Mark R. Budde v. Progressive Casualty Insurance Company--Appeal from 98th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-370-CV
MARK R. BUDDE,

APPELLANT

 
vs.
PROGRESSIVE CASUALTY INSURANCE COMPANY,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. 483,120, HONORABLE HUME COFER, JUDGE PRESIDING

Mark R. Budde sued his former employer, Progressive Casualty Insurance Company, on various causes of action that allegedly arose from the Company's termination of his employment. The trial court sustained the Company's motion for summary judgment. Budde appeals. We will affirm the judgment.

 
THE CONTROVERSY

The Company engaged Budde as a product manager in January 1986 and unilaterally terminated his employment in June 1989. Budde sued the Company for breach of contract, alleging the termination was without cause and wrongful and by it the Company intentionally and negligently inflicted upon him emotional distress. (1)

The Company moved for summary judgment on various grounds, including the ground that Budde's employment was "at will," that is to say, without any agreed duration. The trial court sustained the motion and ordered that Budde take nothing.

 
DISCUSSION AND HOLDINGS

In a single point of error, raising eight subpoints, Budde contends the trial court erred in rendering judgment against him as a matter of law. The rules governing appellate review of summary judgments are well established and need not be reiterated here. See, e.g., Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 484 (Tex. 1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). We will group for discussion the various subpoints.

 
Modification of the Employment Contract

The employment contract was originally an "at will" contract. (2) Budde contends, however, that the record raised genuine issues of material fact concerning whether the contract had been modified to require that (1) Budde might be discharged only for good cause, (2) Budde must be notified of any deficiencies in his performance and given an opportunity for improvement before being discharged, and (3) Budde must be offered another position in the company before being discharged.

Good Cause. Concerning this alleged modification, Budde points to that part of the summary-judgment record describing several conversations at Company functions, such as dinners and meetings, in which senior officers of the company stated that satisfactory performance was the key to advancing in the Company hierarchy. From these, Budde infers a promise or undertaking by the Company that "he would continue to have a job with Progressive [the Company] as long as his performance was satisfactory." We hold the summary-judgment record will not reasonably support that inference because the conversations did not amount to an explicit company undertaking or promise of the kind alleged. See Zimmerman, Inc. v. Hatridge, 831 S.W.2d 65, 69 (Tex. App.Texarkana 1992, writ requested) ("[A] statement of company policy, unaccompanied by an express agreement, does not create contractual rights."); Watson v. Zep Mfg. Co., 582 S.W.2d 178, 179 (Tex. Civ. App.--Dallas 1979, writ ref'd n.r.e.) (An offer of steady employment does not imply an express agreement not to terminate without good cause.).

Notice of Performance Deficiencies. Budde infers from Company handbooks the following alleged modification of his at-will employment contract: The handbooks prescribe a procedure to be followed before discharging an employee on the ground of deficient performance, including a requirement of prior notice of the deficient performance and an opportunity to improve. The handbooks alone do not, however, raise a genuine issue of material fact concerning whether the at-will contract had been modified in the particular urged by Budde. "[E]mployee handbooks, which are not accompanied by an express agreement dealing with procedures for discharge of employees, do not create contractual rights regarding these procedures." Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 413 (Tex. App--Corpus Christi 1988, no writ); see also Hatridge, 831 S.W.2d at 69. The opinion in United Transp. Union v. Brown, 694 S.W.2d 630, 632 (Tex. App.--Texarkana 1985, writ ref'd n.r.e.), upon which Budde relies, involved a specific promise to the employee that the handbook procedure would apply to her employment contract. Nothing in the summary-judgment record suggests a promise or undertaking by the Company that the handbook procedures would apply to Budde's employment contract. We hold accordingly.

Offer of Other Employment. Budde infers this promise or undertaking from conversations he had with other employees about company policy. The summary-judgment record reveals, however, no explicit promise or undertaking of that nature made to Budde by an officer having power to contract for the Company. As mentioned previously, Company policy does not create a contract right in the absence of a specific and express agreement with the employee. Hatridge, 831 S.W.2d at 69. We hold accordingly.

 
Infliction of Emotional Distress

Budde averred in his petition that the Company's wrongful termination of his employment inflicted upon him emotional distress that was both intentional and negligent. We have held above that there was no modification of Budde's at-will employment contract. As a matter of law this means that his discharge was not "wrongful." Ordinarily this would dispose of Budde's claim regarding the infliction of emotional distress. In his response to the Company's motion for summary judgment, however, Budde advanced outside his petition another theory that we should discuss: that his claim of emotional distress was predicated also upon the conduct of unnamed "agents" of the Company who "sabotaged" Budde's efforts to obtain another position in the Company.

Because the Company established its right to summary judgment on the issues raised in Budde's petition, the burden lay upon Budde to supply summary-judgment "evidence" raising the new contention made in his response. Woolhouse v. Tolchin Instruments, Inc., 601 S.W.2d 106, 108 (Tex. Civ. App.--Dallas 1980, no writ). Raising a "mere surmise or suspicion of fact sought to be established" is insufficient to defeat a motion for summary judgment. McFadden v. Cecil Ruby Co., 422 S.W.2d 770, 771 (Tex. Civ. App.Waco 1967, no writ).

Budde's affidavit is the sole part of the record from which one may infer support for the new theory that the Company was vicariously liable for its agents' alleged "sabotage" of Budde's efforts to obtain another position in the Company. In this connection, however, the affidavit recites only hearsay and states no material facts inferrable therefrom. Rather, Budde frankly acknowledges in the affidavit that it was merely his belief that some persons, unknown to him, had sabotaged his efforts. Budde states that he had a "feeling" that a particular employee had done so, but Budde had no "specific proof that someone did that." We hold, therefore, that the summary-judgment record did not raise the theory that the Company was liable for the wrong committed by its "agents." Tex. R. Civ. P. 166a(f) (opposing affidavits shall be made on personal knowledge and set forth such facts as would be admissible in evidence).

 
Use of Summary-Judgment Procedure

Budde complains the summary judgment was improper because it necessarily rested upon an impermissible iteman excerpt copied from a deposition transcript that was not verified by an attorney's affidavit. The rules of procedure permit the use of copies of discovery products if the copies are filed with a statement of intent to use them as summary-judgment "evidence." See Tex. R. Civ. P. 166a(d). The Company filed the copy of the excerpt accompanied by the requisite statement. We hold the copy was, therefore, a proper part of the summary-judgment record.

Exclusion of the copy mentioned above is a condition of Budde's second argument. If the copy is excluded, he argues, the only remaining basis for the summary judgment is the affidavit accompanying the motion for summary judgment. This affidavit was made by an interested witness and it was controverted by Budde's own affidavit. Therefore, Budde argues, it could not form the basis of a summary judgment. Tex. R. Civ. P. 166a(c) (a summary judgment may be given on the testimony of an interested witness if it is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, provided the affidavit is not controverted).

We will consider the argument even though we have held above that the copy of the deposition excerpt was properly considered as part of the summary-judgment record

We find from our examination that the disputed affidavit meets the requirements of Rule 166a(c) regarding clarity, positiveness, directness, and so forth. Budde contends it is contradicted, however, by a single answer given by the Company to an interrogatory propounded to it. We have examined the interrogatory and the answer. They do not raise a genuine issue of material fact; hence the affidavit accompanying the Company's motion was not in fact controverted. It was therefore a sufficient basis for the summary judgment as stated in Rule 166a(c).

Budde contends finally that the company was not entitled to summary judgment because the only proper response to Budde's petition was a special exception. The contention depends, however, on a theory that Budde was entitled to replead his claim (which lay outside his petition but in his response to the summary-judgment motion) that company agents sabotaged his attempts to obtain a new position in the company. Conceding the right to replead, we have disposed of the contention in our discussion and holding above that the summary-judgment "evidence" did not raise such a claim whether pleaded in a petition or in the response to the motion for summary judgment.

For the reasons given, we overrule Budde's point of error and affirm the summary judgment.

 

John Powers, Justice

[Before Justices Powers, Jones and Kidd]

Affirmed

Filed: October 21, 1992

[Do Not Publish]

1. Budde also alleged in his petition three grounds for recovery that he has abandoned on appeal: that the Company (1) conspired to deprive him of other jobs within the Company, (2) denied him severance-pay benefits, arbitrarily and capriciously, under a plan subject to the Employee Retirement Income Security Act (ERISA), and (3) failed to provide him a written copy of the severance plan and an explanation of why his benefits were denied. Budde abandoned these by filing a notice limiting the scope of his appeal. See Tex. R. App. P. 40(a)(4).

2. Budde's employment contract was unwritten and had no stated term. Such employment contracts may generally be terminated at the pleasure of either party and without cause. There are exceptions, both statutory and common law. No such exception is applicable in the present case. See Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 732, 724 (Tex. 1990). An "at will" contract may, however, be modified by the parties' subsequent agreement placing limitations on the right to terminate at pleasure. See Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 489 (Tex. 1991); Morgan v. Jack Brown Cleaners, Inc., 764 S.W.2d 825, 826 (Tex. App.--Austin, 1989, writ denied).