellee was notified that his employment with Judwin Properties was terminated. Willis subsequently initiated this suit against Judwin and its owners, appellants Eugene and Judith Winograd.

Texas has long adhered to the employment at will doctrine which states that when the term of service is left to the discretion of either employer or employee, either of those parties may terminate the employment relationship at will and without cause. McClendon v. Ingersoll-Rand Co., 779 S.W.2d 69, 70 (Tex.1989); East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888). In the absence of special circumstances, however, Texas also follows the general rule practiced in England, which dictates that a hiring at a stated sum per week, month, or year, is a definite employment for the period named and may not be arbitrarily concluded. Dallas Hotel Co. v. Lackey, 203 S.W.2d 557, 561 (Tex.Civ.App.--Dallas 1947, writ ref'd n.r.e.); Dallas Hotel Co. v. McCue, 25 S.W.2d 902, 905 (Tex.Civ.App.--Dallas 1930, no writ); see also Molnar v. Engels, Inc., 705 S.W.2d 224, 225 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.). Further, if the term of contracted employment is intended to exceed beyond one year, the employment contract must be in writing in order to conform to the statute of frauds. See TEX.BUS. & COM.CODE ANN. § 26.01(b)(1) (Vernon 1987).

In their first point of error appellants assert that the uncontested evidence showed that Willis did not have a written employment contract which directly limited in "a meaningful and special way" Judwin's right to terminate him without cause. For this reason, appellants claim that the district court committed reversible error in failing to enter judgment in their favor. We do not agree with the appellants' contention.

This court has stated that to establish a cause of action for wrongful termination, the discharged 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 that (2) the employment contract was in writing. Webber v. M.W. Kellogg Co., 720 S.W.2d 124, 126 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). The Beaumont Court of Appeals has added that the writing must, "in a meaningful and special way," limit the employer's right to terminate the employment at will. Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403, 406 (Tex.App.--Beaumont 1987, writ ref'd n.r.e.) (emphasis in original). In these decisions neither we nor the Beaumont court presumed to overrule Dallas Hotel Co. v. McCue or its progeny cases, as only the state legislature or the Texas Supreme Court may effect such major policy changes in Texas employment doctrines. See Molder v. Southwestern Bell Tel. Co., 665 S.W.2d 175, 177 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.). Thus, in order to construe Webber and Benoit in a manner consistent with the English Rule cases, it is clear that a hiring based on an agreement of an annual salary limits in a "meaningful and special way" the employer's prerogative to discharge the employee during the dictated period of employment.

We also find that because of the October 12th letter, the Willis/Judwin employment contract conformed to the statute of frauds. Appellants argue that the letter to Willis simply advised him of his compensation package and in no way specified Willis' duties or the duration of employment. However, appellants fail to note that the letter was executed in a contract form--Judwin's chief financial officer signed the instrument, and the document required Willis' signature to show that he "Accepted and Agreed" to the instrument's terms. A yearly salary was stipulated, clarifying the minimum duration of the contract. See Molnar, 705 S.W.2d at 225; Lackey, 203 S.W.2d at 561; Accidental Oil Mills v. Tomlinson, 8 S.W.2d 558, 559 (Tex.Civ.App.--Austin 1928, writ ref'd) ("[I]f at the expiration of the year the employee continues to perform his services, the contract impliedly renews itself for a period of one year."). The letter also stated that Willis was to be employed as the company controller. The evidence shows that the parties clearly understood the responsibilities of a company controller through their prior experience, pre-employment negotiations, and the stipulations of the Touche Ross report.

Even had a writing not cemented the employment agreement, we conclude that under the circumstances of this case a written confirmation of the contract was unnecessary. The statute of frauds bars only those contracts which must last longer than one year. Niday v. Niday, 643 S.W.2d 919, 920 (Tex.1982); Morgan v. Jack Brown Cleaners, Inc., 764 S.W.2d 825, 827 (Tex.App--Austin 1989, writ denied). The Willis/Judwin contract was defined by an annual salary; thus, the contract by its terms could have been performed in one year and did not necessitate a writing. It was therefore unnecessary for Willis to plead and submit jury questions that would excuse him from the statute of frauds' requirements. See W.H. McCrory & Co., Inc. v. Contractors Equip. and Supply Co., 691 S.W.2d 717, 720-21 (Tex.App.--Austin 1985, writ ref'd n.r.e.).

In a final argument to support their point appellants assert that the circumstances in the case before us parallel the situation in Dech v. Daniel, Mann, Johnson & Mendenhall, 748 S.W.2d 501 (Tex.App.--Houston [1st Dist.] 1988, no writ), a case in which the employee was denied recovery on an employment contract with his employer. However, the facts of the instant case are easily distinguished from those in Dech.

First, the Dech jury trial resulted in a verdict favorable to the employer, Id. at 502; thus, unlike the situation before us, the Dech jury must have concluded that there was either no employer breach or no durational employment contract. In Dech there was an exchange of letters affirming the oral employment contract; however, the evidence made it clear that the parties disagreed about what their original agreement had been. Id. at 503. In the case before us there is no dispute of the terms represented in the confirmation letter nor of the fact that it accurately represented the original oral agreement. Additionally, both Marvin Isgur and Willis...