THOMAS MULLENIX v. CELANESE LTD. AND CELANESE CORPUS CHRISTI TECHNICAL CENTER--Appeal from 105th District Court of Nueces County

NUMBER 13-04-138-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THOMAS MULLENIX, Appellant,

v.

CELANESE LTD. AND CELANESE

CORPUS CHRISTI TECHNICAL CENTER, Appellees.

On appeal from the 105th District Court

of Nueces County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

The trial court granted summary judgment in favor of appellees Celanese Ltd. and Celanese Corpus Christi Technical Center ("Celanese") and denied appellant Thomas Mullenix's competing motion for summary judgment. By four issues, Mullenix challenges (1) the order granting Celanese's objections to summary-judgment evidence, (2) summary judgment on the breach of contract and promissory estoppel claims, and (3) denial of his summary judgment. We affirm.

I. BACKGROUND

Mullenix claimed, and Celanese denied, that an oral contract of employment was created in August 2003 during an employee "town hall" meeting when Celanese notified its employees of impending layoffs and offered a severance package. The parties do not disagree that employment was originally at will but disagree regarding whether Mullenix's at-will status changed as Celanese communicated its plan to shut down the technical center where Mullenix worked. Mullenix sued Celanese on theories of contract and promissory estoppel, seeking the severance package never paid. Celanese filed motions for summary judgment asserting as grounds that Mullenix could not prove (1) detrimental reliance, an essential element of his promissory estoppel claim, and (2) an oral contract modifying the at-will employment relationship.

As to the summary-judgment motion on the breach of contract claim, Celanese denied an oral contract existed and asserted that Celanese's oral representations at the employee information meeting in August 2003 regarding separation packages were mere statements of future plans and expectations rather than legally enforceable promises with definite, specific terms. Celanese further asserted that no valid consideration existed to support the alleged oral contract regarding separation packages. Finally, Celanese asserted that, in the alternative, even if an oral contract existed based on Celanese's statements at the August 2003 meeting, Mullenix agreed to a contractual modification which eliminated any duty of Celanese to provide a separation package.

Mullenix responded to Celanese's summary-judgment motion addressing the contract claim and countered with his own motion for summary judgment on traditional and no-evidence grounds. In his motion, Mullenix asserted that an oral contract was formed because his summary-judgment evidence demonstrated: (1) on August 31 and September 13, 2001, Celanese made an official announcement at a town hall meeting or Employee Information Meeting ("EIM") that all Corpus Christi Technical Center employees would be out of a job on December 31, 2001, however if employees would agree to continue employment until December 31, 2001, they would receive severance packages; (2) Celanese encouraged employees to seek other employment immediately and assisted employees in seeking other work; (3) Celanese stated it would consider requests for early release without loss of the severance package on a case-by-case basis; (4) Mullenix found other employment and requested, but was denied, early release and continued his employment until December 31, 2001; (5) on October 29, 2001, Celanese unequivocally repudiated the oral agreement by stating that the "conditions had changed" for receiving a severance package due to "business considerations;" and (6) Mullenix did not receive a severance package even though he remained until December 31, 2001. As no-evidence summary-judgment grounds, Mullenix asserted that Celanese did not prove that a contract was not formed. Without stating the grounds, the trial court granted Celanese's summary-judgment motion and denied Mullenix's motion. In the same order, the trial court sustained Celanese's objections to Mullenix's summary-judgment evidence. This appeal ensued.

II. ISSUES ON APPEAL

Mullenix presents four issues for review: (1) whether the trial court abused its discretion by sustaining Celanese's objections to summary-judgment evidence; (2) whether the summary judgment on the contract claim was proper; (3) whether the summary judgment on the promissory estoppel claim was proper; and (4) whether denial of his cross-motion for summary judgment was proper.

III. SUMMARY JUDGMENT ANALYSIS

A. Summary-Judgment Standards of Review

On appeal, the standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no-evidence or traditional grounds. Tex. R. Civ. P. 166a(i), (c); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.BCorpus Christi 2003, no pet.) (op. on reh'g). The difference in relative burdens between the parties in the two types of summary-judgment motions is significant. Id. Determination of the nature of the motion for summary judgment under analysis is critical. Id. Here, both parties brought traditional motions for summary judgment. See Tex. R. Civ. P. 166a(c).

The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.BCorpus Christi 2003, no pet.). In both traditional and no-evidence summary-judgment motions, we review the evidence "in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences." See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.BCorpus Christi 2003, no pet.). The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. Hoyt, 105 S.W.3d at 345. When a summary-judgment order does not specify the grounds on which it is based, we affirm the trial court's ruling if any of the theories advanced in the motion are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

The non movant has the burden to respond to a traditional summary judgment motion if the movant conclusively: (1) establishes each element of its cause of action or defense; or (2) negates at least one element of the non movant's cause of action or defense. Hoyt, 105 S.W.3d at 345. When: (1) both sides move for summary judgment, and (2) the trial court grants one motion and denies the other, we review both parties' summary-judgment evidence and determine all questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Frost Nat'l Bank v. L & F Distribs., 122 S.W.3d 922, 929 (Tex. App.BCorpus Christi 2003, pet. filed). Since each party is a movant, the burden is the same for both: to establish entitlement to summary judgment by conclusively proving all the elements of the cause of action or defense as a matter of law. Buccaneer's Cove, Inc. v. Mainland Bank, 831 S.W.2d 582, 583 84 (Tex. App.BCorpus Christi 1992, no writ). Neither may prevail because of the failure of the other to discharge its burden. Id. at 584. When, as here, the only issue both movants presented to the trial court was a question of law, we render the judgment the trial court should have rendered if we reverse. Tex. R. App. P. 43.2(c); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). Our review is de novo. Ortega, 97 S.W.3d at 771.

B. The Law

In general, a contract is legally binding only if its terms are sufficiently definite to enable a court to understand the parties' obligations. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000). As with all contracts, the parties to an employment agreement must negotiate and agree to its essential terms for the agreement to be enforced. See Larson v. Family Violence & Sexual Assault Prevention Ctr., 64 S.W.3d 506, 515 (Tex. App.BCorpus Christi 2001, pet. denied); see also Smith v. SCI Mgmt. Corp., 29 S.W.3d 264, 268 (Tex. App.BHouston [14th Dist.] 2000, no pet.) ("We find that such a general discussion about an employee's annual compensation does not raise a fact issue as to whether the parties agreed to limit in a 'meaningful and special way' the employer's prerogative to discharge the employee without cause."). The terms of an oral contract must be definite, certain, and clear as to all essential terms; or the contract will fail for indefiniteness. Meru v. Huerta, 136 S.W.3d 383, 390 (Tex. App.BCorpus Christi 2004, no pet.). Although Texas courts favor validating contracts, courts may not create a contract where there is none. Kelly v. Rio Grande Computerland Group, 128 S.W.3d 759, 766 (Tex. App.BEl Paso 2004, no pet.). Similarly, if an essential term of employment is open for future negotiation, no binding contract is created. Mann v. Trend Exploration Co., 934 S.W.2d 709, 713 (Tex. App.BEl Paso 1996, writ denied).

Parties have the power to modify their contracts. Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 228 (Tex. 1986). A modification must satisfy the elements of a contract: a meeting of the minds supported by consideration. Id. Whether a contract is modified depends on the parties' intentions and is a question of fact. Id. at 228-29. The burden of proving modification rests on the party asserting the modification. Id. at 229. In employment at-will situations, either party may impose modifications to the employment terms as a condition of continued employment. Id. The party asserting the modification still must prove that the other party agreed to modify the employment terms. Id. Generally, when the employer notifies an employee of changes in employment terms, the employee must accept the new terms or quit. Id. If the employee continues working with knowledge of the changes, he has accepted the changes as a matter of law. Id. Thus, to prove a modification of an at-will employment contract, the party asserting the modification must prove two things: (1) notice of the change; and (2) acceptance of the change. Id. To have knowledge of a modification, the employee must know the nature of the changes and the certainty of their imposition. Id. If the employer proves that he has unequivocably notified the employee of the changes, the employee's continuing employment will constitute acceptance as a matter of law. Id.

C. Celanese's Summary-Judgment Motion

As grounds in support of its summary-judgment motion on the contract claim, Celanese asserted that, even if there were an enforceable oral contract, which Celanese denies, Mullenix agreed to a modification of that agreement that eliminated the severance package. Mullenix responded that, on October 29, 2001, Celanese unequivocally repudiated the oral agreement when it changed the conditions for receiving a severance package. The change required employees selected for the transition team, including Mullenix, to continue working on a temporary basis for an uncertain amount of time. The employees would receive a severance package only after Celanese finally released them. The parties do not dispute that Mullenix had notice of the change and continued working through December 31, 2001, when he left for other work he acquired with the assistance of Celanese's outplacement services.

Viewing the evidence in the light most favorable to Mullenix and, thus assuming without deciding that an oral agreement existed as to the terms and conditions for a severance package, we conclude that the agreement was changed on October 29, 2001. Mullenix had notice of the change. Mullenix continued working with Celanese under the terms and conditions effective as of that date until the date of his separation. The trial court could have properly concluded that Celanese did not pay Mullenix the severance package because he did not meet the requirements of the change, namely, that he continue working on a temporary basis until Celanese released him. Accordingly, the trial court could have reasonably concluded that Mullenix breached the modified agreement and forfeited the severance package. On the other hand, the trial court could have also properly concluded that Mullenix unequivocally had notice of the modification of the oral agreement and, by remaining in Celanese's employ, accepted the modification as a matter of law. Hathaway, 711 S.W.2d at 228. Because he left on December 31, 2001, for other work and not under the modified terms, he forfeited his right to the severance package. Id.

When a summary-judgment order does not specify the grounds on which it is based, we affirm the trial court's ruling if any of the theories advanced in the motion are meritorious. State Farm Fire & Cas. Co., 858 S.W.2d at 380. We conclude that, in the light most favorable to Mullenix, Mullenix accepted the terms of a modified oral agreement and did not meet the terms, as modified. We overrule the second issue presented. Because we affirm summary judgment on a theory raised in the summary-judgment motion, we need not address the first and third issues presented. Tex. R. App. P. 47.1. We now turn to the merits of Mullenix's cross-motion for summary judgment as raised in his fourth issue. FM Props. Operating Co., 22 S.W.3d at 872; Frost Nat'l Bank, 122 S.W.3d at 929.

D. Mullenix's Summary-Judgment Motion

In his fourth issue, Mullenix asserts that the trial court improperly denied his summary-judgment motion because Celanese admitted, by its alternate summary-judgment theory, that an oral agreement existed to provide a severance package. Thus, he argues, summary judgment in his favor was proper. In the light most favorable to Celanese, as the non-movant, the trial court could have properly denied Mullenix's summary-judgment motion on grounds that Mullenix did not comply with the terms of the modified agreement, as we have already concluded. Accordingly, the trial court properly denied Mullenix's summary-judgment motion. Hathaway, 711 S.W.2d 228-29. We overrule Mullenix's fourth issue.

IV. CONCLUSION

We affirm the summary judgment.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this the 11th day of August, 2005.

[1] See Tex. R. App. P. 47.2, 47.4.