## Facts

- Electronic Data Systems Corp. (EDS) used Byrd International of Dallas, Inc. (Byrd), an employment agency, to hire Larry E. Scherschel in April 1979 and paid Byrd a $6,600 placement fee.
- Byrd extended its guarantee by letter dated June 6, 1979, amending it to a six-month guarantee “excepting termination by EDS.”
- Byrd admitted it agreed in writing to refund the $6,600 if Scherschel left within six months unless Scherschel was involuntarily terminated by EDS within that period.
- Scherschel left EDS in less than six months, and Byrd did not refund the fee.
- EDS moved for summary judgment and supported the motion with affidavits from Scherschel’s supervisor and department manager stating Scherschel said he wanted to resign/was leaving.
- Byrd objected that the affidavits were hearsay and argued a fact dispute existed on whether Scherschel was terminated (which would trigger the contract exception).
- The trial court overruled Byrd’s objections and granted summary judgment for EDS for $6,600; Byrd appealed.

## Issues

1. Whether EDS conclusively proved all elements of its breach-of-contract claim, including that Scherschel was not terminated by EDS, entitling EDS to summary judgment as a matter of law.
2. Whether the trial court erred by considering the supervisors’ affidavits describing Scherschel’s statements about resigning, over Byrd’s hearsay objection.
3. Whether Byrd, as nonmovant, produced competent summary-judgment evidence sufficient to raise a genuine issue of material fact on termination versus resignation.

## Decision

- The court of appeals affirmed the summary judgment for EDS.
- The court held EDS’s proof established the contract, payment, Scherschel’s departure within six months, Byrd’s failure to refund, and that Scherschel was not terminated by EDS.
- The court held Byrd failed to present competent summary-judgment evidence creating a fact issue on whether EDS involuntarily terminated Scherschel.
- The court rejected Byrd’s attempt to defeat summary judgment through objections without producing admissible counterevidence on the dispositive fact question.

## Legal Principles

- A summary-judgment movant must conclusively prove all essential elements of its claim or defense as a matter of law.
- Once the movant meets its burden, the nonmovant must expressly present reasons to avoid summary judgment and support them with competent summary-judgment evidence sufficient to raise a material fact issue.
- Affidavits used at summary judgment must be based on personal knowledge and set out facts admissible in evidence.
- When contract terms are undisputed, the dispositive issue may narrow to a single element (here, whether the employee left by resignation or was terminated), and the nonmovant must produce admissible evidence on that element to avoid summary judgment.

## Conclusion

The court enforced a placement-fee refund agreement and affirmed summary judgment for the employer because the employer’s evidence established the employee left within the guaranteed period by resignation rather than employer termination, and the agency failed to counter with competent evidence creating a triable fact dispute.


Byrd Int’l of Dall., Inc. v. Elec. Data Sys. Corp., 629 S.W.2d 177 (Tex. App.—Dallas 1982)