Dech v. Daniel, Mann, Johnson & Mendenhall

LEVY, Justice,

dissenting.

My disagreement with the majority is in its treatment of a legal question — the existence and terms of an oral contract of em*504ployment — as a question of fact, thus authorizing the jury to have determined the contract’s duration as a function of the parties’ intentions.

In its letter of April 8, 1982, confirming Dech’s acceptance as staff architect with the firm, the appellee stated, inter alia, “Your salary will be $28,000 per annum in this position. We will expect to see you the first part of May.” And, in answer to Dech’s earlier request for some indication as to when his “first review” might occur, as Dech delicately reminded his future employer, “at which time you [appellee] indicated additional consideration would be made to cover my [Dech’s] moving expenses,” appellee responded, in the same letter of confirmation, “Since DMJM reviews each employee every six months, you can expect your first review in December of 1982.” Appellee obviously intended that Dech rely on this assurance of employment and fixed compensation, to induce Dech to accept its terms. In response, Dech immediately took steps to sever his employment and residence in Jacksonville, Florida, and move to Houston, where the appellee engineering firm had an office “with capabilities of architecture, planning, and construction administration,” according to its brief.

It appears to be undisputed that after Dech began to work for DMJM on April 27, 1982, he performed his professional duties satisfactorily, and there was no indication of inferior work or dissatisfaction. Yet on September 27,1982, merely 20 weeks later, Dech was terminated. The record reflects that appellee DMJM, a California corporation with offices throughout the United States and Japan, did not offer, or attempt to offer, to transfer Dech to any other office, to rehire him, to loan him to another company where he was needed, or to assist him in any other way to obtain employment.

Appellee argues on appeal that its offer of employment to Dech was ambiguous, and that this Court should ignore the “English rule,” holding that employment duration is presumed by the terms of compensation, i.e., that specification of an employee’s pay in terms of a time unit of day, month, or year, indicates an agreement, in the absence of express limitation otherwise, for an employment of a duration equal to the time unit specified. Such had been an earlier Texas rule, Dallas Hotel Co. v. McCue, 25 S.W.2d 902 (Tex.Civ.App.—Dallas 1930, no writ), which spawned progeny for the following 30 years: Dallas Hotel v. Lackey, 203 S.W.2d 557 (Tex.Civ.App.—Dallas 1947, writ ref’d n.r.e.); City of San Antonio v. Condie, 329 S.W.2d 947 (Tex.Civ.App.—San Antonio 1959, writ dism’d W.O.J.); Culkin v. Neiman-Marcus Co., 354 S.W.2d 397 (Tex.Civ.App.—Fort Worth 1962, no writ).

Because of the ambiguity generated in its letter of confirmation, appellee argues, the letter should be interpreted in its favor, the employment contract ignored or discounted, and the “employment-at-will” doctrine invoked to justify its firing of Dech. See Stanley v. H.J. Justin & Sons, Inc., 672 S.W.2d 327 (Tex.App.—Fort Worth 1984, writ ref’d n.r.e.); Singh v. Cities Serv. Oil Co., 554 P.2d 1367 (Okla.1976). I disagree. Ambiguity should not be found in a strained or technical interpretation of a contract when a reasoned construction renders all the provisions of the contract enforceable and consistent. See Southwestern Life Ins. Co. v. Houston, 121 S.W.2d 619, 625 (Tex.Civ.App.—Fort Worth 1938, writ ref’d). A reasoned construction in the case at bar would, in my view, result in reading the contract as promising Dech employment for at least the one-year period, and at the pay, suggested in appellee’s letters.

To permit the appellee to argue successfully that it should be allowed an advantage arising out of its own asserted ambiguity would repudiate venerable common-law principles of unconscionability. It indeed seems trite, but appropriate, to invoke the familiar and analogous rule of judicial construction of insurance policies — that if the language employed by an insurance company in its contracts is ambiguous, then it must be most strongly construed against the company and in favor of the insured. The parallel between “an employer” and “the insurer” is too obvious to require any elaboration, but I think it valid.

*505In Little v. Bryce, 733 S.W.2d 937 (Tex.App.—Houston [1st Dist.] 1987, no writ), I expressed my views in a concurring opinion on the harshness of the “employment-at-will” doctrine, consisting of its inherent indifference to the hardship and trauma of unemployment imposed thereby on the worker, whether professional or unskilled, who depends solely upon his labor to earn his livelihood. The circumstances of this case reaffirm quite stridently that it is not unreasonable to read into every employment relationship an implied promise by the employer not to act arbitrarily in dealing with the employee, conditioned upon fair dealing by the employee and good faith performance of his duties. See Cancellier v. Federated Dep’t Stores, 672 F.2d 1312, 1318 (9th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982). Because of the harshness of this “employment-at-will” doctrine, at least 32 states have judicially carved exceptions therefrom, and seven states have abandoned it altogether in favor of the “good faith and fair dealing” concept, which they imply into every employment contract.1

Dech obviously made a significant, and perhaps major, change in his life when he resigned his position in Florida and moved to Houston, a distant community, solely on the strength of appellee’s promise of employment. He did so, he testified, because he was told by a DMJM executive that he was being hired for at least a year. It was precisely for the protection of such vulnerable employees that the judicially created “employment-at-will” doctrine was repudiated in several states in favor of the “good faith and fair dealing” concept. In my view, equity requires that we consider the letters and the factual circumstances described above, particularly Dech’s detrimental reliance upon DMJM’s employment inducements, to constitute a contract, partially expressed and partially implied, for a definite period of one year, as a matter of law. I think it inequitable to do any less.

It is, perhaps, too easy for judges to forget that courts “possess the legitimate heritage of common law innovation that develops new principles to accommodate changing values.” Ivy v. Army Times Publishing Co., 428 A.2d 831, 835 (D.C.App.1981) (Ferren, J., dissenting). If we are not to ignore the economic and social realities of modem society, our thinking must change as that society changes, for it is that very society we are here to serve.

I would, accordingly, sustain appellant’s points of error one, three, four, and five, reverse the judgment of the trial court, and remand for further proceedings.

. See Comment, The At-Will Doctrine: A Proposal to Modify the Texas Employment Relationship, 36 Baylor L.Rev. 667 (1984).