in each other, this Court should find that a fiduciary
A fiduciary relationship is an extraordinary one and will not
be lightly created. See American Med. Int'l, Inc. v.
Giurintano, 821 S.W.2d 331, 339 (Tex.App. 1991, no writ).
"Informal fiduciary relationships, [however], also termed
`confidential relationships,' may arise where one person trusts
in and relies upon another, whether the relation is a moral,
social, domestic, or merely [a] personal one." Hallmark v.
Port/Cooper-T. Smith Stevedoring Co., 907 S.W.2d 586, 592
(Tex.App. 1995, no writ) (citing Crim Truck & Tractor v.
Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992)).
Texas recognizes the existence of confidential relationships in
those cases in which influence has been attained and abused and
in which confidence has been reposed and betrayed. See id.
(citing Crim Truck, 823 S.W.2d at 595).
However, "mere subjective trust" between parties during
negotiations "does not, as a matter of law, transform an
arms-length dealing into a fiduciary relationship." Id.
Moreover, while "[b]usinessmen generally . . . trust one another
and their dealings are frequently characterized by cordiality,"
Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962), the addition
of "cordial friendship" to the formula does not heighten the
trust, nor does it impose a fiduciary duty on either party. Crim
Truck, 823 S.W.2d at 595. Even the eventual fruition of such
negotiations "into a contract does not create a confidential
relationship," sufficient, in and of itself, to form a "duty to
disclose." Bay Colony, 121 F.3d at 1004. Moreover, "[i]t would
be fanciful at best to suggest that every time one [negotiates]
for a job with a potential employer that a fiduciary relationship
is created."*fn23 American Med. Int'l, 821 S.W.2d at 340.
Here, the relationship between the parties was that of business
acquaintances who were negotiating a deal at arms-length. No
confidential or fiduciary relationship exists between parties
dealing at arms-length with equal access to counsel. See Fina
Supply, Inc. v. Abilene Nat'l Bank, 726 S.W.2d 537, 540 (Tex.
1987). The facts show that each party owned and operated fully
independent music library businesses; that each party had their
own attorney; and that each party made their own business
decisions. Plaintiff negotiated a deal with OneMusic at
arms-length and subsequently executed an employment contract.
In Texas, "[a] party to a written agreement is charged as a
matter of law with knowledge of its provisions and as a matter of
law cannot claim fraud when he is bound to the provisions unless
he can demonstrate that he was tricked into its execution."
Lewis v. Penthouse Int'l, Ltd., 825 F. Supp. 131, 133 (S.D.Tex.
1992) (citing Texas Export Dev. Corp. v. Schleder,
519 S.W.2d 134, 139 (Tex.App. 1974, no writ)). Plaintiff has produced
absolutely no evidence of trickery or deceit.
This Court finds that there are no genuine issues of fact which
would preclude summary judgment. Plaintiff's claim that OneMusic
had a duty to disclose to him that there had been preliminary
discussions with FirstCom regarding the possibility that FirstCom
might distribute OneMusic's library, based on a fiduciary or any
other special relationship, is without merit. Here, the
defendants did not engage in a material misrepresentation and had
no duty to disclose. Accordingly, summary judgment is granted to
the defendants as to plaintiff's fraudulent concealment claim.
3. Breach of Contract
Plaintiff claims that OneMusic breached both the OneMusic
employment contract and the OneMusic/Gotham contract. Under Texas
law, the main elements
in a suit for breach of contract are: (1) that a valid contract
exists; (2) that the plaintiff performed or tendered performance;
(3) that the defendant breached the contract; and (4) that the
plaintiff was damaged as a result of the breach. See Hussong v.
Schwan's Sales Enterprises, Inc., 896 S.W.2d 320, 326 (Tex.App.
1995, no writ); Landrum v. Devenport, 616 S.W.2d 359, 361
(Tex.App. 1981, no writ).
a. The Employment Contract
To determine whether summary judgment is appropriate based on a
contract, the trial court must first decide whether the language
of the contract is ambiguous. See Hussong, 896 S.W.2d 320 at
324. The language used by the parties should be assigned its
plain, grammatical meaning, unless it definitely appears that the
intention of the parties would thereby be defeated. See id. In
addition, a contract is not ambiguous if it is worded so that it
can be given a certain and definite meaning or interpretation.
See id. In Texas, the court will analyze the contract as a
matter of law. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.
1983); GT & MC, Inc. v. Texas City Ref. Inc., 822 S.W.2d 252,
255-56 (Tex.App. 1991, writ denied). When the contract, however,
contains an ambiguity, a grant of summary judgment is improper
because the interpretation of the instrument becomes an issue for
the trier of fact. See Coker, 650 S.W.2d at 394; Harris v.
Rowe, 593 S.W.2d 303, 306 (Tex. 1979). This ambiguity would
require a conclusion that a genuine issue as to a material fact
exists. In this case, however, neither party claims that the
contract contains an ambiguity.
Hussong presents a factual scenario that is instructive to
the Court's analysis here. In that case, the plaintiff executed a
written employment agreement with Schwan Sales Enterprises.
Hussong, 896 S.W.2d at 322. The agreement had a voluntary
termination clause enforceable by either party. See id.
Specifically, the agreement stated that "[t]he Employee's
employment under this [a]greement may be voluntarily terminated
without cause by the Regional Manager of Employer, giving thirty
(30) days prior written notice to the Employee or by the Employee
giving not less than thirty (30) days prior written notice to the
regional manager of Employer." Id. The contract stated also
that "upon the employer voluntarily terminating Employee's
employment, the Employee shall receive as severance pay the sum
of $10,000." Id.
The plaintiff was dismissed without receiving thirty (30) days
written notice, and was given the full amount of severance pay
provided for in his contract. See id. The plaintiff sued Schwan
alleging breach of the employment contract. Among other
allegations, the plaintiff claimed that he did not receive thirty
(30) days written notice. See id. The defendants moved for
summary judgment. See id. at 322. In construing the contract,
the court held that the voluntary termination provision in the
Hussong-Schwan contract was not ambiguous. The court stated that
"[the voluntary termination] provision clearly states that [the
defendant's] regional manager could voluntarily terminate [the
plaintiff's] employment without cause by giving 30 days prior
written notice to [the plaintiff]." Id. at 324. In its
analysis, the court determined that "when an employment contract
requires a certain period of notice, the employment may be
canceled on shorter notice or upon none at all if the employee is
paid wages or salary for the specified notice period." Id. at
326 (emphasis added). The defendant's tender to plaintiff of the
amount due to the plaintiff for the notice period led the court
to conclude that a) the contract was not breached, and, b)
summary judgment in favor of the defendant was appropriate. See
Here, plaintiff alleges breach of employment contract in Count
VII of his Amended Complaint. Plaintiff's allegation of breach of
employment contract is based on plaintiff's contention that
OneMusic terminated his position without providing to
plaintiff one-month's written notice, and without providing to
plaintiff 1000 shares of OneMusic stock. The January 31, 1997,
employment contract, however, expressly gave to OneMusic (as well
as to plaintiff) the unqualified right to terminate plaintiff's
employment "on one (1) month written notice."*fn24
Specifically, the relevant part of the termination clause
Your employment will continue until terminated by
either party on one (1) month written notice, or if
notice is given to you by us, the company will pay
you one (1) month salary in lieu of you having to
work any notice period. In that event payment would
be made on or before you depart the company.
This language is unambiguous — plaintiff's employment could be
terminated by either party by written notice. It is clear also
that plaintiff could be terminated during the specified notice
period, if OneMusic gave to plaintiff a severance check
representing one-month's salary. Moreover, the undisputed facts
show that OneMusic tendered to plaintiff a severance check
representing one month's salary in the amount of $5,833.33 in
accordance with the employment contract.