Reversed and Remanded and Memorandum Opinion filed January 3, 2012.




                                        In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00185-CV


                             JAMES NEZAT, Appellant

                                           V.

                  TUCKER ENERGY SERVICES, INC., Appellee


                       On Appeal from the 270th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2009-44349


                  MEMORANDUM                        OPINION


      James Nezat appeals from the trial court’s grant of Tucker Energy Services, Inc.’s
no-evidence motion for summary judgment. Nezat sued Tucker Energy for retaliatory
discharge under Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 734-35 (Tex.
1985), alleging that Tucker Energy terminated his employment because he refused to
drive a truck without a required permit. In its motion, Tucker Energy asserted that Nezat
could produce no evidence that the truck required a permit or that Nezat knew the truck
required a permit. The trial court granted the motion without specifying on which ground
or grounds it was being granted.            In two issues on appeal, Nezat contends that he
presented evidence raising a fact question regarding whether the truck required a permit
and whether he knew it required a permit. We reverse and remand.

                                             Background

        It is undisputed that Nezat was an employee of Tucker Energy in December 2008.
In his original petition, filed July 14, 2009, Nezat alleged that in mid-December 2008, his
supervisor, Tane Herbert, ordered him to drive a fluid pump truck to Arkansas despite the
fact that Tucker Energy knew that the truck required a permit to be operated in Arkansas
and that Tucker Energy had no such permit for that vehicle for the date in question.1
Nezat further asserted that it is a misdemeanor offense to operate a vehicle in Arkansas
without a required permit.2 He claimed that he was terminated solely for refusing to
drive the truck to Arkansas without the proper permit. Nezat stated a cause of action for
retaliatory discharge under Sabine Pilot. He sought damages for loss of earning capacity
in the past and future as well as mental anguish.

        On May 19, 2010, Tucker Energy filed a combined traditional and no-evidence
motion for summary judgment, which the trial court denied. On November 1, 2010,
Tucker Energy filed a second no-evidence motion for summary judgment.                           In this
motion, Tucker Energy asserted that Nezat could produce no evidence that (1) the truck
was overweight on the date in question and required a permit or (2) Nezat knew that the
truck was overweight and required a permit on that date.

        In response, and as will be discussed in more detail below, Nezat presented
evidence that in December 2008, he was the sole employee of Tucker Energy responsible
for or with any knowledge regarding the permitting of trucks and that the truck in

        1
         Nezat has represented different dates on which he refused to drive the truck. In his deposition,
Nezat stated that he refused on December 16, 2008. In his original petition, he stated the date as
December 19. In his briefing to this court, he states December 18. Because Nezat’s deposition testimony
was under oath and Tucker Energy also represents December 16 as the date in question, we will assume
for purposes of this opinion that December 16, 2008, is the correct date.
        2
        Nezat claims that, though the truck was under the gross weight required by law, there was too
much weight distributed to the two rear axles which made it require a permit.
                                                   2
question required a permit because it was overweight on its rear two axles. The trial
court granted the motion for summary judgment, and Nezat now brings this appeal.

                                    Standard of Review

       Under the employment at-will doctrine in Texas, employment for an indefinite
term can be terminated at will and without cause. Winters v. Houston Chronicle Publ’g
Co., 795 S.W.2d 723, 723 (Tex. 1990). In Sabine Pilot, the Texas Supreme Court set
forth a common law exception to the employment at-will doctrine, prohibiting an
employer from firing an employee solely because that employee refused to perform an
illegal act.   687 S.W.2d at 735.     To prevail under the ―very narrow‖ Sabine Pilot
exception, the former employee must prove that ―his [or her] discharge was for no reason
other than his [or her] refusal to perform an illegal act.‖ 687 S.W.2d at 735.

        As set forth above, Tucker Energy asserted in its no-evidence motion for
summary judgment that Nezat could produce no evidence that the truck in question was
overweight or that Nezat knew that it was overweight.           These grounds essentially
challenged Nezat’s ability to prove that he refused to perform an illegal act. To defeat a
no-evidence motion for summary judgment, the responding party must present evidence
raising a genuine issue of material fact supporting each element contested in the motion.
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). When reviewing a trial
court’s grant of such motion, we consider the evidence presented in the light most
favorable to the party against whom summary judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not. Id. We review a no-evidence summary judgment de
novo. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex. 2004).

                                     Nezat’s Evidence

       The crux of Nezat’s claim regarding the truck is not that it was overweight as a
whole but that the rear two axles had too much weight on them, a condition which would
make operation of the truck on Arkansas roads without a permit a misdemeanor offense.


                                             3
See Arkansas Code §§ 27-35-101 (criminalizing operation of overweight vehicles), 27-
35-203(b) (providing that two axles within 96 inches may not exceed 34,000 pounds total
gross load). In response to Tucker Energy’s no-evidence motion, Nezat presented the
following evidence pertaining to the condition of the truck and his knowledge thereof:
(1) excerpt from the deposition of Randy Nitz, president of Tucker Energy’s United
States operations; (2) excerpt from Nezat’s deposition; (3) Nezat’s affidavit; (4) excerpt
from the deposition of Tucker Energy employee Bruce Lester; (5) eight Arkansas permits
issued for the truck on other dates; (6) citation issued in Louisiana for the truck being
overweight and unpermitted; (7) email from Nezat to Tucker Energy sent on December
19, 2008; and (8) excerpt from the deposition of Jason Pitts.

          In his deposition, Nitz testified that the only person with Tucker Energy’s United
States operations in December 2008 with ―any knowledge of permitting trucks‖ was
Nezat. Nezat was in charge of permitting trucks for Tucker Energy, in charge of auditing
the permitting process, and had all of the responsibilities for permitting Tucker Energy’s
trucks.

          Nezat testified in his deposition that he was a fluid pump/nitrogen pump truck
operator for Tucker Energy in December 2008, but he was also a safety representative for
the company, and he made sure that the company’s equipment ―was in compliance.‖ He
further stated that when he was informed that he would be driving a particular truck to a
jobsite in Arkansas, he told the job supervisor, Jason Pitts, that the truck did not have its
proper permits and that he would not drive the truck without a permit. In his affidavit,
Nezat stated that while the truck was underweight as a whole, ―there was too much
weight distributed to the two rear axles which made it require a permit. Operating a truck
without a permit is a misdemeanor and illegal and I knew that on the day that Tucker
fired me.‖

          In his deposition, Lester stated that he heard from ―Jason‖ that Nezat had refused
to drive the truck because of a permitting issue. Lester further described receiving a
citation in Louisiana in November 2008 for driving a Tucker Energy Truck that was

                                               4
―over axle weight.‖ The citation itself also was attached to Nezat’s response. It is
undisputed that the truck in question was the same one that Nezat refused to drive and
that was the subject of the Arkansas permits discussed next.

       Each of the eight permits attached to Nezat’s response show the same truck with
the same total gross weight and same weight on the rear two axles. The combined weight
on the rear two axles was 40,000 pounds, which would appear to be a violation of
Arkansas law, described above, which permits two axles within 96 inches to have no
greater than 34,000 pounds total gross load. See Arkansas Code § 27-35-203(b). Each
permit was valid for between two and six days beginning on the following dates at the
end of 2008 and beginning of 2009: December 11, 22, 29, and 31, and January 2, 9, 14,
and 20.3 Nezat represented to the trial court, and Tucker Energy did not dispute, that
these permits were all of the permits provided by Tucker Energy in response to discovery
requests covering the relevant time period. None of the permits covered the date on
which Nezat claims that he was ordered to drive the truck to Arkansas without a permit,
December 16, 2008.

       In the email sent by Nezat to Randy Nitz and others at Tucker Energy, Nezat
complained that he was fired for refusing to drive a truck to Arkansas without the proper
permits. He further said that he ―was just obeying the law.‖ The email was sent on
December 19, 2008.

       In his deposition, Pitts stated that the weight of the truck could be reduced by
removing ―pieces‖ or ―hardware‖ from the truck itself.                 He specifically noted that
removing the truck’s manifold would reduce the overall weight by 2,000 pounds.4


       3
           The permit issued on December 11, 2008 was effective only until December 13, 2008. This
would not cover any of the different dates Nezat has suggested as the date on which he refused to drive
the truck.
       4
          The excerpt from Pitts’s deposition was attached to a supplemental response to the motion for
summary judgment. In this supplemental filing, Nezat responded to Tucker Energy’s assertion that the
weight of the truck was not always the same. Through the excerpt from Pitts’s deposition, Nezat made
the point that even if it was possible to remove 2,000 pounds from the rear axles, the load on the rear
axles would still be overweight under Arkansas law by 4,000 pounds.
                                                  5
                                                 Analysis

        Tucker Energy argues that Nezat failed to produce evidence that the truck was
overweight on the day he refused to drive it. Tucker Energy discounts Nezat’s affidavit,
in which he expressly stated that there was too much weight distributed to the two rear
axles, as well as his deposition testimony, in which he explained that he refused to drive
the truck because it did not have a required permit, because it maintains that Nezat
contradicted this evidence in another part of his deposition which was excerpted and
attached to their no-evidence motion. We may not consider this allegedly contradictory
excerpt, however, because it was not part of Nezat’s evidence. Evidence attached to a
no-evidence motion for summary judgment can be considered only if it creates a question
of material fact. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Ardoin v. Anheuser-
Busch, Inc., 267 S.W.3d 498, 502 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see
also City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005) (indicating only evidence
contrary to a no-evidence motion can be considered).5

        As the testimony of Randy Nitz, Tucker Energy’s president of United States
operations, made clear, Nezat was the best person at Tucker Energy in December 2008 to


        5
           Tucker Energy cites City of Keller and Farroux v. Denny’s Restaurants, Inc., 962 S.W.2d 108,
111 (Tex. App.—Houston [1st Dist.] 1997, no pet.), in arguing that we can consider the deposition
excerpt attached to its motion, but neither case supports its position. While the court in City of Keller did
suggest that when conducting a legal sufficiency review and only circumstantial evidence is offered in
support of a critical fact, a court must consider all of the circumstantial evidence relating to that fact and
not just the evidence favorable to the existence of that fact. 168 S.W.3d at 814. There is no indication,
however, that the Keller court intended for such statement to require consideration of evidence attached to
a no-evidence motion for summary judgment; to the contrary, the court makes it clear in Keller that it is
improper to attach evidence to a no-evidence motion for summary judgment. Id. at 825.
         In Farroux, the First Court explained that a party cannot file an affidavit that contradicts his or
her own deposition testimony, without explaining the discrepancy, for the purpose of creating a fact issue
to avoid summary judgment. 962 S.W.2d at 111. However, Farroux was a traditional summary
judgment case wherein the court could properly consider evidence filed by both sides. Id. at 110. Here,
Nezat was under no duty in responding to the no-evidence motion to explain any discrepancy between his
affidavit and deposition testimony attached to the motion. It should also be mentioned that several sister
courts of appeal have declined to follow the Farroux sham affidavit rule. See, e.g., El Sabor de Mi
Tierra, Inc. v. Atascocita/Boone JV, No. 14-06-00652-CV, 2007 WL 2417921, at *6-7 (Tex. App.—
Houston [14th Dist.] Aug. 28, 2007, pet. denied) (mem. op.) (discussing disagreement but declining to
take a side).

                                                      6
know whether a truck needed a permit due to being overweight. Nezat’s affidavit and
deposition testimony are more than a scintilla of evidence that the truck required a
permit, and that he knew it required a permit, on the day he was instructed to drive the
truck to Arkansas.6

        Tucker Energy additionally challenges Nezat’s reliance on the eight Arkansas
permits issued for the truck during the same time period as when Nezat allegedly refused
to drive the truck without a permit. Nezat argues that the permits demonstrate that the
vehicle consistently weighed the same and required a permit to be driven into Arkansas
during the relevant time period. Tucker Energy asserts that the permits constitute no
evidence that the truck required a permit on the day Nezat refused to drive it to Arkansas.
Tucker Energy argues that it would be more reasonable to infer from the eight permits
that permits were obtained when required.                Tucker Energy further points to Pitts’s
testimony that the weight of the truck could be reduced by removing pieces from the
truck. However, this argument does no more than suggest that there is a fact question as
to whether the truck was overweight on the rear axles on the day in question and thus
required a permit. Viewed in light of the evidence that Nezat was the person at Tucker
Energy in the best position to know whether the truck needed a permit, his insistence that
the truck indeed did need a permit on the day in question, and the testimony from Bruce
Lester that he received a citation for driving the same truck without a required permit in
Louisiana, the eight permits support Nezat’s contention that the truck was typically, if not
always, overweight during that time period.7



        6
           Although no objections were sustained against Nezat’s affidavit, it is clearly not a model one.
However, even if we were to disregard the affidavit, Nezat testified in his deposition that he refused to
drive the truck because it required a permit and did not have one.
        7
          In its brief to this court, Tucker Energy also complains that Nezat produced no evidence that he
was threatened with termination if he did not drive the truck to Arkansas or that he was fired for refusing
to drive the truck without a permit. Neither of these arguments was raised as a ground for summary
judgment below. Thus, Nezat was not required to present evidence raising a fact issue on these points.
See Hamilton, 249 S.W.3d at 429. Additionally, in the fact section of its brief, Tucker Energy suggests
there is no evidence that the truck did not have a permit on the day Nezat refused to drive it. This
assertion also was not made below; thus, Nezat was not required to present evidence regarding lack of a
                                                    7
        To defeat a no-evidence motion for summary judgment, the nonmovant does not
have to prove his or her case, he or she merely needs to present evidence demonstrating a
genuine issue of fact on the challenged elements. Hamilton v. Wilson, 249 S.W.3d 425,
429 (Tex. 2009). Also in this context, all evidence is considered in a light most favorable
to the nonmovant. Timpte Indus., 286 S.W.3d at 310. Nezat’s evidence demonstrated the
existence of a fact question regarding whether the truck was overweight on the day he
refused to drive it and whether he knew it was overweight. Accordingly, the trial court
erred in granting the no-evidence motion for summary judgment.

        We sustain Nezat’s issues, reverse the trial court’s judgment, and remand for
further proceedings in accordance with this opinion.




                                        /s/             Martha Hill Jamison
                                                        Justice



Panel consists of Justices Frost, Seymore, and Jamison.




permit. Id. Regardless, Nezat did produce his own deposition testimony indicating that the truck was not
properly permitted on the day he refused to drive it to Arkansas.
                                                   8
