Selz v. Friendly Chevrolet Ltd.

The trial court did not err in granting summary judgment in the defendant's favor on plaintiff's claims for failure to pay monthly salary and commissions pursuant to the parties' written compensation agreement.

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Click here for the full text of this decision FACTS:Frederick Selz moved his wife and family from Georgia to Dallas to be the general sales manager of Friendly Chevrolet. Though he was an at-will employee, Friendly signed a written compensation agreement on Sept. 9, 2001. The agreement called for Selz to be paid $16,000 per month in base salary plus 2.25 percent of the gross profits. Friendly fired Selz two months later. Selz sued Friendly. Friendly filed for summary judgment, asserting the affirmative defense of payment. Friendly then filed a supplemental motion for both traditional and no-evidence summary judgment. Friendly attached a copy of the pay plan the parties signed in September 2001. Selz filed a response, a supplemental response and two affidavits. Eight days before the summary judgment hearing, Selz filed a response to the supplemental motion. He also filed a second amended pleading at this time. In this pleading he alleged three counts: 1. breach of contract; 2. promissory estoppel; and 3. fraudulent misrepresentation. Selz repeatedly stated that he was not paid as provided for in the pay plan. He also said that Friendly’s promise to pay him at that rate induced him to uproot his family and move to Texas. The trial court granted Friendly’s original and supplemental motions for summary judgment without stating the grounds on which it relied. HOLDING:Affirmed. The court reviews the evidence pertaining to Selz’s claim for payment of salary and commissions. Friendly attached the affidavit of Friendly’s president, saying all amounts due under the pay plan were paid; it also included payroll records indicating Selz had been paid. On the other hand, Selz presented only conclusory statements that he was not paid in full. His affidavits did not point to any facts supporting these conclusions. The court also adds, to refute an argument by Selz, that allegations raised in Selz’s amended pleading do not count as summary judgment proof. “We conclude that Selz’s statements are nothing more than sworn repetitions of the allegations in his pleadings. They are no more than conclusions or a mere surmise or suspicion.” The court reviews the evidence related to Selz’s claim for Friendly’s alleged promise to pay Selz’s relocation expenses. As the payroll records do not show any payment for relocation expenses, the court finds Friendly’s summary judgment evidence unsupportive of its assertion that it paid all monies due. Consequently, Selz had no burden to present summary judgment evidence to the contrary under the traditional summary judgment standard. However, Friendly also moved for summary judgment on no-evidence grounds. The court points out that a party cannot file a no-evidence motion for summary judgment on an affirmative defense for which it has the burden of proof at trial. Nonetheless, Selz did not challenge the legal sufficiency or propriety of the motions on appeal. Nor did he present any evidence that Friendly promised to pay his relocation expenses. OPINION:Moseley, J.; Moseley, FitzGerald and Lang, JJ.

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