Coleman v. Revak (Tex.App.- Houston [1st Dist.] June 19, 2008) (employment at will)
AFFIRM TC JUDGMENT: Opinion by Justice George C. Hanks, Jr.
Before Justices Nuchia, Alcala and Hanks
01-07-00438-CV Stanley Russell Coleman v. Lynn A. Revak, Revak Turbomachinery Services, Inc., Revak
Enterprises, Inc., L-Mart International Corporation, Revak Controls Corporation, Turbo Storage Service
Company, and Revak Energy, Inc.--Appeal from 11th District Court of Harris County
Trial Court Judge: Hon. Mark Davidson  

MEMORANDUM OPINION

This appeal arises from the termination of appellant Stanley Russell Coleman’s (“Coleman”) employment with
appellees, Lynn A. Revak, Revak Turbomachinery Services, Inc., Revak Enterprises, Inc., L-Mart International
Corporation, Revak Controls Corporation, Turbo Storage Service Company, and Revak Energy, Inc. (collectively,
“Revak”). Coleman sued Revak for breach of contract and common law fraud. The trial court granted Revak’s
motion for summary judgment. In two issues, Coleman argues that the trial court erred in granting summary
judgment in favor of Revak because (1) the motion for summary judgment did not set forth the grounds for
granting the motion and/or the grounds set forth lacked the specificity required as a matter of law and (2) there
were genuine issues of material fact created by Coleman’s affidavit that precludes summary judgment on his
breach of contract and common law fraud claims. We affirm.

Factual Background  
                                          For purposes of this appeal, we accept as true the facts alleged in Coleman’s
affidavit, which is attached to his response to Revak’s motion for summary judgment.


Close

Prior to being employed by Revak, Coleman was a consultant based in Nederland, Texas who occasionally
performed consulting services for Revak. Eventually, Revak offered Coleman a full-time employment position in
Houston. Revak assured Coleman that, if he accepted the job offer, Coleman could only be terminated for cause
and that it would not be an at will position. Revak repeated this assurance more than once. In reliance on these
representations, Coleman accepted the job offer, shut down his business in Nederland, and relocated with his
wife to Houston.

Shortly after beginning his employment with Revak, Coleman completed an employment application. In the
application Coleman put his initials by the following acknowledgment:

I understand that nothing contained in the application or conveyed to me during any interview that may be
granted is intended to create an employment contract, implied or explicit, between the Revak Companies and me.
In addition, I understand and agree that if I am employed, my employment relationship with the Revak Companies
is strictly voluntary and at our mutual will. I understand that if employed, my employment is for no definite period
and may be terminated at any time, with or without prior notice, with or without cause or reason, at the option of
either me or the Revak Companies, and that no promises or representations contrary to the foregoing are
binding on the Revak Companies unless made in writing and signed jointly by the President/CEO and me.



After Coleman was hired, Revak continued to represent to Coleman that his position was not at will. After 40
months of employment, Revak eventually terminated Coleman without cause.

        Coleman sued Revak for breach of contract and common law fraud. Revak moved for summary judgment
based upon the statute of frauds, the statute of limitations, and the fact that Coleman was an at will employee as
evidenced by his acknowledgment in the employment application. Without stating its reasons, the trial court
granted Revak’s motion for summary judgment. This appeal timely followed.

Standard of Review

Our review of a trial court’s decision to grant summary judgment is de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005). In a traditional summary judgment motion, the movant must show that there is
no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex R. Civ. P. 166a(c);
Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 645–46 (Tex. 2000). When a defendant moves for traditional
summary judgment, the summary judgment evidence must either (1) disprove at least one element of the plaintiff’
s cause of action or (2) conclusively establish each essential element of its affirmative defense, thereby defeating
the plaintiff’s cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In deciding whether a disputed
material fact issue precludes summary judgment, we take evidence favorable to the nonmovant as true, and
indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Provident Life & Accid.
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). When, as here, the trial court does not specify the grounds
upon which it ruled, the summary judgment may be affirmed if any of the grounds stated in the motion is
meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Mayes v. Goodyear Tire & Rubber Co.,
144 S.W.3d 50, 55 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

Discussion

Grounds for Summary Judgment

        In his first issue, Coleman contends that the court erred in granting Revak’s motion for summary judgment
because the motion did not expressly present the grounds for summary judgment in its motion. Coleman argues
that the motion was “so vague and incomplete that the bases for dismissing [his] causes of action were
indecipherable.” Coleman argues that the motion was required to specify “how each conclusion is reached or
supported by the evidence.” We disagree.

Rule 166a(c) of the Texas Rules of Civil Procedure provides that a motion for summary judgment must “state the
specific grounds therefor.” Tex. R. Civ. P. 166a(c); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.
1993). While the grounds “must at least be listed in the motion,” they “may be stated concisely, without detail and
argument.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340 (Tex. 1993). A movant is not required
to specifically describe how evidence in support of the motion justifies a summary judgment; merely identifying a
theory of liability or defense will suffice. See, e.g., Conquistador Petroleum, Inc. v. Chatham, 899 S.W.2d 439,
441–42 (Tex. App.—Eastland 1995, writ denied) (Court found that the following statement alone regarding an
affirmative defense was sufficient to satisfy the requirements of Rule 166a(c): “[Defendant] moves for summary
judgment against [Plaintiff] on the affirmative defense of unenforceability pursuant to the Rule against
Perpetuities.”).

Grounds are sufficiently specific if they give “fair notice” to the nonmovant of the claim involved. City of Roanoke
v. Town of Westlake, 111 S.W.3d 617, 633 (Tex. App.—Ft. Worth 2003, pet. denied). Where the grounds are
ambiguous, unclear or otherwise lacking in specificity, the nonmovant must specially except to the form of the
motion and give the movant an opportunity to amend before the nonmovant can complain about this issue on
appeal. McConnell, 858 S.W.2d at 341. The failure to specially except will result in the waiver of this issue on
appeal. Conquistador Petroleum, Inc., 899 S.W.2d at 442.

        Here, Revak’s motion complies with the mandates of Rule 166a(c) by expressly setting forth the specific
grounds for summary judgment. The motion gives Coleman notice that the motion addresses all claims asserted
in this action and states that “Coleman’s claims are barred and denied by the Statute of Frauds [Business &
Commerce Code Sec. 26.01(b)(6)] and by the Statute of Limitations and especially by the above cited paragraph
4 of the Employment Application signed May 22, 2000.” Specifically, Coleman had fair notice that his at will status
was being asserted as defense to his claims. The cited paragraph refers to the initialed acknowledgement that
Coleman has no employment contract with Revak and is an at will employee. Coleman did not file a special
exception to the grounds for summary judgment stated in the motion as “vague,” “incomplete,” “indecipherable,”
or otherwise lacking in specificity. Accordingly, Coleman has waived his right to argue on appeal that the grounds
in the motion lacked sufficient specificity. See McConnell, 858 S.W.2d at 342–43; Conquistador Petroleum, Inc.,
899 S.W.2d at 442.

        As part of his first issue, Coleman also asserts that the trial court erred in considering his employment
application as summary judgment evidence because he objected to its admissibility on grounds that Revak did
not establish “a proper predicate for its authenticity.” To raise this issue on appeal, Coleman was required not
only to make this objection, but to secure a ruling on his objection by the trial court. Hou-Tex, Inc. v. Landmark
Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.] 2000, no pet.). The record does not demonstrate
that Coleman secured a ruling on his objection to the employment application. Therefore, Coleman has waived
any complaint on appeal.

        We hold that the grounds for summary judgment set forth in the motion are sufficient to satisfy the
requirements of Rule 166a(c) and Coleman has waived his right to complain on appeal the lack of specificity of
those grounds. We overrule Coleman’s first issue.

        Issue of Material Fact

        In his second issue, Coleman contends that the affidavit attached to his response to Revak’s motion for
summary judgment raises issues of material fact that preclude summary judgment on his breach of contract and
common law fraud claims. Coleman argues that the affidavit sets forth facts showing that he was not an at will
employee and that Revak continued to make material misrepresentations to him regarding his tenure both before
and after he accepted the job offer and that these facts defeat the motion. We disagree.

        Assuming, as we must, all of the facts in Coleman’s affidavit concerning his employment status and the
representations Revak made to him are true, Revak was entitled to summary judgment on Coleman’s breach of
contract and fraud claims. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548–49 (Tex. 1985). To establish
a claim for breach of contract, Coleman must first establish the existence of a valid contract. Williams v. First
Tenn. Nat’l Corp., 97 S.W.3d 798, 802–03 (Tex. App.—Dallas 2003, no pet.). Coleman asserts that, based on
the oral representations made by Revak, Coleman had an oral contract with Revak that he would not be fired
except for cause. However, Revak’s assurances and representations to Coleman were too indefinite to constitute
an employment contract limiting Revak’s right to terminate Coleman. See Montgomery County Hosp. Dist. v.
Brown, 965 S.W.2d 501, 502–03 (Tex. 1998).

For more than a century, the general rule in Texas has been that, absent a specific agreement to the contrary,
employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause
at all. Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993); East Line & R.R.R. Co. v. Scott, 72
Tex. 70, 75, 10 S.W. 99, 102 (1888). A promise, acceptance of which will form a contract, “is a manifestation of
intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a
commitment has been made.” Restatement (Second) of Contracts § 2(1) (1981). General statements like those
allegedly made by Revak simply do not justify the conclusion that the speaker intends to make a binding contract
of employment. See Brown, 965 S.W.2d at 502. For such a contract to exist, the employer must unequivocally
indicate a definite intent to be bound not to terminate the employee except under clearly specified circumstances.
Id. General comments that an employee will not be discharged as long as his work is satisfactory do not in
themselves manifest such intent. Id. Neither do statements that an employee will be discharged only for “good
reason” or “good cause” when there is no agreement on what those terms encompass. Id. Without such
agreement the employee cannot reasonably expect to limit the employer’s right to terminate him. Id. Accordingly,
Coleman cannot establish an essential element of his breach of contract claim, the existence of a valid contract,
and the trial court did not err in granting summary judgment on this claim. Id. The basis of Coleman’s fraud claim
is that Revak terminated him without cause after making repeated misrepresentations to Coleman that he could
be terminated only for cause. As discussed above, the summary judgment evidence establishes that there was
no contract between Revak and Coleman altering Coleman’s at will status with Revak. See Brown, 965 S.W.2d at
502 (holding employment is presumed to be at will absent specific contrary agreement). We have held that an “at
will” employee is barred from bringing a cause of action for fraud against his employer based upon the employer’
s decision to discharge the employee. Miller v. Raytheon Aircraft Co., 229 S.W.3d. 358, 381 (Tex. App.—Houston
[1st Dist.] 2007, no pet.); see also Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 379–80 (Tex. App.—
Houston [1st Dist.] 2005, no pet.) (holding that status as at will employee precludes claim for fraudulent
inducement as matter of law). Accordingly, Coleman’s fraud claim is precluded as a matter of law because
Coleman’s employment was at will. The trial court did not err in granting summary judgment on this claim.

We hold that the affidavit does not raise a genuine issue as to any material fact that would defeat summary
judgment. We overrule issue two.



Conclusion



        We affirm the judgment of the trial court.

  



George C. Hanks, Jr.

                                                           Justice



Panel consists of Justices Nuchia, Alcala, and Hanks