Court of Appeals of Texas, San Antonio.

James HALSELL, Appellant

v.

NGC COUNTY MUTUAL INSURANCE COMPANY, Nationwide Mutual Insurance Company, Nationwide Mutual Fire Insurance Company, Nationwide Indemnity Insurance Company, Nationwide Property and Casualty Insurance Company, and Financial Horizons Life Insurance Company, Appellees

No. 04-96-00222-CV.

|

April 30, 1997.

Sitting: ALMA L. LÓPEZ, Justice PAUL W. GREEN, Justice BLAIR REEVES, Chief Justice (retired).

OPINION

BLAIR REEVES, Chief Justice (retired)¹.

*1 This is an appeal from a summary judgment in favor of NGC County Mutual Insurance Co., Nationwide Mutual Insurance Co., Nationwide Mutual Fire Insurance Co., Nationwide Life Insurance Co., Nationwide Indemnity Insurance Co., Nationwide Property and Casualty Insurance Co., and Financial Horizons Life Insurance Co. (jointly and severally referred to as Nationwide), against James Halsell in an alleged wrongful termination action.

Nationwide and Halsell entered into an employment agreement wherein Halsell would operate an insurance agency on behalf of Nationwide. Three documents were signed by the parties at or about the same time, and, for the purpose of this summary judgment, constitute the entire contract in dispute in this case. They are designated and state, in part:

a. A letter from Nationwide’s Personal Lines Agency manager, signed by Nationwide’s manager and Halsell setting forth the company’s expectations for the success of the venture. National agreed to provide staff to assist in the operation of the business, pay Halsell’s salary for a period of three years and provide for a majority of the office expenses during the “three year employee period”.

b. A Precontract Declaration of Understanding, and

c. An Employee Agent-Texas Agent Employment Agreement, which provides, “Agent’s employment hereunder shall terminate upon the death of the Agent and said employment may be terminated at will by the Companies or by the Agent by mailing or delivering to the other written notice of termination.”

A dispute arose between the parties and Halsell was fired. Halsell contends his employment contract was for a period of three years, and that he could not be terminated except for just cause. Nationwide contends the contract could be terminated at the will of either party.

Halsell asserts the trial court erred in:

1. finding there was no genuine issue of material fact;

2. finding there was no ambiguity in the employment contract;

3. finding that the contract was for “employment at will”;

4. considering evidence outside the pleading on file; and

5. granting summary judgment on Halsell’s negligence cause of action on the grounds that the Texas Workers’ Compensation Act precluded Halsell’s claims.

The standard for reviewing a summary judgment are the following:

a. The party moving for a summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled judgment as a matter of law;

b. 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

c. every reasonable inference must be indulged in favor of the nonmovant and any doubt resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Summary judgment is proper when the evidence establishes there is no genuine issue of material fact concerning one or more of the essential elements of plaintiff’s cause of action, or when each element of an affirmative defense to plaintiff’s cause of action is established as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990).

*2 Texas is an employment at will state. When the time of employment is indefinite or uncertain, either the employer or employee may terminate the employment relationship at the pleasure of either party without notice or reason. See Hussong v. Schwan’s Sales Enter., Inc., 896 S.W.2d 320, 324 (Tex.App.-Houston [1st Dist.] 1995, no writ). However, if the parties agree to a contract for a time certain, as opposed to an “at will”, the contract can be terminated only upon a showing of good cause for the discharge. Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 578 (Tex.App.-Houston [1st Dist] 1992, no writ). A discharged employee who claims the parties have contractually agreed to limit the employer’s right to terminate the employee at will has the burden of proving an express agreement or written representation to that effect. See Totman v. Control Data Corp., 707 S.W.2d 739, 744 (Tex.App.-Fort Worth 1986, no writ). The written contract must, “in a meaningful and special way,” limit the right to terminate the employment at will. Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403, 406 (Tex.App.-Beaumont 1987, writ ref’d n.r.e.).

We will first determine whether the contract is ambiguous. The language used by the parties should be accorded its plain grammatical meaning unless it definitely appears the intention of the parties would thereby be defeated. Reilly v. Rangers Management., Inc. 727 S.W.2d 527, 529 (Tex.1987); Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex.1985). If the contract is worded so that it can be given a certain and definite meaning or interpretation, it is not ambiguous; and the court will construe the contract as a matter of law. Coker v. Coker. 650 S.W.2d 391, 393 (Tex.1983).

We agree with Halsell that the three instruments constitute the contract of employment but we do not agree that it is ambiguous. The part of the contract wherein Nationwide agrees for the first three years to provide a base salary to Halsell and provide office staff and equipment is not incompatible or create an ambiguity with the clause terminating the employment relationship at will by either party. In Hussong the employer and employee agreed that the employee would work as a sales manager of a business at a stated weekly salary, and would automatically renew the contract each year. Hussong, 896 S.W.2d at 322. The contract provided the employer could terminate the contract for cause for various reasons. Id. It also stated, similar to the one under consideration, that it could be voluntarily terminated by either party upon giving thirty days prior written notice. Id. The employer terminated the employment, paying the employee severance wages as provided in the contract. Id. The employee filed suit alleging, among other things not relevant to this case, that the contract was not terminable at will and good cause had not been shown by the employer to discharge him prior to the term. See id. at 322, 324. The court held that the “voluntary termination” clause in the contract gave the employer the right to terminate the employee’s employment. Id. at 324-25. We are in agreement with the reasoning in Hussong. The contract under consideration specifically states that “said employment may be terminated at will by the Companies or by the Agent by mailing or delivering to the other written notice of termination.” Proper notification to Halsell has not been questioned. We are of the opinion that, as a matter of law, the contract between Halsell and Nationwide is terminable at the will of either party without cause.

*3 Halsell contends that the trial court considered oral evidence. Such conduct on the part of the trial court would be error. See Tex.R. Civ. P. 166 a(c); Nash v. Corpus Christi Nat’l Bank, 692 S.W.2d 117, 119 (Tex.App.-Dallas 1985, writ ref’d n.r.e.). In support of this contention, he relies on the order granting summary judgment which states, “and hearing argument of counsel.” Argument of counsel is not evidence. Moreover, Halsell fails to state where we can find in the record argument of counsel which constitutes improper summary judgment. evidence. See Tex.R.App. P. 74(d). This point of error is overruled.

Halsell’s final point of error asserts the trial court erred in granting summary judgment on Halsell’s allegation that Nationwide negligently terminated the contract. Halsell alleged, “As a direct and proximate result of the unreasonable act and the negligence of Defendants in wrongfully dismissing Plaintiff, Plaintiff’s physical and mental health has suffered greatly.”² In Southwestern Bell Tel. Co. v. Delanney, 809 S.W.2d 493 (Tex.1991), the court stated:

When the only loss or damage is the subject matter of the contract, the plaintiff’s action is ordinarily on the contract. We applied this analysis in Jim Walters Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex.1986) where we wrote:

The acts of a party may breach duties in tort or contract alone or simultaneously in both. The nature of the injury most often determines which duty or duties are breached. When the injury is only the economic loss to the subject of a contract itself the action sounds in contract alone.

Delanney, 809 S.W.2d at 494-95 (citations omitted).

In this case, Halsell claims breach of contract due to the termination of the contract by Nationwide prior to three years. The alleged damages arise from the contract and Halsell’s action is limited to the economic loss for the breach of contract. His negligence claim is without merit.

The judgment of the trial court is affirmed.

	Footnotes
1		Assigned to this case by the Chief Justice of the Supreme Court of Texas.
2		Halsell also alleged that the acts of Nationwide resulted in the intentional infliction of severe emotional distress on Halsell. At oral argument, Halsell acknowledged this contention was without merit.