Duke v. San Jacinto River Authority
| Decision Date | 31 August 1989 |
| Docket Number | No. 09-88-247-CV,09-88-247-CV |
| Parties | John Thomas DUKE, Appellant, v. SAN JACINTO RIVER AUTHORITY, et al., Appellees. |
| Court | Texas Court of Appeals |
This is a summary judgment appeal involving an alleged wrongful job termination. John Thomas Duke filed suit against the San Jacinto River Authority, Courtney W. Curry and Ernest A. Crawford. Duke's first amended petition alleges the San Jacinto River Authority wrongfully terminated his employment, and Curry and Crawford, through threats and intimidation, effectuated that termination. This petition asked specifically for back pay as damages, along with reinstatement. Three days before the hearing on the motion for summary judgment, Duke filed a second amended petition. There is nothing in the record to indicate leave was granted for this untimely filing. This second amended petition differs from the first in that it makes allegations that Curry and Crawford "made or caused or be make [sic] many other various and sundry threats and actions against Plaintiff." The petition concluded: "That because of Defendants' unlawful conduct towards Plaintiff and their unlawful termination of Plaintiff's employment...." Clearly the second amended petition was seeking damages other than for the alleged wrongful termination.
The motion for summary judgment was based on Duke's pleading failing to state a cause of action because he did not plead nor was there any proof of the only exception to the Texas employment-at-will doctrine established by Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). This case, once again, points out the wisdom of the rule in Massey v. Armco Steel Co., 652 S.W.2d 932 (Tex.1983), and Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974), that is, the proper method of attacking the sufficiency of pleadings is by special exception. The protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where a plaintiff's pleadings fail to state a cause of action. If the trial court granted leave to file the second amended petition, the summary judgment must be reversed because it did not dispose of all the causes of action. Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563 (Tex.1983). If the trial court did not grant leave, then the summary judgment must be reversed since Duke was deprived of the opportunity to amend his pleadings to state a cause of action. In any event, the result is the same. The summary judgment is reversed.
REVERSED.
This dissent is respectfully filed. This appeal before us involved directly the sole common-law exception to the employment-at-will doctrine in Texas law. Appellant, Duke, necessarily had to demonstrate three vital elements of his claim to remain in court. The three are: (1) a discharge or firing (2) for the sole reason (3) that he refused to perform an illegal or unlawful act. Hence, the absence of a material issue of fact as to any one of the three essential prongs of the plaintiff's case would totally justify the granting of a summary judgment.
The River Authority takes the position that, as a matter of law, there exists no genuine issue of a material fact as to each and every element. The River Authority says that there was no discharge and that there was no sole reason and that there was no refusal on his part to perform an illegal or unlawful act; nor was Duke requested to perform any such act. Duke began his work for the River Authority in about 1955. He was employed under an oral understanding with the Appellee, Crawford. Mr. Duke was to work and be paid on a monthly basis.
No understanding or agreement existed as to the length of time Mr. Duke was to remain employed with the Authority. Unquestionably, Duke could leave his employment at any time he so wished. Likewise, his work could be terminated by the Authority when it became dissatisfied with his work record. At one point, for a brief period in 1967, the Appellant was fired for some prevarications concerning damages done to a bulldozer owned by the River Authority.
The withdrawal of the Appellant from his employment culminated a number of years after he appeared before a grand jury. His grand jury appearance was the genesis of this dispute. The Appellees, Crawford and Curry, along with other personnel, were subpoenaed to testify before the Montgomery County Grand Jury. Mr. Duke did not discuss or converse about his testimony with the other parties to this appeal before or after his attendance and testimony before the grand jury. Mr. Duke's grand jury appearance was in 1971. Duke admitted that neither Mr. Crawford nor Mr. Curry had heard from him anything about what he had said to the grand jury. The record of the grand jury proceedings, of course, is not before us. The results were that the grand jury found no evidence to justify indictments.
Some five years later, in 1976, Duke was being paid on a monthly salary basis. He missed quite a bit of work. He testified that he frequently took his father to a physician. Duke had missed work a number of days. The River Authority, feeling that it was unfair to pay Duke the same salary as employees who were working full time, caused Mr. Duke to be taken off the monthly, fixed, salary roll and put on an hourly wage basis. Curry explained this situation to Duke. Duke stated that Curry had told him, substantially, that if you (Duke) work you will get paid and if you do not work you will not be paid.
Apparently, Duke wanted some time to consider the matter and was given two weeks to decide about the new arrangement governing his compensation. In his deposition, Duke conceded that Curry did not fire him. The two week period transpired. Duke obtained his paycheck. Then he did not return to work. However, Duke did not advise the River Authority that he was not going to return to work. In fact, the authority personnel had no basis to believe that Duke would not be coming back to work. For a second time, Duke testified that he was not actually fired.
Duke did not call the River Authority or any person in charge of the appropriate department to tell the River Authority that he was not coming back to work. A very short time afterwards, Duke took a similar job for another company. The income tax returns indicate clearly that he earned considerably more income after his unannounced leaving of his job at the River Authority.
About two years later, Duke brought this present lawsuit averring that he had been fired by the River Authority in 1976. His firing was alleged to have been the result of his subpoenaed testimony given to the grand jury in 1971. Nevertheless, between 1971 and 1976, he had been continuously employed by the River Authority. Hornbook law, for nearly a century--though trite and hackneyed--established the rule that Texas courts have uniformly upheld the rights of the employer to terminate an employee for any reason. Of course, if there was a specific employment contract to the contrary, or a collective bargaining agreement to the contrary, then the employment-at-will doctrine would not prevail. The authorities agree that the employment-at-will doctrine was firmly established in East Line and R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99 (1888). Id. 10 S.W. at 102. See and compare Maus v. National Living Centers, Inc., 633 S.W.2d 674 (Tex.App.--Austin 1982, writ ref'd n.r.e.); Reynolds Manufacturing Co. v. Mendoza, 644 S.W.2d 536 (Tex.App.--Corpus Christi 1982, no writ).
Our own Ninth Court decided Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403 (Tex.App.--Beaumont 1987, writ ref. n.r.e.). In Benoit, supra, we wrote, at page 406:
"At the threshold, we are met with the consistent and voluminous body of Texas law concerning wrongful discharges...."
However, we first considered the case of Hauck v. Sabine Pilots, Inc., 672 S.W.2d 322 (Tex.App.--Beaumont 1984, writ granted). Our opinion was reviewed by the Supreme Court in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). There, the Supreme Court approved of a limited and narrow exception to the employment-at-will doctrine. The high court wrote:
"... That narrow exception covers only the discharge of an employee for the sole reason that the employee refused to perform an illegal act...." Id at page 735.
We are not aware of any appellate court extending the Sabine Pilot Service's exception beyond its own limited, restricted fact situation.
The facts of Sabine Pilot Service, Inc., are of paramount importance. Mr. Hauck was employed as a deckhand. His sworn...
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