                                 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

                                              9
