Dech v. Daniel, Mann, Johnson & Mendenhall
748 S.W.2d 501
Tex. App.
1988
Check Treatment

*2 move. SMITH, LEVY and Before JACK

HOYT, JJ. appellant the made demand for After losses, appellee payment for his the re-

OPINION pay, appellant the filed the fused to and SMITH, jury JACK Justice. in present suit. Trial to a resulted appellee. The verdict favorable to the appeal from the trial court’s This is an appel- judgment final for the court entered take-nothing appel- the which lee, motion for appellant’s denied the new sought damages alleged breach lant trial, perfected ap- his appellant and the appellee. the of an contract peal. Dech, sought employ- appellant, Mr. The first, third, in his appellant The contends spring In the ment as an architect. fourth, the points fifth of error that and 1982, appellee, he interviewed with 1) as a matter of trial court erred because: Daniel, Mann, & Mendenhall Johnson 8, law, April a con- letter of 1982 was (“DMJM”) accepted its offer of em- and time; 2) period as a definite 4, tract for a ployment. April appellant On law, cir- the letter and factual matter of appellee in he a letter to the wrote contract for a constituted a accept cumstances expressed pleasure in his decision to time; 3) parol letter, period of it admitted definite position In the same with them. 4) creating ambiguity; it al- however, evidence requested a written confirma- unambiguous jury to construe an appellee, as lowed the position tion of his with the $28,000 instrument. agreed upon salary of well as the April per year, year. for the first On contention, appellant support To appel- letter to the sent a legal theory that: “where one relies on stating: lant per year, much employed work at so your confirm letter is meant [t]his imports a month, week, agreement staff architect acceptance position as hiring period of time Daniel, Mann, Mendenhall at Johnson & the measure respect mentioned (DMJM) offices. in our Houston based received.” Dal payment to be time for the $28,000 per salary annum Your will be McCue, 25 S.W.2d Hotel Co. v. las position. expect will to see this We (Tex.Civ.App. — Dallas part May. the first however, cases, there progeny two instrument construed employ- a written appellant The commenced contract, Neiman-Marcus 27,1982, terminated Culkin ment on but was (Tex.Civ.App. Septem- 354 S.W.2d approximately 20 weeks later writ) (written Dallas Hotel Co. v. employ presented. offer of evidence McCue, Lackey, ment), and Dallas Hotel Co. v. 25 S.W.2d at 906. — Dallas first, third, fourth, n.r.e.) (letter attached to and points fifth of error are overruled. and in Dallas agreement), part of made appellant contends his second McCue, (in Hotel Co. v. 25 S.W.2d at point of error that the trial court erred in *3 testimony raised a fact issue about which refusing to submit his instructions to the contract), of held the duration the court jury “agree- on the of definition the term it was not error for the trial court to that ment” the context of an submit an issue on the duration of the oral agreement. employment contract. appellant preserve The has failed to his key question The in the instant case is 74(f) Tex.R.App.P. requires error. an ar- was The when the contract consummated. gument (1) to include: a fair condensed pleadings appellant contends in his that the pertinent statement of the facts to such 8, 1982, April contract was formed on the (2) points; and such discussion of the facts appellee from date of the letter the to the upon may and the authorities relied as be However, appellant. the letter states that requisite point to maintain the at issue. merely appel it is a confirmation of the appellant provide argu- The failed to has prior acceptance. lant’s “Where an unam point. preserved ment this He has on noth- biguous writing had been entered into be ing for review. parties, only tween the courts will look to appellant’s point The second of is error language agreement the deter overruled. Amistand, parties.” mine the intent of the appellant point The asserts in his sixth of Communities, Inc., 611 S.W.2d

Inc. v. Frates admitting error that the trial court erred (Tex.Civ.App. writ 127 — Waco testimony Audrey the of Ms. Crader to n.r.e.). appellant ref’d The also contends establish the customs in the commercial April the 1982 letter is the entire industry architectural However, agreement. pleadings his agreements. specifically that He contends the evidence belie this contention because specifically pled by those customs were not agreement he also claims that his with the appellee. the appellee agreement his included an to cover specifically object appellant The failed to moving expenses, and other is no and there pleadings to the lack of when made expenses April mention of these in the 8th testimony. objection to Ms. Crader’s trial letter. only grounds qualifi- of her objected He on Although any the letter vitiates Statute expert to offer such testimo- cations as an defense, of Frauds it is not the contract. relevancy. objection His ny and as to Abbott, Adams v. 151 Tex. 254 objection appeal comport at fails to with (1952). employment agree- S.W.2d trial, preserving nothing for this Court’s appellant’s ment reached inter- at the 52(a). Tex.R.App.P. review. meeting appellee’s represent- view with the point is appellant’s sixth of error atives. The two letters that followed were overruled. affirming agreement letters that an oral appellant’s light holding on the of our had been reached at the interview. The issues, need not address the liability we parties evidence makes it clear that the seventh, eighth, ninth disagree original agree- about what their points of error. Thus, jury, ment had been. it was for is affirmed. The trial court’s fact, finder to determine the Erskine v. Wil- parties. intentions of the LEVY, Justice, dissenting. son, not 27 Tex. It was jury majority judge My disagreement error for to allow the exist- legal question duration its treatment of a determine the intentions as to the —the of em- considering ence and terms of an oral of the contract after all fact, ployment question year, agreement, thus au- indicates an in the —as thorizing express otherwise, jury to have determined the absence limitation for an equal contract’s duration as a function of the of a duration specified. the time unit parties’ Such had been an intentions. rule, earlier Texas Dallas Hotel Co. v. 8, 1982, confirming In its letter of McCue, (Tex.Civ.App . —Dal acceptance Dech’s as staff architect with 1930, writ), spawned progeny las stated, firm, alia, inter following years: Dallas Hotel v. $28,000 per salary “Your will be annum Lackey, (Tex.Civ.App.— 203 S.W.2d 557 position. expect We will to see this n.r.e.); City Dallas San And, part May.” first answer Condie, Antonio v. request Dech’s earlier for some indication Civ.App. Antonio writ dism’d — San occur, might his “first as to when review” W.O.J.); Culkin Neiman-Marcus delicately reminded his future em- as Dech 354 S.W.2d 397 ployer, you [appellee] which time indi- “at *4 1962, cated additional consideration would be ambiguity generated Because of the in my moving ex- made to cover [Dech’s] confirmation, appellee argues, its letter of responded, in penses,” appellee the same favor, interpreted the letter should be in its confirmation, letter of DMJM re- “Since employment ignored or dis months, every employee views each six counted, “employment-at-will” and the doc expect your can first review December justify firing trine to its of Dech. invoked obviously Appellee of 1982.” intended that Sons, Inc., Stanley v. H.J. Justin & employment rely Dech on this assurance of (Tex.App. 672 S.W.2d 327 Worth — Fort Dech compensation, and fixed to induce to 1984, n.r.e.); Singh v. Cities accept response, its terms. In Dech imme- Co., (Okla.1976). I Oil 554 P.2d 1367 Serv. diately steps took to sever his disagree. Ambiguity should not found be Florida, Jacksonville, and and residence interpretation in a strained or technical appellee engi- move to where the contract when a reasoned construction ren neering capabili- firm had an office “with provisions of the contract en ders all the architecture, planning, ties of and construc- forceable and consistent. See Southwest administration,” according tion to its brief. Houston, 121 Ins. v. ern Co. Life appears undisputed after It to be that 1938, began Dech to work for DMJM on ref’d). A in the writ reasoned construction performed professional duties view, would, my result case at bar satisfactorily, and there was no indication promising Dech reading the contract as of inferior or dissatisfaction. Yet on work one-year peri employment for at least the later, 27,1982, September merely 20 weeks od, appellee’s pay, suggested in and at the The record reflects Dech was terminated. letters. DMJM, corpora- that a California argue appellee to success- permit To throughout tion with offices the United allowed an advan- fully that it should be offer, attempt Japan, and did not or States tage arising of its own asserted ambi- out offer, any Dech to other to to transfer repudiate common- guity would venerable office, him, to him to another to rehire loan unconscionability. It in- principles law needed, company where he was or to assist trite, appropriate, to invoke but deed seems employ- any way him in other obtain analogous judicial rule the familiar and ment. if policies of insurance construction —that argues appeal offer Appellee employed by that its an insurance language ambiguous, ambiguous, Dech was company in its contracts ignore “Eng- strongly construed and that this should must be most Court then it rule,” in favor of holding company dura- and against lish that employ- “an compensa- parallel between presumed by tion is the terms of insured. too obvious tion, i.e., “the insurer” is specification employee’s of an er” and elaboration, I think it valid. month, require any but day, pay in terms of time unit of Bryce, Little v. heritage of common law innovation that 1987, writ), App. I develops principles new [1st Dist.] accommodate — Houston expressed my concurring opinion views Ivy Army Times changing values.” “employment-at- on the harshness of the Publishing (D.C. 428 A.2d doctrine, consisting of its inherent will” (Ferren, J., App.1981) dissenting). If we hardship indifference to the and trauma of ignore are not to the economic and social imposed thereby on the unemployment society, thinking realities of modem our unskilled, worker, professional whether change society changes, must as that for it depends solely upon his to earn who labor very society is that we are here to serve. The circumstances of this his livelihood. would, accordingly, I sustain quite stridently case reaffirm that it is not one, three, four, five, points of error and every employ unreasonable to read into court, judgment of the reverse the trial relationship implied promise by ment an proceedings. remand for further arbitrarily in employer not to act deal upon ing employee, conditioned dealing by employee good faith

fair

performance of his duties. See Cancellier Stores, Dep’t

v. Federated 672 F.2d denied, cert. (9th Cir.), 459 U.S. Be

103 S.Ct. L.Ed.2d “employ of this

cause of the harshness doctrine, at least 32 states

ment-at-will” *5 judicially exceptions carved there

have

from, it and seven states have abandoned

altogether “good in favor of the faith and BRAZIER, Appellant, Bevlon Waldo dealing” concept, they imply fair into every employment contract.1 obviously significant, Dech made a Texas, Appellee. The STATE

perhaps major, change in his life he when 01-87-00094-CR. No. resigned position in Florida and moved community, solely a distant Texas, Appeals of Court of strength appellee’s promise of em- Dist.). (1st Houston so, testified, ployment. He did because he was told a DMJM executive that he March 1988. being year. hired for at least a It was precisely protection of such vulner- employees judicially created

able

“employment-at-will” repudi- doctrine was “good

ated in several states in favor of the dealing” concept. my

faith and fair

view, equity requires that we consider the circumstances de-

letters and the factual above, detri- particularly Dech’s

scribed upon

mental reliance DMJM’s contract,

inducements, par- to constitute a partially implied, for a

tially expressed and period year,

definite of one as a matter any less. inequitable I think it to do

law. is, judges to perhaps, easy

It too legitimate

forget “possess the that courts Comment, Baylor ship, L.Rev. 667 Doctrine: A Pro- The At-Will posal Modify Employment Texas Relation-