Reverse and Remand; Opinion Filed November 20, 2012.




                                               In The
                               Iuitrt uf Apprata
                         ifth istrirt nf ixai at aIta
                                         No. 05-1 1-00486-CV


                                 MICHAEL KALMUS, Appellant

                                                  V.

     ELLA OLIVER AND FINANCIAL NECESS1T1ES NETWORK, iNC., Appellees


                       On Appeal from the 193rd Judicial District Court
                                    Dallas County, Texas
                             Trial Court Cause No. I0-03155-L


                                             OPINION
                           Before Justices Moseley, Fillmore, and Myers
                                    Opinion By Justice Myers

       Appellant Michael Kalmus appeals from a summary judgment granted in favor of appellees

Ella Oliver and Financial Resources, Inc. in three issues, appellant contends (1) the statute of frauds

does not apply to the oral employment agreement between appellant and appellees; (2) the trial court

erred by granting summary judgment on appellant’s claim that appellees wrongfully deducted

$4,300.93 from appellant’s last paycheck; and (3) the statute of frauds does not preclude appellant’s

other causes of action. We reverse and remand.

                                             DISCUSSION

       In his first issue, appellant asks:

       Does the oral employment contract whereby [appellees] agreed to pay [appellant]
       commissions on sales as long as the they remained on the books (residual or
       reoccurring commissions) and irrespective of whether or not [appellantj was
       employed with [appellees], violate the statute of frauds precluding enforcement of
       the oral contract and more specifically, can the alleged oral contract be performed
       within one year rendering the statute of frauds inapplicable?

       We review de novo the trial court’s summary judgment. Mid—’entuiy Ins. Co. of Tex. v.

Adema!, 243 S,W,3d 618, 621 (Tex 2007); Beesley v. Hvdroca,rbon Separation, Inc., 358 S.W.3d

415, 418 (Tex. App.—Dallas 2012, no pet.). When reviewing a traditional summary judgment

granted in favor of the defendant, we determine whether the defendant conclusively disproved at

least one element of the plaintiffs claim or conclusively proved every element of an affirmative

defense .A in. Tobacco C’o. v. Grinne!!, 95 1 S.W.2d 420, 425 (Tex. 1997). A matter is conclusively

established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence.

Beesley, 358 S.W.3d at 418. The movant must show there was no genuine issue of material fact and

that it is entitled to judgment as a matter of law. TEX, R. CIV, P. 166a(c); Sysco Food Servs., Inc.

v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). In deciding whether a disputed material fact issue

exists precluding summary judgment, we must take evidence favorable to the non-movant as true,

and we must indulge every reasonable inference and resolve any doubts in favor of the non-movant.

Svsco Food Servs., 890 S.W.2d at 800. When, as in this case, the court’s order granting summary

judgment does not specify the basis for the ruling, we will affirm the summary judgment if any of

the theories presented to the trial court are meritorious. Provident Lk &Accident Ins. Co. v. Knott,

128 S.W.3d 211, 216 (Tex. 2003).

       “The statute of frauds exists to prevent fraud and perjury in certain kinds of transactions by

requiring agreements to be set out in a writing signed by the parties.” Haase v. Glazner, 62 S.W.3d

795, 799 (Tex. 2001). The statute of frauds is an affirmative defense in a breach of contract suit and

renders a contract that falls within its purview unenforceable. See TEx. R. Civ. P. 94; TEx. Bus. &




                                                —2—
Coi. Coot ANN.     § 26.01(a); see also S & JMgmL,      Inc. v Sung/u C’hoi, 331 S.W.3d 849, 854 (Tex.

App.—Daflas 201 1, no pet.) (“Under the statute of frauds, certain contracts are not enforceable

unless they are in writing and signed by the person against whom enforcement of the contract is

sought”). Thus, appellees had the burden to show they were entitled to summary judgment by

pleading and proving all elements of their affirmative defense—the statute of frauds. See Lathem

v. Kruse, 290 S.W.3d 922, 924 (Tex. App.—Dallas 2009, no pet.); see also Dynegy, Inc. v. Yates,

345 S.W.3d 516, 522 (Tex. App.—San Antonio 2011, pet. reinstated) (party pleading statute of

frauds bears initial burden of establishing its applicability). If appellees established their asserted

affirmative defense of the statute of frauds, the burden shifted to appellant, as the non-movant

plaintiff, to show why summary judgment should not be granted. Lathem, 290 S.W.3d at 924.

        The statute of frauds encompasses agreements that are “not to be performed within one year

from the date of making the agreement.” TEx. Bus. & C0M.C0DE ANN,              §   26.01(b)(6). When a

promise or agreement, either by its terms or by the nature of the required acts, cannot be completed

within one year, it falls within the statute of frauds and is unenforceable unless it is in writing and

signed by the person to be charged. See id.   §   26.01(a), (b)(6); Schroeder v. Tex. Iron Works, Inc.,

813 S.W.2d 483, 489 (Tex. 1991), overruled on other grounds by In re United Servs. Auto Ass ‘n,

307 S.W.3d 299 (Tex. 2010); Aliday v. Niday, 643 S.W.2d 919, 920 (Tex. 1982) (per curiam);

C.S.C.S., inc. v. Carter, 129 S.W.3d 584, 590 (Tex. App.—Dallas 2003, no pet.). If the agreement

is capable of being performed within one year, it is not within the statute of frauds. See Gerstacker

v. Blum Consulting Eng’rs., Inc., 884 S.W.2d 845, 849 (Tex. App.—Dallas 1994, writ denied). The

question of whether an agreement falls within the statute of frauds is one of law. Bratcher v. Dozier;

162 Tex. 319, 346 S.W.2d 795, 796 (Tex. 1961); Biko v. Siemens Corp., 246 S.W.3d 148, 159 (Tex.

App.—Dallas 2007, pet. denied). But determining whether an exception to the statute of frauds




                                                  —3—
applies is generally a question of fact. See Adams v. Petrade mt ‘1., Inc., 754 S.W.2d 696, 705 (Tex,

App.—Houston [1st Dist.] 1988, writ denied).

        In deciding whether an agreement is capable ofbeing performed within one year, we compare

the date of the agreement to the date when the performance under the agreement is to be completed.

See TEX. Bus. & C0M. CODE ANN.        § 26.01(b)(6); Young v. Ward, 917 S.W.2d 506, 508 (Tex.
App.—Waco 1996, no writ). If there is a year or more between those two reference points, a writing

is required to render the agreement enforceable. Young, 917 S.W.2d at 508.

       When the date performance will be completed cannot be readily ascertained, the law provides

that if performance could conceivably be completed within one year of the agreement’s making, a

writing is not required to enforce it. See, e.g., Montgomeiy County Hosp. Dist. v. Brown, 965

S.W.2d 501, 503 (Tex. 1988); Miller v. Riata Z’adillac Co., 517 S.W.2d 773, 775 (Tex. 1974);

Beverick v. Koch Power, Inc., 186 S.W.3d 145, 149 (Tex. App.—Houston [14th Dist.] 2005, pet.

denied); Shaw v. Maddox Metal Works, Inc., 73 S.W.3d 472, 480 (Tex. App.—Dallas 2002, no pet.);

Chacko v. Mathew, No. 14-07-00613-CV, 2008 WL 2390486, at *3 (Tex. App.—Houston [14th

June 12, 2008, pet. denied) (mem. op., not designated for publication). “A contract that could

possibly be performed within a year, however improbable performance within one year maybe, does

not fall within the statute of frauds.” Beverick., 186 S.W.3d at 149 (emphasis in original) (citing

Hall v. Hail, 158 Tex. 95, 308 S.W.2d 12, 15 (1957)). In Miller, for example, the court concluded

that an indefinite term employment contract was performable within one year and, therefore, did not

fall within the statute of frauds. Miller, 517 S.W.2d at 775.

       On the other hand, promises of lifetime employment or employment until retirement age are

usually the types of employment contracts that must be reduced to writing to be enforceable. See

Reyna v. First Nat’! Bank, 55 S.W.3d 58, 71 (Tex. App.—Corpus Christi 2001, no pet.) (citing




                                                -4-
Schroeder, 813 S.W,2d at 489). This is because the contract’s duration is for the employee’s

working life, not until his death, and the completion date may be ascertained by determining the

employee’s anticipated retirement date, Shaw., 73 S.W3d at 480; see also Schroeder, 813 S.W.2d

at 489 (oral employment agreement that appellant would be employed for another eight to ten years,

until retirement, was not enforceable under statute of frauds). in Shaw, however, we distinguished

cases involving promised lifetime annuities, noting the date of completion would be the individual’s

death, not his anticipated retirement. Shaw, 73 S.W.3d at 480. We cannot imply a duration for such

contracts because, unlike an anticipated retirement date, there is no meaningful way to anticipate the

date of someone’s death. Id. Moreover, there is a distinction between termination of a contract and

performance under the contract in that the death of an employee prior to retirement would terminate

the lifetime employment agreement and result in nonperformance of the contemplated time frame

of the agreement. Id.

       Appellant’s original petition alleged that, in August of 2004, he was approached by Walt

Parker, president of Financial Necessities Network, inc. (FINNI), d/b/a InsuranceMakesMeSick.com,

about a position as an insurance salesman with FINNI. Appellant asserted that, in order to induce

him to work for FiNN1, Parker made certain promises. An oral employment agreement was reached

between the parties that included, according to appellant, the following provisions:

       1. Appellant would be employed by FNNI as a commissioned salesperson plus
       salary;

       2. Appellant was guaranteed and promised a 25/70 percent commission rate with a
       $5000 salary to start;

       3. After an initial period, salary would be reduced and commissions increased
       leading to 50/70 percent maximum commission and zero salary;

       4. Appellant would receive “any and all commissions” concerning FINNI for “as
       long as they came in,” and “the commission would remain at the commission rate at
        the time of separation and would continue to pay as long as they came in,” regardless
        of whether appellant was still employed with the business.

After appellant’s employment with FINN 1 was terminated, Parker told appellant he would only pay

a 25/50 percent commission rate through 2012, then later said he would only pay appellant that

promised commission rate through January of 2009. Appellant also contended that Parker deducted

$4,300.93 from appellant’s final November 1, 2008 commission check without notifying appellant.

Appellant asserted causes of action for breach of oral contract, violation of the Texas Sales

Representative Act, the Texas Theft Liability Act, fraudulent misrepresentation, negligent

misrepresentation, fraudulent inducement, promissory estoppel, and sought attorney’s fees.

        Appeflees’ motion for summary judgment was based entirely on the statute of frauds.

Appellees argued the employment agreement was barred by the statute of frauds because it was

actually a promise of lifetime employment or employment until retirement age, and therefore must

have been in writing to be enforceable. The trial court’s order granting summary judgment did not

specify the basis for the court’s ruling.

        In their brief appellees contend the summary judgment evidence established that the

agreement in question was for lifetime employment or employment until retirement age, and thus

incapable of being performed within a year. See Schroeder, 813 S.W.2d at 489; Reyna, 55 S.W.3d

at 71. We disagree.

       According to the record, appellant and Parker met at a restaurant in 2004 to discuss the terms

of appellant’s employment. In his deposition testimony, Parker described the financial incentives

as follows:

       The arrangement was that he would receive a base salary of $5,000 a month, then
       there were different levels of commission. The first level of commission was a 25
       percent commission off all business that was obtained through the lead systems that
       I set into place, primarily radio. 50 percent on all business that was obtained from




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        referrals from existing business associated friends, mutual friends and people we
        knew together, associated persons. For example, insurance company representative
        referrals, you know, that type of thing. 70 percent commission on business that he
        went out and generated through his own methods of either talking to people at his
        kids’ softball games, basketball games, friends that they know, relatives, you know,
        that type of thing. And that there was an expectation of profitability within two
        years, at which time he stated he expects to be profitable within one year. And at that
        time is when the $5,000 base would go away. He would also have insurance benefits
        subsidized by the company as well as we outlined the retirement plan we had in
        place.

In his deposition, appellant testified:

        Q. Yeah. Okay. I understand. What other details of your potential employment
        with Insurancemakesmesick did you discuss at the dinner in August of 2004 at Red
        Lobster?

        A. Well, the longevity of it. That was the setup, 25/50/70. And the carrot of it all,
        as he would put it, was I was building a future for me, my family and building my
        own business. And if that business—if that led me to need to go back home or go to
        Austin if my child actually went to school there, that I could pull up roots and go out
        and stop marketing business, and 1 would continue to draw the commissions at the
        level that I was drawing upon that exit for as long as he kept the business on the
        books at his agency.

When asked why he ultimately fired appellant, Parker said the arrangement was not profitable:

        Q. Why did you terminate Michael Kalmus?
        A. Because after four years of not being profitable and subpar performance on
        production, it was not feasible to keep him with the company any more.

        Q. When you say four years of not being profitable, can you explain that?
        A. Yeah, I didn’t make any money in the four years.

       Appellant testified that the parties never discussed what would happen if he was fired, but

he assumed he would “continue to earn those commissions” even if he was fired, regardless of the

reason. As for the date performance would be completed, there is no summary judgment evidence

the parties ever specified the duration of their agreement. Appellant testified that he “boldly” hoped

to be profitable “in a year, not knowing the business.” Parker told appellant, according to appellant’s




                                                 —7—
deposition testimony. that he thought it would take two years “for both of us to be doing what we

wanted to do.” Appellant’s “expectation” was that he would work for Parker until retirement:

       Q.  So. in other words, you wouldn’t expect to be terminated no matter how
       unprotitable you were or how many goals you missed?

       A. I never expected it because I was family. As he took care ofhis family members,
       he was taking care of me. My expectation was we were going to do this until
       retirement. I was committed to that, and we were committed to each other. There
       was an or-else [sic].

       Q.  So did you expect, when you started on August 15, 2004, that if you didn’t sell
       one dollar of insurance that Insurancemakesmesick would keep you around as a
       salesman?

       A. Yes.

       Q.   Why?

       A. Because our expectations of my profitability and could be—could be profitable
       over time, but the commitment was it was going to take some time.

Appellant also testified:

       Q. Was it your expectation that after that $5,000 was to be phased out and that you
       were drawing zero base salary that even if you didn’t sell any insurance then, they
       would still keep you as an insurance salesman?

       A. Yes.

       Q.   Why?

       A. Because that was the expectation. Termination was not an option in my mind, nor
       was I—quitting was not an option. I was committed to it, as he was. It was my—it
       was my understanding.

       Q.  So you would expect to be kept around for life even if you didn’t bring in any
       business?

       A. Yes.

       Q.   Even though the goal was for both of you to make money?

       A. Yes.



                                              -8-
        Q. You expected that even if you weren’t profiting, they would still pay your health
        insurance, your contribution to the health savings account, your toll tag, your auto
        insurance, your phone allowance even if you weren’t producing anything?

        A. Yes.

        Q.   Flow much did you produce when you were at insurancemakesmesick?

       A. I can’t say.

        1-lopes and expectations are insufficient to show performance within a year is impossible.

See Montgomery County, 965 S.W.2d at 503-04 (employee’s hope to work as long as she wanted did

not show an agreement for many years ofjob security); Abatement, Inc. v. Williams, 324 S.W.3d 858,

859 (Tex. App.—I-Iouston [14th Dist.] 2010, pet. denied) (“hopes and expectations are not enough

to show performance within a year is impossible”); Chacko, 2008 WL 2390486, at *3 (“[a] contract

does not fall within the statute of frauds based on the absence of a requirement to complete

performance within a year; the lack of any expectation that performance will be completed within

a year; or the fact that completion within a year proved to be impossible in light of later

circumstances”) (citing Beverick., 186 S.W.3d at 149-50). An employment contract that does not

specify a definite duration or prescribe conditions from which its duration can be determined is

presumed to be terminable at will. See, e.g., Montgomery County, 965 S ,W.2d at 502. The evidence

in this case shows only an oral at-will employment agreement with an indefinite duration, and such

agreements do not fall within the statute of frauds’ one-year provision. See id. at 503 (noting that

“[a]n employment contract for an indefinite term is considered performable within one year” and that

vague, indefinite, and general comments cannot create a definite term of employment). As a result,

the statute of frauds does not bar enforcement of the alleged agreement, and summary judgment was

not warranted. Because we sustain appellant’s first issue, we do not reach appellant’s remaining




                                               —9—
arguments on appeal.

            We reverse the trial court’s judgment and remand this case for further proceedings.




                                                                        LANA
                                                                        JUSTICE



I 10486F.P05




      In his brief, appellant states that issues two and three “are only necessa if it is found in response to I5SUE I that [the] statute of frauds applies
to the oral employment agreement.” Because of our decision sustaining appellant’s first issue, we therefore do not address the remaining issues.




                                                                         —10—
                                 Qtnurt of Appcal%
                        FiftIi iIistrirt of rxa at a11as

                                        JUDGMENT
MICHAEL KALMUS, Appellant                            Appeal from the 193rd Judicial District
                                                     Court of Dallas County, Texas. (Tr,Ct.No.
No. 05-I I-004$6-CV           V.                     10-031 55-L).
                                                     Opinion delivered by Justice Myers, Justices
ELLA OLIVER and FINANCIAL                            Moseley and Fillmore participating.
NECESSITIES NETWORK, INC.,
Appellees

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for new trial. it is ORDERED
that appellant MICHAEL KALMUS recover his costs of this appeal from appellees ELLA
OLIVER and FINANCIAL NECESSITIES NETWORK, INC


Judgment entered November 20, 2012.



                                                         42141
                                                     LANA I4YERS
                                                     JUSTICE
