AFFIRM; and Opinion Filed February 15, 2013.




                                                                  In The
                                             QI:ourt of Appeals
                                   lJiiftlf District of Wexus ut Dullus
                                                       No. 05·11·00752-CV


                                MARYAM PARVIZ-KHYA VI, PH.D., Appellant

                                                                     v.
      ALCON LABORATORIES, INC. AND AETNA LIFE INSURANCE COMPANY,
                                Appellees


                                 On Appeal from the County Court at Law No. 4
                                             Dallas County, Texas
                                     Trial Court Cause No. CC-10-03942-D


                                                             OPINION
                                            Before Justices Francis and Murphy 1
                                                Opinion By Justice Murphy

          Maryam Parviz-Khyavi, Ph.D. appeals the summary judgment granted in favor of Alcon

Laboratories, Inc. and Aetna Life Insurance Company on her claims for short-term disability (STD)

benefits. In three issues, she claims the trial court erred because: (l) Alcon's offer of employment,

together with its disability benefit guideline, formed a unilateral contract that became binding when

she began work; (2) she was a third-party beneficiary to Aetna's contract with Alcon to administer

the disability income program; and (3) the judgment granted relief for Aetna on Parviz-Khyavi' s




     1
      Justice Joseph Morris was on the panel and participated at the submission of this case. Due to his retirement on December 31, 2012, he did
not participate in the issuance of this Opinion. See TEX. R. APP. P. 4t.l(a), (b).
Deceptive Trade Practices Act (DTPA) claim when Aetna did not seek summary judgment on that

claim. We affirm.

                                        BACKGROUND

       Parviz- Khyavi was employed by Alcon as a senior scientist pursuant to an August 27, 2007

written offer of employment, which was signed by her and required her to begin employment no later

than September 10, 2007. Over a year later, beginning January 26, 2009, Parviz-Khyavi was absent

from work due to a disabling illness. She filed a claim for STD income benefits, which Aetna

approved for the period February 2 through April 15, 2009. A few months later, on July 16, 2009,

Parviz-Khyavi again began an absence from work asserting the same illness, and she filed another

claim for STD income benefits. Aetna denied that claim by letter dated September 8, 2009, stating

that the information received from the doctor did not support a disability.

       Parviz-Khyavi sued Alcon and Aetna for breach of contract based on the denial of her

disability claim. Citing Vanegas v. American Energy Services, 302 S.W.3d 299 (Tex. 2009) in her

petition, she alleged she had an enforceable unilateral contract based on Alcon's STD program and

that she was a third-party beneficiary of Aetna's contract with Alcon to administer the benefits. She

also brought an additional claim against Aetna under the DTPA for "unconscionable action," which

she later nonsuited pursuant to her second amended petition.

       Alcon and Aetna filed a joint motion for summary judgment on Parviz-Khyavi' s breach of

contract claims, arguing she had no contract rights to STD benefits. The trial court granted the

motion, and Parviz-Khyavi appeals that judgment.

                                          DISCUSSION

                                      STANDARD OF REVIEW


       We review Alcon and Aetna's summary judgment de novo to determine if they proved their




                                                -2-
right to prevail as a matter of law. See TEx. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548-49 (Tex. 1985). They bore the burden to demonstrate that no genuine issues of

material fact exist and they are entitled to judgment as a matter of law. See Nixon, 690 S.W.2d at

548. A matter is conclusively established for summary-judgment purposes if ordinary minds cannot

differ on the conclusion to be drawn from the evidence. AN Collision Ctr. ofAddison, Inc. v. Town

ofAddison, 310S.W.3d 191, 193 (Tex. App.-Dallas 2010, no pet.). In our review, we take as true

evidence favorable to Parviz-Khyavi, the non-movant, indulging every reasonable inference and

resolving any doubts in her favor. Nixon, 690 S.W.2d at 548-49. As defendants moving for

summary judgment, Alcon and Aetna were required to negate at least one essential element of

Parviz-Khyavi' s causes of action or conclusively prove every element of an affirmative defense. See

Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,425 (Tex. 1997).

        Our appellate review of the summary judgment is limited to those issues presented to the trial

court. See TEX. R. CIV. P. 166a(c) (stating issues not expressly presented to trial court in writing

shall not be considered on appeal as grounds for reversal); Stiles v. Resolution Trust Corp., 867

S.W.2d 24, 26 (Tex. 1993) (holding that summary judgment cannot be affirmed on grounds not

expressly set out in the motion or response). When, as here, the trial court's order granting summary

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

presented to the trial court and preserved for appellate review are meritorious. Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

                                             ANALYSIS

                                        Breach of Contract

        Alcon and Aetna claimed as grounds for summary judgment that Parviz-Khyavi's contract

claims fail as a matter of law because she has no enforceable contract rights. They argued the STD




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Program Guideline negates any contract because Alcon expressly retained the discretionary right to

interpret the STD Program Guideline and the right to change or end the STD program without

consent of employees; it also expressly disclaimed creation of any insurance or contract rights.

Additionally, they contended Vanegas, cited by Parviz-Khyavi as the basis for her unilateral contract

claim, is inapplicable because "there was no specific promise that was accepted by performance."

        Parviz-Khyavi responded to the summary-judgment motion, arguing that the offer letter

promised "certain company benefits" and, read with the STD Program Guideline, established a

unilateral contract when she performed services. She asserted the disclaimer applied only to a

bilateral contract. She did not address Alcon and Aetna's argument that there was no specific

promise that was accepted by Parviz-Khyavi.

        Alcon and Aetna contend on appeal, as they did below, they negated an essential element of

Parviz-Khyavi's contract claim by showing no contract was created. In contrast, Parviz-Khyavi

asserts Alcon and Aetna's only summary-judgment argument is based on disclaimer, which is an

affmnative defense. All parties agree, however, the question of whether a unilateral contract was

formed is a question of law. Similarly, they rely on the same two documents for their contract

arguments and contend any intent is derived from those documents. That is where we begin our

analysis.

        The frrst document is the offer letter dated August 27, 2007. The first paragraph of the offer

letter signed by Parviz-Khyavi stated:

        We are pleased about your joining Alcon. This letter serves as a formal confmnation
        of our verbal offer to you for the position of Sr. Scientist I. The following paragraphs
        outline your initial pay and benefits package. Of course, pay and benefits may be
        modified or adjusted during the course of your employment.




                                                 --4-
The letter then included bullet points outlining the initial pay, details of the Alcon 401(k) Plan and

the Alcon Retirement and Savings Program, a one-time incentive payment, paid time off allowable

in 2008, coverage for relocation expense, and the requirement that Parviz-Khyavi provide a signed

W-4 and possibly a signed agreement for non-disclosure of proprietary information. The letter

included additional paragraphs notifying Parviz-Khyavi the offer of employment was contingent

upon Alcon's receipt of various information, including background screening, drug tests, satisfactory

business references, background checks, tuberculosis screening, and her availability to begin

employment no later than September 10, 2007.

        The paragraph of the letter on which Parviz-Khyavi's unilateral contract claim is based was

one of the general paragraphs about halfway through the letter (not one of the first-page bullet points

outlining her specific pay and identified benefits), which provided in its entirety: "You will be

eligible for all Company benefits normally accorded employees of similar length of service and

status from your first day of employment." The letter never mentioned STD benefits and none of

the attachments to the letter included a booklet, description, or guideline relating to STD benefits.

        Just before the fmal paragraph of the four-page letter, which stated the offer would remain

open until September 3, 2007, the letter contained the following statement:

        While this does serve the purpose of establishing a record of our understandings
        (terms and conditions of your employment with Alcon), this should not be considered
        or construed by you to be a formal employment contract since Alcon practice does
        not provide for formal employment contracts. An extra copy of this letter is enclosed
        for your records.

        The second document the parties rely on for their arguments is an Alcon booklet entitled:

"Short-Term Disability Income Program Policy Guideline." The first paragraph in the STD Program

Guideline states that the program "is designed to provide you with temporary fmancial support after

you suffer a disabling injury, illness or accident and help you get back to work as quickly as




                                                 -5-
possible." That introductory paragraph provides further that the program is administered by Aetna

and emphasizes it is the applicant's "responsibility to properly apply for any STD benefit and to

understand and cooperate in the Program's other important components." The booklet is twenty

pages long and the final paragraph provides:

       This booklet does not guarantee employment or continued employment with Alcon
       nor deal in any way with employment issues. The STD Program is self-insured by
       Alcon and administered by Aetna. Alcon has the discretionary right to interpret these
       policy guidelines. Alcon reserves the right to change or end the STD Program at any
       time. This Program also should not be interpreted as a contract or insurance policy,
       and it does not create any rights to continuance of the Program in favor of
       Employees. Accordingly, the Program may be terminated, modified, suspended, or
       amended in whole or in part at any time without the consent of the Employees.

       The parties devote most of their arguments to the legal effect of the disclaimers contained

in the STD Program Guideline and the offer letter. We begin our analysis, however, with Alcon and

Aetna's premise that Alcon never made "a specific promise that was capable of being accepted by

performance," because resolution of that part of the first issue is dispositive.         A unilateral

employment contract for STD benefits was formed if Alcon promised Parviz-Khyavi those benefits

in exchange for her performance, and she performed. See City of Houston v. Williams, 353 S. W.3d

128, 136 (Tex. 2011). An essential element of a unilateral employment contract is the promise of

a benefit-here, a promise to provide Parviz-Khyavi STD benefits.

       1n City of Houston, the Texas Supreme Court addressed a unilateral employment contract

between the City and its frrefighters, noting that a promise that is sufficient to form a contract if

accepted "is a manifestation of intention to act or refrain from acting in a specified way, so made as

to justify a promisee in understanding that a commitment has been made." ld. at 138 (quoting

Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998) (quoting

RESTATEMENT (SECOND) OF CONTRACTS§ 2(1) (1981))). There, the court concluded language in

ordinances providing that firefighters "shall" be entitled to, or "shall" receive, specific benefits,
including "specific compensation in the fonn of overtime pay and tennination pay," satisfied the

City's "manifestation of intention" to provide those benefits and that a unilateral contract was fonned

when the firefighters perfonned. ld. We thus must detennine whether Alcon manifested its

intention to provide Parviz-Khyavi STD benefits-that is, did it make a promise capable of being

accepted by perfonnance?

        The offer letter, and specifically the language Parviz-Khyavi cites, provided: "You will be

eligible for all Company benefits nonnally accorded employees of similar length of service and

status from your first day of employment." The Austin Court of Appeals previously addressed

similar language in a letter notifying an employee he would be "eligible" for annual bonuses and

noted the language merely infonned the employee of eligibility and did not guarantee a bonus. See

Wegner v. Dell Computer Corp., 03-99-00028-CV, 1999 WL 645086, at *4 (Tex. App.-Austin

Aug. 26, 1999, no pet.) (not designated for publication). Contrast the statutory language in City of

Houston-that firefighters "shall" be entitled to, and "shall" receive specific benefits-where the

coun concluded that language was mandatory and established entitlement to those benefits. City of

Houston, 353 S.W.3d at 138. Parviz-Khyavi argues the "shall" language in City of Houston is

comparable to the "will" language in the offer letter. Yet that argument does not address the

distinction between the additional words "shall receive [specific benefits]" (which suggest

entitlement to identified benefits) and the words "will be eligible [for company benefits)" (which

suggest eligibility-no guarantee-for unidentified general benefits).

        Similarly, in Vanegas, a case on which Parviz-Khyavi relies, the employer made a specific

promise to pay five percent of the proceeds of a sale or merger of the company to those employees

who were still employed at the time of the sale or merger. Vanegas, 302 S.W.3d at 300. Although

the promise was illusory when made because the company could have avoided the promise by firing




                                                 -7-
the employees at any time, the promise became an enforceable unilateral contract for those

employees who remained employed at the time of the sale. /d. at 303. Vanegas involved a concrete

promise that was capable of being accepted by         performanc~payment         of five percent of sale

proceeds.

        Contrast the specific promise in Vanegas with the offer letter to Parviz-Khyavi, which does

not mention STD benefits and none of the attachments include documents related to STD benefits.

Notably, Parviz-Khyavi' s offer letter did list in bullet points Parviz-Khyavi' s "initial pay and benefits

package." And those bullet points stated her exact salary and detailed the "Alcon 401(k) Plan" and

the "Alcon Retirement & Savings Program."

        Considering only the general reference to company benefits on which Parviz-Khyavi relies

and the express language of the offer letter and the STD Program Guideline denying the creation of

any contract rights, we conclude those documents do not show Alcon's "manifestation of intention"

to provide STD benefits, which could be accepted by Parviz-Khyavi's beginning work. See

generally City of Houston, 353 S.W.3d at 140 (distinguishing between disclaimer of a vested right

to compensation and disclaimer of contractual intent); RESTATEMENT (SECOND) OF CONTRACTS§

21 (1981) (noting manifestation of intention that promise shall not affect legal relations may prevent

formation of contract).

        Parviz- Khyavi does not contend that either the offer letter or the STD Program Guideline

standing alone provides the basis for a unilateral contract. She contends instead that we may, as a

matter of law, determine that multiple documents comprise a single, written contract, and Alcon's

written offer of employment and the STD Program Guideline must be read together to ascertain the

parties' intent. See Fort Worth lndep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex.

2000) (multiple documents can compose a single, written contract). Under this theory, Parviz-




                                                   -8-
Khyavi argues Alcon's "offer of disability income benefits," although illusory when made, was

accepted by her performance, thus becoming a binding and enforceable unilateral contract. While

Parviz-Khyavi concedes the offer letter alone does not create a promise capable of being accepted,

she argues the STD Program Guideline also was part of the offer. According to her, when both the

letter and the guideline are viewed together, they guaranteed her STD benefits. To accept Parviz-

Khyavi' s reasoning, we would have to conclude the STD Program Guideline was part of the offer

and that it provided a guarantee of STD benefits.

           In an employment-at-will situation under Texas law, "an employee policy handbook or

manual does not, of itself, constitute a binding contract for the benefits and policies stated unless the

manual uses language clearly indicating an intent to do so." Gamble v. Gregg County, 932 S.W.2d

253, 255 (Tex. App.-Texarkana 1996, no writ) (citations omitted). An employee handbook also

does not "create property interests in stated benefits and policies unless some specific agreement,

statute, or rule creates such an interest." /d.; Werden v. Nueces County Hosp. Dist., 28 S.W.3d 649,

651 (Tex. App.--Corpus Christi 2000, no pet.). The rule applies to all forms of employment

manuals. Day & Zimmerman, Inc. v. Hatridge, 831 S.W.2d 65,69 (Tex. App.-Texarkana 1992,

writ denied). This is particularly true where an employee acknowledges the nature of the document

as non-contractual.    See Drake v. Wilson N. Jones Med Ctr., 259 S.W.3d 386, 390 (Tex.

App.-Dallas 2008, pet. denied) (noting at-will employee's signed acknowledgment that employer

handbooks could not be construed as contractual in nature demonstrated clear intent not to create

rights).

           The STD Program Guideline emphasizes Alcon's employees are at-will; Alcon has the

discretionary right to interpret, change, or end STD benefits at any time; the booklet or program

should not be interpreted as a contract and does not create any rights in favor of employees; and




                                                  -9-
Alcon may terminate, modify, suspend, or amend all or part of the program without consent of any

employee. The booklet contains no language suggesting it is part of any employment offer and states

that it does not create any rights in favor of employees. And as referenced repeatedly, the offer letter

does not mention the STD Program Guideline or any STD benefits and Parviz-Khyavi does not claim

the document was provided to her as part of the offer letter, negotiations, or otherwise identified as

part of her stated benefits. Her argument suggests she did not see the document prior to litigation.

While we recognize that documents that are part of the same transaction may be read together to

create a contract as a matter of law, see, e.g., Ft. Worth lndep. Sch. Dist., 22 S.W.3d at 840, given

the language of the offer letter and the STD Program Guideline, we cannot determine such intent

based on these documents.

        Parviz-Khyavi argues the absence of language excluding the booklet as part of Alcon's offer

of employment should be interpreted as making the booklet part of the offer. That is not the test.

Instead, Parviz-Khyavi must show the documents she relies on demonstrate a manifestation of

Alcon's intention to be bound to provide STD benefits. See City of Houston, 353 S.W.3d at 138.

The absence of such manifestation of intention is buttressed by language in both the offer letter and

the STD Program Guideline negating any intent to create a contract. We conclude on this record that

Parviz-Khyavi has not shown that the offer letter and the STD Program Guideline, read singularly

or together, created a promise regarding STD benefits capable of forming a unilateral contract when

she began work. See id.; Gamble, 932 S.W.2d at 255.

        Having concluded Parviz-Khyavi has not shown a specific promise capable of being accepted

through her performance, Parviz-Khyavi' s contract claim, which is the only basis urged for enforcing

STD benefits, fails. The trial court did not err in granting summary judgment as to that claim. We

overrule her first issue. Based on this resolution, we need not address whether the disclaimer




                                                 -10-
language has independent legal significance and emphasize that this decision is restricted to the

record and arguments of the parties. Because Parviz-Khyavi's breach of contract claim against

Aetna is dependent on the validity of her contractual right to STD benefits under her unilateral

contract theory, as agreed by Parviz-Khyavi at submission, we do not reach her second issue

regarding administration of those benefits. See TEX. R. APP. P. 47.1.

                                      DTPA Claim-Aetna

       Parviz-Khyavi contends in her third issue that the trial court erred in dismissing her DTPA

claim against Aetna, which was not challenged in the summary-judgment motion. She agues that

the trial court's take-nothing judgment dismissed her DTPA claim. Yet Parviz-Khyavi nonsuited

her DTPA claim pursuant to her second amended petition in which she noted that "[a]t this time, Dr.

Parviz-Khyavi withdraws, without prejudice, her claim against Aetna for violation of the Texas

Deceptive Trade Practices - Consumer Protection Act." We overrule her third issue.

                                        CONCLUSION

       The trial court did not err in granting summary judgment on Parviz-Khyavi' s breach of

contract claims. She failed to show a promise by Alcon capable of being accepted by performance

and her breach of contract claim against Aetna was dependent on a unilateral contract with Alcon.

She also nonsuited her DTPA claim against Aetna. The question of whether the trial court properly

granted a "take-nothing" judgment at a time when the DTPA claim was still pending therefore is not

before us for review. We affmn the trial court's judgment.


                                                         !Jh!hl ~~~
                                                     MARY MUJHY                     ()
                                                     JUSTICE



110752F.POS



                                              -11-
                                  QI:ourt of .Appeals
                       !Jriftlt llistrid of Wexas at llallas
                                      JUDGMENT
MARY AM PARVIZ-KHYAVI, PH.D,                      Appeal from the County Court at Law No. 4
Appellant                                         of Dallas County, Texas. (Tr.Ct.No. CC-10-
                                                  03942-D).
No. 05-11-00752-CV          v.                    Opinion delivered by Justice Murphy,
                                                  Justices Francis and Murphy participating.
ALCON LABORATORIES, INC. AND
AETNA LIFE INSURANCE COMPANY,
Appellees

     In accordance with this Court's opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellees Alcon Laboratories, Inc. and Aetna Life Insurance
Company recover their costs of this appeal from appellant Maryam Parviz-Khyavi, Ph.D.


Judgment entered February 15, 2013.




                                                      ~+
                                                  MARYMPHYh
                                                  JUSTICE
