                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00151-CV


JOHN MCCRACKEN                                                       APPELLANT

                                        V.

MONOSOL RX, LLC                                                        APPELLEE


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          FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 342-250974-11

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               CONCURRING MEMORANDUM OPINION 1

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      I agree with the majority opinion’s conclusion that the record, viewed in the

light most favorable to McCracken, revealed genuine issues of material fact as to

each element of McCracken’s claims, which precluded judgment as a matter of

law in favor of Monosol. See Tex. R. Civ. P. 166a(c), (i). However, I believe the

majority opinion, while thoughtfully crafted, goes too far by addressing arguments

      1
       See Tex. R. App. P. 47.4.
and facts that are unnecessary to the disposition of this appeal and by needlessly

reaching conclusions based on extrapolations. See Tex. R. App. P. 47.1.

                          I. STANDARD OF REVIEW

      The majority opinion correctly sets out the general standards and scope of

our review, and there is no need to repeat them in detail here. It is important to

clarify, however, that our only question is whether McCracken produced more

than a scintilla of probative evidence raising genuine issues of material fact on

each element of his claims. See Buck v. Palmer, 381 S.W.3d 525, 527 (Tex.

2012). Because both McCracken and Monosol brought forth summary-judgment

evidence in the context of Monosol’s hybrid no-evidence and traditional motion

for summary judgment, “the differing burdens of the two forms of summary

judgment motion are of no import here. The ultimate question is simply whether

a fact issue exists.” Id. at 527 n.2 (emphasis added). Therefore, we do not need

to address McCracken’s claims under rule 166a(i) and also separately address

them again under rule 166a(c) as the majority opinion does; we are to simply

look for genuine and material fact issues raised by the summary-judgment

evidence, which we view in the light most favorable to McCracken. See Neely v.

Wilson, 418 S.W.3d 52, 59 (Tex. 2013) (citing Buck, 381 S.W.3d at 527 & n.2).

                          II. MCCRACKEN’S CLAIMS

      McCracken alleged Monosol (1) breached the employment contract by

failing to “pay [McCracken] promised severance pay by discharging him without

cause” and (2) violated the implied duty of good faith and fair dealing


                                        2
incorporated into the employment contract. McCracken further pleaded for the

recovery of his attorneys’ fees.

                            A. BREACH OF CONTRACT 2

      The essential elements of a breach-of-contract claim are (1) the existence

of a valid contract between the plaintiff and the defendant, (2) the plaintiff

performed or tendered performance or was excused from doing so, (3) the

defendant breached the contract, and (4) the plaintiff incurred damages as a

result of the breach. See West v. Triple B Servs., LLP, 264 S.W.3d 440, 446

(Tex. App.—Houston [14th Dist.] 2008, no pet.). Monosol did not argue that it did

not have a valid employment contract with McCracken or that McCracken did not

suffer damages from the termination of his employment. Thus, our operative

question is whether McCracken raised a genuine fact issue on the remaining

elements: (1) that he performed under the contract, i.e., he performed his job

duties, and (2) that Monosol failed to pay McCracken owed severance and

bonuses under the employment agreement.

      McCracken pleaded that Monosol breached the employment contract by

failing to pay him severance pay, including an accrued 2008 bonus and a 2009

      2
       The majority opinion does not refer to the import of contract interpretation
in the context of summary judgment. Indeed, a de novo review of a summary
judgment on a breach-of-contract claim must give effect to the true intentions of
the parties and must give effect to all of its provisions. See Innovate Tech.
Solutions, L.P. v. Youngsoft, Inc., 418 S.W.3d 148, 150–52 (Tex. App.—Dallas
2013, no pet.). A court may, however, determine that a contract is ambiguous,
which would preclude summary judgment. Id. This distinction is important in this
appeal and should be addressed.


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bonus during the severance period, after firing him without cause. Under the

employment contract, an employee would be entitled to severance if the

employee was fired without cause, which in this case means McCracken was

fired even though he performed his job duties. As the majority opinion points out,

McCracken filed a detailed affidavit in response to Monosol’s summary-judgment

motion delineating the duties he performed as part of his employment agreement

with Monosol. 3    McCracken’s affidavit was direct, based on his personal

knowledge, and readily controvertible; thus, it was competent summary-judgment

evidence. See Tex. R. Civ. P. 166a(f); Trico Techs. Corp. v. Montiel, 949 S.W.2d

308, 310 (Tex. 1997). McCracken’s averments raised a fact issue as to whether

McCracken was fired for failing to perform his job duties, which if he was not,

would have triggered Monosol’s duty under the contract to pay McCracken

severance pay and any associated bonuses. See Meek v. Bishop Peterson &

Sharp, P.C., 919 S.W.2d 805, 808 (Tex. App.—Houston [14th Dist.] 1996, writ

denied) (“The court determines what conduct is required by the parties, and,

insofar as a dispute exists concerning the failure of a party to perform the

contract, the court submits the disputed fact questions to the jury.”); cf. Ludlow v.

DeBerry, 959 S.W.2d 265, 275 (Tex. App.—Houston [14th Dist.] 1997, no pet.)

(holding plaintiff’s deposition testimony proffered in response to summary


      3
       Contrary to Monosol’s assertion, McCracken’s averments were not
conclusory but were supported by specific instances and examples of how he
performed his job duties.


                                         4
judgment that he performed extra duties outside of those provided in employment

agreement raised a fact issue regarding unjust enrichment to employer,

precluding summary judgment).

       Monosol asserts that the provision entitling its CEO to determine whether a

termination is for cause renders the decision that McCracken was fired for cause

a final determination on the matter and not susceptible to any contrary

explanation by McCracken. However, this argument ignores that this is a case of

contract interpretation and that we must give effect to all provisions. Were we to

adopt Monosol’s argument, Monosol could determine that every termination was

for cause, thereby abrogating the severance provisions in the agreement. See

Gilbane Bldg. Co. v. Keystone Structural Concrete, Ltd., 263 S.W.3d 291, 299

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (“To interpret the contract under

[appellant’s] analysis, we would have to add a provision. . . . We decline to do

so.”); cf. Alesch v. Tex. Christian Univ., No. 2-07-461-CV, 2008 WL 4531705, at

*3 (Tex. App.—Fort Worth Oct. 9, 2008, no pet.) (mem. op.) (“To reach

[appellant’s] interpretation, we would have to ignore language in the Agreement

and the offer letter, rather than harmonize them with the rest of the parties’

writing.”).

       Therefore, summary judgment was inappropriate on McCracken’s breach-

of-contract claim. Because McCracken raised a genuine issue of fact on his

claim that he was not fired for cause and, thus, was owed severance and bonus

payments, I believe it is not necessary to reach McCracken’s breach allegation


                                        5
pleaded in the alternative: “Even if there were cause for termination, [Monosol]

further breached the Agreement by terminating Plaintiff without providing an

adequate cure notice and period to correct any deficiencies.”

                           B. BREACH OF IMPLIED DUTY

      McCracken also alleged that Monosol breached the implied duty of good

faith and fair dealing by not paying his bonuses, by not giving proper notice and

an opportunity to cure, and by falsely claiming that his termination was for cause.

The parties agree New Jersey law governs this issue. Once again, we are to

determine whether any fact issues on an essential element exist such that

summary judgment is precluded.

      The essential elements of a violation of the implied duty of good faith and

fair dealing under New Jersey law are (1) a valid contract between the plaintiff

and the defendant, (2) in the performance or enforcement of the contract, the

defendant destroyed or injured the right of the plaintiff to receive the benefits of

the contract, and (3) the defendant acted with bad motive or intention.        See

Kapossy v. McGraw-Hill, Inc., 921 F. Supp. 234, 248 (D.N.J. 1996); Brunswick

Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 864 A.2d 387, 395–

96 (N.J. 2005). The elements at issue here are whether Monosol, in performing

its duties under the contract, destroyed or injured the right of McCracken to

receive the benefits of the contract and whether Monosol acted with bad motive

or intention. Based on the summary-judgment evidence regarding Monosol’s

actions as recited by the majority, I conclude that McCracken produced more


                                         6
than a scintilla of evidence raising a genuine fact issue on these essential

elements. 4 See, e.g., Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 466–

67 (8th Cir. 2002); Carvel Corp. v. Baker, 79 F. Supp. 2d 53, 61–63 (D. Conn.

1997).

                                III. CONCLUSION

      As does the majority opinion, I believe that McCracken raised fact issues

precluding summary judgment on his claims for breach of contract and breach of

the implied duty of good faith and fair dealing. Because I cannot join in the

majority opinion’s rationale supporting this conclusion, I respectfully concur.



                                                    /s/ Lee Gabriel
                                                    LEE GABRIEL
                                                    JUSTICE

WALKER, J., joins.

DELIVERED: October 2, 2014




      4
        However, I disagree with the majority opinion’s conclusion that whether
Monosol breached the implied duty need not be addressed because McCracken
raised a fact issue on his claim for breach of contract. Breach of contract and
breach of the implied duty, although interrelated, are distinct causes of action that
may be pleaded alternatively and should be addressed separately. See
generally Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 163, 169–70
(3d Cir. 2001) (discussing nature of claim for breach of implied duty).


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