Opinion

Opinion issued June 19, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00438-CV

STANLEY RUSSELL COLEMAN, Appellant

V.

LYNN A. REVAK, REVAK TURBOMACHINERY SERVICES, INC.,

REVAK ETNERPRISES, INC., L-MART INTERNATIONAL

CORPORATION, REVAK CONTROLS CORPORATION, TURBO

STORAGE SERVICE COMPANY, AND REVAK ENERGY, INC., Appellees

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 2006-35477

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

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.

166 a(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.” R estatement (S econd ) of

C ontracts § 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