Description: This motion sought a no-evidence summary judgment in a breach of contract case brought against 7-Eleven by a manufacturer’s representative. The plaintiff alleged that she had an oral or implied contract with 7-Eleven pursuant to which the plaintiff agreed to not represent her customers with respect to sales to any convenience stores other than 7-Eleven and 7-Eleven agreed it would not terminate its relationship with her absent reasonable notice and good case. The motion argued that the plaintiff had no evidence of an agreement sufficiently definite to be enforceable. The court granted the motion and dismissed the plaintiff’s claims. This brief was filed by Heygood, Orr & Pearson on behalf of their client.
|IN THE DISTRICT COURT
DALLAS COUNTY, TEXAS
68TH JUDICIAL DISTRICT
7-ELEVEN INC.’S NO-EVIDENCE
MOTION FOR PARTIAL SUMMARY JUDGMENT
For the reasons set forth below, 7-Eleven, Inc. (“7-Eleven”) seeks a no-evidence summary judgment on Plaintiff’s claim for breach of an alleged oral or implied agreement, and respectfully shows the Court as follows:
Summary of Argument
Plaintiff, Milissa Boisseau (“Boisseau”), has brought claims against 7-Eleven arising from 7-Eleven’s decision to cease its business dealings with her in April 2004. Boisseau, a manufacturers’ representative or “broker,” bases her breach of contract claim on the false notion that 7-Eleven entered into an oral or implied contract with her several years ago (hereinafter, “Alleged Contract”). According to her, she and 7-Eleven agreed she would not represent manufacturers in the sale of products to any convenience stores other than 7-Eleven. Further, as part of the Alleged Contract, 7-Eleven supposedly agreed that it could not cease purchasing products through her without “reasonable notice” and “good cause.” Plaintiff’s First Amended Petition and Jury Demand attached hereto as Exhibit D at par. 40. Boisseau claims that 7-Eleven breached the Alleged Contract when it ceased purchasing products through her in April 2004.
On November 2, 2005, the Court heard 7-Eleven’s motion for summary judgment on Plaintiff’s breach of contract claim. The Court indicated, however, that Defendant had not sufficiently identified the specific element of Plaintiff’s breach of contract claim on which it was seeking a no-evidence summary judgment. After this was brought to the Court’s attention by counsel for Plaintiff, the Court issued an Amended Decision indicating that “the Court reviews Defendant’s Traditional and No Evidence Motion for Summary Judgment as a traditional motion only.” See Exhibit A attached hereto. In that same Decision, the Court granted 7-Eleven’s traditional motion. Plaintiff subsequently appealed from this Decision. See Exhibit B attached hereto.
As set forth below, an enforceable contract is an essential element of a claim for breach of contract. To be enforceable, a contract must be sufficiently definite. As described by Plaintiff in her deposition, the alleged agreement is far too indefinite to be enforceable and there is no evidence of a sufficiently definite agreement between 7-Eleven and Plaintiff. For this reason, 7-Eleven’s no-evidence summary judgment must be granted.
Plaintiff Milissa Boisseau is a food products broker whose job is to promote the products of manufacturers she represents to stores for retail sales. Affidavit of Milissa Boisseau attached hereto as Exhibit C at par. 2. In 1986, she began acting as a broker or vendor to 7-Eleven Id. at par. 3. Boisseau claims that Jim Richter, the Vice President of Fresh Foods for 7-Eleven, approached her in March 2000 and asked her to become an exclusive broker for 7-Eleven. Id. at par. 8. According to Boisseau, her relationship with 7-Eleven was “beyond the scope of the traditional broker/purchaser relationship.” Id. Boisseau claims that “the parties agreed that 7-Eleven would not terminate this exclusive relationship except on reasonable notice or for good cause.” Id. She asserts that she agreed to the terms of the alleged oral agreement “based on my understanding that 7-Eleven would give me reasonable time to re-build by 7-Eleven business if they terminated this relationship without good cause.” Id.
During the term of her business relationship, 7-Eleven began an investigation into allegations that Boisseau had taken improper trips to the resort island of Anguilla with 7-Eleven employees. Id. at par. 22. Boisseau admits that she provided 7-Eleven with altered documents during its investigation, but asserts that she did so solely to protect her privacy interests. Id. at 26-7. On April 15, 2004, 7-Eleven, convinced that Boisseau was attempting to mislead the company, notified Boisseau that it no longer wished to do business with her. Boisseau contends that this termination constituted a breach of her alleged oral agreement with 7-Eleven. Exhibit D at pars. 40-3.
Arguments and Authorities
I. The question presented by this Motion is a question of law.
“To prove an action for breach of contract, a plaintiff must establish the existence of an enforceable contract.” Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 25 (Tex. App.–Houston [14th Dist.] 2005, no pet.); Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex.App.-Houston [1st Dist.] 1997, no writ). Under Texas law, the requirements of a valid contract are: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding. Hubbard v. Shankle, 138 S.W.2d 474, 481 (Tex. App.–Fort Worth 2004, pet. denied); Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App.–Houston [14th Dist.] 2002, no pet.). The elements of written and oral contracts are the same and must be present for a contract to be binding. Bank of El Paso v. T.O. Stanley Boot Co., 809 S.W.2d 279, 284 (Tex.App.-El Paso 1991), aff’d in part, rev’d in part on other grounds, 847 S.W.2d 218 (Tex.1992).
Under Texas law, all contracts — whether written or oral — must be sufficiently definite to be enforceable. As the Texas Supreme Court has stated:
In order to be legally binding, a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook. The material terms of the contract must be agreed upon before a court can enforce the contract. Where an essential term is open for future negotiation, there is no binding contract.
T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.2000) (“In general, a contract is legally binding only if its terms are sufficiently definite to enable a court to understand the parties’ obligations.”); Engelman Irrigation Dist. v. Shields Bros., Inc., 960 S.W.2d 343, 352 (Tex. App.–Corpus Christi, writ denied per curiam) (“It is essential to the validity of a contract that it be sufficiently certain to define the nature and extent of its obligations.”); Moore v. Dilworth, 142 Tex. 538, 542-43, 179 S.W.2d 940, 942 (Tex. 1944) (“If an agreement is so indefinite as to make it impossible for a court to fix the legal liability of the parties thereto, it cannot constitute an enforcible contract.”). This rule applies especially to oral agreements such as that alleged here. Meru v. Huerta, 136 S.W.3d 383, 390 (Tex.App.-Corpus Christi 2004, no pet.) (“The terms of an oral contract must be definite, certain, and clear as to all essential terms; or the contract will fail for indefiniteness.”); Gannon v. Baker, 830 S.W.2d 706, 709 (Tex. App.–Houston [1st Dist.] 1992, writ denied) (“It is well established that the terms of an oral contract must be clear, certain, and definite.”).
7-Eleven moves for a no-evidence summary judgment on the ground that Plaintiff has no evidence of a contract that is sufficiently definite to be enforceable. Whether an agreement meets the legal requirements of a contract is a question of law for the Court. Engelman Irrigation Dist. v. Shields Bros., Inc. 960 S.W.2d 343, 352 (Tex. App.–Corpus Christi 1997, pet. denied per curiam); Gaede v. SK Invs., Inc., 38 S.W.3d 753, 757 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (“Whether an agreement constitutes a valid contract is generally a legal determination for the court.”). Even more specifically, “whether an agreement fails for indefiniteness is a question of law to be determined by the court.” America’s Favorite Chicken, 929 S.W.2d at 625. Because the single issue raised by this Motion is an issue of law, this case is ripe for summary judgment.
B. The alleged oral agreement between Boisseau and 7-Eleven is too vague and indefinite to be enforceable.
Bossieau’s live pleading in this case alleges that 7-Eleven agreed not to terminate their business relationship “unless and until reasonable notice was given of a termination that was for good cause.” Exhibit A at par. 40. This purported requirement of both good cause and reasonable notice is different than the agreement she describes in her Request for Disclosure responses, which state that “7-Eleven agreed that she would not be terminated except for good cause or upon reasonable notice.” Exhibit E at p. 2 (emphasis added). And in her deposition, Boisseau denied any agreement relating to good cause:
Q Did you understand that if you gave 7-Eleven good cause they could cease doing business with you?
A I don’t think I even thought of that at the time.
Q As you sit here today, do you dispute the fact that if you engaged in dishonesty or breached your agreements or otherwise gave what one would agree would be good cause to 7-Eleven, they could quit doing business with you?
A I never gave it any thought at the time that I was with Mr. Richter because I never expected anything like that to ever come up.
Q So there was no discussion between you and Mr. Richter at all about what would happen if you engage in some sort of wrongdoing or dishonesty or unethical or unprofessional behavior in regard to your dealings with 7-Eleven?
A No, there wasn’t.
Exhibit F at pp. 52-53 (emphasis added). If Boisseau cannot even articulate the substance of her alleged agreement with 7-Eleven, that agreement is too vague and indefinite to be enforceable.
Even if the Court ignores Boisseau’s inability to describe the “good cause” provision of her alleged agreement, 7-Eleven is still entitled to summary judgment because Texas courts have uniformly held that oral agreements purporting to limit an employer’s ability to terminate an employee to “good cause” are unenforceable as a matter of law. In Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998), a former employee sued the county hospital for wrongful termination claiming that she had an oral agreement that she would be able to keep her job “as long I was doing my job” and that she would not be fired “unless there was a good reason or good cause to fire me.” Id. at 502. The trial court granted summary judgment to the employer and the court of appeals reversed. The Texas Supreme Court noted that “an employer’s oral statements do not modify an employee’s at-will status absent a definite, stated intention to the contrary.” Id. at 501. After reviewing the oral statements at issue, the Court held that the statements were “too indefinite to constitute an agreement limiting the District’s right to discharge Brown at will.” Id. at 502. It therefore reversed the court of appeals, holding that:
General statements like those made to Brown simply do not justify the conclusion that the speaker intends by them to make a binding contract of employment. For such a contract to exist, the employer must unequivocally indicate a definite intent to be bound not to terminate the employee except under clearly specified circumstances. General comments that an employee will not be discharged as long as his work is satisfactory do not in themselves manifest such an intent. Neither do statements that an employee will be discharged only for “good reason” or “good cause” when there is no agreement on what those terms encompass. Without such agreement the employee cannot reasonably expect to limit the employer’s right to terminate him. An employee who has no formal agreement with his employer cannot construct one out of indefinite comments, encouragements, or assurances.
Id. at 502 (emphasis added); see also Welch v. Doss Aviation, Inc., 978 S.W.2d 215, 221 (Tex. App.–Amarillo 1998, no writ) (“General comments that an employee will not be discharged so long as his work is satisfactory, or that he will be terminated only for ‘good reason’ or ‘good cause’ without agreement on what those terms encompass, do not manifest such intent. These types of comments are simply not definite enough to constitute an enforceable contract.”).
In the instant case, Boisseau offers no evidence of what “good cause” was meant to encompass and, in fact, denied in her deposition that the issue was even discussed. Exhibit F at pp. 52-3. Under these facts, the alleged oral agreement is simply too indefinite to alter her at-will business relationship with 7-Eleven. As such, Plaintiff has no evidence of a sufficiently definite contract. 7-Eleven is therefore entitled to judgment in its favor on Boisseau’s breach of contract claim.
2. The alleged oral agreement whereby 7-Eleven could terminate Boisseau only with “reasonable notice” is too indefinite to alter the well-established presumption of an at-will business relationship.
The second element of the purported oral agreement between Boisseau and 7-Eleven is that 7-Eleven would not terminate their business relationship without “reasonable notice.” Boisseau’s description of this “reasonable notice” provision varies wildly:
- “7-Eleven wouldn’t, you know, just drop me with no notice.” Deposition of Milissa Boisseau attached hereto as Exhibit F at p. 7 (emphasis added).
- “And I explained to [Richter] that if any — if 7-Eleven changed or did anything, that would put me at risk. And Mr. Richter said 7-Eleven would never do that without giving me adequate notice.” Exhibit F at p. 12 (emphasis added).
- “7-Eleven would never get rid of me with no notice or would certainly give me lead time or something to that effect.” Exhibit F at p. 53 (emphasis added).
- Describing her “understanding that 7-Eleven would give me reasonable time to re-build my 7-Eleven business if they terminated this relationship without good cause.” Exhibit B at par. 8 (emphasis added).
- “they wouldn’t just tell me one day they weren’t doing business with me.” Exhibit F at p. 54.
Thus, Boisseau herself cannot unequivocally state whether the agreement called for some notice or reasonable notice. Nor can she even testify that she and 7-Eleven agreed on the specific meaning of “reasonable notice.”
Q And what did you understand from that conversation the amount of lead time would be?
A Well, my understanding was, since it probably took me two to three years to make up the income I gave up by calling on 7-Eleven, at least a multi-year type of arrangement. That they wouldn’t just tell me one day they weren’t doing business with me.
Q But there was no discussion with him of a multi-year?
Exhibit F at p. 54 (emphasis added).
Q Ms. Boisseau, correct me if I’m wrong, but are you saying that part of the oral agreement that you’re basing this lawsuit on against 7-Eleven is that Mr. Richter promised you that you would get more than a year — several years notice before 7-Eleven would cease doing business with you?
A No, I don’t think I ever said that Mr. Richter said he would give me any specific amount of time. That’s what I assumed that I would be given.
Exhibit F at pp. 62-63 (emphasis added).
Q And are you basing your breach of the oral agreement on the position that you should have been given at least more than a year’s notice before they could drop you?
A I assumed that, based on the sacrifice that I was going to be making, that, yes, I would have been given a minimum of a couple of years to be able to go back and reestablish relationships with other customers.
Exhibit F at p. 63.
This admitted lack of definiteness regarding the meaning of “reasonable notice” is fatal to Boisseau’s breach of contract claim. As set forth above, for an oral or written agreement to alter the employee’s at-will status, “the employer must unequivocally indicate its intent to be bound not to terminate the employment except under clearly specified circumstances.” Montgomery County, 965 S.W.2d at 502 (emphasis added). And like any contract, the terms of an oral employment agreement must be “clear, certain and definite” to be enforceable. Gannon, 830 S.W.2d at 709. Where, as here, there is no agreement on the term of the alleged agreement, the agreement is unenforceable as a matter of law. See, e.g., Smith, 29 S.W.3d at 268 (court affirmed summary judgment for employer on breach of contract action based on oral agreement because “the parties did not agree on a duration of employment”); Ed Rachal Foundation v. D’Unger, 117 S.W.3d 348, 357 (Tex. App.–Corpus Christi 2003, pet. filed) (reversing judgment for employee on breach of contract action based on oral agreement because “[n]o evidence in the record establishes that the Foundation agreed to a specific term of employment”); Gannon, 830 S.W.2d at 709 (“A lack of definiteness in an agreement may concern the time of performance”); Montgomery County, 965 S.W.2d at 503 (“It would be unusual, however, for oral assurances of employment for an indefinite term to be sufficiently specific and definite to modify an at-will relationship.”).
Plaintiff can come forward with no evidence of an agreement that is sufficiently definite to be enforceable. As such, she can offer no evidence of an enforceable contract, one of the essential elements of a breach of contract claim. 7-Eleven is therefore entitled to judgment on Plaintiff’s breach of contract claim as a matter of law.
Conclusion and Prayer
To prove an action for breach of contract, a plaintiff must establish the existence of an enforceable contract. Under Texas law, a contract is enforceable only if its terms are sufficiently definite to enable a court to understand the parties’ obligations. As set forth above, Plaintiff can bring forth no evidence of a sufficiently definite contract. 7-Eleven is therefore entitled to a no-evidence summary judgment on Plaintiff’s breach of contract claim.
WHEREFORE, PREMISES CONSIDERED, 7-Eleven respectfully requests that the Court grant it a no-evidence summary judgment on Plaintiff’s claim for breach of contract and award it such other and further relief to which it may be justly entitled.
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)
 While 7-Eleven, and Richter in particular, deny the existence of the oral agreement alleged by Boisseau, for purposes of this Motion only, they will treat her allegations as true.