James Wegner v. Dell Computer Corporation and Ken Hashman

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00028-CV

James Wegner, Appellant

v.

Dell Computer Corporation and Ken Hashman, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. 98-03154, HONORABLE MARGARET COOPER, JUDGE PRESIDING

James Wegner, appellant, appeals from a summary-judgment order favoring Dell

Computer Corporation ("Dell") and Ken Hashman, appellees. Wegner sued Dell claiming

wrongful termination based on breach of contract and violation of public policy. Wegner also sued

Hashman, his supervisor at Dell, claiming Hashman tortiously interfered with his employment

contract. The trial court granted Dell's special exception to Wegner's breach of contract claim

based on public policy and rendered summary judgment against Wegner on his remaining claims.

Wegner appeals, arguing in four points of error that the trial court erred in rendering summary

judgment on his causes of action and abused its discretion by both denying Wegner's motion to

continue the summary judgment hearing and granting Dell's special exception. We will affirm the

judgment of the trial court.

BACKGROUND

In the spring of 1993, Wegner accepted employment with Dell. From 1993 until

1997, the record indicates that Dell and Wegner viewed their employment relationship positively.

Dell awarded Wegner numerous stock option and bonus opportunities. However, by September

1997, the employment relationship had deteriorated. Dell placed Wegner on a ninety-day

"Performance Improvement Plan" to address deficiencies in his job performance. Subsequently,

Hashman, Wegner's supervisor, terminated Wegner before he completed the probationary period.

In his wrongful termination suit against Dell, Wegner alleged Dell breached his

employment contract. In addition, Wegner alleged Dell violated public policy by terminating him

to prevent his collection of "soon-to-mature" stock options. He also sued Hashman, alleging

Hashman tortiously interfered with his employment contract. Dell answered that Wegner was an

at-will employee and, as such, could be fired with or without cause, and that Hashman, as its

agent, could not, as a matter of law, tortiously interfere with Wegner's employment contract. Dell

also specially excepted to Wegner's allegation of a public policy violation on the ground that such

a violation had no basis in law. The trial court sustained this special exception. Dell and

Hashman then moved for, and were granted, summary judgment. In four points of error, Wegner

claims that the trial court erred: (1) by granting summary judgment on Wegner's breach of

contract claim against Dell because a material question existed as to whether Wegner's

employment contract was for a specified period of time, thereby requiring good cause for

termination; (2) by awarding summary judgment to Hashman on Wegner's claim of tortious

interference; (3) by not granting Wegner's motion to continue the summary judgment hearing; and

(4) by granting Dell's special exception dismissing Wegner's claim of wrongful discharge based

on public policy.

DISCUSSION

Wegner's first two points of error argue that the trial court erred in granting

summary judgment. Summary judgment is proper only if Wegner could not succeed as a matter

of law on any claim pleaded. See Delgado v. Burns , 656 S.W.2d 428, 429 (Tex. 1983). In

reviewing the trial court's grant of summary judgment in this case, the standards for review are

well established: (1) Dell has the burden of demonstrating that no genuine issue of material fact

exists and is thus entitled to judgment as a matter of law; (2) in deciding if there is a disputed

material fact that would preclude summary judgment, the evidence favorable to Wegner will be

taken as true; and (3) every reasonable inference must be indulged in favor of Wegner and any

doubt resolved in his favor. See Nixon v. Mr. Property Management Co. , 690 S.W.2d 546, 548-49 (Tex. 1985).

Breach of Contract

Wegner argues in his first point of error that his employment contract with Dell was

for a specified term, not at will, and that the trial court improperly granted summary judgment to

Dell. We disagree. All employment relationships in Texas are presumed at will unless there is

a specific agreement to the contrary. Montgomery County Hosp. Dist. v. Brown , 965 S.W.2d 501,

502 (Tex. 1998); Federal Express Corp. v. Dutschmann , 846 S.W.2d 282, 283 (Tex. 1993).

Employment at will may be terminated with or without cause. Montgomery County , 965 S.W.2d

at 502 ; Byars v. City of Austin , 910 S.W.2d 520, 523 (Tex. App.--Austin 1995, writ denied)

(citing Federal Express , 846 S.W.2d at 283 ). Any modification of at-will employment must be

based upon an unequivocal statement by the employer not to terminate the employee except under

clearly specified circumstances. Id. One cannot imply such a modification; it must be done

expressly. Byars , 910 S.W.2d at 523 .

Dell argues that the instant cause presents the typical case for the application of

Texas's employment-at-will doctrine. Dell points out that, not only was there no express or

specific agreement between Dell and Wegner that he was anything other than an at-will employee,

but, in addition, Dell explicitly informed Wegner of his at-will status on numerous documents

signed by Wegner:

Wegner's application for employment : "I understand and agree that my

employment is for no definite period and may, regardless of the date or interval

of payment of my wages or salary, be terminated at any time without any

previous notice or obligation on the part of the company";

Wegner's employment agreement which accompanied Dell's offer of

employment : "My employment at Dell is for no specified period of time.

Either I or Dell may terminate my employment at any time for any reason, with

or without cause";

Wegner's stock option agreements of August 24 and November 22, 1993, and

March 2, 1994 : "This agreement and the option granted do not imply that your

employment with [Dell] will continue for any specified period of time";

Wegner's Performance Improvement Plan : "This is not a guarantee that your

employment with Dell will be continued through this ninety (90) day time

frame, since Dell retains its usual right to terminate employment at any time for

any lawful reason."

Dell argues that these signed statements evidence Wegner's at-will status and the lack of a

contractual agreement for a specified term. Dell further argues that since this was an employment-at-will relationship, Montgomery County clearly governs this case and Dell remained free to

discharge Wegner with or without cause.

Wegner counters that these employment documents create a fact dispute as to

whether he and Dell had a contractual relationship for a specified period of time. Wegner urges

that we interpret the initial letter from Dell offering employment as an offer for a one-year

employment contract, which was subsequently renewed through Dell memoranda. (1) Wegner

specifically relies on the following communications from Dell to create a contract for a specified

term: language in his offer letter notifying him that he would be eligible for an annual bonus;

additional language in his offer letter notifying him that he would receive a signing bonus and

moving expense reimbursement, both contingent upon remaining in Dell's employ for at least one

year; language in the stock option offerings and agreements notifying him that such purchases

could be made incrementally over a number of years; memos from Dell management announcing

that Wegner would be eligible for fiscal-year bonus programs; and, language in the Performance

Improvement Plan which informed Wegner that the Improvement Program was ninety days in

duration.

In support of his contention that the initial offer of employment created a one-year

contract, Wegner directs this Court to Dallas Hotel Co. v. Lackey , 203 S.W.2d 557 (Tex. Civ.

App.--Dallas 1947, writ ref'd n.r.e.). In Lackey , the court held that a letter from Dallas Hotel

offering employment to the plaintiff constituted a one-year employment contract. Id. at 559 .

After moving to Dallas, plaintiff was presented with and signed an employment agreement

containing employment-at-will language; this was the first mention of such an arrangement by the

employer. The court found that the parties manifested their intent to form a contract for one year

based on the contents of the initial offer letter. Id. at 561-62 . While the letter was silent as to the

duration of employment, it contained a guarantee of a bonus at the end of the first year; the court

found that this guarantee provided the duration element of the employment contract. Id . The

court found the parties mutually intended a one-year employment contract based on the letter;

because the letter specifically outlined the nature of their employment relationship, it controlled

over the general language of the company's generic employment agreement. Id. at 561 .

Wegner relies on language in his offer of employment that refers to his eligibility

for an annual bonus to bring this case within the holding of Lackey . But his reliance on Lackey

is misplaced; the present case is clearly distinguishable. The plaintiff in Lackey was guaranteed

a bonus at the end of his first year of employment. Id. at 559 . Wegner was merely informed in

the offer letter that he would be eligible for such a bonus. Dell never guaranteed Wegner a bonus.

As for the signing bonus and moving expense reimbursement, they were contingent on Wegner

remaining in Dell's employ for one year; such an offer cannot be read as a guarantee. See

Montgomery County , 965 S.W.2d at 502 ; see also Byars , 910 S.W.2d at 523 . Far from

manifesting an intent to form a one-year employment contract, Dell provided explicit and

unambiguous documentation of its intention to hire Wegner as an at-will employee. Dell notified

Wegner of its intention on the application for employment, before Wegner ever received the offer

letter. Dell again notified Wegner of his at-will status through the employment agreement

included with the offer letter. There exists no evidence that Dell ever manifested an intent to

create a binding employment contract for a specified term, and, thus, we find Lackey inapposite

to the present situation.

We now examine the specificity of the statements upon which Wegner relies as the

basis for his alleged contract. An employer can only modify the employment-at-will relationship

by specific, express statements. Montgomery County , 965 S.W.2d at 502 ; Byars , 910 S.W.2d at

523 . Indefinite assurances, encouragements, and comments cannot be the basis of a formal

agreement limiting the at-will status of an employee. Montgomery County , 965 S.W.2d at 502 .

There is nothing sufficiently definite in any of the statements relied upon by Wegner to satisfy this

legal requirement. In addition, most of the vague statements relied upon by Wegner are contained

in documents that explicitly and unambiguously affirm his status as an at-will employee; such

statements cannot be the basis of a contract of employment for a specified term. See Hurt v.

Standard Oil Co. , 444 S.W.2d 342, 346 (Tex. Civ. App.--El Paso 1969, no writ) (plaintiff cannot

rely on parts of documents making vague assurances of job security while disregarding parts of

the same documents unfavorable to his position). The remaining statements upon which Wegner

relies, namely the letters informing him of his participation in fiscal-year bonus plans, are far too

indefinite to constitute the clear, specific, and express statements required for an employer to

modify the employment at-will relationship. See Montgomery County , 965 S.W.2d at 502 ; see

also Byars , 910 S.W.2d at 523 .

We find that Wegner failed, as a matter of law, to raise a material question of fact

that he was anything more than an at-will employee of Dell. Accordingly, we overrule Wegner's

first point of error.

Tortious Interference

Wegner next asserts as error the trial court's grant of summary judgment on his

tortious interference claim. Hashman is entitled to summary judgment if he disproves one element

of the claim as a matter of law. See Powell Indus., Inc. v. Allen , 985 S.W.2d 455, 456 (Tex.

1998). The elements of tortious interference with a contract are: (1) the existence of a contract

subject to interference; (2) willful and intentional interference; (3) interference that proximately

caused damage; and (4) actual damage or loss. Id. Hashman, as an agent of Dell, argues that

Wegner cannot prove as a matter of law the "willful and intentional interference" element of

tortious interference. To satisfy this element for the purpose of summary judgment, Wegner must

raise a material question of fact that Hashman acted solely in his own interest, disregarding the

interests of Dell. See id. at 457 . Mixed motives seeking to further both corporate and personal

interests are insufficient to establish liability. See id. In considering this issue, we look to the

corporation's evaluation of the agent's actions. See id. Since Dell has not complained of

Hashman's behavior in placing Wegner on a Performance Improvement Plan and subsequently

firing him, Hashman cannot be held to have acted contrary to Dell's interest. See id. In fact, Dell

has actively defended Hashman's actions. Wegner fails to raise a material issue of fact that

Hashman willfully and intentionally interfered with his employment contract; Hashman was

therefore entitled to summary judgment. Accordingly, we overrule Wegner's second point of

error.

Abuse of Discretion

Wegner's remaining two points of error charge that the trial court abused its

discretion in granting a special exception and overruling Wegner's motion for continuance. An

abuse of discretion takes the form of an arbitrary and unreasonable use of discretion by the trial

court where the trial court acted without regard to any guiding rule or principle. E.I. du Pont de

Nemours & Co. v. Robinson , 923 S.W.2d 549, 558 (Tex. 1995); Downer v. Aquamarine

Operators, Inc. , 701 S.W.2d 238, 241-43 (Tex. 1985). In determining whether the trial court

abused its discretion, this Court will not simply substitute its own judgment for that of the trial

court. See Downer , 701 S.W.2d at 241-43 .

In his fourth point of error, Wegner argues that the trial court abused its discretion

by granting Dell's special exception; he argues that Texas law recognizes an exception to the

employment-at-will doctrine based on the public policy against terminating employees to prevent

them from collecting various corporate benefits. However, as the law currently stands, there

exists only one exception to the employment-at-will doctrine in Texas--discharge of an employee

for refusing to commit an illegal act. See Sabine Pilot Serv., Inc. v. Hauck , 687 S.W.2d 733, 735

(Tex. 1985). Wegner relies on McClendon v. Ingersoll-Rand Co. in support of his contention that

his situation represents an additional exception to the employment-at-will doctrine. 779 S.W.2d

69, 70-71 (Tex. 1989) (employees can recover if principal reason for discharge was employer's

desire to avoid paying pension benefits), rev'd , 498 U.S. 133 (1990) (holding this cause of action

preempted by the Employee Retirement Income Security Act of 1974), opinion withdrawn on

remand , 807 S.W.2d 577 (Tex. 1991). Wegner's reliance on McClendon is not persuasive. The

Texas Supreme Court has withdrawn its McClendon opinion on remand. See McClendon , 807

S.W.2d at 577. Additionally, this Court has since held that Sabine Pilot remains the only

exception to the employment-at-will doctrine. See Doe v. Smithkline Beecham Corp. , 855 S.W.2d

248, 254 (Tex. App.--Austin 1993), aff'd as modified , 903 S.W.2d 347 (1995).

The record presents no claim that Dell discharged Wegner for refusing to engage

in criminal activity; thus, the Sabine Pilot exception to the employment-at-will doctrine does not

apply to the present case. In reviewing the grant of Dell's special exception by the trial court, we

note that the trial court correctly applied the law. The trial court has broad discretion in ruling

on special exceptions, and its ruling will not be disturbed absent an abuse of discretion. Slentz v.

American Airlines, Inc. , 817 S.W.2d 366, 368 (Tex. App.--Austin 1991, writ denied). We cannot

say that in applying the law, the trial court acted arbitrarily or without reference to any guiding

principle. Therefore, we overrule Wegner's fourth point of error.

Wegner's third point of error claims that the trial court abused its discretion in not

granting him a continuance of the summary-judgment hearing. Denial of a motion to continue a

proceeding will not be overturned absent a clear abuse of discretion. Villegas v. Carter , 711

S.W.2d 624, 626 (Tex. 1986); Roob v. Von Beregshasy , 866 S.W.2d 765, 767 (Tex.

App.--Houston [1st Dist.] 1993, writ denied). Wegner cites no violations of either law or court

procedure that would indicate that the trial court acted arbitrarily or without regard to any guiding

principle, and the record does not indicate any such arbitrary action by the trial court.

Accordingly, we overrule Wegner's third point of error.

CONCLUSION

Having overruled all of Wegner's points of error, we affirm the summary-judgment

order of the trial court.

Mack Kidd, Justice

Before Justices Jones, Kidd and Patterson

Affirmed

Filed: July 15, 1999

Do Not Publish

1. Wegner argues that the contract formed by his offer of employment was renewed yearly,

either impliedly by Dell's silence or explicitly by Dell's letters announcing Wegner's eligibility

for fiscal-year bonus programs. Wegner further argues that this contract, as renewed, entitled him

to employment with Dell until February 1, 1998. Additionally, Wegner argues that since stock

options announced in his initial offer of employment were to mature on April 5, 1998, he was

entitled to either employment until that date or the award of those options. Due to our disposition

of the case, we need not reach these arguments.

scretion in granting a special exception and overruling Wegner's motion for continuance. An

abuse of discretion takes the form of an arbitrary and unreasonable use of discretion by the trial

court where the trial court acted without regard to any guiding rule or principle. E.I. du Pont de

Nemours & Co. v. Robinson , 923 S.W.2d 549, 558 (Tex. 1995); Downer v. Aquamarine

Operators, Inc. , 701 S.W.2d 238, 241-43 (Tex. 1985). In determining whether the trial court

abused its discretion, this Court will not simply substitute its own judgment for that of the trial

court. See Downer , 701 S.W.2d at 241-43 .

In his fourth point of error, Wegner argues that the trial court abused its discretion

by granting Dell's special exception; he argues that Texas law recognizes an exception to the

employment-at-will doctrine based on the public policy against terminating employees to prevent

them from collecting various corporate benefits. However, as the law currently stands, there

exists only one exception to the employment-at-will doctrine in Texas--discharge of an employee

for refusing to commit an illegal act. See Sabine Pilot Serv., Inc. v. Hauck , 687 S.W.2d 733, 735

(Tex. 1985). Wegner relies on McClendon v. Ingersoll-Rand Co. in support of his contention that

his situation represents an additional exception to the employment-at-will doctrine. 779 S.W.2d

69, 70-71 (Tex. 1989) (employees can recover if principal reason for discharge was employer's

desire to avoid paying pension benefits), rev'd , 498 U.S. 133 (1990) (holding this cause of action

preempted by the Employee Retirement Income Security Act of 1974), opinion withdrawn on

remand , 807 S.W.2d 577 (Tex. 1991). Wegner's reliance on McClendon is not persuasive. The

Texas Supreme Court has withdrawn its McClendon opinion on remand. See McClendon , 807

S.W.2d at 577. Additionally, this Court has since held that Sabine Pilot remains the only

exception to the employment-at-will doctrine. See Doe v. Smithkline Beecham Corp. , 855 S.W.2d

248, 254 (Tex. App.--Austin 1993), aff'd as modified , 903 S.W.2d 347 (1995).

The record presents no claim that Dell discharged Wegner for refusing to engage

in criminal activity; thus, the Sabine Pilot exception to the employment-at-will doctrine does not

apply to the present case. In reviewing the grant of Dell's special exception by the trial court, we

note that the trial court correctly applied the law. The trial court has broad discretion in ruling

on special exceptions, and its ruling will not be disturbed absent an abuse of discretion. Slentz v.

American Airlines, Inc. , 817 S.W.2d 366, 368 (Tex. App.--Austin 1991, writ denied). We cannot

say that in applying the law, the trial court acted arbitrarily or without reference to any guiding

principle. Therefore, we overrule Wegner's fourth point of error.

Wegner's third point of error claims that the trial court abused its discretion in not

granting him a continuance of the summary-judgment hearing. Denial of a motion to continue a

proceeding will not be overturned absent a clear abuse of discretion. Villegas v. Carter , 711

S.W.2d 624, 626 (Tex. 1986); Roob v. Von Beregshasy , 866 S.W.2d 765, 767 (Tex.

App.--Houston [1st Dist.] 1993, writ denied). Wegner cites no violations of either law or court

procedure that would indicate that the trial court acted arbitrarily or without regard to any guiding

principle, and the record does not indicate any such arbitrary action by the trial court.

Accordingly, we overrule Wegner's third point of error.