                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-306-CV


MIKE FRIEND                                                         APPELLANT

                                        V.

CB RICHARD ELLIS, INC.                                               APPELLEES
AND CBRE REAL ESTATE
SERVICES, INC.

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

           FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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

                         MEMORANDUM OPINION 1

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

      Appellant Mike Friend appeals from the trial court’s grant of summary

judgment for Appellees CB Richard Ellis, Inc. and CBRE Real Estate Services,

Inc. (collectively “CBRE”) on his breach of contract claim. Because we hold

that Friend failed to raise an issue of material fact regarding whether he had an

employment contract, we affirm.


      1
          … See Tex. R. App. P. 47.4.
      Friend was employed with CBRE as a facilities manager.            He had

previously been employed with Trammell Crow. When Trammell Crow was

acquired by CBRE, Friend became a CBRE employee.

      On April 5, 2007, CBRE terminated Friend’s employment.             Friend

requested that CBRE provide him with the bases for his termination, and Tracey

Slagle, a human resources manager, sent him an email in which she “outlined

various reference points for [Friend’s] convenience,” listing four provisions of

the employee handbook.

      Friend subsequently filed suit against CBRE for breach of contract,

alleging that he had been terminated for cause and that the bases for his

termination were without merit. CBRE answered and filed a traditional and no-

evidence motion for summary judgment, arguing that Friend was an at-will

employee terminable for any or no reason and attaching evidence that it

contended established Friend’s at-will status. CBRE also argued that Friend had

the burden to show that he was not an at-will employee and that there was no

evidence of an employment agreement.

      Friend filed a response objecting to CBRE’s summary judgment evidence

and attaching as evidence his own affidavit and the email from Slagle.        In

Friend’s affidavit, he alleged that his employment was “renewed on an annual

basis” by CBRE and that he and CBRE “agreed to the annual salary and



                                       2
employment” since CBRE’s acquisition of Trammell Crow. CBRE objected to

this statement as parol evidence and on the grounds that it was self-serving and

conclusory.      The trial court sustained the objections, overruled Friend’s

objections to CBRE’s evidence, granted CBRE’s motion, and dismissed Friend’s

claims.

      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.2 The trial court must grant the motion unless

the nonmovant produces summary judgment evidence that raises a genuine

issue of material fact.3

      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.4      If the nonmovant




      2
          … Tex. R. Civ. P. 166a(i).
      3
     … See Tex. R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex. 2002).
      4
          … Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).

                                       3
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. 5

      On appeal, Friend raises three issues. First, he argues that the trial court

erred by failing to sustain his objections to, and failing to exclude, the affidavits

of CBRE employee Thomas J. Miller and the attached exhibits. Second, Friend

argues that the trial court erred by sustaining CBRE’s objections to his affidavit.

Finally, Friend argues that the trial court erred by granting CBRE’s summary

judgment motion. We consider his third issue first.

      Employees in Texas are at-will employees in the absence of a specific

agreement to the contrary, and at-will employment “may be terminated by the

employer or the employee for good cause, bad cause, or no cause at all.” 6 In

its summary judgment motion, CBRE correctly noted that in a wrongful

termination suit, the employee has the burden to prove that a contract existed

with the employer.7 CBRE then argued that there was no agreement altering

Friend’s at-will employment status.




      5
      … Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San
Antonio 1998, pet. denied).
      6
     … Midland Judicial Dist. Cmty. Supervision & Corr. Dep’t v. Jones, 92
S.W.3d 486, 487 (Tex. 2002).
      7
      … See Brown v. Sabre, Inc., 173 S.W.3d 581, 585 (Tex. App.—Fort
Worth 2005, no pet.).

                                         4
      The only evidence produced by Friend was his affidavit and the email

from Tracey Slagle. Friend did not argue to the trial court and does not argue

on appeal that any of the summary judgment evidence produced by CBRE

supports his claim.   In his affidavit, Friend stated:   “Following my initial

employment, my employment was renewed on an annual basis by [CBRE] at the

annual salary of $84,198.40 per year plus a 10% bonus of $8,419.84. I and

[CBRE] agreed to the annual salary and employment after [CBRE] acquired the

Trammel[l] Crow Company business.” These are the only statements in the

affidavit relevant to Friend’s employment status.

      In order to modify the at-will status of an employee, “the employer must

unequivocally indicate a definite intent to be bound not to terminate the

employee except under clearly specified circumstances.” 8 In the absence of a

formal agreement with his employer, an employee “cannot construct one out

of indefinite comments, encouragements, or assurances,” 9 and “a limitation on

at-will employment ‘cannot simply be inferred.’” 10        General, indefinite

statements will not alter at-will employment status; “an agreement to modify


      8
       … Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502
(Tex. 1998).
      9
          … Id.
      10
        … County of Dallas v. Wiland, 216 S.W.3d 344, 354 (Tex. 2007)
(quoting Matagorda County Hosp. Dist. v. Burwell, 189 S.W.3d 738, 739 (Tex.
2006)).

                                      5
the at-will employment relationship must be ‘(1) expressed, rather than implied,

and (2) clear and specific.’” 11 An employer’s act of informing the employee of

what his salary will be for the upcoming year is not in and of itself enough to

indicate the employer’s unequivocal intention to modify the at-will status of the

employee. 12

      Here, Friend’s statement that his employment was “renewed on an annual

basis” and that CBRE “agreed to the annual salary and employment” does not

demonstrate a clear and specific agreement with CBRE expressly modifying

Friend’s at-will employment status. Friend provides no factual support for this

assertion; he does not indicate who made the agreement, when the agreement

was made, in what context or circumstances the agreement was made, or

whether the person who negotiated an annual employment term, if any, with




      11
      … El Expreso, Inc. v. Zendejas, 193 S.W.3d 590, 594 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (quoting Misch v. Exxon Corp., 979
S.W.2d 700, 703 (Tex. App.—Houston [14th Dist.] 1998, pet. denied)).
      12
        … See Midland Judicial Dist. Cmty. Supervision, 92 S.W.3d at 487
(holding that memo given to employee at time of hiring setting out her per-
month salary through the next year, including pay raises, and stating that the
salary figures “are contingent upon your future performance evaluations and
available county funding” did not unequivocally indicate employer’s intent to be
bound not to terminate the employment except under clearly specified
circumstances); see also Ed Rachal Found. v. D'Unger, 207 S.W.3d 330,
331–32 (Tex. 2006) (noting that it had rejected the “so-called ‘English rule’
that hiring an employee at a stated sum per week, month, or year always
constitutes a promise of definite employment for that term”).

                                       6
him had authority to make such an agreement on behalf of CBRE. 13 Without

providing underlying facts in support of his statement, Friend fails to raise a fact

issue as to whether CBRE indicated an unequivocal intent to be bound not to

terminate his employment for a year or except under clearly specified

circumstances.

      Friend contends that he introduced unrebutted testimony in the form of

his affidavit that his supervisor renewed his employment for one year at his

annual review. Neither Friend’s supervisor nor his annual review are mentioned

at all in the affidavit. We hold that Friend’s statement that CBRE agreed to

annual employment does not raise a fact issue as to whether CBRE and Friend

entered into an employment agreement altering Friend’s at-will employment

status.

      Friend also attached to his response the email from Slagle. He does not

argue on appeal how this email raises a fact issue on his employment status,

and we hold that it does not. In her email, Slagle begins by acknowledging that

Friend had requested a copy of the polices he violated “which resulted in the


      13
        … See, e.g., Moore v. Office of Atty. Gen., 820 S.W.2d 874, 877 (Tex.
App.—Austin 1991, no writ) (holding that trial judge was free to reject Moore's
affidavit testimony that the Attorney General’s Office “made certain
representations to her,” without specifying who made the representations and
noting that even assuming that some individual at the Office entered into an
oral agreement with Moore, she failed to introduce evidence of that individual’s
authority to enter into such an agreement on behalf of the Office).

                                         7
termination of [his] employment.” She notes an attached employee handbook

and states that she has “outlined various reference points for your convenience

below.” She then quotes from four provisions of the employee manual dealing

with reporting harassment and standards of conduct. She concludes the email

by noting that “as we discussed on the telephone last Thursday evening, you

received training on appropriate management conduct and requisite action in

Management Practices Training and Online Harassment Training.”

      Nothing in the email indicates that Friend’s employment was anything but

at-will. Friend had requested the reasons for his termination. Slagle gave him

reasons. That she saw fit to do so does not indicate that CBRE had previously

agreed to alter his at-will status.14 The mere fact that CBRE terminated his

employment for specific reasons is not evidence that CBRE could terminate his

employment only for specific reasons.15

      14
        … See, e.g., Tex. Rev. Civ. Stats. Ann. art. 5196(5) (Vernon 1987)
(making it an act of discrimination for a corporation doing business in Texas to
furnish a third party with a statement about an employee’s termination if the
statement was not given at the employee’s request and if the corporation had
previously failed to give the employee a true statement of the causes of his
termination within ten days of the employee’s demand for such a statement);
but see St. Louis Sw. Ry. Co. of Tex. v. Griffin, 106 Tex. 477, 171 S.W. 703,
706 (Tex. 1914) (declaring in dicta that previous version of statute was
unconstitutional).
      15
       … See, e.g., Burwell, 189 S.W.3d at 739 (holding that statement in
employee manual that employee may be dismissed for cause is not a specific
agreement that employee may only be dismissed for cause and noting that
absent a specific agreement to the contrary, “employment may be terminated

                                       8
      Friend argues that CBRE’s no-evidence summary judgment motion failed

to specifically state the element of the cause of action for which there was no

evidence, and therefore the trial court’s granting of the motion was reversible

error. But CBRE specifically stated that Friend had the burden to show that

CBRE unequivocally indicated a definite intent to be bound not to terminate

Friend except under clearly specific circumstances or conditions; that the

evidence established that Friend was employed at-will; and that “[t]here is no

agreement whatsoever to the contrary.” CBRE then spent several pages of the

motion discussing why none of Friend’s evidence demonstrated such an

agreement. Thus, CBRE specifically pointed out the element on which Friend

would have the burden at trial and for which there was no evidence.           We

therefore reject Friend’s argument that the granting of the motion was

reversible error.

      Because Friend’s evidence does not raise a fact issue on whether he and

CBRE entered into an agreement altering his at-will employment status, the trial

court did not err by granting the no-evidence summary judgment for CBRE. We

overrule his third issue. Additionally, any error by the trial court in overruling

Friend’s objections to CBRE’s evidence was harmless. The trial court should




by the employer or the employee at will, for good cause, bad cause, or no
cause at all”).

                                        9
have granted the motion even if it had struck all of CBRE’s evidence because

Friend had the burden of proof to defeat the no-evidence summary judgment

motion and failed to meet that burden.16 Accordingly, we overrule Friend’s first

issue. We further hold that if the trial court erred by granting CBRE’s objections

to Friend’s affidavit, such error was harmless.      Even if the trial court had

overruled CBRE’s objections and considered Friend’s affidavit (as this court has

done), Friend failed to raise a fact issue to avoid summary judgment.         We

therefore overrule Friend’s second issue.17

      Having overruled all of Friend’s issues, we affirm the trial court’s

judgment.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

WALKER, J. concurs without opinion.

DELIVERED: February 19, 2009




      16
      … See Tex. R. Civ. P. 166a(i); Tex. R. App. P. 44.1 (requiring appellant
to demonstrate harm to obtain reversal on appeal).
      17
           … See Tex. R. App. P. 44.1.

                                         10
