Miller v. Raytheon Aircraft Co., 01-05-00787-CV.

CourtCourt of Appeals of Texas
Citation229 S.W.3d 358
Docket NumberNo. 01-05-00787-CV.,01-05-00787-CV.
PartiesEric L. MILLER, Appellant, v. RAYTHEON AIRCRAFT COMPANY, Raytheon Travel Air, and Flight Options, L.L.C., Appellees.
Decision Date19 April 2007
229 S.W.3d 358
Eric L. MILLER, Appellant,
v.
RAYTHEON AIRCRAFT COMPANY, Raytheon Travel Air, and Flight Options, L.L.C., Appellees.
No. 01-05-00787-CV.
Court of Appeals of Texas, Houston (1st Dist.).
April 19, 2007.

[229 S.W.3d 363]

John Albert Sullivan III and Robert J. Filteau, Filteau & Sullivan, P.C., Houston, TX, for Appellant.

Charles B. Hampton and Timothy Scott McConn, Andrews & Kurth, L.L.P., Houston, TX, for Appellees.

Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.

OPINION

JANE BLAND, Justice.


In this wrongful discharge case, Eric Miller, an airplane pilot, appeals summary judgments entered in favor of appellees Raytheon Aircraft Company (RAC), Raytheon Travel Air (RTA), and Flight Options, L.L.C. (FOC). Miller contends (1) summary judgment was improper on his

229 S.W.3d 364

wrongful discharge claims under the Sabine Pilot1 exception to the employment-at-will doctrine, and the trial court erred in considering hearsay in a summary judgment affidavit, (2) his wrongful discharge claims are not preempted by the Airline Deregulation Act of 1978,2 (3) summary judgment on his breach of contract claims was improper because he was not an at-will employee, and (4) summary judgment was improper on his common law tort, conspiracy, and unpaid wages claims. We conclude that RAC and RTA established that they terminated Miller's employment for a reason other than his refusal to perform illegal acts, negating the causation required for a Sabine Pilot claim as a matter of law. We further conclude that the Airline Deregulation Act of 1978 preempts Miller's Sabine Pilot wrongful discharge claim against FOC. Finally, the trial court properly granted summary judgment on Miller's breach of contract and common law claims. We therefore affirm the trial court's orders granting summary judgment.

Facts and Procedural History

RAC hired Miller in December 1997 and assigned him to work for RTA as a pilot. RTA was a fractional aircraft ownership business in which customers would buy a share of an aircraft and pay a monthly management fee. Buying a share of an aircraft entitled the customer to a certain number of flight hours per year. RTA managed the aircraft, which included providing pilots, crew, maintenance, fuel, catering, and scheduling services.

In December 2001, RTA formed a joint venture with Flight Options, Inc. (FOI), an RTA competitor. The venture established a new company called Flight Options, L.L.C. (FOC). FOC also engages in a fractional aircraft ownership business and operates RTA's former fleet of aircraft. RTA initially owned a forty-nine percent interest in FOC, but currently owns a greater than fifty percent interest. As part of the transaction, RTA ceased flight operations upon the effective date of the agreement.

Miller worked for RAC and RTA until the FOC joint venture commenced on April 1, 2002, whereupon Miller began working for FOC. On April 4, just four days after Miller began work, FOC fired Miller, providing as a basis for its decision that it had received complaints that he had been abusive to a female flight attendant, and that he had unnecessarily slowed down an equipment upgrade.

In this lawsuit, Miller alleges that he was fired for a different reason. According to Miller's affidavit, as a pilot, he was responsible for ensuring that any aircraft he was assigned to fly was fit for service in accordance with the RTA Flight Operations Manual and Federal Aviation Administration (FAA) regulations. Generally, FAA regulations require that all systems and components on an aircraft be operative. An aircraft, however, may nonetheless be dispatched for a flight, or may continue a flight, with certain systems and components inoperative, provided the aircraft has an approved Minimum Equipment List (MEL), and is operated in accordance with the procedures and limitations prescribed by the MEL. Miller alleges that throughout his employment at RAC and RTA, his superiors requested and pressured him to continue flight operations with aircraft that had maintenance problems that required their grounding in accordance

229 S.W.3d 365

with their published MELs. Miller further alleges that he was fired because he refused to fly these aircraft, citing five occasions when he grounded aircraft that did not meet MEL standards.

In addition to a Sabine Pilot wrongful discharge claim, Miller seeks recovery for breach of employment contract, promissory estoppel, fraud, negligent misrepresentation, civil conspiracy, intentional infliction of emotional distress, negligence, and wage and hour violations.

Wrongful Discharge—RAC and RTA

A. Affidavit of William Wallisch

At the outset, Miller contends the trial court abused its discretion in denying his motion to strike the affidavit of William Wallisch, an RTA Vice President, in its entirety. The trial court struck the portion of Wallisch's affidavit that stated that Miller's employment with RTA was "at-will," but refused to strike the remainder of the affidavit. Miller contends that the affidavit fails to demonstrate that Wallisch is competent to offer testimony concerning Miller's employment status. Miller also contends that Wallisch's statement in the affidavit referencing an un-appended combination agreement constitutes hearsay. Miller directs us to Texas Rule of Civil Procedure 166a(f), which provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." TEX.R. CIV. P. 166a(f).

We review a trial court's decision to admit or exclude summary judgment evidence for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998); United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). The standards for the admissibility of evidence in a summary judgment proceeding are the same as those applicable to a regular trial. Longoria, 938 S.W.2d at 30. In an abuse of discretion review, we consider whether the trial court acted arbitrarily or unreasonably, or without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). To warrant a reversal, the trial court's error must have probably caused rendition of an improper judgment. TEX.R.APP. P. 44.1(a)(1).

1. Competence

Miller contends Wallisch's affidavit failed to demonstrate that he was competent to offer testimony concerning Miller's employment status. Wallisch's affidavit states:

1. My name is William Wallisch. I am over twenty-one years of age, and I am competent to make this Affidavit. All matters stated herein are true and correct and within my personal knowledge.

2. I am currently the Vice President and Controller for Raytheon Aircraft Parts & Inventory Distribution. From April 1997 through August 2002, I served as the Vice President, Finance of Raytheon Travel Air Company.

Rule 166a(f) requires an affiant to affirmatively show that he is competent to testify to the matters stated in an affidavit. TEX.R. CIV. P. 166a(f). The affidavit must affirmatively demonstrate how the affiant is competent to testify. Jackson T. Fulgham Co. v. Stewart Title Guar. Co., 649 S.W.2d 128, 130 (Tex.App.-Dallas 1983, writ ref'd n.r.e.). "The personal knowledge requirement is satisfied if the affidavit sufficiently describes the relationship between the affiant and the case so that it may be reasonably assumed that the affiant has personal knowledge of the facts

229 S.W.3d 366

stated in the affidavit." Stucki v. Noble, 963 S.W.2d 776, 780 (Tex.App.-San Antonio 1998, pet. denied).

Here, the assertion in Wallisch's affidavit that he was Vice President of Finance at RTA from 1997 until 2002 demonstrates a basis for personal knowledge concerning Miller's employment status. We have held that such an assertion is sufficient to demonstrate personal knowledge and competence to testify. See Waite v. BancTexas-Houston, N.A., 792 S.W.2d 538, 540-41 (Tex.App.-Houston [1st Dist.] 1990, no writ); see also Equisource Realty Corp. v. Crown Life Ins. Co., 854 S.W.2d 691, 695 (Tex.App.-Dallas 1993, no writ); Jackson T. Fulgham Co., 649 S.W.2d at 130. Accordingly, we hold that the factual assertions in Wallisch's affidavit demonstrate his competence to testify about Miller's employment status at RTA.

2. Hearsay

Miller also contends that Wallisch's statement in the affidavit referring to the combination agreement creating FOC constitutes hearsay. Specifically, Miller objects to the portion of Wallisch's affidavit that states, "although, pursuant to the parties' agreements, the pilots would be under the operational control of Flight Options, L.L.C. between March 20, 2002 and April 1, 2002." RAC and RTA respond that the statement regarding the terms of the agreement constitutes a statement of operative facts, and is therefore not hearsay.

To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was erroneous and that the error was calculated to cause, and probably did cause, "rendition of an improper judgment." TEX.R.APP. P. 44.1(a)(1); Malone, 972 S.W.2d at 43; Benavides v. Cushman, Inc., 189 S.W.3d 875, 879 (Tex. App.-Houston [1st Dist.] 2006, no pet.). In making this determination, we review the entire record. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995). Reversible error does not usually occur in connection with evidentiary rulings unless the appellant can demonstrate that the whole case turns on the particular evidence admitted or excluded. Id. at 753-54; Benavides, 189 S.W.3d at 879; GT & MC, Inc. v. Tex. City Ref., Inc., 822 S.W.2d 252, 257 (Tex.App.-Houston [1st Dist.] 1991, writ denied).

Here, Miller included a copy of the combination agreement in his summary judgment evidence. Given that the agreement was present in the record,...

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