Gerstacker v. Blum Consulting Engineers, Inc.

objected and to Gerstacker’s KINKEADE, correct. Before MALONEY (1) evidence ROSENBERG, because it contained affidavit JJ. admissible that would be otherwise (2) the facts court did not state that OPINION true and cor- contained in the affidavit were ROSENBERG, Justice. objec- Blum’s trial sustained rect. The court struck affidavit and appeals tions to Gerstacker’s T. Gerstacker Stuart order. a written Engineers, Gerstacker’s affidavit Consulting for Blum court, plead- considering only the employment The trial Inc. in this suit based on an cause, Brownlee, granted ings ry assigned in the Blum’s motion for cannot to it. See on all Gerstacker’s correctly 112. The trial of action statute of objection causes based on the Blum’s sustained and struck Ger- stacker’s affidavit. We overrule Gerstacker’s point of second error. Because we conclude GERSTACKER’S AFFIDAVIT correctly sustained error, points first four objection Blum’s and struck Gerstacker’s af- that the contends trial court erred sustain- fidavit it did not because state that the facts objection ing striking Blum’s to and true, in it were contained we do not address (1) stacker’s affidavit because his affidavit three, points one, of error defective, (2) fundamentally Tex.R.App.P. was not 90(a). four. See necessary specifically for him to state that the matters in the affidavit contained FOR SUMMARY MOTION JUDGMENT (3) correct,” and were “true the affidavit was through points In fifth eighth personal knowledge, based on set forth facts error, he contends that the trial evidence, affirmatively in admissible and granting summary erred in judgment competent that showed affiant was to Blum because there issue and exists fact therein, (4) testify to matters stated and of action are causes not barred hearsay. the affidavit was not inadmissible statute of frauds. Blum asserts that there is correctly Blum contends that the trial court no issue of material fact and that the statute objection its to sum- sustained bars frauds Gerstaeker’s causes mary judgment it affidavit because was not contract, promissory estoppel, for breach of competent summary judgment evidence and and fraud. claims that Gerstaeker’s hearsay. was based only fraud claim restates his breach-of-con- Summary judgment shall affidavits and tract claim that Gerstacker cannot avoid (1) (2) personal knowledge, be made on set of frauds in the statute a breach-of-eontract forth facts as would be in evi admissible by pleading case fraud. (3) dence, affirmatively and show competent testify affiant is to to matters summary may render 166a(f). therein. An af stated Tex.R.Civ.P. depositions, judgment pleadings, fidavit insufficient is unless the statements admissions, and affidavits on file show perjury unequivocal it are direct and and any genuine regarding no issue materi exists assigned upon be them. v. Brown Brownlee al fact and that the movant is entitled lee, 111, (Tex.1984). 112 665 S.W.2d One aas matter of law. Tex.R.Civ.P. making affidavit must or affirm swear Co., 166a(c); Lloyds Black v. Victoria Ins. under oath that the facts are true. stated 20, Summary 797 S.W.2d Co., Friendly Found. v. Brown Chevrolet 715 judgment designed is to eliminate unmerited 115,117 1986, (Tex.App. writ S.W.2d — Dallas defenses; in claims or untenable it is not n.r.e.). ref'd deprive litigants right to a tended to of their hearing Compton full on fact issues. v. Cal states in affidavit that abria, 945, (Tex.App. 811 S.W.2d knowledge, personal the facts are based on writ) Penn, 1991, (citing no Gulbenkian but he does not state that facts are true. 412, 416, 151 Tex. 252 S.W.2d Brownlee, In Supreme held (1952)). affidavit insufficient “positively unqualified it did not because reviewing judg ly represent the ‘facts’ as disclosed evidence, apply following ment we stan to be true affiant’s] affidavit and within [the dards: 112; personal knowledge.” at Found., showing Brown at 117. movant has also 1. The the burden of genuine Gerstaeker’s affidavit is insufficient because that there is no of mate- issue judg- it not state fact and that it does whether the facts contained rial is entitled and, therefore, law; perju- affidavit are as a true ment matter of (Vernon § 26.01 deciding disput- is a 2. whether there Ann. TexJBus. Com.Code & 1987). requires frauds The statute precluding sum- ed material fact issue specified of contracts be classes certain judgment, mary evidence favorable v. Mun writing to Barbouti true; be enforceable. nonmovant is taken as den, (Tex.App . —Hous Every must be 8. reasonable inference writ). no Whether Dist.] ton [14th indulged in of the favor nonmovant frauds falls within any doubts resolved in its favor. Dozier, 162 Tex. question law. Bratcher Property Management Nixon v. Mr. (1961); Bar 646, 548-49 bouti, 294; v. Butt Eisenbeck (Tex.Civ.App.— gen, 450 Texas, at-will exists of frauds Dallas ability of parties not limit the when the do defense. See is an affirmative Tex.R.Civ.P. employer employee termi either the Goodyear nate at their will. Portilla, & Co. v. Tire Rubber can, from the If an oral contract (Tex.1994). However, the at-will doctrine agreement, within terms only applies specific pro absent a contractual 26.01(b)(6) is not within section contrary. East Line & R.R.R.

vision the Riata statute frauds. Miller v. Cad the Scott, 70, 78, Co. Tex. 10 S.W. (Tex.1974); illac (1888). agreed to fire When not Ger- Lane’s, Inc., 106, 111, Chevalier v. Tex. cause,1 good Blum re except staeker for (1948). 530, 532 Section employment relationship moved from the the 26.01(b)(6) of frauds bars of the statute category.2 at-will now consider whether We completed cannot be with oral contracts that contract, alleged, as falls the within the stat Niday Niday, year. in one ute of frauds. of per the term Where such as a contract that formance is uncertain The statute of frauds is set forth merely performance provides the in section 26.01 of the Texas Business and particular conceivably per act that can provides, pertinent in Commerce Code and 26.01(b)(6) within one section formed part: perfor improbable apply, not however does (a) agreement promise or described Hall, year may be. Hall v. mance within one (b) is Subsection of this section not en- (1957). 95, 99, Tex. agreement, promise forceable unless the or employment contracts are Indefinite-term it, or a memorandum of is year performable within one considered (1) 26.01(b)(6) writing; not fall section therefore do within Miller, of frauds. of the statute (2) by signed person charged the to be 775. at promise by agreement with the or or lawfully sign someone authorized However, mere that dura fact him. performance implied in a contract tion of (b) (a) applies this to: Subsection section necessarily keep the from not contract does Hall,

being In within the statute frauds. an employee was under indefi retained (6) agreement which is not to be an develop a employment contract to nite-term year performed within one from the date petition al territory. employee’s sales making agreement; that oral would last for leged trial court submitted “reasonable time.” The case, summaiy allegations accepted present Blum did not move for are as true 1. Gerstacker’s summaiy purpose judgment review. employment for the that all con- on basis Rather, writing to be tracts must be in enforced. Portilla, Supreme specifical- the Texas Court alleged, set that the Blum asserted ly expresses opinion it on whether stated that brought employment that forth condition employment-at-will sta- oral modification of the within the statute frauds. n. 8. tus is sufficient. 879 S.W.2d at 52 special jury supreme issues to the at determined 16-17. The years. explained determining that a “reasonable time” was three the number of years by Supreme implied The Texas Court reversed trial months term “rea- time,” jury damages, carefully sonable must holding award of exam- subject jury’s ine the three-year implied duration matter and was an circumstances surrounding parties’ present term situation of the contract and therefore con- supreme the time the contract. Id. The by tract was barred the statute jury, reaching court dictated that a its Id. decision, depend arising must not on facts Works, Inc., Schroeder Texas Iron after the contract was entered. Id. (Tex.1991), S.W.2d 488 Su- Here, alleged that Blum preme implied employ- a definite-term promised employ long him as as Gerstack eight years ment fifty- contract for where performance satisfactory. er’s Gerstack seven-year-old employee built a retirement alleged agreed er further that Blum that he relying employer’s promise home on about would be laid-off to an due economic “No, job that, security: worry don’t about although salary might downturn go ahead it.” and build Id. at 484. The be reduced of hard times. Gertsack because employer’s construed statement as pleaded for damages er based on the value of definite-term contract conclud- Thus, eighteen employment.3 months of ac ing, idea “[Schroeder’s] was that as a result Blum, cording to facts statements, employed the oral he would be that, proven, Blum’s affir establish eight years, TIW for until another to ten defense of mative frauds. Blum However, any alleged retirement. contends that agreement capable effect to such was not based months’ is a performance year within and would be judicial affirmatively negates admission that unenforceable under the statute frauds.” of performable the existence of a contract Id. at 489. therefore, year; properly one trial court the granted summary judgment on applicability plead To determine the of the ings. Hidalgo Surety See Savings the statute of frauds with v. & Loan indefinite con Ass’n, tracts, may 462 n. 1 any reasonably this Court use S.W.2d 543 clear ascertaining method of the intended Ordinarily, summary judgment a Schroeder, length performance. of solely upon cahnot be based the failure of a Hall, 489; S.W.2d at at 16- S.W.2d plead plaintiff to cause of unless the 17. The method is used to determine the special exception defendant levels a to the parties’ contracting. at intentions the time of deficiency, affording plaintiff opportu the an Schroeder, supreme applied court nity pleading amend his to state a to caúse of present facts at the time of the to Dep’t See action. Corrections v. parties’ show the intent to contract for em Herring, 513 S.W.2d Never time, ployment specified period for a theless, authority proposition there is for the which was until eight retirement or to ten plaintiff plead that a himself out of court. years. 813 at 489. Works, Roofing See Alice & Metal Sheet Inc. Hall, Halleman, (Tex. supreme v. held 1989, writ); App. Antonio no Schroeder — San parties stipula-

when the omit express Ry., Texas & Poe. time, tion to it is in accord with human 1951, writ). (Tex.Civ.App. no There experience accepted standards law fore, we consider Blum’s assertion that Ger- for us to assume meant whatever pleaded negate stacker facts that his claim. years days might term of be reasonable however, light plea damages, circumstances before Gerstaeker’s nothing them at the date of the facts contract. has do with the and circum- summary judgment supporting judgment. Blum moved based evidence solely pleadings. on the no record contains year, within one conceivably parties en- at the time the present stances 26.01(b)(6) apply.” Hardi- does plea agreement. section Gerstacker’s tered the (Tex. Belo, that, AH. at the damages is not an admission son 1952, no App. apparent intent Civ time —Dallas really “satisfactory performance” term evi Because employment. More- eighteen months’ meant peti Gerstacker’s to contradict dence exists over, explains why he petition Gerstacker’s agreed employ Ger- parties that the tion damages part on the value based amount of time measured for an staeker employment. Gerstacker eighteen months’ (not months or performance quality eighteen months to it took him years)4 contingency makes the such Consequently, comparable position. ñnd within relationship performable damages sought eighteen the oral contract is hold that we salary mitigated by wages earned months’ Good statute of frauds. See not within the during this time. Hardison, Tire, 670; at year plea did that his not believe 168; at but Wal-Mart Stores cf. damages parties contem- indicated that Coward, (Tex.App.— 342-43 eighteen-month contract. plated an Cf. denied); Moldar v. writ Beaumont Schroeder, 813 S.W.2d at 484. Gerstacker’s Bell Tel. Southwestern damages facts plea of is not evidence [1st Dist.] writ (Tex.App. — Houston indicating present of the contract time n.r.e.). Therefore, Gerstack we sustain ref 'd per- parties’ regarding intent duration of remaining points of error. er’s formance. We reverse agree- cannot be used create different further the cause for judgment and remand parties. ment Hall between proceedings. Schroeder, sought as- supreme parties’ regarding intent a con- certain the J., KINKEADE, dissenting. term, not tractual rewrite the contract. KINKEADE, Justice, dissenting. petition requesting damages

based on the value of months I hold that respectfully I dissent. reasonably provide does not T. Gerstack- frauds bars Stuart contract, ascertaining of the intended clear method breach of of action for er’s causes alleged length of fraud, estoppel contract. in this oral promissory damages a agreement of is not viable staeker’s with good-cause-for-termination ascertaining length of method of the intended I Consulting Engineers, Inc. Blum Goodyear judgment Tire & Rubber performance. summary See the affirm (Tex. Portillo, v. Co. granted to Blum. 1992), App. Corpus Christi on other aff'd — grounds, 879 S.W.2d 47 FRAUDS STATUTE OF case, although claims In our Gerstacker alleged contract length The of Gerstaeker’s he not be laid- only agreed that would in the sense of not know- was indefinite long as contract, due to an economic down-turn the eventual off ing, at the time of the satisfacto- performance was parties The as Gerstacker’s employment. the duration of eigh- requests damages for petition length perfor- ry, of agreed the intended expected he to be happening and shows until of teen months employment mance— year at the time longer one Accordingly, employed than contingency. express an alleged agree- into the entered is uncertain he and Blum performance term of “where the eigh- petition requesting merely provides for ment. Gerstacker’s as contract that such a provides a reason- damages of can months performance particular a act that teen (thereby year employment than one for more imagine an situa- 4. This Court the statute expressly placing the contract within parties, showed that the tion where the evidence however, frauds); not evidence here does satis- understood that at the time of present specifically require such case. factory performance would ably ascertaining length I clear method out of court. would hold that the trial alleged granted summary properly judgment of Gerstacker’s contract to be for a longer year. against term one than Gerstacker because his claim of affirmatively petition pleads negate facts that breach contract violated the statute cause action. Since Gerstacker claims frauds as a matter of law. damages for an oral majority argue that cannot be it Belo, holding our in Hardison v. A.H. by barred the statute of frauds. (Tex.Civ.App. — Dallas writ), Pleadings generally not supports are evidence for no In Har- different result. judgment dison, purposes. See American this Court held that an oral contract to Motel, Johnson, employ plaintiff long Inc. as his work was (Tex.1980); Surety & Hidalgo satisfactory Sav. Loan not was barred the statute of Ass’n, However, How Hardison was decided be ever, plead party may himself out court. fore Schroeder and Hall. If Schroeder and Works, Hardison, Roofing Alice & Sheet Metal Inc. v. Hall did not overrule seri Halleman, (Tex.App.— ously efficacy. eroded its The result writ). Antonio no A party may language San Schroeder and Hall’s that we can plead affirmatively “any facts negate ascertaining his use reasonable method of Id.; cause of action. performance]” compels [duration Schroeder Terns a differ (Tex. Ry. & ent result than Hardison. This Court did Pacific Civ.App. have the benefit of either Schroeder reasoning Hall’s when it decided Hardison. Halleman, plaintiff corporation re- agree majori I do not with or the paid personal loan of the defendant and ty controlling authority that Hardison is sought collection from the defendant eleven this case. years repaid. after loan was The record plaintiffs petition majority consisted and the defen- The states that Gerstacker’s dant’s raising nothing motion claim for showed about his alleged limitations as affirmative intent the time of oral modifi- granted summary defense. The trial court employment. plead- cation his at-will ings clearly the defendant based show Gerstacker’s intent that he appeal thought job limitations and the issue on he had for at least whether majority’s holding any- the statute of limitations was a months. The allows plaintiffs bar to the agree- cause action. The one to claim that their appeals affirmed the trial court’s ment was for an term indefinite at the time judgment holding that appellant’s pleadings was made. Those terms would become acknowledged the transaction occurred more definite when the claim is in a made lawsuit years prior filing Clearly, type than four like this. outlined of rule by ignores lawsuit and therefore the majority very statute of limita- we reason tions barred of collection the debt. Halle- of have man, recog- 775 S.W.2d at 870. The court Hall, Based Schroeder and I would party may plead nized himself out of petition provides conclude that Gerstacker’s may A plaintiff plead court. Id. 870. ascertaining reasonable method of the du- affirmatively negate facts which his cause of agreement, of eighteen ration Blum’s oral instance, proper action. Id. such an it is eighteen months. Enforcement of an month grant the defendant’s for motion agreement oral is as a matter law barred Id., judgment. Dep’t Corrections v. by the statute of frauds because it could not 6, Herring, 513 7 S.W.2d year. be v. within one See Miller case, Cadillac, Co., petition pleads 773, In our Riata 775 eighteen months which affirma- Because Gerstacker’s oral tively negates agreement implied eigh- the existence of a contract had an duration Gerstacker, performable year. months, by in one like teen its enforcement is barred Halleman, plaintiff pleaded himself the statute of frauds. case, Ms breaeh- Gerstacker casts In our ESTOPPEL PROMISSORY alternatively as cause of action of-contract (Tex. White, v. Wheeler recovery He seeks fraud. 1965), expressed Supreme the Texas Court expenses and costs wages and Ms months promissory estoppel as fol thé doctrine Based on the seeking employment. new lows: Blum, by breach promise same rea- promise promisor wMch the should attempts alternatively enforce stacker or sonably expect to induce action forbear- frauds statute of bars Because the promise. and substantial character ance of a definite ac- cause of breach-of-contract promisee and wMch does part on the tion, I hold it also bars Gerstacker’s would induce action or forbearance is bind- such based on same fraud of action cause injustice only ing avoided promise. promise. enforcement Supreme Goodyear The Texas Court Promissory estoppel excep is an Id. at 96. Portilla, & Rubber Co. v. Tire tion to statute of frauds when (Tex.1994), recently in a stated foot- 52 n. 8 promise sign agreement wMch written reaching the were not issue note complies with the statute of frauds. itself may be at-will-employment status whether (Tex. Nagle, Nagle v. orally or modified whether 1982); Pe Burger, Phillips Inc. v. “Moore” case, In tMs frauds bars oral modification. (Tex.1972); Co., troleum and for the modification was both oral Bank, Tex. Nat’l Mann NCNB I exceeding year. period Because 1992, no (Tex.App. of frauds bars Gerstacker’s hold the statute law, I would affirm the as a matter of claims case, present. exception In our is not judgment.. trial court’s allegation makes that Blum agreement writing. promised to reduce Ms

I would that the statute of frauds bars hold

enforcement Gerstacker’s defensive estoppel.

promissory

FRAUD recovery

When the statute of frauds bars may plaintiff under breach III, PROCTER, Appellant, Doak C. gained what he would have had recover promise performed by casting been Ms tort. Webber v. contract cause COMPANY, DRUG FOXMEYER (Tex. Kellogg M.W. Appellee. App. Dist.] writ ref'd [14th — Houston No. 05-93-00470-CV. McCombs, n.r.e.); Collins (Tex.Civ.App. writ Antomo Texas, Appeals — San n.r.e.). ref'd Dallas. determining tort whether Aug. breached, we look to the substance duties are necessarily the of action and not cause pleaded. manner in wMch it was Jim Walter

Homes, Reed, 617, Inc. injury most The nature of the duty are wMch or duties

often determines injury Id. When the

breached. subject of the contract loss

economic

itself, in contract alone. sounds

Id.

Case Details

Case Name: Gerstacker v. Blum Consulting Engineers, Inc.

Court Name: Court of Appeals of Texas

Date Published: Aug 24, 1994

Citation: 884 S.W.2d 845

Docket Number: 05-93-00791-CV

Court Abbreviation: Tex. App.