Defendants’ Motion for Summary Judgment

Bragg v. Danka Industries, Inc.

Description: This motion was filed in a wrongful termination case pending in state court in Texas.  The basis of the motion was that Plaintiff waited more than four years after his termination to bring suit and his claims are therefore barred by limitations. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

CAUSE NO. DV99-10252
JERRY BRAGG,
Plaintiff
vs.DANKA INDUSTRIES, INC.Defendant.
IN THE DISTRICT COURT
DALLAS COUNTY, TEXAS
116TH JUDICIAL DISTRICT

DEFENDANT=S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Defendant Danka Industries, Inc. (“Danka”) and files this Motion for Summary Judgment, and would respectfully show the Court as follows:

I.  Introduction

Plaintiff Jerry Bragg has alleged in his Original Petition that he was employed by Danka beginning on or about December 29, 1992, for a term of three years lasting until December 31, 1995.  In his interrogatory answers, Bragg has alleged that his employment was terminated by Danka on August 14, 1995.  He asserts causes of action based on Danka’s alleged failure to pay him his salary from the time of his termination through the end of the initial term of his employment agreement as well as any bonuses accrued during that time.  It was not until December 31, 1999, more than four years after Bragg was allegedly terminated by Danka and Danka allegedly ceased paying Mr. Bragg his salary, that he filed his Original Petition herein.  As such, Bragg=s claims are barred by the applicable statute of limitations, and Danka is entitled to judgment in its favor as a matter of law.

II.  Undisputed Facts

In 1992, Jerry Bragg sold his company to Danka and signed an Employment Agreement with Danka.  Affidavit of Kevin Dean at par. 2, Exhibit 1-A;  Plaintiff=s Original Petition at & 4, a true and correct copy of which is attached to the Affidavit of Eric D. Pearson as Exhibit 2-A. The Employment Agreement stated that Bragg was entitled to an annual salary of $75,000 and that Bragg would be employed for an initial term of three years beginning on January 1, 1993. Affidavit of Kevin Dean at par. 2, Exhibit 1-A at p. 1.  According to the Employment Agreement, Danka could terminate Bragg’s employment during the initial term without cause, but would then be obligated to pay him his salary of $75,000 through the end of the initial three year term of the agreement as well as any profit incentive bonus he had earned.  Id.

Bragg alleges that, “notwithstanding the express provisions of the Agreement, Danka terminated Plaintiff=s employment prior to the expiration of the three year term stated therein.”  Plaintiff=s Original Petition at & 5.  In his recent Objections and Responses to Defendant=s Interrogatories, Bragg asserts that he was terminated by Danka on August 14, 1995.  See Plaintiff=s Objections and Responses to Interrogatories at Interrogatory No. 7, a  true and correct copy of which is attached to the Pearson Affidavit as Exhibit 2-B.  Plaintiff filed the instant suit on December 31, 1999 seeking compensation for the amounts Danka failed to pay him from the time of his termination in August 1995 to the end of the initial term of his Employment Agreement.  See Plaintiff’s Original Petition at p. 1.

According to the Employment Agreement, Bragg’s salary of $75,000 was to be paid “bi-weekly or with such frequency as are other employees and executives” of Danka.  Affidavit of Kevin Dean at par. 3, Exhibit 1-A at p. 2.  During 1995, Bragg and other employees and executives of Danka were paid bi-weekly.  Affidavit of Kevin Dean at par. 3, exhibit 1-B.  Bragg was also entitled under the Employment Agreement to a profit incentive bonus under certain circumstances.  Affidavit of Kevin Dean at par. 3, Exhibit 1-A at p. 2, section 3 (b).  The bonus, however, was limited to $25,000 per year.  Id. As set forth in the payroll records attached to the Dean Affidavit as Exhibit B, Bragg was paid the maximum bonus of $25,000 in June 1995, the last year of his employment under the Employment Agreement.  Affidavit of Kevin Dean at par. 3, Exhibit 1-B.

When Bragg filed suit, he alleged in his petition that “Defendant Danka may be served by serving its registered agent for service CT Corporation System, 350 N. St. Paul Street, Dallas, Texas 75201.”  Pearson Affidavit at Exhibit 2-A.  The citation attached to the petition indicates that Bragg in fact served Danka through CT Corporation System.  Id. Moreover, Danka in fact received the petition through CT Corporation System.  Affidavit of Kevin Dean at par. 4.  And Bragg’s initial summary judgment response contained as summary judgment evidence a computer printout from the Texas Secretary of state’s office listing CT Corporation as Danka’s registered agent.  Pearson Affidavit at Exhibit 2-C.  Finally, although diligence of efforts at service are not necessarily an issue, the Employment Agreement itself provided an address to which any notices under the agreement were to be sent.  Affidavit of Kevin Dean at Exhibit 1-A at p. 4, par. 11.  The address is the current address of Danka, and has been since well before Bragg signed the Employment Agreement at issue.  Affidavit of Kevin Dean at par. 4.

III.  Argument and Authorities

As set forth above, Plaintiff asserts that he entered into an Employment Agreement with Danka on December 29, 1992, according to which he was to be employed by Danka commencing on January 1, 1993, and continuing until December 31, 1995.  According to Plaintiff, Danka breached his Employment Agreement by failing to pay him his salary and any earned bonuses after terminating his employment on August 14, 1995.  Based on these allegations, Plaintiff asserts that he is entitled to recover under causes of action for breach of contract and an accounting.  Plaintiff filed suit seeking such relief on December 31, 1999, more than four years after the date on which he alleges Danka terminated his employment and ceased paying him his salary.

A cause of action for breach of contract is subject to a four-year statute of limitations.  See, e.g., Enterprise – Laredo Associates v. Hachar=s, Inc., 839 S.W.2d 822, 837 (Tex. App. B San Antonio), writ denied per curiam, 843 S.W.2d 476 (Tex. 1992); Hoover v. Gregory, 835 S.W.2d 668, 677 (Tex. App. B Dallas 1992, writ denied); Tex. Civ. Prac. & Rem. Code ‘16.004 (Vernon 2000).  A claim for an accounting is also subject to a four-year statute of limitations.  See, e.g., Wright v. Greenberg, 2 S.W.3d 666, 670 (Tex. App. B Houston [14th Dist.] 1999, pet. denied).  A breach of contract claim accrues when a contract is breached, that is, Awhen a party fails to perform a duty required by the contract.@  See Hoover, 835 S.W.2d at 677.

As set forth above, Bragg=s claims for breach of contract and an accounting accrued, at the latest, on the date on which Danka first failed to pay Bragg his salary.  This date, August 15, 1995, was the date on which Danka allegedly failed to perform a duty required by the employment agreement with Bragg.  That date is more than four years before December 31, 1999, the date on which Bragg filed suit.  As such, his claims for breach of contract and an accounting are barred by the applicable statute of limitations.  His claim for bonuses earned during the term of the Employment Agreement is likewise barred by limitations.  Moreover, as set forth above, he was unquestionably paid the full bonus for 1995 in June 1995, before he was terminated

Bragg argues, however, that limitations on his claims were tolled by Danka’s alleged absence from the state under Section 16.063 of the Texas Civil Practice and Remedies Code.  Under Texas law, however, “a defendant that maintains a registered agent for service of process within the state is not absent from the state for purposes of section 16.063.”  C. Richard Goins Constr. Co. v. S.B. McLaughlin Assoc., Inc., 930 S.W.2d 124, 128 (Tex. App. – Tyler 1996, writ denied).  Here, there is no evidence that Danka was without a registered agent in Texas at any point between August 15, 1995 and December 31, 1999.  In fact, Bragg’s own pleadings and summary judgment evidence admit the contrary. See Pearson Affidavit at Exhibit 2-A (petition and citation); Pearson Affidavit at Exhibit 2-C at Exhibit A-1 (computer printout from the Texas Secretary of state’s office listing CT Corporation as Danka’s registered agent).  Moreover, as stated above, it is unquestioned that Danka was actually served through CT Corporation.

In Plaintiff’s First Supplemental Petition, filed after Defendant originally filed its motion for summary judgment, Plaintiff asserted for the first time that limitations was also tolled under Section 16.062 of the Texas Civil Practice and Remedies Code.  That statute deals only with the “death of a person.”  With all due respect for counsel’s creativity, the statute has no application here.  As far as Danka is aware, no one has died, and Plaintiff offers no proof to the contrary.  More importantly, there are no cases under Texas law applying this statute to corporations or other legal entities.  All reported cases applying this statute deal solely with the death of a natural person.  There are no genuine issues of material fact, and Defendant Danka is entitled to judgment in its favor as a matter of law.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant Danka Industries, Inc. respectfully requests that the Court grant this Motion, enter judgment in its favor that Plaintiff take nothing by its claims and award it such other and further relief, general or special, at law or in equity, to which it may be justly entitled.

Respectfully submitted,
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Second Floor
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)