                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-11-00392-CV

AUBREY BURKETT,
                                                          Appellant
v.

ULRICH BARN BUILDERS, LLC,
                                                          Appellee



                      From the County Court at Law No. 1
                            Johnson County, Texas
                          Trial Court No. 2011-00237


                         MEMORANDUM OPINION


      Appellant, Aubrey Burkett, challenges a summary judgment granted in favor of

appellee, Ulrich Barn Builders, LLC (“Ulrich”). The dispute centers on a purported

employment contract between Burkett and Ulrich. In two issues, Burkett asserts that

the trial court: (1) erred in granting summary judgment in favor of Ulrich based on the

conclusion that the purported employment contract was not an enforceable contract;

and (2) abused its discretion in failing to sustain his objections to Ulrich’s summary-

judgment motion. We affirm.
                                       I.    BACKGROUND

        On or about September 17, 2007, Burkett entered into an agreement with Ulrich

regarding employment.          The agreement, which takes the form of a memorandum

though it is entitled “Employment Contract,” provided the following, in its entirety:

        This contract between Ulrich Barn Builders, LLC (hereafter referred to as
        UBB) and Aubrey Burkett (hereafter referred to as employee).

        Pay Specifications:

        Medical allowance $80 per weekly pay period

        First three months of employment:
        Base Salary $750

        3-6 months of employment:
        Base Salary $850

        6-12 months of employment:
        Base Salary $850
        Commission 1% of total sales managed

        After 1 year of employment:
        Base Salary $700
        Commission 1% of total sales managed

        2 Weeks paid vacation after 1 year. Holidays are considered vacation
        time.
        3 Weeks paid vacation after 5 years. Holidays are considered vacation
        time.
        4 Weeks paid vacation after 10 years. Holidays are considered vacation
        time.

        General Employee Guidelines: Please refer to Employee Handbook.

Nowhere in the document is a term of employment stated, nor did the memorandum

expressly state that Burkett was a contract employee for Ulrich. In any event, both

Burkett and David Ulrich, the president of Ulrich, signed the document.

Burkett v. Ulrich Barn Builders, LLC                                                Page 2
        On April 14, 2011, Burkett filed suit against Ulrich, asserting a claim for breach of

contract and seeking damages for back pay, future pay, and unreimbursed expenses. 1

In his original petition, Burkett contended that he began working for Ulrich in

September 2007; however, in June 2009, his salary was reduced to a base of $500 per

week and his health insurance allotment was cancelled. According to Burkett, Ulrich

represented that this was a temporary adjustment in Burkett’s salary, which would be

corrected in a “short period of time.” Eighteen weeks later, Burkett’s salary was further

reduced to $300 per week. Burkett complained about the salary reduction and was

allegedly told that he could work three days a week for $10 per hour until business

picked back up. Shortly thereafter, Burkett’s employment was terminated.

        On June 20, 2011, Ulrich filed a summary-judgment motion, in which it asserted

that it was entitled to judgment as a matter of law because Burkett was an “at will”

employee and the memorandum did nothing to alter that status. However, Ulrich did

not specifically note that it was seeking a summary judgment on traditional grounds,

and it did not attach any evidence to its motion.

        Burkett subsequently filed a response and objections to Ulrich’s motion, arguing

that Ulrich failed to specify whether the motion was a traditional or no-evidence motion

for summary judgment and that Ulrich failed to specifically state the elements as to

which there is no evidence. Burkett also complained that Ulrich did not attach any




        1 Burkett’s damage claims are premised on the assumption that the memorandum was an
employment contract and that Ulrich was required to strictly comply with the memorandum regarding
salary and expenses.

Burkett v. Ulrich Barn Builders, LLC                                                      Page 3
evidence to its motion. In his response, Burkett contended that there are fact issues

precluding summary judgment regarding his claim for breach of the memorandum.

        Without a hearing, the trial court overruled Burkett’s objections and granted

Ulrich’s summary-judgment motion. In its final judgment, the trial court specifically

determined “that the Exhibit attached to Plaintiff’s Original Petition does not constitute

a contract.” As such, the trial court ordered that Burkett take nothing from Ulrich.

Burkett later filed a “Motion for New Hearing” and a motion for new trial, both of

which were denied. This appeal followed.

            II.     BURKETT’S OBJECTIONS TO ULRICH’S SUMMARY-JUDGMENT MOTION

        In his second issue, Burkett argues that the trial court abused its discretion in

overruling his objections to Ulrich’s summary-judgment motion. Specifically, Burkett

contends that Ulrich’s summary-judgment motion fails because Ulrich did not: attach

the agreement as evidence; specifically state whether it was a traditional or no-evidence

motion; support the motion with affidavits; and list the elements of its claim for

summary judgment. For the reasons listed below, we disagree.

A. Standard of Review

        We review a trial court’s ruling on an objection to summary-judgment evidence

for an abuse of discretion. Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 567

(Tex. App.—Fort Worth 2008, pet. denied); Doncaster v. Hernaiz, 161 S.W.3d 594, 601

(Tex. App.—San Antonio 2005, no pet.) (citing Owens-Corning Fiberglas Corp. v. Malone,

972 S.W.2d 35, 43 (Tex. 1998)). A trial court abuses its discretion if it acts arbitrarily and

unreasonably, that is, without reference to any guiding rules or principles. Cire v.

Burkett v. Ulrich Barn Builders, LLC                                                    Page 4
Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004); Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985). Merely because a trial court may decide a discretionary

matter differently than the appellate court does not demonstrate an abuse of discretion.

Cire, 134 S.W.3d at 838-39.

B. Discussion

        With regard to Burkett’s contention that Ulrich’s summary-judgment motion

failed to attach affidavits, we note that Texas Rule of Civil Procedure 166a(b)

specifically provides the following, in pertinent part:      “A party against whom a

claim . . . is asserted . . . may, at any time, move with or without supporting affidavits

for a summary judgment in his favor as to all or any part thereof.” TEX. R. CIV. P.

166a(b).    Therefore, it was not incumbent upon Ulrich to attach affidavits to its

summary-judgment motion. See id.

        In addition, Burkett’s complaint about Ulrich’s failure to attach the agreement to

its summary-judgment motion also fails because the trial court determines a motion for

summary judgment based on the pleadings on file at the time of the hearing, or filed

thereafter and before judgment with permission of the court. See Spin Doctor Golf, Inc. v.

Paymentech, L.P., 296 S.W.3d 354, 361 (Tex. App.—Dallas 2009, pet. denied) (citing Tex.

R. Civ. P. 166a(c)); see also Elmakiss v. Hughes, No. 12-09-00269-CV, 2010 Tex. App. LEXIS

6185, at **4-5 (Tex. App.—Tyler July 30, 2010, pet. denied) (mem. op.).         Here, the

memorandum was already on file with the trial court because Burkett had attached it to

his original petition. See TEX. R. CIV. P. 59, 74. As such, Ulrich was not obligated to

attach another copy of the memorandum to its summary-judgment motion for

Burkett v. Ulrich Barn Builders, LLC                                                Page 5
consideration by the trial court. See TEX. R. CIV. P. 59, 74, 166a(c); Spin Doctor Golf, Inc.,

296 S.W.3d at 361; see also Elmakiss, 2010 Tex. App. LEXIS 6185, at **4-5.

        Further, Burkett’s objection that Ulrich failed to specify whether the motion was

a traditional or no-evidence motion for summary judgment also fails. Though Ulrich

did not explicitly state whether the motion was a traditional or no-evidence motion for

summary judgment, we note that the two summary-judgment standards are distinct;

therefore, we must determine which type of summary judgment is at issue. Compare

TEX. R. CIV. P. 166a(c), with TEX. R. CIV. P. 166a(i). In Grimes v. Reynolds, the Fourteenth

Court of Appeals held that “[s]ince a motion that does not clearly and unambiguously

state it is being filed under Rule 166a(i) does not give the non-movant notice that the

movant is seeking a no-evidence summary judgment, we will construe it as a traditional

motion under Rule 166a(c).” 252 S.W.3d 554, 558 (Tex. App.—Houston [14th Dist.]

2008, no pet.); see Adams v. Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, 420 (Tex.

App.—Houston [14th Dist.] 2003, no pet.); Michael v. Dyke, 41 S.W.3d 746, 750 (Tex.

App.—Corpus Christi 2001, no pet.) (holding that when a motion for summary

judgment fails to unambiguously state it is filed under Rule 166a(i) and does not strictly

comply with the requirements of that rule, it will be construed as a traditional motion

for summary judgment). This presumption corresponds with how the parties and the

trial court treated the motion. We therefore conclude that Ulrich’s summary-judgment

motion was brought on traditional grounds.

        Finally, we disagree with Burkett’s argument that Ulrich failed to explain its

entitlement to summary judgment.          See TEX. R. CIV. P. 166a(c) (“The motion for

Burkett v. Ulrich Barn Builders, LLC                                                    Page 6
summary judgment shall state the specific grounds therefor.”). In the motion, Ulrich

specifically stated that the memorandum was not an enforceable employment contract

because it lacked termination language and did not alter Burkett’s “at will” employee

status.     According to Ulrich, because the memorandum was unenforceable as an

employment contract, Ulrich was entitled to judgment as a matter of law with respect to

Burkett’s breach of contract claim. Based on our reading of the summary-judgment

motion, we cannot say that Ulrich failed to “state the specific grounds therefor.” See id.;

see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340 (Tex. 1993)

(“Grounds may be stated concisely, without detail and argument. But they must at

least be listed in the motion.”); Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992)

(holding that an appellate court will not affirm a summary judgment on a ground not

specifically presented in a motion for summary judgment).

          Because we do not find any of Burkett’s objections to be meritorious, we cannot

conclude that the trial court abused its discretion in overruling the objections. See

Malone, 972 S.W.2d at 43; Paciwest, Inc., 266 S.W.3d at 567; Doncaster, 161 S.W.3d at 601.

Burkett’s second issue is overruled.

                                       III.   THE MEMORANDUM

          In his first issue, Burkett argues that the trial court erred in granting summary

judgment in Ulrich’s favor because the memorandum was an enforceable employment

contract that required Ulrich to pay him salary plus bonuses, which Ulrich allegedly

failed to do.       Ulrich counters that the trial court properly concluded that the



Burkett v. Ulrich Barn Builders, LLC                                                  Page 7
memorandum was not an enforceable contract because it did not alter the presumption

that Burkett was an “at will” employee.

A. Standard of Review

        We review the grant or denial of a traditional summary judgment de novo. See

Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005); Provident Life & Accident

Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). A movant is entitled to summary

judgment if he demonstrates that no genuine issues of material fact exist and that he is

entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); see also Sw. Elec.

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The movant bears the burden of

proof in a traditional motion for summary judgment, and all doubts about the existence

of a genuine issue of material fact are resolved against the movant. See Sw. Elec. Power

Co., 73 S.W.3d at 215. We take as true all evidence favorable to the non-movant, and we

indulge every reasonable inference and resolve any doubts in the non-movant’s favor.

See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

        We will affirm a traditional summary judgment only if the record establishes that

the movant has conclusively proved its defense as a matter of law or if the movant has

negated at least one essential element of the plaintiff’s cause of action. IHS Cedars

Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). A matter is

conclusively established if reasonable people could not differ as to the conclusion to be

drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Only

when the movant has produced sufficient evidence to establish its rights to summary

judgment does the burden shift to the non-movant to come forward with competent

Burkett v. Ulrich Barn Builders, LLC                                                  Page 8
controverting evidence raising a genuine issue of material fact with regard to the

element challenged by the defendant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223

(Tex. 1999).

B. Breach of Contract

        In his original petition, Burkett asserted a breach of contract cause of action. A

breach of contract occurs when a party fails to perform an act that it has explicitly or

impliedly promised to perform. Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 299 (Tex.

App.—Dallas 2009, no pet.). The elements of a breach-of-contract claim are: (1) the

existence of a valid contract between the plaintiff and defendant; (2) the plaintiff’s

performance or tender of performance; (3) the defendant’s breach of the contract; and

(4) the plaintiff’s damage as a result of that breach. Id. Ulrich’s summary-judgment

motion attacked the first element, asserting that the memorandum upon which Burkett

relied was not an enforceable contract. See id. Thus, in analyzing this issue, we must

examine the language of the memorandum to determine whether it is enforceable.

C. Contract Interpretation and Employment Contracts

        The construction and meaning of an unambiguous contract is a question of law.

Ganske v. Spence, 129 S.W.3d 701, 707 (Tex. App.—Waco 2004, no pet.). In construing the

written agreement, the primary concern of the court is to ascertain the true intentions of

the parties as expressed within the four corners of the instrument. Coker v. Coker, 650

S.W.2d 391, 393 (Tex. 1983); see Calpine Producer Servs., L.P. v. Wiser Oil Co., 169 S.W.3d

783, 787 (Tex. App.—Dallas 2005, no pet.). We consider the entire writing and attempt

to harmonize and give effect to all the provisions of the contract by analyzing the

Burkett v. Ulrich Barn Builders, LLC                                                 Page 9
provisions with reference to the whole agreement. Frost Nat’l Bank v. L&F Distribs., Ltd.,

165 S.W.3d 310, 312 (Tex. 2005) (per curiam).

D. Discussion

        In his original petition, Burkett contended that the memorandum constituted an

employment contract, thus obligating Ulrich to pay him the salary amounts listed.

        Texas follows the rule of at-will employment, under which employment for an

indefinite term may be terminated at will and without cause. Schroeder v. Tex. Iron

Works, Inc., 813 S.W.2d 483, 489 (Tex. 1991). A Texas employer may fire an employee at

will for good cause, bad cause, or no cause at all. Montgomery County Hosp. Dist. v.

Brown, 965 S.W.2d 501, 502 (Tex. 1998). Under Texas law, we presume that Burkett

remained an at-will employee throughout his employment with Ulrich. See Fed. Express

Corp. v. Dutchmann, 846 S.W.2d 282, 283 (Tex. 1993). Burkett must prove that Ulrich

expressly, clearly, and specifically agreed to modify his at-will status. See Brown, 965

S.W.2d at 503. To modify the at-will employment relationship, an employer must

unequivocally manifest a definite intent to be bound not to terminate an employee

except under clearly specified circumstances. Midland Judicial Dist. Cmty. Supervision &

Corr. Dep’t v. Jones, 92 S.W.3d 486, 487 (Tex. 2002) (per curiam).

        In Jones, for example, the plaintiff was given a memorandum stating the

compensation she would receive, raises anticipated over the next year, and that the

salary figures were “contingent upon [her] future performance evaluations and

available county funding.” 92 S.W.3d at 487. The memorandum did not state that the

employment could be terminated only for specific reasons. Id. The supreme court held

Burkett v. Ulrich Barn Builders, LLC                                               Page 10
that the memorandum did not reflect an “intent to be bound not to terminate her

employment except under clearly specified circumstances.”           Id.    Thus, summary

judgment was proper in favor of the employer. Id.

        The memorandum in this case did not state with any specificity the terms of the

employment. See Durckel v. St. Joseph Hosp., 78 S.W.3d 576, 581 (Tex. App.—Houston

[14th Dist.] 2002, no pet.) (“General statements about working conditions, disciplinary

procedures or termination rights are not sufficient to change the at-will employment

relationship; rather, the employer must expressly, clearly, and specifically agree to

modify the employee’s at-will status.”); see also C.S.C.S., Inc. v. Carter, 129 S.W.3d 584,

591 (Tex. App.—Dallas 2003, no pet.) (holding that an employment contract for a term

may still be at will if the agreement allows termination for any reason); Curtis v. Ziff

Energy Group, Ltd., 12 S.W.3d 114, 118 (Tex. App.—Houston [14th Dist.] 1999, no pet.)

(same). Nowhere in the memorandum did Ulrich express an unequivocal intent to be

bound “not to terminate [Burkett’s] employment except under clearly specified

circumstances.” See Jones, 92 S.W.3d at 487. The memorandum simply provided a

summary of Burkett’s medical allowance, vacation time, and salary.           See Ed Rachal

Found. v. D’Unger, 207 S.W.3d 330, 332 (Tex. 2006) (per curiam) (“Standing alone, an

agreement to pay at a stated rate is not enough [to alter the at-will employment

relationship]; if it were, there would be very few at-will employees.”).

        Based on our reading of the memorandum, there is no language altering the at-

will employment relationship between Burkett and Ulrich. See Jones, 92 S.W.3d at 487;

see also Brown, 965 S.W.2d at 503. And because the memorandum did not alter the at-

Burkett v. Ulrich Barn Builders, LLC                                                Page 11
will employment relationship between the parties, we cannot say that it was an

enforceable contract upon which Burkett could rely for his breach-of-contract claim. See

Jones, 92 S.W.3d at 488; see also Fuller v. Haynes, Nos. 13-07-00763-CV, 13-07-00764-CV,

2009 Tex. App. LEXIS 7838, at *11 (Tex. App.—Corpus Christi Oct. 8, 2009, no pet.)

(mem. op.). Accordingly, we conclude that Ulrich established its right to summary

judgment on Burkett’s breach-of-contract claim, and Burkett did not raise an issue of

material fact. See TEX. R. CIV. P. 166a(c); see also Sw. Elec. Power Co., 73 S.W.3d at 215. As

such, we cannot say that the trial court erred in granting summary judgment in favor of

Ulrich. See Mason, 143 S.W.3d at 798; see also Jackson, 157 S.W.3d at 816 n.7; Knott, 128

S.W.3d at 215-16. Burkett’s first issue is overruled.

                                        IV.    CONCLUSION

        Having overruled both of Burkett’s issues on appeal, we affirm the judgment of

the trial court.




                                           AL SCOGGINS
                                           Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 21, 2012
[CV06]




Burkett v. Ulrich Barn Builders, LLC                                                   Page 12
