Johnston v. Del Mar Distributing Co., Inc.

• Decision Date: 31 August 1989
• Docket Number: No. 13-88-516-CV,13-88-516-CV
• Citation: 776 S.W.2d 768
• Parties: 115 Lab.Cas. P 56,265 Nancy JOHNSTON, Appellant, v. DEL MAR DISTRIBUTING COMPANY, INC., Appellee.
• Court: Texas Court of Appeals

Page 768

776 S.W.2d 768

115 Lab.Cas. P 56,265

Nancy JOHNSTON, Appellant, v. DEL MAR DISTRIBUTING COMPANY, INC., Appellee.

No. 13-88-516-CV.

Court of Appeals of Texas Corpus Christi.

Aug. 31, 1989.

Rehearing Denied Oct. 5, 1989.

Ryan E. Stevens, Corpus Christi, for appellant.

C.L. Wright, III, Wood & Burney, Corpus Christi, for appellee.

Before NYE, C.J., and BENAVIDES and KENNEDY, JJ.

OPINION

BENAVIDES, Justice.

Nancy Johnston, appellant, brought suit against her employer, Del Mar Distributing Co., Inc., alleging that her employment had been wrongfully terminated. ¹ Del Mar filed a motion for summary judgment in the trial court alleging that appellant's pleadings failed to state a cause of action. After a hearing on the motion, the trial court agreed with Del Mar and granted its motion for summary judgment.

On appeal, appellant asserts by four points of error that the trial court committed reversible error in granting Del Mar's motion for summary judgment. Appellant, by her third and fourth points of error, contends that her pleadings did in fact state a cause of action. We agree. Accordingly, we reverse and remand. ²

In reviewing a summary judgment, we follow the well-established rules set out in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Major Investments Inc. v. De Castillo, 673 S.W.2d 276, 279 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.). The movant's burden is to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. The reviewing court, in determining whether a fact issue exists, must take all evidence favorable to the non-movant as true. Every reasonable inference must be indulged, and every doubt resolved, in favor of the non-movant. Nixon, 690 S.W.2d at 548-59. A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, plaintiff could not succeed upon any theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983).

The record reveals that the only documents before the trial court in the instant case were the pleadings of the parties, Del Mar's motion for summary judgment, and appellant's response to the motion. As a general rule, pleadings, even if verified, do not constitute summary judgment evidence. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). In the instant case, however, Del Mar's summary judgment was based solely on the ground that appellant's petition failed to state a cause of action; therefore, it is proper to consider the pleadings in our review of the summary judgment. Perser v. City of Arlington, 738 S.W.2d 783, 784 (Tex.App.--Fort Worth 1987, writ denied); Abbott v. City of Kaufman, 717 S.W.2d 927, 929 (Tex.App.--Tyler 1986, writ dism'd w.o.j.)

In her petition, appellant alleged that she was employed by Del Mar during the summer of 1987. As a part of her duties, she was required to prepare shipping documents for goods being sent from Del Mar's warehouse located in Corpus Christi, Texas to other cities in Texas. One day, Del Mar instructed appellant to package a semi-automatic weapon (for delivery to a grocery store in Brownsville, Texas) and to label the contents of the package as "fishing gear." Ultimately, the package was to be given to United Parcel Service for shipping. Appellant was required to sign her name to the shipping documents; therefore, she was concerned that her actions might be in violation of some firearm regulation or a regulation of the United Postal Service. Accordingly, she sought the advice of the United States Treasury Department Bureau of Alcohol, Tobacco & Firearms (hereinafter referred to as "the Bureau"). A few days after she contacted the Bureau, appellant was fired. Appellant brought suit for wrongful termination alleging that her employment was terminated solely in retaliation for contacting the Bureau. ³

In its motion for summary judgment, Del Mar stated that the facts alleged in appellant's petition would be taken as true. Specifically, it acknowledged that it required appellant to package and ship firearms with labels that did not reflect the package's true contents. It further acknowledged that appellant's employment was terminated when she became concerned about such practices and sought the "advice" of personnel employed by the Bureau.

Del Mar asserted in its motion that, notwithstanding the above described facts, appellant's cause of action was barred by the employment-at-will doctrine. Specifically, Del Mar asserted that since appellant's employment was for an indefinite amount of time, she was an employee-at-will and it had the absolute right to terminate her employment for any reason or no reason at all.

It is well-settled that Texas adheres to the traditional employment-at-will doctrine. Eastline & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888); Town of South Padre Island v. Jacobs, 736 S.W.2d 134, 137-38 (Tex.App.--Corpus Christi 1986, writ denied); Noe v. Lopez, 721 S.W.2d 459, 461 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.); Reynolds Manufacturing Company v. Mendoza, 644 S.W.2d 536, 538 (Tex.App.--Corpus Christi 1982, no writ). In 1888, the Texas Supreme Court first enunciated the employment-at-will doctrine in the case of Eastline & R.R.R. Co. v. Scott. The Texas Supreme Court held that absent a specific contractual provision to the contrary, either the employer or the employee may terminate their relationship at any time, for any reason. Eastline & R.R.R. Co., 10 S.W. at 102.

Today, the absolute employment-at-will doctrine is increasingly seen as a "relic of early industrial times" and a "harsh anachronism." Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985) (Kilgarlin, J., concurring); Little v. Bryce, 733 S.W.2d 937, 940 (Tex.App.--Houston [1st Dist.] 1987, no writ) (Levy, J., concurring). Accordingly, our Legislature has enacted some exceptions to this doctrine, i.e., an employer may not fire an employee for (1) membership or non-membership in a labor union, (2) serving on a jury, (3) filing a workmen's compensation claim, (4) being on active military duty, (5) being of a particular race, color, handicap, religion, national origin, age, or sex. Sabine Pilot, 687 S.W.2d at 735; Little, 733 S.W.2d at 940. See also Tex.Rev.Civ.Stat.Ann. art. 6252-16a, § 2 (Vernon Supp.1989) (a governmental body may not suspend or terminate the employment of a public employee who reports a violation of law to an appropriate law enforcement authority).

Recently, the Texas Supreme Court, recognizing the need to amend the employment-at-will doctrine, invoked its judicial authority to create a very narrow common law exception to the doctrine. Sabine Pilot, 687 S.W.2d at 735. In Sabine Pilot, the Texas Supreme Court was faced with a narrow issue for consideration, i.e., whether an allegation by an employee that he or she was discharged for refusing to perform an illegal act stated a cause of action. Id. The Court held that

public policy, as expressed in the laws of this state and the United States which carry criminal penalties, requires a very narrow exception to the employment-at-will doctrine ... [t]hat narrow exception covers only the discharge of an employee for the sole reason that the employee refused to perform an illegal act. Id. (emphasis ours).

Justice Kilgarlin noted in his concurring opinion to Sabine Pilot that it is against public policy to allow an employer "to require an employee to break a law or face termination...." Id. He elaborated that to hold otherwise "would promote a thorough disrespect for the laws and legal institutions of our society." Id.

Since the Court was faced only with this narrow issue, it did not carve out any other "public policy" exceptions to the doctrine. However, as Justice Kilgarlin noted in his concurring opinion, the decision does not preclude the Court from expanding the exception when warranted in a proper case. Id.

Del Mar, in its motion for summary judgment, argued that the narrow exception created in Sabine Pilot did not apply to the instant case because mislabeling the contents of a package is not a criminal offense under state or federal laws. Del Mar asserted that Maus v. Living Centers, Inc., 633 S.W.2d 674 (Tex.App.--Austin 1982, writ ref'd n.r.e.) should control the disposition of this case because neither the Legislature nor the Supreme Court had created a public policy exception which protects an employee who makes inquiries into the legality or illegality of an act. Del Mar advances essentially the same arguments to support its judgment on appeal.

After careful consideration, we reject Del Mar's assertions that the Sabine Pilot exception is inapplicable to the case at bar and that Maus v. Living Centers, Inc. controls the disposition of the case before us.

In Maus, the Austin Court of Appeals held that an employee who was discharged in retaliation for reporting to her superiors that patients were receiving poor care, did not have a cause of action against her employer, even though failure to report such cases of abuse or neglect was a criminal offense. Id. at 675. The Austin court held that since neither the Texas Legislature nor the Texas Supreme Court had established such an exception to the employment-at-will doctrine, it had to exercise judicial restraint and refrain from creating a new right of recovery. Id. at 676. It is important to note that Maus was decided three years prior to the Supreme Court's decision in Sabine Pilot. Even though Maus has not been...