                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00219-CV


DAVID BRIDGES                                                       APPELLANT

                                        V.

ALCON LABORATORIES, INC.                                             APPELLEE


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          FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      Appellant David Bridges appeals the trial court’s order granting summary

judgment in favor of Alcon Laboratories, Inc. (Alcon). We will affirm the trial

court’s judgment.

                              Background Facts

      Bridges was a project supervisor with Alcon for almost twenty-eight years

until, along with many other employees, he was laid off in a mass force reduction

      1
       See Tex. R. App. P. 47.4.
on February 11, 2009. On the day of the layoffs, Bridges was called into a

meeting where he was presented with two documents: one entitled “Separation

Agreement” and one entitled “General Release.”       The Separation Agreement

provided that Bridges would receive certain benefits until April 15, 2009, and

other additional benefits if he agreed to sign the General Release.       Bridges

signed the Separation Agreement and was given forty-five days to consider and

sign the General Release. After the meeting, Bridges turned in his ID badge and

parking pass in accordance with the Separation Agreement and was escorted

from the premises.

      On February 14, 2009, a Saturday, Bridges and his wife stopped by Alcon

on their way home from a birthday party to look for a jacket and prescription

sunglasses that Bridges had left. Bridges’s wife was still employed by Alcon on

that date, as she had been for fourteen years. They used the wife’s ID badge to

enter the building. While there, Bridges took from his former locker a tool bag

containing various tools which he believed belonged to him. Three days later, on

February 17, 2009, Bridges signed and returned the General Release.

      On February 26, 2009, Alcon discovered the missing tools and security

camera footage revealed that Bridges had taken them. The company contacted

Bridges, who returned the tools.    Alcon then decided to terminate Bridges’s

employment for violating various terms of Alcon’s employment policies, including

“removing or misappropriating property . . . from the premises or from one area to

another without authorization;” “removing company property . . . from the

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premises (physically or electronically) without authorization;” “entering company

premises in any way without proper authorization;” and “bringing guests, family

members, vendors and former employees to the work area.” Based on these

violations of company policies, Alcon refused to provide the benefits outlined in

the General Release.

      Bridges filed suit for breach of contract.    Alcon moved for summary

judgment on the grounds that Bridges violated terms of the Separation

Agreement, which is part of the same unified contract as the General Release.

Because he breached the contract, Alcon argued, Bridges was not entitled to

enforce it. The trial court granted Alcon’s motion for summary judgment, and this

appeal followed.

                              Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to




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summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

                                   Discussion

A.    The Separation Agreement and General Release are one, indivisible

      contract.

      In his first issue, Bridges argues that the Separation Agreement and the

General Release are two separate contracts. He further argues that because

they are separate agreements, a failure to perform, pursuant to the Separation

Agreement, does not impede his right to enforce the General Release as a

separate contract. Although he signed the Separation Agreement, he contends

that it is “simply an informal piece of paper” and that the General Release is the

only document which contains the terms of his layoff benefits.

      The Separation Agreement is more than an informal piece of paper. It

provides detailed information on the various benefits Bridges would receive

during his time on “layoff status,” including the additional benefits he would

receive if he agreed to release Alcon from liability for any claims he may have

had against it. In regards to those additional benefits, the Separation Agreement

states,

      In addition to the benefits outlined above, Alcon is willing to provide
      the additional benefits set forth below, if you sign, date and return
      the attached General Release to Alcon . . . by March 28, 2009 (or
      within 45 days of receipt of this Agreement), and do not revoke it
      within seven (7) days following your signing. The benefits outlined
      below will be provided after your separation date but not earlier than



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      the 8th day following your return of the executed General Release.
      [Emphasis added.]

The Separation Agreement then devotes four paragraphs to detailing the benefits

that Bridges would receive if he signed the General Release. In comparison, the

General Release lists the same benefits in only one sentence.

      The Separation Agreement refers to the General Release three times;

twice referring to it as being attached to the Separation Agreement.            Both

documents were given to Bridges at the same time, and both pertain to the layoff.

It is well established that

      [I]nstruments pertaining to the same transaction may be read
      together to ascertain the parties’ intent, even if the parties executed
      the instruments at different times and the instruments do not
      expressly refer to each other, and that a court may determine, as a
      matter of law, that multiple documents comprise a written contract. In
      appropriate instances, courts may construe all the documents as if
      they were part of a single, unified instrument.

Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex.

2000).    We hold that the Separation Agreement and General Release are

together a single, unified contract. See id.; AutoNation USA Corp. v. Leroy, 105

S.W.3d 190, 198 n.2 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding)

(applying an arbitration clause found in a purchase agreement to complaints

about a “retail installment contract” because both documents relate to the same

transaction and both were signed at the time the customer made the purchase);

In re BP Am. Prod. Co., 97 S.W.3d 366, 369 (Tex. App.—Houston [14th Dist.]

2003, no pet.) (construing a closing agreement and purchase and sale



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agreement (PSA) as one contract because the closing agreement “was

necessary to the PSA and has no apparent purpose other than to facilitate the

transaction set forth in the PSA”). Thus, a breach of the Separation Agreement

is a breach of the unified contract which includes the General Release. See

Dorsett v. Cross, 106 S.W.3d 213, 221 (Tex. App.—Houston [1st Dist.] 2003, pet.

denied) (holding that appellant defaulted on a promissory note by failing to fulfill

the terms of a stock sales agreement because the note “expressly states that it is

executed pursuant to the parties’ Stock Sale Agreement”).             We overrule

Bridges’s first issue.

B.   Bridges violated company policies, and therefore, the Separation

      Agreement.

      In his second issue, Bridges argues that a violation of company policies is

not a breach of the Separation Agreement. He asserts that the only prohibitions

in the agreement which would constitute a breach are those listed in the

“Acknowledgment section” of the agreement. In his third issue, Bridges argues

that there is a fact question as to whether he actually violated company policies.

      The second paragraph of the Separation Agreement states,

            Your official separation from the Company will take place on
      February 11, 2009.2 Alcon will provide you with compensation and
      benefits through April 15, 2009. The Company will provide other
      compensation and benefits as described below in exchange for

      2
       Below that paragraph is a bullet point stating that the separation date is
April 15, 2009. In his deposition, Bridges said that he understood that from
February 11 to April 15, he would be considered “an employee on layoff status”
and that his employment was to be officially terminated on April 15.

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         execution of this Agreement and the attached General Release.
         You will be expected to abide by the Company’s policies through the
         end of your employment with the Company. Prior to any payments
         or benefits being made under the Assistance Plan outlined below, all
         Company property must be returned to Alcon, including, but not
         limited to computer equipment, your parking pass and employee
         badge.

         What Bridges calls the “Acknowledgement section” follows the description

of the additional benefits Bridges would receive if he signed the General

Release. It is not separated by a heading or other indication that it is a separate

and distinct section. It begins, “As a material inducement to Alcon to enter into

this Agreement and provide you with additional benefits set forth above which are

above and beyond the normal severance benefits you would be entitled to, you

agree and acknowledge that: . . . .” and goes on to request that Bridges not

disparage the company, not contact former supervisors, not disclose the terms of

the agreement, and not damage company property. [Emphasis added.] The

document ends with a paragraph in bold font warning that “[Bridges’s] violation of

any of the acknowledgments set forth above in the assistance plan may result in

immediate separation of payments and benefits provided under the assistance

plan.”

         It is clear that the phrase “additional benefits set forth above” refers to the

additional assistance plan benefits that Bridges would receive for signing the

General Release. It is also clear that violating one of the acknowledgments listed

in the so-called “Acknowledgement section” constitutes a breach of the

Separation Agreement and the General Release. It does not follow, however,

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that those are the only ways in which Bridges could breach the Separation

Agreement. The Separation Agreement does not state that the terms listed on

the fourth and fifth pages of the five-page agreement are the only terms to which

Bridges must agree; they were additional, newly-created terms.          In fact, the

Separation Agreement explicitly does not eliminate the old terms of Bridges’s

employment; it states that Bridges is “expected to abide by the Company’s

policies through the end of [his] employment.”          When Bridges signed the

Separation Agreement, he acknowledged that he read the whole agreement and

all of the acknowledgements within, including the acknowledgement that he

would be expected to continue to abide by company policies. To hold otherwise

would make the expectation that Bridges abide by company policies mere

surplusage because its violation would yield no consequences. See Coker v.

Coker, 650 S.W.2d 391, 393 (Tex. 1983) (“[C]ourts should examine and consider

the entire writing in an effort to harmonize and give effect to all the provisions of

the contract so that none will be rendered meaningless. No single provision

taken alone will be given controlling effect; rather, all the provisions must be

considered with reference to the whole instrument.”).

      Had the contract not been breached, Bridges would have been considered

(and would have considered himself to be) an employee of Alcon “on layoff

status” until April 15, 2009. Bridges points to no evidence that an employee,

because his status has changed from active to layoff status, no longer has to

abide by company policies. That policy is set forth in the employee handbook,

                                     8
which Bridges acknowledges that he received.          The handbook lists “many

activities or actions that may justify corrective action, up to and including

termination of employment.”     The list includes “removing or misappropriating

property (belonging to the Company or another employee) from the premises or

from one area to another without authorization” and “using another person’s

badge, ID card or special pass to enter or leave Company property or restricted

areas; entering Company premises in any way without proper authorization.”

Bridges admits that he used his wife’s badge to enter the property without

authorization and removed Alcon property from the premises. Based on this

evidence, we hold that no fact question exists as to whether Bridges violated

company policies. We further hold that such a violation was a breach of the

Separation Agreement. We overrule Bridges’s second and third issues.

                                   Conclusion

      Having overruled Bridges’s three issues, we hold that summary judgment

in favor of Alcon was proper. We affirm the trial court’s judgment.




                                                   LEE GABRIEL
                                                   JUDGE

PANEL: LIVINGSTON, C.J.; McCOY and GABRIEL, JJ.

DELIVERED: April 21, 2011




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