NO. 07-10-00149-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 12, 2012
JOSHUA L. CALAHAN, APPELLANT
v.
FIRST STATE BANK TEXAS, APPELLEE
FROM THE 413TH DISTRICT COURT OF JOHNSON COUNTY;
NO. C-2008-0197; HONORABLE WILLIAM C. BOSWORTH JR., JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
This appeal involves a claim brought under Sabine Pilot Service, Inc. v. Hauck.1
Appellant Joshua L. Calahan sued his former employer, appellee First State Bank
Texas, after his employment was terminated. Through one issue, he appeals the trial
court’s final judgment rendering summary judgment in favor of the bank. We affirm.
1 687 S.W.2d 733 (Tex. 1985). Background
At the time of his termination, Calahan was a collections manager. His
responsibilities included those related to repossession of collateral. It is undisputed that
he was an “at will” employee.
For several months before his termination, Calahan had worked to repossess
collateral securing a defaulted loan to a construction company, which was organized as
a limited partnership. The bank’s repossession efforts had been impeded by the actions
of one of the owners of the business.
Officers of the bank, including a vice president, Amber Witte, also were working
on the account. A further effort to repossess equipment stored in a leased building was
scheduled for a Friday in February 2008. Three days before, Calahan informed Witte
that a warrant for the arrest of the impeding owner had been issued, on a charge of
hindering a secured creditor. On Wednesday of that week, Witte and another bank
officer met with the construction company’s president, who was cooperating with the
repossession, to inventory and photograph the equipment. On Friday, the company
president gave the bank a key to the building.
The company president did not plan to be present for the repossession of the
equipment because she was concerned that her partner in the business might show up
and cause trouble. However, in addition to a key to the building, the bank had the
cooperation of the building’s owner, who gave Witte a combination to unlock a padlock
on the gate into the facility. The building owner had initiated eviction proceedings
against the construction company but the proceedings were not yet concluded.
2 On Friday morning, Witte asked Calahan to drive to the construction company’s
offices to report whether the impeding partner was there. Calahan reported the man’s
vehicle was at the offices, and Witte instructed him to stay there until sheriff’s officers
arrived to execute the arrest warrant. Calahan instead left to attend to another duty
nearby, and when he returned the man’s car was gone.
Calahan also telephoned a captain of the Keene, Texas, police department who
on other occasions had assisted Calahan, to ask if he would be available to accompany
the bank personnel as they retrieved the construction equipment. In his deposition
testimony, Calahan told how he described the repossession plans to the captain during
their conversation. The captain told Calahan he would not have an officer available to
accompany the bank personnel to the building, which was outside the department’s
jurisdiction. Too, Calahan recalled that the captain told him the department would not
assist with the repossession because “it could be considered trespassing.” Elaborating
on their conversation, Calahan further testified the captain said the building owner had
no right to enter the building, and that because the company president would not be
present when they entered the building, despite her consent to the entry and provision
of a key, entry “would be considered trespassing.”
Calahan reported his conversation to Witte and other bank officers, one of whom,
Ronny Korb, tried to reassure Calahan the bank was within its rights to enter the
premises and repossess its collateral, and would not put its employees in any danger.
Based on his conversation with the captain, however, Calahan determined not to
participate in the repossession, and told Witte he would not do so.
3 The equipment repossession was accomplished Friday afternoon without
incident. As it happened, a Tarrant County constable and two Tarrant County sheriff’s
deputies were present, along with the building owner.
On the following Monday, Calahan’s employment was terminated. The written
notice of termination cited both Calahan’s failure to follow Witte’s instructions to await
sheriff’s officers on Friday morning, and his failure to participate in the repossession in
the afternoon. The record also shows the bank previously had issued Calahan written
warnings on two occasions.
A few weeks later, Calahan filed suit against the bank for wrongful termination.
After discovery, the bank filed a no-evidence and traditional motion for summary
judgment, which the court granted. This appeal followed.
Analysis
Summary Judgment
When a party moves for summary judgment under both Rules of Civil Procedure
166a(c) and 166a(i), we first review the trial court=s judgment under the standards of
rule 166a(i). If the nonmovant failed to meet its burden by producing more than a
scintilla of evidence, there is no need to analyze whether the movant=s summary
judgment proof satisfied the rule 166a(c) burden. East Hill Marine, Inc. v. Rinker Boat
Co., Inc., 229 S.W.3d 813, 816 (Tex.App.--Fort Worth 2007, pet. denied), citing Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
4 If, as here, a trial court grants summary judgment without specifying the ground
on which it relied, the reviewing court must affirm if any of the summary judgment
grounds advanced by the movant is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569
(Tex. 1989); Sunshine Mining & Refining Co. v. Ernst & Young, L.L.P., 114 S.W.3d 48,
51-52 (Tex.App.BEastland 2003, no pet.).
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). In so doing, we examine the entire summary judgment
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Yancy v. United Surgical
Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007); City of Keller v. Wilson, 168
S.W.3d 802, 824-25 (Tex. 2005).
When a movant files a no-evidence motion in proper form under rule 166a(i), the
burden shifts to the nonmovant to defeat the motion by presenting evidence that raises
an issue of material fact regarding the elements challenged by the motion. Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Weaver v. Highlands Ins. Co.,
4 S.W.3d 826, 829 (Tex.App.--Houston [1st Dist.] 1999, no pet.). In other words, the
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NO. 07-10-00149-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 12, 2012
JOSHUA L. CALAHAN, APPELLANT
v.
FIRST STATE BANK TEXAS, APPELLEE
FROM THE 413TH DISTRICT COURT OF JOHNSON COUNTY;
NO. C-2008-0197; HONORABLE WILLIAM C. BOSWORTH JR., JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
This appeal involves a claim brought under Sabine Pilot Service, Inc. v. Hauck.1
Appellant Joshua L. Calahan sued his former employer, appellee First State Bank
Texas, after his employment was terminated. Through one issue, he appeals the trial
court’s final judgment rendering summary judgment in favor of the bank. We affirm.
1 687 S.W.2d 733 (Tex. 1985). Background
At the time of his termination, Calahan was a collections manager. His
responsibilities included those related to repossession of collateral. It is undisputed that
he was an “at will” employee.
For several months before his termination, Calahan had worked to repossess
collateral securing a defaulted loan to a construction company, which was organized as
a limited partnership. The bank’s repossession efforts had been impeded by the actions
of one of the owners of the business.
Officers of the bank, including a vice president, Amber Witte, also were working
on the account. A further effort to repossess equipment stored in a leased building was
scheduled for a Friday in February 2008. Three days before, Calahan informed Witte
that a warrant for the arrest of the impeding owner had been issued, on a charge of
hindering a secured creditor. On Wednesday of that week, Witte and another bank
officer met with the construction company’s president, who was cooperating with the
repossession, to inventory and photograph the equipment. On Friday, the company
president gave the bank a key to the building.
The company president did not plan to be present for the repossession of the
equipment because she was concerned that her partner in the business might show up
and cause trouble. However, in addition to a key to the building, the bank had the
cooperation of the building’s owner, who gave Witte a combination to unlock a padlock
on the gate into the facility. The building owner had initiated eviction proceedings
against the construction company but the proceedings were not yet concluded.
2 On Friday morning, Witte asked Calahan to drive to the construction company’s
offices to report whether the impeding partner was there. Calahan reported the man’s
vehicle was at the offices, and Witte instructed him to stay there until sheriff’s officers
arrived to execute the arrest warrant. Calahan instead left to attend to another duty
nearby, and when he returned the man’s car was gone.
Calahan also telephoned a captain of the Keene, Texas, police department who
on other occasions had assisted Calahan, to ask if he would be available to accompany
the bank personnel as they retrieved the construction equipment. In his deposition
testimony, Calahan told how he described the repossession plans to the captain during
their conversation. The captain told Calahan he would not have an officer available to
accompany the bank personnel to the building, which was outside the department’s
jurisdiction. Too, Calahan recalled that the captain told him the department would not
assist with the repossession because “it could be considered trespassing.” Elaborating
on their conversation, Calahan further testified the captain said the building owner had
no right to enter the building, and that because the company president would not be
present when they entered the building, despite her consent to the entry and provision
of a key, entry “would be considered trespassing.”
Calahan reported his conversation to Witte and other bank officers, one of whom,
Ronny Korb, tried to reassure Calahan the bank was within its rights to enter the
premises and repossess its collateral, and would not put its employees in any danger.
Based on his conversation with the captain, however, Calahan determined not to
participate in the repossession, and told Witte he would not do so.
3 The equipment repossession was accomplished Friday afternoon without
incident. As it happened, a Tarrant County constable and two Tarrant County sheriff’s
deputies were present, along with the building owner.
On the following Monday, Calahan’s employment was terminated. The written
notice of termination cited both Calahan’s failure to follow Witte’s instructions to await
sheriff’s officers on Friday morning, and his failure to participate in the repossession in
the afternoon. The record also shows the bank previously had issued Calahan written
warnings on two occasions.
A few weeks later, Calahan filed suit against the bank for wrongful termination.
After discovery, the bank filed a no-evidence and traditional motion for summary
judgment, which the court granted. This appeal followed.
Analysis
Summary Judgment
When a party moves for summary judgment under both Rules of Civil Procedure
166a(c) and 166a(i), we first review the trial court=s judgment under the standards of
rule 166a(i). If the nonmovant failed to meet its burden by producing more than a
scintilla of evidence, there is no need to analyze whether the movant=s summary
judgment proof satisfied the rule 166a(c) burden. East Hill Marine, Inc. v. Rinker Boat
Co., Inc., 229 S.W.3d 813, 816 (Tex.App.--Fort Worth 2007, pet. denied), citing Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
4 If, as here, a trial court grants summary judgment without specifying the ground
on which it relied, the reviewing court must affirm if any of the summary judgment
grounds advanced by the movant is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569
(Tex. 1989); Sunshine Mining & Refining Co. v. Ernst & Young, L.L.P., 114 S.W.3d 48,
51-52 (Tex.App.BEastland 2003, no pet.).
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). In so doing, we examine the entire summary judgment
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Yancy v. United Surgical
Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007); City of Keller v. Wilson, 168
S.W.3d 802, 824-25 (Tex. 2005).
When a movant files a no-evidence motion in proper form under rule 166a(i), the
burden shifts to the nonmovant to defeat the motion by presenting evidence that raises
an issue of material fact regarding the elements challenged by the motion. Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Weaver v. Highlands Ins. Co.,
4 S.W.3d 826, 829 (Tex.App.--Houston [1st Dist.] 1999, no pet.). In other words, the
nonmovant must respond to a no-evidence motion by presenting more than a scintilla of
probative evidence on each challenged element. King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 751 (Tex. 2003); DR Partners v. Floyd, 228 S.W.3d 493, 497 (Tex.App.--
Texarkana 2007, pet. denied). More than a scintilla of evidence exists when the
evidence “rises to a level that would enable reasonable and fair-minded people to differ
5 in their conclusions.” Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997).
Wrongful Termination Claim
In Sabine Pilot, 687 S.W.2d at 735, the Texas Supreme Court recognized a
narrow exception to the employment-at-will doctrine for an employee discharged Afor the
sole reason that the employee refused to perform an illegal act.@ See Ed Rachal Found.
v. D’Unger, 207 S.W.3d 330 (Tex. 2006) (per curiam); Winters v. Houston Chronicle
Publ=g Co., 795 S.W.2d 723, 724 (Tex. 1999) (both describing exception). A plaintiff
has the burden to prove by a preponderance of the evidence that his discharge was for
the sole reason that he refused to perform an illegal act that would subject him to
criminal penalties. Sabine Pilot, 687 S.W.2d at 735; City of Midland v. O=Bryant, 18
S.W.3d 209, 215 (Tex. 2000); Winters, 795 S.W.2d at 724.
The Sabine Pilot exception applies when an employee has been unacceptably
forced to choose between risking criminal liability or being discharged from his
livelihood. Winters, 795 S.W.2d at 724. An employer who discharges an employee
both for refusing to perform an illegal act and for a legitimate reason cannot be liable for
wrongful discharge under Sabine Pilot; the refusal must be the sole cause for the
employee=s termination. Tex. Dep=t of Human Servs. v. Hinds, 904 S.W.2d 629, 633
(Tex. 1995); McClellan v. Ritz-Carlton Hotel Co., 961 S.W.2d 463, 464
(Tex.App.BHouston [1st Dist.] 1997, no pet.).
6 Calahan contends the sole reason for his discharge was his refusal to engage in
conduct that amounted to a crime, criminal trespass. The bank asserted several
grounds supporting summary judgment in its favor. We will address one of the grounds
and express no opinion on the others. The bank argues summary judgment should be
affirmed because it asserted a meritorious no-evidence ground challenging Calahan’s
evidence that the repossession involved a criminal trespass. We agree.
At the time of these events,2 Section 30.05 of the Penal Code, defining criminal
trespass, provided:
(a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:
(1) had notice that the entry was forbidden; or
(2) received notice to depart but failed to do so[.]
Tex. Penal Code Ann. § 30.05 (West 2008). Under the circumstances described
in the record, if criminal, the offense would have been a Class B misdemeanor. Tex.
Penal Code Ann. § 30.05(d) (West 2008).
Important to the resolution of this appeal, the terms “effective consent” and
“owner” are defined by the Penal Code. Effective consent includes “consent by a
person legally authorized to act for the owner. Consent is not effective if: (A) induced
by force, threat, or fraud; (B) given by a person the actor knows is not legally authorized
to act for the owner; (C) given by a person who by reason of youth, mental disease or 2 The Penal Code description of criminal trespass was later amended. Acts 2009, 81st Leg., ch. 1138 (H.B. 2609), §§ 1-4, effective September 1, 2009; Acts 2011, 82nd Leg., ch. 91 (S.B. 1303), § 20.001, effective September 1, 2011.
7 defect, or intoxication is known by the actor to be unable to make reasonable decisions;
or (D) given solely to detect the commission of an offense.” Tex. Penal Code Ann. §
1.07(19) (West 2011). Under the Penal Code’s definition, an “owner” includes a person
who has title to the property, possession of the property, whether lawful or not, or a
greater right to possession of the property than the actor. Tex. Penal Code Ann. §
1.07(35) (West 2011). The term “possession” also is defined, as “actual care, custody,
control or management.” Tex. Penal Code Ann. § 1.07(39) (West 2011)
As evidence the building owner lacked authority to consent to the bank’s entry
onto the premises, Calahan points out the owner’s eviction proceeding was not
completed. But under the Penal Code’s definitions, he was nonetheless an owner
because he held title to the property, and because he had a greater right to its
possession than “the actor,” who under these facts would be Calahan.3 See Mackay v.
State, No. 01-06-01051-CR, 2008 Tex.App. LEXIS 1078, at *6-7 (Tex.App.—Houston
[1st Dist.] Feb. 14, 2008, pet. ref’d) (mem. op., not designated for publication); Kizzy v.
State, No. 14-07-00252-CR, 2009 Tex.App. LEXIS 4766, at *8-9 (Tex.App.—Houston
[14th Dist.] June 25, 2009, pet. ref’d) (mem. op., not designated for publication) (both
addressing penal code definition of “owner”). Under the undisputed facts, the building
owner’s consent to the bank’s entry was effective. Calahan was not asked to commit a
criminal trespass.
3 The Penal Code defines “actor” to mean “a person whose criminal responsibility is in issue in a criminal action.” Tex. Penal Code Ann. § 1.07(2) (West 2011).
8 In response to the bank’s no-evidence motion, Calahan produced documents
showing that the management company owned by the construction company’s
president was no longer the general partner of the company at the time of the
repossession and the president was instead a limited partner with an interest of 29%.
Calahan argues this evidence tends to show she could not have given effective consent
to enter the premises at that time.
But, like that of the building owner, under the Penal Code definitions, the consent
given by the company president was effective to authorize the bank’s entry of the
building. Whatever the limits on her authority as a limited partner under the limited
partnership agreement, she had possession of the premises through her possession of
the key, and she had a greater right to its possession than “the actor,” who, again,
under the hypothetical criminal prosecution, would be Calahan. See Mackay, 2008
Tex.App. LEXIS 1078, at *6-7; Kizzy, 2009 Tex.App. LEXIS 4766, at *8-9. Under these
undisputed facts as well, her consent was effective, relieving Calahan of any risk of guilt
of criminal trespass. See Ed Rachal Found., 207 S.W.3d at 332-33; Ritz-Carlton Hotel
Co., 961 S.W.2d at 465 (both applying similar analysis to Sabine Pilot claims).
Because the summary judgment record contains no evidence that Calahan was
forced to choose between risking criminal liability or being discharged, the trial court did
not err by granting summary judgment. We overrule Calahan’s contention and affirm
the trial court’s judgment in favor of the bank.
James T. Campbell Justice