Shannon, Brian P. v. Southern Company Energy Marketing L.P. and Dave Stewart--Appeal from 280th District Court of Harris County

Affirmed and Opinion filed  July 25, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01165-CV

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BRIAN P. SHANNON, Appellant

V.

SOUTHERN COMPANY ENERGY MARKETING, L.P.,

and DAVE STEWART, Appellees

_____________________________________________________

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 00-37073

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O P I N I O N

In this employment dispute, Brian P. Shannon appeals a summary judgment in favor of Southern Company Energy Marketing, L.P., and Dave Stewart (collectively, SCEM ) on the grounds that: (1) fact issues were raised as to whether an oral contract for employment had been created and whether Shannon was terminated for cause; and (2) Shannon was entitled to sue for quantum meruit. We affirm.

Standard of Review

A summary judgment may be granted if the motion and summary judgment evidence show that, except as to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on those issues expressly set out in the motion or response. Tex. R. Civ. P. 166a(c). Once a motion and summary judgment evidence establish a movant s right to summary judgment, the burden shifts to the nonmovant to raise any fact issues precluding summary judgment. Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex.1999). In reviewing a summary judgment, we take all evidence as true, indulge every reasonable inference, and resolve any doubts, in the non-movant s favor. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

Contract Claim

Shannon s first and second issues challenge the summary judgment against his claim for breach of an oral, term (i.e., non-at-will) employment agreement on the grounds that a fact issue existed as to whether: (1) such an employment contract had been created; and (2) Shannon had been terminated for cause in accordance with that agreement.

Absent a specific agreement to the contrary, employment in Texas may be terminated by an employer at-will, i.e., for good cause, bad cause, or no cause at all. Midland Judicial Dist. Cmty. Supervision and Corrs. Dep t v. Jones, 45 Tex. Sup. Ct. J. 965, 965, 2002 WL 1379022, at *1 (June 27, 2002) (per curiam). To overcome the presumption of at-will employment, the employer must unequivocally indicate a definite intent to be bound not to terminate the employee except under clearly specified circumstances. Id. Thus, an employee who has no formal term employment agreement with his employer cannot construct one out of indefinite comments, encouragements, or assurances. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998).

In this case, SCEM s motion for summary judgment asserted that Shannon was an at-will employee, as evidenced by the employment application, Confidentiality Agreement, and Intellectual Property Agreement that Shannon signed when he began his employment there, each of which specified that his employment would be at-will. The Confidentiality and Intellectual Property Agreements further stated that they could not be amended except in a document signed by Shannon and SCEM, and no such modification has been alleged.

To raise a fact issue on the existence of a term employment contract, Shannon relies on a proposed written employment agreement (the proposed agreement ) that SCEM had initially offered Shannon but which he declined and neither party ever signed. Shannon contends that SCEM s actions in thereafter employing him and paying him the salary and bonuses reflected in the proposed agreement created an oral contract to abide by the remaining terms of the proposed agreement. Shannon further asserts that a term employment agreement was created because he had been hired for an annual salary. See Winograd v. Willis, 789 S.W.2d 307, 310 (Tex. App. Houston [14th Dist.] 1990, writ denied) (stating that Texas follows the rule practiced in England whereby 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). We disagree.

The fact that SCEM employed Shannon and paid him compensation amounts that coincided with those set forth in the proposed agreement is, at most, ambiguous regarding whether any further agreement existed concerning his employment. Without more, those acts do not unequivocally indicate a definite intent by SCEM to be bound not to terminate Shannon except under clearly specified circumstances. Moreover, to whatever extent Winograd reflected prevailing law at the time it was decided, it is not compatible with more recent Texas Supreme Court pronouncements, such as those cited above (because hiring for a stated sum per week, month, or year does not unequivocally indicate a definite intent to be bound not to terminate except under clearly specified circumstances).[1] Because Shannon s first issue thus fails to demonstrate a fact issue regarding the existence of a term employment agreement, it is overruled, and we need not address his second issue regarding whether he was terminated for cause pursuant to such an agreement.

Quantum Meruit Claim

Shannon s third issue challenges the summary judgment against his alternative claim for quantum meruit on the ground that his recovery under that theory is supported by the holding of Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex. 1974).

Quantum meruit is an equitable theory of recovery that is based on an implied agreement to pay for benefits received. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992).[2] However, a party may recover under quantum meruit only where there is no express contract covering the services for which compensation is sought. Murray v. Crest Constr., Inc., 900 S.W.2d 342, 345 (Tex. 1995).

In this case, Shannon claimed quantum meruit for the value of services he rendered to SCEM, including recovery of an incentive bonus. SCEM s motion for summary judgment asserted that such a claim was barred because Shannon s work for SCEM was covered by a contract. Shannon s summary judgment response acknowledged that should [Shannon] prevail on his contractual claims, he would not be entitled to a double recovery under quantum meruit as well. Thus, Shannon does not assert that he provided services to SCEM beyond those contemplated by his employment relationship or after that relationship ended. Rather, his quantum meruit claim appears to be for additional amounts for his services as an employee, i.e., in the event a contract that would provide such further compensation cannot be proved. However, a quantum meruit claim cannot apply to the services Shannon provided SCEM as an employee because those services were covered by whatever oral, at-will agreement was in effect that provided for payment of the salary Shannonacknowledges receiving.

Shannon s reliance on Miller in this context is similarly misplaced. In Miller, the Texas Supreme Court held that an at-will employee who was discharged without good cause prior to the time specified for payment of an annual bonus was entitled to recover the pro rata portion of the bonus attributable to the part of the bonus period he worked before his discharge. See 517 S.W.2d at 775. Miller does not support Shannon s quantum meruit claim because Miller addressed a claim based solely on a contract (i.e., the oral, at-will agreement that provided for payment of such bonuses in previous years), not quantum meruit.[3] See id. at 774-775. Accordingly, Shannon s third issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed July 25, 2002.

Panel consists of Justices Hudson, Edelman, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] See Jones v. Midland Judicial Dist. Cmty. Supervision and Corrs. Dep t, No. 08-99-00314-CV, 2001 WL 328663, at *2 (Tex. App. El Paso April 5, 2001) (finding term contract based, in part, on hiring for annual salary), rev d, 45 Tex. Sup. J. 965, 2002 WL 1379022 (June 27, 2002) (per curiam).

[2] To prevail on a quantum meruit claim, the plaintiff must establish that: (1) valuable services were furnished; (2) to the party sought to be charged; (3) which were accepted by the party sought to be charged; and (4) under such circumstances as reasonably notified the recipient that the claimant, in performing, expected to be paid by the recipient. Heldenfels, 832 S.W.2d at 41.

[3] Similarly, Miller does not support the only contract claim Shannon has asserted in this case because that claim is based on the alleged term employment agreement described in the proposed agreement (but found not to exist in the preceding section) rather than on whatever at-will employment agreement existed between SCEM and Shannon, as was addressed in Miller.