                                   NO. 07-02-0458-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                      JULY 23, 2003

                          ______________________________


                          WILLIAM HAWTHORNE, APPELLANT

                                            V.

                          STAR ENTERPRISE, INC., APPELLEE


                         _________________________________

             FROM THE 60TH DISTRICT COURT OF JEFFERSON COUNTY;

               NO. B-160,501; HONORABLE GARY SANDERSON, JUDGE

                          _______________________________

                                MEMORANDUM OPINION


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


      Presenting five issues, William Hawthorne requests we reverse and remand for trial

the summary judgment rendered upon consideration of Star Enterprise, Inc.’s second

motion for summary judgment,1 that he take and recover nothing by his action seeking


      1
          The judgment does not specify or state the ground upon which it was based.
damages against Star for his wrongful discharge because he refused to perform an illegal

act. By his issues, Hawthorne contends (1) Simmons Airlines v. Lagrotte2 is not applicable;

(2) Star did not establish as a matter of law without factual issues that Hawthorne was a

just cause employee; (3) Star did not establish as a matter of law without factual issues

that the collective bargaining agreement provided contractual safeguards for being

wrongfully terminated; (4) the Labor Management Relations Act does not preempt his

Sabine Pilot3 cause of action; and (5) the trial court erred by granting summary judgment

on issues that should have been presented by special exception. Based upon the rationale

expressed herein, we affirm.


       Hawthorne was employed by Star at its refinery in Port Arthur and served as an

assistant operator and head operator in the sulfur complex of the refinery. Contending he

was an at-will employee, asserting only one cause of action based on Sabine Pilot,

Hawthorne alleged (1) he and his crew were ordered by Star to commit an allegedly illegal

act of smelling water samples4 for the purpose of determining the presence of ammonia;

(2) he refused to smell the water samples and would not allow his crew to do so; and (3)




      2
          50 S.W.3d 748 (Tex.App.--Dallas 2001, pet. denied).
      3
          Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985).
      4
       The water samples were taken after the water had been processed through a unit
designed to remove hazardous substances such as ammonia, hydrogen sulfide, phenol,
and water metallic sulfides.

                                             2
as a result of his refusal, his employment was terminated. To establish his claim for

wrongful termination under Sabine Pilot, Hawthorne had the burden to establish:


                •      he refused to perform an illegal act; and
                •      his refusal was the only reason he was terminated.


See Sabine Pilot, 687 S.W.2d at 735; Hawthorne v. Star, 45 S.W.3d 757, 761

(Tex.App.–Texarkana 2001, pet. denied). By its amended answer, in addition to a general

denial, which was effective to put Hawthorne on proof of every fact essential to his case,

see Shell Chemical Company v. Lamb, 493 S.W.2d 742, 744 (Tex. 1973), Star alternatively

alleged that Hawthorne’s claims were (1) preempted by the Labor Management Relations

Act,5 (2) barred in whole or in part by the six-month DelCostello6 limitations period, and (3)

barred by his failure to exhaust grievance and arbitration provisions under the applicable

collective bargaining agreement.


       The summary judgment based on Star’s first traditional motion was reversed and

remanded on first appeal. See Hawthorne, 45 S.W.3d at 757. The clerk’s record

presented here does not include Star’s first motion for summary judgment; however,

according to the Texarkana Court’s opinion, the ground for Star’s first motion asserted

Hawthorne’s Sabine Pilot claim failed as a matter of law because there was some



       5
           29 U.S. § 185(a).
       6
       DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 170-71, 103 S.Ct.
2282, 76 L.Ed.2d 476 (1983).

                                              3
summary judgment evidence negating the sole cause requirement of a Sabine Pilot claim.

45 S.W.3d at 759. Noting that neither party made an issue of the legality or illegality of

smelling the water, the court concluded the first element of a Sabine Pilot claim was met

for purposes of the appeal. Then, by footnote, the court noted it did not address whether

there was some evidence that Hawthorne was terminated for refusing to do an illegal act

because a no-evidence motion was not presented. Id. at 762 n.3.


          Star’s second motion was a combination traditional and no-evidence motion for

summary judgment. By its first traditional ground, Star contended the Sabine Pilot

exception to the employment-at-will doctrine was inapplicable because Hawthorne’s

employment was covered by the collective bargaining agreement. As its second traditional

ground, Star contended Hawthorne’s claims were preempted by section 301 of the Labor

Management Relations Act and barred by his failure to exhaust grievance and arbitration

provisions. Then, by its no-evidence motion, Star contended “there is no evidence

supporting applicability of a criminal statute that [Hawthorne] was discharged for refusing

to violate.”7 Because the grounds of the second motion were not presented in the first

motion, the law as stated in the first appeal reversing summary judgment does not control

our disposition of this appeal. See Glenn v. Prestegord, 456 S.W.2d 901, 902 (Tex. 1970);

see also Allstate Insurance Company v. Smith, 471 S.W.2d 620, 622 (Tex.Civ.App.--El

Paso 1971, no writ). We commence our review by considering Hawthorne’s fifth issue.


      7
     By issues one, two, three, and four, Hawthorne addresses Star’s two traditional
summary judgment grounds and by issue five, he addresses Star’s no-evidence ground.

                                            4
               No-Evidence Summary Judgment Standard of Review
                                      Rule 166a(i)


      Rule 166a(i) entitled “No-Evidence Motion,” provides that a party may move for

summary judgment on the ground that there is no evidence of one or more essential

elements of a claim or defense on which an adverse party would have the burden of proof

at trial. Where, as here, the summary judgment does not specify or state the grounds relied

on, it will be affirmed on appeal if any of the grounds presented in the motion are

meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co. Of N. Am.

v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.–Houston [1st Dist.] 1990, no writ). Where

a motion is presented under Rule 166a(i) asserting there is no evidence of one or more

essential elements of the non-movant's claims upon which the non-movant would have the

burden of proof at trial, the movant does not bear the burden of establishing each element

of its own claim or defense as under subparagraph (a) or (b). Rather, although the non-

moving party is not required to marshal its proof, it must present evidence that raises a

genuine fact issue on the challenged elements. See Tex. R. Civ. P. 166a, Notes and

Comments.


       Because a no-evidence summary judgment is essentially a pretrial directed verdict,

we apply the same legal sufficiency standard in reviewing a no-evidence summary

judgment as we apply in reviewing a directed verdict. Roth v. FFP Operating Partners, 994

S.W.2d 190, 195 (Tex.App.--Amarillo 1999, pet. denied); Jackson v. Fiesta Mart, Inc., 979



                                            5
S.W.2d 68, 70 (Tex.App.--Austin 1998, no pet.). Thus, our task as an appellate court is

to ascertain whether the non-movant produced any evidence of probative force to raise a

fact issue on the material questions presented. Id. We consider all the evidence in the

light most favorable to the party against whom the no-evidence summary judgment was

rendered, disregarding all contrary evidence and inferences. Merrill Dow Pharmaceuticals

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799,

140 L.Ed.2d 939 (1998). A no-evidence summary judgment is improperly granted if the

non-movant presents more than a scintilla of probative evidence to raise a genuine issue

of material fact. Fiesta Mart, Inc., 979 S.W.2d at 70-71. More than a scintilla of evidence

exists when the evidence “rises to a level that would enable reasonable and fair-minded

people to differ in their conclusions.” Havner, 953 S.W.2d at 711.


       By his fifth issue directed to Star’s no-evidence ground, Hawthorne contends the

trial court erred in granting summary judgment on issues that he contends should have

been presented by special exception. We disagree. Because this issue implicates the text

and substance of Star’s no-evidence motion, and to demonstrate our analysis, we set out

the complete text of that portion of the motion.


       C. Plaintiff Presents No Evidence of Applicability of Criminal Statute.
             Before a Sabine Pilot case may go to the jury, the trial judge must
       “determine if a statute with a criminal penalty is involved.” Sabine Pilot
       Service, Inc. v. Hauck, 687 S.W.2d 733, 736 (Tex. 1985) (Kilgarlin,
       concurring). Despite adequate time for discovery, there is no evidence
       supporting applicability of a criminal statute that plaintiff was discharged for



                                              6
       refusing to violate. For this additional reason, plaintiff has no case and
       summary judgment should be granted in defendant’s favor.


(Emphasis added). This ground comports with Hawthorne’s response and objection in the

trial court. Hawthorne is correct in his contention that a summary judgment should not be

used to test pleadings. See Alashmawi v. IBP, Inc., 65 S.W.3d 162, 174 (Tex.App--Amarillo

2001, pet. denied), citing Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983).

However, Star’s motion was not an attack on Hawthorne’s pleadings. Under Sabine Pilot,

the narrow exception to the at-will doctrine exists only where the employee is discharged

because “the employee refused to perform an illegal act.” Because Hawthorne did not

contend in the trial court and does not argue here that the motion did not comply with Rule

166a(i) of the Texas Rules of Civil Procedure, or that it failed to give him fair notice, see

Roth v. FFP Operating Partners, 994 S.W.2d 190,194 (Tex.App.--Amarillo 1999, pet.

denied), we conclude Star’s motion was sufficient to impose the burden on Hawthorne to

respond with summary judgment evidence showing the existence of any fact questions

which, if found, would constitute proof of the elements of any offense.


       Hawthorne did not present any summary judgment evidence addressing the no-

evidence motion or presenting a fact question that smelling the water samples would

constitute proof of the elements of any offense. Moreover, even if Hawthorne’s claim that

smelling the water samples taken after the water had been processed by the “stripping

unit” implicated an illegal act, a question we do not decide, he did not produce any

summary judgment evidence creating a fact issue that the samples contained hazardous

                                             7
materials, if smelled. Further, although the Material Safety Data Sheet suggests that

inhaling H2S,8 commonly known as “rotten egg” gas, can cause “headache, dizziness,

nausea, vomiting, and diarrhea” if the concentration of H2S is at a certain level, Hawthorne

did not present any summary judgment evidence creating a fact question that the

concentration of H2S was sufficient to cause any of the conditions mentioned. Hawthorne’s

fifth issue is overruled.


       Because the judgment does not specify or state the ground upon which it is based,

and should be affirmed on appeal if any of the grounds presented are meritorious, see

Carr, 776 S.W.2d at 569 and Insurance Co. of N. Am., 790 S.W.2d at 410, our disposition

of Hawthorne’s fifth issue addressing the no-evidence ground renders our consideration

of his remaining issues unnecessary.


       Accordingly, the judgment of the trial court is affirmed.



                                                 Don H. Reavis
                                                   Justice




       8
           Hydrogen sulfide.

                                             8
