Scott R. Runge v. Raytheon E-Systems, Inc.

Scott R. Runge v. Raytheon E-Systems, Inc. IN THE TENTH COURT OF APPEALS No. 10-00-013-CV      SCOTT R. RUNGE,                                                                          Appellant      v.      RAYTHEON E-SYSTEMS, INC.,                                                                          Appellee From the 74th District Court McLennan County, Texas Trial Court # 98-4042-3                                                                                                                                                                                                                          O P I N I O N                                                                                                                       Scott Runge interviewed with Jim Jones and left his job in Houston after Jones offered him a “contract for life” with Raytheon E-Systems, Inc. in Waco, Texas. Runge started work for Raytheon in the early part of 1997. By October 1998, Raytheon terminated Runge’s employment. Runge sued Raytheon for breach of contract and retaliation. Raytheon filed a motion for summary judgment. The trial court granted Raytheon’s motion without specifically stating its reasons. In four issues, Runge contends the trial court erred in: (1) upholding the defense of statute of frauds; (2) determining no “contract for life” existed; (3) sustaining the defense of “at-will” employment; and (4) holding that retaliation did not occur or alternatively that it constituted no ground for recovery. We affirm. Summary Judgment       Raytheon filed what purports to be a dual motion for summary judgment; that is, one which raises both no-evidence and traditional summary judgment claims. See Tex. R. Civ. P. 166a(c) & (i). In support of its motion, Raytheon attached deposition testimony from Runge, an affidavit from Marvis Hanchey, the Human Resources Manager for Raytheon, a copy of Runge’s employment application, a copy of a letter from Hanchey to Runge, and a copy of an employee agreement signed by Runge. No-Evidence or Traditional Review       This Court has previously determined that a no-evidence summary judgment motion should be made without presenting evidence to support the motion. Williams v. Bank One, N.A., 15 S.W.3d 110, 116 (Tex. App.—Waco 1999, no pet.); Ethridge v. Hamilton County Elec. Coop. Ass’n, 995 S.W.2d 292, 295 (Tex. App.—Waco 1999, no pet.). This Court has also concluded that both traditional and no-evidence summary judgment claims can be raised in a single motion so long as the motion sufficiently segregates the traditional claims from the no-evidence claims. Torres v. City of Waco, 2001 Tex. App. Lexis 4459, *17, n. 7 (Waco June 27, 2001, no pet. h.); see also Fletcher v. Edwards, 26 S.W.3d 66, 72, 78 (Tex. App.—Waco 2000, pet. denied).       Raytheon’s motion for summary judgment does not sufficiently segregate the traditional claims from the no-evidence claims. Therefore, we will examine the entire motion under the traditional summary judgment standard of review. Standard of Review       The standard of review for a traditional summary judgment is well established: (i) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and is entitled to summary judgment as a matter of law; (ii) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (iii) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Larsen v. Carlene Langford & Assocs., 41 S.W.3d 245, 248-249 (Tex. App.—Waco 2001, pet. denied). The function of summary judgment is not to deprive litigants of the right to trial by jury, but to eliminate patently unmeritorious claims and defenses. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (Tex. 1952).       For a defendant to prevail on summary judgment, it must show there is no genuine issue of material fact concerning one or more essential elements of the plaintiff's cause of action or establish each element of an affirmative defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990); Larsen, 41 S.W.3d at 249. If the defendant disproves an element of the plaintiff's cause of action as a matter of law, summary judgment is appropriate. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996). When necessary to establish a fact issue, the non-movant must present summary judgment evidence. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982); Ethridge, 995 S.W.2d at 294.       "When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion." Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). The Petition, Motion, and Response       Runge alleged two causes of action: breach of contract and “retaliation” in his petition. Runge claimed he was offered a contract for life by Jim Jones, his future supervisor at Raytheon. Runge alleged he accepted that offer, and in consideration, quit a job of equal salary and moved to Waco. He alleged as further consideration that Raytheon agreed to pay all relocation costs including the loss on the sale of Runge’s home in Houston and that Runge, as required, executed a written contract stating that he would repay the relocation costs if he voluntarily left the employment of Raytheon within one year. Runge claimed Raytheon terminated his employment on October 8, 1998. Without waiving his breach of contract claim, Runge further alleged that he was selected for termination in retaliation for questioning the quality of the paint used on the projects to which he was assigned. He also made management aware of poisons being flushed down the sewer in violation of OSHA and other environmental agency standards.       Raytheon filed a motion for summary judgment claiming it was entitled to summary judgment on two grounds. First, it claimed (a) there was no specific and definite agreement to modify the employment-at-will relationship between Runge and Raytheon, (b) Raytheon did not authorize anyone to make an agreement with Runge, (c) Raytheon did not violate its policies in terminating Runge, and (d) Raytheon did not retaliate against Runge for reporting complaints to his supervisor. Second, Raytheon maintained that Runge’s claims were barred by the employment-at-will doctrine.       Runge responded that Raytheon made a specific agreement for a “job for life” through Jim Jones. He ratified that agreement by becoming employed by Raytheon. He claimed he was not an at-will employee. Runge also urged in his response that he was retaliated against and “fired clearly and solely because he was raising issues that would cause management to be in trouble.” He asserted that his situation “fit” into the Sabine Pilot exception to the employment-at-will doctrine. Breach of Contract       The essential elements in a suit for breach of contract are: (1) the existence of a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) that the plaintiff was damaged as a result of the breach. Southwell v. Univ. of Incarnate Word, 974 S.W.2d 351, 354-55 (Tex. App.—San Antonio 1998, pet. denied); Hussong v. Schwan's Sales Enterprises, Inc., 896 S.W.2d 320, 326 (Tex. App.—Houston [1st Dist.] 1995, no pet.). As applied to this particular suit, the first element is the existence of a valid contract for life (which would alter the employment-at-will relationship).       Raytheon contested the first element, whether there was a valid contract for life, in its motion for summary judgment. Runge claimed he was not an at-will employee because he had an oral contract for a “job for life.”       As a general rule in Texas, "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." Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). Such at-will employment, however, may become contractual based on oral statements of those in authority. See id; Gilmartin v. Corpus Christi Broad. Co., 985 S.W.2d 553, 555 (Tex. App.—San Antonio 1998, no pet.). For such a contract to exist, oral statements must show that the employer intends to make a binding contract of employment; the employer must unequivocally indicate a definite intent to be bound to not terminate the employee except in clearly specified circumstances. Brown, 965 S.W.2d at 502; Welch v. Doss Aviation, 978 S.W.2d 215, 220-21 (Tex. App.—Amarillo 1998, no pet.). General comments will not suffice; an employee must reveal a more formal agreement with the employer to modify at-will employment. See Brown, 965 S.W.2d at 502; Gilmartin, 985 S.W.2d at 556. The Evidence       Raytheon attached portions of Runge’s deposition to its summary judgment motion. Runge testified at the deposition that he was called by Jim Jones and asked to interview with Jones. Neither party disputes that Jim Jones worked for Raytheon. According to Runge, at the interview, Jones told Runge that he had an “opportunity of a lifetime” and “a job for life.” Nothing more specific was said. Runge did not verify this offer with anyone else and did not ask for it to be reduced to writing. Raytheon also attached an affidavit of Marvis Hanchey, the human resources manager, who stated that Runge was hired as an at-will employee and that Raytheon never approved any agreement granting Runge a job for life. In support of Hanchey’s affidavit, Raytheon attached Runge’s employment application which he signed, stating he understood the employment relationship to be at-will, and Runge’s employment agreement which he also signed, stating nothing in the agreement limited or restricted Raytheon’s right to terminate Runge’s employment at any time, with or without cause. In response, Runge reiterated he had been offered a job for life, and he accepted that offer. The purported offer of a job for life was made prior to Runge signing the employment application and employment agreement. Application       Taking Runge’s statements as true, that he was offered a contract for life, this offer was not specific enough to alter the employment-at-will relationship between Runge and Raytheon. The summary judgment evidence established Runge did not have a contract with Raytheon that altered the at-will employment relationship. Thus, Raytheon presented summary judgment evidence that negated an essential element of Runge’s breach of contract claim. Runge failed to present some evidence that would raise a fact issue on this element. Accordingly, summary judgment on the breach of contract cause of action was proper. Retaliation       A retaliation cause of action for a private employee requires a showing that the claimant (1) is an employee-at-will, and (2) was terminated for refusing to perform an illegal act. Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985); Simmons Airlines v. Lagrotte, No. 05-00-656-CV, 2001 Tex. App. Lexis 5268, *10 (Dallas August 3, 2001, no pet. h.). There is no common-law cause of action, however, for a private employee who was discharged for reporting illegal activities at the workplace. Austin v. Healthtrust, Inc., 967 S.W.2d 400, 403 (Tex. 1998); Winters v. Houston Chronicle Publ’g Co., 795 S.W.2d 723, 724-25 (Tex. 1990). The Evidence       Excerpts from Runge’s deposition revealed that he believed: (1) Raytheon was not following their contract requirements, such as not conducting all performance tests of pretreatment and top coat paint of Navy aircraft and using “non-certifiable” materials on a certified process; (2) Raytheon was machining copper beryllium improperly and without a permit required by OSHA and the EPA; and (3) Raytheon misplaced over 100 barrels of methylene chloride. According to his deposition testimony, he reported all of these complaints to his superiors. Application       Taken as true, Runge’s statements do not reveal that he was terminated for refusing to perform illegal activities. Even if these actions by Raytheon are illegal, the Supreme Court has declined to extend the Sabine Pilot exception to the employment-at-will doctrine to those individuals terminated from their jobs for reporting illegal activities. We likewise decline to extend the exception. Thus, Raytheon presented summary judgment evidence that negated an essential element of Runge’s retaliation claim. Runge failed to present some evidence that would raise a fact issue on this element. Accordingly, summary judgment was proper on Runge’s retaliation cause of action. Conclusion       Because Raytheon negated essential elements of Runge’s two causes of action, the disposition of these issues forecloses the necessity of reviewing Runge’s remaining issues. The judgment of the trial court is affirmed.                                                                          TOM GRAY                                                                          Justice Before Chief Justice Davis,       Justice Vance, and       Justice Gray       (Justice Vance concurring) Affirmed Opinion delivered and filed August 31, 2001 Publish docnum=2&_startdoc=1&wchp=dGLbVtz-zSkAz&_md5=f78c2540d33c06ac5694a976e8b31380">Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Tamez, 205 S.W.3d at 40.  EXCLUSION OF THE CONFESSION Johnson complains that a sworn confession was excluded. Wallace’s notarized letter confession, however, was admitted into evidence and read aloud to the jury during the State’s cross-examination of Johnson. This complaint presents nothing for our review. See Webb v. State, No. 12-07-00315-CR, 2008 Tex. App. LEXIS 5718, at *5 (Tex. App.—Tyler July 31, 2008, pet. ref’d) (not designated for publication). COMPULSORY ATTENDANCE OF WITNESSES            Johnson argues that he was denied the right to compulsory attendance of witnesses because the trial court failed to rule on his original and amended pro se motions to subpoena Wallace and another witness. Because Johnson was represented by counsel, the trial court was not required to entertain these motions. See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). DUE PROCESS            Johnson maintains that the investigation by police and the district attorney’s office violated due process, as indicated by a police report that the State delayed disclosing in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). This report is not in the record; thus, we cannot determine whether a Brady violation occurred. See Carraway v. State, 507 S.W.2d 761, 764 (Tex. Crim. App. 1974). Johnson further argues that his continued detention violated due process in light of the police report and Wallace’s confession. However, several affirmative links connect Johnson to the cocaine and the record indicates that Wallace could not be located; there is no indication in the record that the investigation was unfairly focused on Johnson. See Harris v. State, No. 06-05-00031-CR, 2005 Tex. App. LEXIS 7558, at *5 (Tex. App.—Texarkana Sept. 14, 2005, no pet.) (not designated for publication). ILLEGAL SENTENCE            Johnson contends that his sentence is illegal because of two enhancement paragraphs.  He argues that paragraph one is improper because it involved an offense that occurred before September 1, 1994. Paragraph one alleged that Johnson was convicted of manufacture/delivery/possession of a controlled substance in an amount of 4-200 grams. Because the State abandoned the manufacture/delivery portion of the enhancement, we are concerned with possession. Both at the time of the offense and now, possession of a controlled substance in an amount of 4-200 grams is a felony. See Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 2936-37 (amended 1993) (current version at Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003)). It could be used for enhancement. See Tex. Pen. Code Ann. § 12.42(a)(2)  (Vernon Supp. 2008) (“If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies…on conviction the defendant shall be punished for a second-degree felony.”); see also Tex. Pen. Code Ann. § 12.33 (Vernon 2003) (A second degree felony is punishable by 2 to 20 years imprisonment and a fine not to exceed $10,000); Boren v. State, 182 S.W.3d 422, 424 (Tex. App.—Fort Worth 2005, pet. ref’d).            Johnson further contends that paragraph one is improper because the State failed to prove the amount of the controlled substance. However, the State introduced the penitentiary packet into evidence at guilt-innocence. At punishment, the State moved to reintroduce all evidence admitted at guilt-innocence. The pen packet could be used to prove the prior conviction and the State was “not required to prove the defendant guilty of each element of the prior convictions alleged; since that has already been done at previous trials.” Reynolds v. State, 227 S.W.3d 355, 360-61 (Tex. App.—Texarkana 2007, no pet.); see Flowers v. State, 220 S.W.3d 919, 921-22 (Tex. Crim. App. 2007). As for paragraph two, Johnson pleaded “true” to the second enhancement paragraph and the record does not affirmatively reflect that the enhancement is improper; thus, he is estopped from challenging the use of that conviction to enhance his sentence.[1] See Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006). In summary, the enhancement paragraphs were properly used and Johnson’s sentence is not illegal. UNPRESERVED COMPLAINTS            Johnson has raised other complaints addressing the granting of the State’s motion in limine, defects in the enhancement paragraphs, improper jury argument, and admission of his 1993 and 1997 convictions for possession of cocaine, a 1989 conviction, cigar guts, driving while license suspended offense, and county jail offenses. However, Johnson has failed to preserve these issues for appellate review by neglecting to object when testimony or evidence regarding these matters was admitted or an objection was otherwise required. See Tex. R. App. P. 33.1. INEFFECTIVE ASSISTANCE            To prove ineffective assistance of trial counsel, an appellant must show that: (1) counsel’s performance was deficient; and (2) the defense was prejudiced by counsel’s deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003).            Johnson alleges several failures by trial counsel. He filed a pro se motion for new trial alleging ineffective assistance, but no hearing was held on the motion. The record is silent as to any reasons explaining trial counsel’s actions and we will not so speculate. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Absent a record revealing trial counsel’s strategy or motivation, Johnson has not defeated the strong presumption that trial counsel’s actions fell within the wide range of reasonable professional assistance.  See id. His ineffective assistance claim is better raised through an application for a writ of habeas corpus.  See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).           To prove ineffective assistance of appellate counsel, Johnson must show that: (1) counsel’s performance was deficient; and (2) there is a reasonable probability he “would have prevailed on appeal” but for counsel’s deficient performance.  Ex parte Santana, 227 S.W.3d 700, 704-05 (Tex. Crim. App. 2007). Johnson cannot meet this standard. Our review of the trial record does not suggest that there is any reasonable probability that Johnson “would have prevailed on appeal” if counsel had presented some of the issues he discusses in his pro se response.  See id. Independent Review Having conducted an independent review of the record, we find this appeal to be wholly frivolous. We affirm the judgment. Pursuant to Rule of Appellate Procedure 48.4, counsel must send Johnson a copy of our decision by certified mail, return receipt requested, at Johnson’s last known address.  Tex. R. App. P. 48.4. Counsel must also notify Johnson of his right to file a pro se petition for discretionary review.  Id.; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006); Villanueva v. State, 209 S.W.3d 239, 249 (Tex. App.—Waco 2006, no pet.).  We grant counsel’s motion to withdraw, effective upon counsel’s compliance with the aforementioned notification requirement as evidenced by “a letter [to this Court] certifying his compliance.”  See Tex. R. App. P. 48.4.   FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurring with note)* Affirmed Opinion delivered and filed July 8, 2009 Do not publish [CR25]  *          (Chief Justice Gray joins no part of the opinion. A separate opinion will not follow. He notes, however, that for the reasons expressed in his concurring opinion in Kirven v. State, No. 10-08-00064-CR, 2009 Tex. App. LEXIS 3338, at *10-14 (Tex. App.—Waco May 13, 2009, no pet.) (not designated for publication) (Gray, C.J., concurring), his dissenting opinion in Garner v. State, No. 10-05-00218-CR, 2007 Tex. App. LEXIS 4246, at *17-20 (Tex. App.—Waco May 30, 2007, pet. ref’d) (not designated for publication) (Gray, C.J., dissenting), and his concurring opinion in Villanueva v. State, 209 S.W.3d 239, 249-252 (Tex. App.—Waco 2006, no pet.) (Gray, C.J., concurring), he joins only the judgment affirming the trial court’s judgment.) [1]              Johnson argues that the enhancement paragraph listed an incorrect 1999 date instead of the correct 1997 date. However, the correct date is included in the penitentiary packet admitted into evidence. See Reese v. State, 905 S.W.2d 631, 635 (Tex. App.—Texarkana 1995, pet. ref’d) (“[V]ariance between [] indictment and [] proof was not material or fatal in light of the otherwise precise correlation between the pen packet and the identifying information stated within the indictment.”); see also Guerra v. State, No. 04-06-00245-CR, 2007 Tex. App. LEXIS 1955, at *13-14 (Tex. App.—San Antonio Mar. 14, 2007, pet. ref’d) (not designated for publication) (Because “penitentiary packets with the correct cause numbers were admitted into evidence during the punishment phase,” and Guerra did not “allege that the variances between the cause numbers in the enhancement allegations and those read at the punishment phase surprised him to his prejudice, the variances are not material and do not require reversal.”).Â