                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-461-CV


JEANINE ALESCH                                                   APPELLANT

                                        V.

TEXAS CHRISTIAN UNIVERSITY,                                      APPELLEES
SHARON FAIRCHILD, JEFFREY
TODD, YUMIKO KEITGES, JEAN
KNECHT, AND WILLIAM POHL

                                    ------------

           FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      This appeal arises out of the decision of Appellee Texas Christian

University (“TCU”) not to renew Appellant Jeanine Alesch’s employment

contract.     In one broad issue, Alesch argues that the trial court erred by

granting summary judgment for TCU on her breach of contract claims. Because


      1
          … See Tex. R. App. P. 47.4.
we hold that the trial court did not err by granting summary judgment for TCU,

we affirm.

      Alesch began working at TCU in 2001. The TCU faculty handbook (“the

Handbook”) provides that “[o]fficial notification [of faculty appointments] is

given by letter” (“offer letter”) and that “[r]eappointment of faculty is made by

contract on a year-to-year basis” until tenure is granted. In June 2001, TCU

sent Alesch a letter offering her a non-tenure-track lecturer position for the

upcoming school year, which she accepted.         In February 2002, TCU sent

Alesch a letter offering her a tenure-track position for the following school year

and providing that renewal of the appointment at the end of the agreement’s

term would depend on a variety of factors, including “programmatic trends.”

The letter advised her that “neither renewal of this appointment nor a positive

tenure decision is automatic or guaranteed.” Enclosed with the letter was a

one-page employment agreement providing for a term of employment ending on

May 10, 2003. Paragraph five of the agreement stated that “[Alesch] agrees

and recognizes that reappointment is dependent upon availability of financial

resources and . . . an adequate performance level.” Near the end of each

employment term for the next two terms, TCU sent Alesch an offer letter

notifying her that TCU had renewed her appointment, accompanied by another

one-page contract (“Agreement”) containing the same language as the 2002

                                        2
Agreement.     The offer letters stated that “[y]our acceptance of this

appointment indicates your willingness to be bound by [the Handbook’s] rules

and regulations as a condition thereof.”

      By 2005, the French program had been having problems meeting optimal

enrollment numbers for several years.       In April 2005, TCU’s provost sent

Alesch a letter stating that TCU would no longer offer a French major and that

therefore TCU would no longer support the tenure-track position she held. The

letter stated that “[a]s guardian of scarce University resources, I cannot support

a degree program that has such meager support from students.”

      Alesch filed suit in October 2005. She claimed that TCU breached its

contract with her by denying her tenure and deciding to terminate her

employment. TCU moved for summary judgment on the grounds that as a

matter of law, TCU had no contract with Alesch to provide her tenure and TCU

did not breach its contract with Alesch and that there was no evidence of a

contract requiring TCU to provide Alesch tenure or otherwise continue her

employment.

      In addition to suing TCU, Alesch sued the remaining appellees, all faculty

members in TCU’s languages department, for defamation. She does not appeal

the trial court’s grant of summary judgment on that claim.




                                        3
      A defendant who conclusively negates at least one essential element of

a cause of action is entitled to summary judgment on that claim. 2        When

reviewing a summary judgment, we take as true all evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor. 3

      After an adequate time for discovery, the party without the burden of

proof may, without presenting evidence, move for summary judgment on the

ground that there is no evidence to support an essential element of the

nonmovant’s claim or defense.4         The motion must specifically state the

elements for which there is no evidence. 5 The trial court must grant the motion

unless the nonmovant produces summary judgment evidence that raises a

genuine issue of material fact.6




      2
     … IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004); see Tex. R. Civ. P. 166a(b), (c).
      3
          … IHS Cedars Treatment Ctr., 143 S.W.3d at 798.
      4
          … Tex. R. Civ. P. 166a(i).
      5
      … Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.
2002).
      6
     … See Tex. R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex. 2002).

                                        4
      When reviewing a no evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion.7      If the nonmovant

brings forward more than a scintilla of probative evidence that raises a genuine

issue of material fact, then a no evidence summary judgment is not proper. 8

      Alesch claimed in her petition that TCU breached its contract by deciding

to terminate her employment. On appeal, she argues that the Agreements were

not ambiguous as to the nonrenewal of her appointment and provided that the

only grounds for not renewing were unavailability of financial resources or an

inadequate performance level. We agree with Alesch that the language of the

Agreements she relies on is not ambiguous.

      A statement in an employment contract that an employer may terminate

employment for certain reasons does not constitute an agreement that the

employment may be terminated for only those reasons.9       The plain language


      7
          … Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
      8
      … Moore v. K Mart Corp., 981 S.W .2d 266, 269 (Tex. App.—San
Antonio 1998, pet. denied).
      9
       … See Matagorda County Hosp. Dist. v. Burwell, 189 S.W.3d 738, 739
(Tex. 2006) (construing an employee manual in employee’s breach of contract
action and holding that “[e]ven assuming that the employee manual created a
contract between the District and its employees, . . . a statement that an
employee may be dismissed for cause is not a specific agreement that an
employee may be dismissed only for cause”) (emphasis added); see also

                                       5
of the Agreements required Alesch to agree that she would not be entitled to

reappointment in the case of inadequate financial resources on TCU’s part or

inadequate performance levels on her part. But nothing in that language or the

Agreement as a whole places an obligation on TCU to renew her appointment

in the absence of one of those two circumstances. 10

      Furthermore, that TCU could elect to not renew Alesch’s appointment for

reasons other than inadequate financial resources or inadequate performance

is supported by other language in the contract. Instruments relating to the

same transaction may be read together to determine the parties’ intent, “even

if the parties executed the instruments at different times and the instruments

do not expressly refer to each other,” and “[i]n appropriate instances, courts

may construe all the documents as if they were part of a single, unified

instrument.” 11 In determining the parties’ intent, we consider the entire writing



Midland Judicial Dist. Cmty. Supervision & Corr. Dep’t v. Jones, 92 S.W.3d
486, 487–88 (Tex. 2002) (considering the language of memorandum listing
Jones’s projected pay increases in determining whether employment was at-will
and holding that statement that pay increases were contingent upon Jones’s
future performance evaluations “and available county funding" did not indicate
the Department's intent to be bound to not terminate her employment except
under those two circumstances).
      10
           … See Burwell, 189 S.W.3d at 739.
      11
           … Fort Worth ISD v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex.
2000).

                                        6
“in an effort to harmonize and give effect to all the provisions of the contract

so that none will be rendered meaningless,” and “[n]o single provision taken

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

considered with reference to the whole instrument.” 12 The provost executed

the 2005 offer letter on the same day as the 2005 Agreement, the letter states

that the Agreement is enclosed, and the letter asks Alesch to sign and return

the letter with the Agreement. Alesch signed both the Agreement and the

letter on the same date. This offer letter and the 2005 Agreement must be

read together to ascertain the parties’ intent.13

      The 2005 Agreement is entitled “Terminal Contract,” and although the

name of a contract does not have as much weight as the operative clauses of

the contract, it can be considered in interpreting the contract.14 The offer letter

states that the appointment for the 2005–2006 academic year would be

Alesch’s last tenure-track appointment at TCU. Construing the 2005 offer

letter and the 2005 Agreement together, it would be an unreasonable



      12
           … J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003).
      13
           … See Fort Worth ISD, 22 S.W.3d at 840.
      14
       … See Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549
(Tex. 2004) (noting that “in certain cases, courts may consider the title of a
contract provision or section to interpret a contract,” although the operative
contractual clauses of the agreement must be given greater weight).

                                        7
interpretation to hold that where the document stating the terms of the

appointment was entitled “Terminal Contract” and the parties simultaneously

executed another document stating that the appointment provided by the

Agreement would be Alesch’s last tenure-track appointment, the parties

nevertheless agreed that the appointment would be renewed unless financial

resources or Alesch’s performance did not support it.        To reach Alesch’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.

And Alesch points us to no provision other than paragraph five that supports

her interpretation.15 We hold that the trial court did not err by granting either

TCU’s no evidence or traditional summary judgment motions on this part of

Alesch’s breach of contract claim.

      Because we agree that this contract provision is not ambiguous, we do

not reach Alesch’s arguments with respect to whether, if paragraph five is




      15
        … See County of Dallas v. Wiland, 216 S.W.3d 344, 353–54 (Tex.
2007) (noting that the employee manual in question contained numerous
provisions suggesting that dismissal could only be for cause, contrasting
Burwell, in which the personnel manual contained no other such provisions
other than the one relied on by the employee and holding that although it is a
close question, on balance, the manual taken as a whole required that dismissal
be for cause).

                                       8
ambiguous, the contract incorporated the terms of the 2002 offer letter and

whether that letter raises a fact issue for the jury.16

      In her final argument, Alesch contends that her contract required that she

be given a tenure decision in the 2005–2006 academic year and that TCU

breached the contract by not making a tenure decision in accordance with

TCU’s tenure policy. She argues that she should have been given an “up or

down vote” on tenure in accordance with the Handbook during the 2005–2006

academic year, and if that had been done, then in accordance with the

Handbook’s requirements on appointment renewals, she would have been

allowed another year of employment at TCU.

      We first note that although Alesch made this argument in her response

to TCU’s motion for summary judgment, her petition does not seek a vote on

whether or not to grant tenure—her petition alleges that TCU breached the

contract by denying her tenure, and she specifically asks the trial court to order

TCU to grant her tenure, not to vote on whether to grant it.           To obtain

summary judgment, a defendant must meet the plaintiff’s claim as pleaded. 17

Alesch did not amend her pleadings, and she made no argument in her response



      16
           … See Tex. R. App. P. 47.1.
      17
           … SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex.
1995).

                                         9
to TCU’s summary judgment motion as to why TCU breached the contract to

the extent that it decided not to grant her tenure, and nowhere in the

Agreements, the offer letters, or the Handbook does TCU promise Alesch that

she will be granted tenure.    The trial court was therefore correct to grant

summary judgment on such a claim. 1 8      But to the extent that her argument

could be construed as applying to her claim that TCU breached the contract by

not renewing her appointment for another year, we will consider it.

     Alesch argues that the contract is ambiguous because neither the

Agreements nor the Handbook, which Alesch asserts is incorporated into the

Agreements, provide the date on which she was entitled to be considered for

tenure. But, she argues, the 2002 offer letter shows an agreement that the

decision would be made during the 2005–2006 academic year, instead of prior

to that time, as happened here. Alesch contends that because the decision

should have been made during the 2005–2006 year, she should have been

employed for one more year because the Handbook states that “[w]ritten notice

from the chief academic officer that a probationary appointment is not to be

renewed must be given to the faculty member in advance of the expiration of




     18
          … See Tex. R. Civ. P. 166a(i); Doe, 903 S.W.2d at 355.

                                      10
his or her appointment. . . at least 12 months before the expiration of an

appointment after two years of service at the institution.”

      The Agreements say nothing about tenure and do not address when or

if a tenure decision would be made.     Even if the contract incorporates the

Handbook, the Handbook does not set out a right to a tenure determination at

any particular time.   The Handbook expressly states that consideration for

tenure will only be made after a probationary period and that the probationary

period would be determined by the conditions set forth in the Handbook. The

Handbook sets the maximum probationary period at seven years (but then

provides that in some circumstances the probationary period could exceed

seven years) and provides that the tenure decision will be made at least twelve

months before the end of the probationary period. It provides no minimum

probationary period and states that an associate professor may apply for tenure

in any year. Thus, if the Handbook is incorporated into the contract as Alesch

argues, then the contract does not leave out a material term, and there is no

need to look to parol evidence to determine when Alesch was entitled to a vote

on tenure.   The Handbook contains the term and provides that the tenure

decision could be made at any time but generally no later than seven years after

the probationary period begins.    Thus, TCU was free to decide before the

2005–2006 year that Alesch would not be granted tenure.

                                      11
      Moreover, neither the contract nor the Handbook guarantees an “up or

down vote” on tenure; the Handbook provides that an eligible person “may be

nominated for tenure,” and as a result, that person would go through a

nomination process through the chain of authority, with the Chancellor

ultimately deciding whether or not to forward the nomination to the Board of

Trustees. Alternatively, instead of waiting for someone to nominate her, she

could have applied for tenure through her department chair. TCU made the

decision not to nominate her for tenure and in making that decision did not

breach the terms of the Agreements or the Handbook.

      Further, to read the letter the way Alesch suggests would require us to

find in the contract a guarantee of continued employment through the

2006–2007 academic year. That is, Alesch argues that in the 2002 offer

letter, TCU promised not to make the tenure decision prior to 2005–2006 and

that TCU breached the contract by deciding prior to that time that it would not

renew her appointment beyond the end of the 2005–2006 academic year.

Implicitly, then, she also argues that TCU agreed to continue to employ her

through at least the 2006–2007 academic year. Such a term would clearly

contradict the plain language of the Agreements, the Handbook, and other

provisions in the 2002 offer letter. We reject Alesch’s argument that TCU was

not free to make a decision on tenure prior to the 2005–2006 academic year

                                      12
and hold that the trial court did not err by granting summary judgment on

Alesch’s claim.




     Having overruled Alesch’s issue, we affirm the judgment of the trial court.




                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED: October 9, 2008




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