Young v. Nortex Found. Designs, Inc., 02-11-00470-CV

• Decision Date: 07 February 2013
• Docket Number: NO. 02-11-00470-CV,02-11-00470-CV
• Parties: Adam Young v. Nortex Foundation Designs, Inc.
• Court: Texas Court of Appeals

Adam Young
v.
Nortex Foundation Designs, Inc.

NO. 02-11-00470-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: February 7, 2013

From the 17th District Court
of Tarrant County (17-247195-10)
Opinion by Justice Gabriel
Dissent by Justice McCoy
JUDGMENT

This court has considered the record on appeal in this case and holds that there was error in the trial court's judgment. It is ordered that the judgment of the trial court is reversed and we render judgment for Appellant Adam Young in accordance with the jury's verdict.

It is further ordered that appellee Nortex Foundation Designs, Inc. shall pay all costs of this appeal, for which let execution issue.

SECOND DISTRICT COURT OF APPEALS

By ____________________________
Justice Lee Gabriel

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NO. 02-11-00470-CV

ADAM YOUNG APPELLANT

V.

NORTEX FOUNDATION DESIGNS,
INC. APPELLEE

FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION ¹
I. Introduction

In three issues, Appellant Adam Young appeals the trial court's granting of Appellee Nortex Foundation Designs, Inc.'s motion for judgment notwithstanding the verdict (JNOV). We reverse and render.

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II. Factual and Procedural Background

Young began working for Nortex as a drafter in 2001. He helped design foundation plans based on copyrighted architectural plans provided to him by Nortex. In 2010, Nortex gave Young a plan bearing a black stamp stating, "IF THIS STAMP IS NOT RED IT IS AN ILLEGAL SET OF PLANS," and "REPRODUCTION OF THESE PLANS BY ANY MEANS IS PROHIBITED BY FEDERAL LAW," and providing that violations could be punished by fines up to $100,000. Young testified that in his around ten years with Nortex, he had otherwise never received a plan with such a stamp, and Seth Witworth, one of Nortex's office managers, testified that most plans came to Nortex without a stamp.

Young told Debbie Ingram, the office manager to whom he reported, that he was uncomfortable designing the foundation because of the black stamp, and she told him that she would take care of it. Young said that Witworth subsequently brought the plan back to him and another drafter, Adam Davidson, and told them that Bob Lemke, Nortex's president, did not care who prepared the plan but that it needed to be done. Davidson likewise was concerned about the black stamp and, like Young, would not proceed with the assignment. Young refused to draw the design and put Ingram's name on it because he believed that would falsify the plan. Lemke relayed through Witworth that if Young was unwilling to do the work, then he did not have any work for him.

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According to Young, he was never told that the builder had the red-stamped copy of the plan. Witworth told Young that the builder told him that the homeowner had the red-stamped copy of the plan. Witworth testified that Lemke told him that Nortex was not going to get the red-stamped plan and that this was a business decision. Young again responded that he was not comfortable using the plan containing a black stamp and illegal plan notation, and he testified that after his meeting with Ingram and Witworth, he was terminated and escorted from the building. Witworth testified that after Young sued Nortex for wrongful termination, Nortex obtained the red-stamped plan.

In its first motion for summary judgment, which the trial court denied, Nortex claimed that its request that Young prepare the foundation plan would not have resulted in the imposition of criminal liability. In its second motion, which the trial court also denied, Nortex asserted that its request did not ask him to perform an illegal act because the homeowner for whom the work was ultimately performed had previously purchased the architectural plan, which was only used by her for building her own home. When the case eventually went to trial, Nortex moved for a directed verdict, which the trial court also denied.

The jury found that Young had been discharged because he refused to perform an illegal act, and it awarded him damages in excess of $300,000. Nortex then filed a motion for JNOV, stating that it could legally reproduce the foundation design because the homeowner had the original plan and that

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therefore, Young had never been asked to perform an illegal act. The trial court granted Nortex's motion for JNOV and this appeal followed.

III. Discussion

In his first issue, Young asserts that the trial court erred by granting JNOV for Nortex because the Sabine Pilot exception to the at-will doctrine applies to a case in which an employee is forced to choose between the risk of criminal liability and being discharged from employment. See Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985) (holding that public policy requires a very narrow exception to the employment-at-will doctrine, covering only the discharge of an employee for the sole reason that the employee refused to perform an illegal act); Johnston v. Del Mar Distributing Co., 776 S.W.2d 768, 771 (Tex. App.—Corpus Christi 1989, writ denied) (applying Sabine Pilot when an employee was fired for inquiring into whether or not she was committing illegal acts). Specifically, Young complains that

because Nortex refused to attempt to obtain a red-stamped copy of the plan and because Young was not willing to take on that risk of using the plan he believed to be illegal, he was in fact terminated by Nortex. Young was therefore required to choose between risking criminal liability by using the plan that clearly stated it was an illegal copy or lose his livelihood.

Nortex responds that the JNOV was appropriate, and the Sabine Pilot exception was inapplicable, because Young failed to establish that he was asked to perform an illegal act, and that that there is no good faith exception under Sabine Pilot.

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A. Standard of Review

A trial court may disregard a jury verdict and render a JNOV if no evidence supports the jury finding on an issue necessary to liability or if a directed verdict would have been proper. See Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003); Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). A directed verdict is proper only under limited circumstances: (1) when the evidence conclusively establishes...