Opinion issued August 2, 2012.




                                  In The

                            Court of Appeals
                                 For The

                        First District of Texas
                         ————————————
                           NO. 01-11-00871-CV
                         ———————————
                    KIMBERLEY SOUKUP, Appellant
                                    V.
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.; BRIDGESTONE
RETAIL OPERATIONS, LLC D/B/A BSRO; BRIDGESTONE AMERICAS,
   INC.; FIRESTONE POLYMERS, LLC; AND STEPHEN T. SMITH,
                         Appellees



                  On Appeal from the 61st District Court
                          Harris County, Texas
                    Trial Court Case No. 2010-35309



                       MEMORANDUM OPINION

     Kimberley Soukup appeals from the trial court’s summary judgments on her

claims against Sedgwick Claims Management Services, Inc. for wrongful
discharge and against Bridgestone Retail Operations, LLC d/b/a BSRO;

Bridgestone Americas, Inc.; Firestone Polymers, LLC (collectively, Bridgestone);

and Stephen T. Smith for tortious interference with employment relations. We

affirm the trial court’s judgment.

                                     Background

      Soukup contends that she was wrongfully discharged from her job as a

claims adjuster for Sedgwick after refusing to participate in illegal activities related

to her handling of workers’ compensation claims for Bridgestone, one of

Sedgwick’s clients. Bridgestone hired Sedgwick to administer its employees’

workers’ compensation claims. Bridgestone was not self-insured but retained “a

very large deductible” and thus paid a portion of its employees’ benefits.

According to Soukup, Bridgestone pressured Sedgwick to violate certain legal

duties Sedgwick owed to the workers’ compensation claimants. Generally, she

asserts that (1) Texas law prohibits Bridgestone from directing Sedgwick’s

handling of its employees’ workers’ compensation claims, but (2) Bridgestone and

Smith, Bridgestone’s attorney, nevertheless interfered with her handling of those

claims, and (3) at Bridgestone’s urging, Sedgwick constructively terminated her

employment when Bridgestone complained about her handling of its employees’

claims. She sued Sedgwick for wrongful discharge and Bridgestone and Smith for

tortious interference with her employment.

                                           2
      Sedgwick, Bridgestone, and Smith each moved for traditional and no-

evidence summary judgment on Soukup’s claims against them, and Soukup

responded jointly to the motions. The trial court granted summary judgment

against Soukup on all of her claims. After the trial court denied her motion for new

trial, Soukup appealed, challenging the trial court’s orders granting summary

judgment and denying new trial.

                               Standards of Review

      We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). In conducting our

review, we view the evidence in the light most favorable to the nonmovant,

crediting evidence favorable to that party if reasonable jurors could and

disregarding contrary evidence unless reasonable jurors could not. Fielding, 289

S.W.3d at 848; see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

When, as here, the trial court’s summary judgment order does not specify the

grounds on which it was granted, we must affirm the order if any of the asserted

grounds for summary judgment are meritorious. W. Invs., Inc. v. Urena, 162

S.W.3d 547, 550 (Tex. 2005).

      On a motion for traditional summary judgment, the movant has the burden to

show that no genuine issue of material fact exists and that it is entitled to judgment

                                          3
as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison

Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The movant may satisfy

this burden by conclusively negating at least one essential element of each of the

plaintiff’s causes of action. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911

(Tex. 1997). On a motion for no-evidence summary judgment, the nonmovant has

the burden to present evidence sufficient to raise a genuine issue of fact on each of

her claims. TEX. R. CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,

582 (Tex. 2006). The nonmovant may satisfy this burden by presenting more than

a scintilla of evidence on each challenged element of each cause of action on

which she has the burden of proof at trial. TEX. R. CIV. P. 166a(i); Mack Trucks,

206 S.W.3d at 582; Flameout Design & Fabrication, Inc. v. Pennzoil Caspian

Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

      We review a trial court’s denial of a motion for a new trial for abuse of

discretion. See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). The trial court abuses

its discretion if it acts without reference to any guiding principles or acts arbitrarily

or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985). We view the evidence submitted to the trial court in the light most

favorable to the court’s ruling, draw all legitimate inferences from the evidence,

and defer to the trial court’s resolution of conflicting evidence. Intercontinental

Terminals Co., LLC v. Vopak N. Am., Inc., 354 S.W.3d 887, 892 (Tex. App.—

                                           4
Houston [1st Dist.] 2011, no pet.). A trial court does not abuse its discretion with

regard to factual matters so long as some evidence reasonably supports the trial

court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

                  Summary Judgment on Wrongful Discharge

      Soukup claims that Sedgwick constructively terminated her because she

refused Bridgestone’s directions to perform illegal actions in handling

Bridgestone’s workers’ compensation claims. Sedgwick asserts that Soukup has no

evidence of each of the elements of her wrongful discharge claim, including no

evidence that it ever directed Soukup to engage in any activity that would have

subjected her to criminal sanctions if she had complied, that she ever refused such

a directive, or that she was fired for refusing such a directive (or fired at all).

Soukup responds that she presented evidence sufficient to raise a fact question on

each element of her wrongful discharge claim.

      We conclude that there is no summary judgment evidence that Soukup

refused to comply with a directive from Sedgwick to perform an illegal act.

A.    Wrongful discharge under the Sabine Pilot exception to at-will
      employment

      Texas is an at-will employment state, meaning that employers generally may

terminate their employees at any time, for any or no reason, without incurring

liability under Texas law, unless they have contractually agreed otherwise. See E.

Line & R.R.R. Co. v. Scott, 10 S.W. 99, 102 (Tex. 1888) (adopting at-will
                                         5
employment doctrine); see also Montgomery Cnty. Hosp. Dist. v. Brown, 965

S.W.2d 501, 502 (Tex. 1998) (“For well over a century, the general rule in this

State, as in most American jurisdictions, has been that absent a specific agreement

to the contrary, employment may be terminated by the employer or the employee

at will, for good cause, bad cause, or no cause at all.”); Sabine Pilot Serv., Inc. v.

Hauck, 687 S.W.2d 733, 734−35 (Tex. 1985) (noting certain statutory exceptions

to general rule). In Sabine Pilot, the Texas Supreme Court judicially crafted a

“very narrow exception” to this general rule, recognizing a cause of action against

an employer that discharges its employee “for the sole reason that the employee

refused to perform an illegal act.” 687 S.W.2d at 735.

      To prevail on her Sabine Pilot claim, Soukup must prove: (1) her employer

directed her to commit a crime, (2) she refused to comply, and (3) her employer

discharged her (4) for the sole reason that she refused to commit the crime. See

Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 659 (Tex. 2012); see also Ed Rachal

Found. v. D’Unger, 207 S.W.3d 330, 332 (Tex. 2006) (“Sabine Pilot protects

employees who are asked to commit a crime, not those who are asked not to report

one.”). The Sabine Pilot cause of action “only applies if [Soukup] was forced to

choose between committing a criminal act and being discharged.” Burling v.

Davis, No. 01-00-01279-CV, 2002 WL 188485, at *2 (Tex. App.—Houston [1st

Dist.] Feb. 7, 2002, no pet.) (not designated for publication); see Winters v.

                                          6
Houston Chronicle Publ’g Co., 795 S.W.2d 723, 724 (Tex. 1990) (holding that

claimant did not qualify for Sabine Pilot cause of action “because he was not

unacceptably forced to choose between risking criminal liability or being

discharged from his livelihood.”).

B.    There is no evidence that Soukup’s employer directed her to perform a
      criminal act, which she refused to perform

      In support of her contention that she raised a fact issue on whether she was

directed (and refused) to commit a crime, Soukup relies on three pieces of

evidence: her own affidavit, her expert affidavit, and excerpts from the deposition

of Jamie Cornehl, a licensed adjuster employed by Sedgwick. Soukup’s expert

affidavit and the cited portions of Cornehl’s deposition relate largely to the legality

or appropriateness of Bridgestone’s claim-related conduct—an issue that we do not

reach here. We therefore focus on Soukup’s affidavit.

      1.     Soukup’s evidence of wrongdoing by Bridgestone is not evidence
             that she was directed to commit an illegal act

      Soukup’s expert testified that it was permissible for Sedgwick to “allow

[Bridgestone] to freely discuss a claim and offer opinions with regard to

interpretation and evaluation,” but Bridgestone could not “direct the handling of

the claim” or “make the decisions.”1 In her affidavit, Soukup identifies several


1
      On appeal neither party challenges this statement by Soukup’s expert. We do not,
      therefore, consider whether this is an accurate statement of Texas law.

                                          7
ways in which she asserts Bridgestone crossed the line and directed the handling of

workers’ compensation claims assigned to her, including: exercising control over

the setting of reserves, injecting its attorney (Smith) and a consulting physician

(Dr. Mitsos) into investigations, failing to disclose materials to or from Dr. Mitsos,

failing to provide complete information to Sedgwick, directing her to deny

benefits, and conducting surveillance of its injured employees. This testimony

suggests at most that Bridgestone was engaging in purportedly illegal activity—not

that she was directed to commit an illegal act.

      But the question in a Sabine Pilot claim “is not whether [Bridgestone or

Sedgwick] were performing illegal acts; the question instead is whether [Sedgwick,

her employer,] ordered [Soukup] to perform an illegal act and whether she refused

to do so.” Laredo Med. Grp. Corp. v. Mireles, 155 S.W.3d 417, 421 (Tex. App.—

San Antonio 2004, pet. denied). Sedgwick’s evidence of alleged wrongdoing by

Bridgestone does not, alone, support a Sabine Pilot claim.

      2.     Soukup’s evidence of directives from Bridgestone is not evidence
             that her employer directed her to commit an illegal act

      Soukup alleges that some of Bridgestone’s misconduct resulted in

instructions to her to perform acts that she considered illegal. These instructions

included directives not to set reserves in excess of $5,000 without Bridgestone’s

approval, to reexamine claims if Bridgestone thought reserves were too high, to

send Bridgestone surveillance videos taken of injured employees, to deny benefits
                                          8
based on Bridgestone’s opinion of extent of injury, to send medical files to Dr.

Mitsos for review, to send incomplete claim files to Dr. Mitsos for review, not to

disclose Dr. Mitsos’s involvement or reports, to wait until Dr. Mitsos completed

his review of the medical files before setting reserves or determining

compensability, and to adopt Dr. Mitsos’s rationales. We hold that these alleged

directives will not support a Sabine Pilot claim because they came from

Bridgestone rather than Sedgwick, Soukup’s direct employer.

      Sabine Pilot and its progeny impose liability on an employer that directs its

employee to perform an illegal act and fires the employee for refusing to comply.

See, e.g., Sabine Pilot, 687 S.W.2d at 734–35 (recognizing cause of action for

employee whose employer directed him to pump waste into public waters);

Safeshred, 365 S.W.3d at 659 (affirming in part judgment in favor of employee

whose employer terminated him for refusing to drive truck that did not comply

with legal requirements); Lisanti v. Dixon, 147 S.W.3d 638, 643 (Tex. App.—

Dallas 2004, pet. denied) (affirming judgment in favor of employee whose

employer directed her to falsify insurance claims); Ebasco Constructors, Inc. v.

Rex, 923 S.W.2d 694, 699 (Tex. App.—Corpus Christi 1996, writ denied)

(affirming judgment in favor of employee whose employer directed him to falsify

documents relating to nuclear power plant). Soukup does not cite, and we have not

found, any case extending the Sabine Pilot exception to hold an employer liable

                                        9
when a third-party allegedly directed its employee to perform an illegal act. While

the Texas Supreme Court may decide to expand Sabine Pilot, it has generally

declined to do so. See Safeshred, 365 S.W.3d at 659 (“[W]e have consistently

refused to expand Sabine Pilot beyond the ‘narrow exception’ we recognized in

that case.”). Nor have Texas courts of appeals expanded the common law cause of

action. See Martin v. Clinical Pathology Labs., Inc., 343 S.W.3d 885, 892 (Tex.

App.—Dallas 2011, pet. denied) (“After Sabine Pilot, Texas courts have rebuffed

many attempts to enlarge the number of exceptions to the at-will doctrine.”);

Johnson v. Waxahachie Indep. Sch. Dist., 322 S.W.3d 396, 400 (Tex. App.—

Houston [14th Dist.] 2010, no pet.) (“[I]t is not an appropriate role for this court to

further erode the employment-at-will doctrine through additional exceptions.”);

Hancock v. Express One Int'l, Inc., 800 S.W.2d 634, 636 (Tex. App.—Dallas 1990,

writ denied) (“It is not for an intermediate appellate court to undertake to enlarge

or extend the grounds for wrongful discharge under the employment-at-will

doctrine. If such an exception is to be created, the Texas Supreme Court should do

so.”). We therefore decline, under the facts of this case, to expand Sabine Pilot to

impose liability on employers based on third-party directives to their employees.

      3.     Soukup has no evidence of directives from Sedgwick with which
             she refused to comply

      Soukup references Sedgwick in her affidavit in only two respects: (1) she

asserts that she complained about Bridgestone and Smith to her supervisor at
                                          10
Sedgwick, Jamie Cornehl, and (2) she asserts that Sedgwick conducted verbal

counseling with her in response to complaints from Bridgestone, reprimanding her

for being inflexible and refusing to find mutually agreeable solutions to problems

with Bridgestone. These are not allegations that Sedgwick directed Soukup to

perform an illegal act. In deposition testimony in the summary judgment record,2

Soukup testified that her supervisor, Cornehl, was the only person at Sedgwick

who gave her directives that she considered to be illegal. She further testified that

she never refused to perform any act that Cornehl asked of her.

      Even if Cornehl directed Soukup to perform an illegal act, such a directive

would not support a Sabine Pilot claim because Soukup testified that she complied

with all of Cornehl’s directives. Refusal to commit the requested criminal act is a

necessary element of a Sabine Pilot claim. See Sabine Pilot, 687 S.W.2d at 735;

see also Safeshred, 365 S.W.3d at 659; Winters, 795 S.W.2d at 724. When the

employee performs the requested illegal act, she may not prevail on a Sabine Pilot

claim even if she complains about the request. See Laredo Med. Grp., 155 S.W.3d

at 422−23 (“Instead of refusing to prepare the reports, [the plaintiff] complained to

her supervisors and others that she believed that there were problems in the billing
2
      In reviewing the trial court’s summary judgment ruling, we consider only those
      portions of Soukup’s deposition that were included in the summary judgment
      record. See TEX. R. CIV. P. 166a(c); see also Rodriguez v. Spencer, 902 S.W.2d 37,
      45 (Tex. App.—Houston [1st Dist.] 1995, no writ) (holding that appellate court
      reviewing summary judgment order may not consider evidence filed with motion
      for new trial but not as summary judgment evidence).

                                          11
department. In other words, [the plaintiff] did not refuse to do an illegal act; she

only complained about alleged illegal acts committed in the billing department.

This evidence is not sufficient to support a Sabine Pilot cause of action.”); see also

Winters, 795 S.W.2d at 723−24 (holding that employee who was fired after

complaining about employer’s alleged illegal activities to upper-level management

did not fall within Sabine Pilot exception to at-will employment); Louis v. Mobil

Chem. Co., 254 S.W.3d 602, 609–10 (Tex. App.—Beaumont 2008, no pet.)

(holding that plaintiff’s claim sounded in wrongful discharge but plaintiff could not

prevail under Sabine Pilot because he actually performed the requested illegal act).

Thus, Soukup failed to put forth summary judgment evidence that she refused to

comply with a directive from Sedgwick to perform a purportedly criminal act.

      Because there is no summary judgment evidence that Soukup was directed

by Sedgwick to commit a purportedly criminal act and refused that directive, we

affirm the trial court’s summary judgment against Soukup on her wrongful

termination claim against Sedgwick. We do not reach the issues of whether any

alleged directives required conduct that would have given rise to criminal liability,

whether Sedgwick constructively terminated Soukup, or whether the sole cause of

any such termination was Soukup’s refusal to perform illegal acts.




                                         12
                 Summary Judgment on Tortious Interference

      In order to prevail on her tortious interference claim against Bridgestone and

Smith, Soukup must prove that (1) she had a valid contract with Sedgwick; (2)

Bridgestone and Smith willfully and intentionally interfered with that contract; (3)

such interference proximately caused Soukup’s injury; and (4) Soukup incurred

actual damage or loss. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex.

1996); Holloway v. Skinner, 898 S.W.2d 793, 795−96 (Tex. 1995). Soukup

contends that the trial court erred in granting summary judgment against her

because she presented evidence sufficient to raise a question of fact on each of

these elements. Because we conclude that she has presented no evidence of actual

damage or loss, we do not reach the remaining elements.

A.    Soukup did not present evidence of the damages element of her tortious
      interference claim

      We assume, without deciding, that Soukup was constructively discharged by

Sedgwick and that the termination was proximately caused by unjustified tortious

interference by Bridgestone and Smith. But termination or a change in job

circumstances is not, alone, sufficient to raise a fact issue on actual damages or

loss. See KTRK Television, Inc. v. Fowkes, 981 S.W.2d 779, 790 (Tex. App.—

Houston [1st Dist.] 1998, pet. denied) (evidence that plaintiff was transferred was

not sufficient alone to raise fact issue on actual damages), disapproved of on other

grounds by Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000). We
                                        13
therefore must determine whether Soukup presented evidence sufficient to raise a

fact question on actual damages or loss.

      1.    Soukup only presented evidence of mental anguish damages

      Soukup relies on the following affidavit testimony as raising an issue of fact

on the element of actual damages or loss:3

      As a result of the illegal requirements of my job and Sedgwick’s
      posting of my job to be filled by someone else, I suffered extreme
      stress, with resulting negative effects on my health that required the
      treatment of medical professionals and medical leave.

      Although Soukup also testified that Sedgwick terminated her, she did not

assert that she suffered any economic or other damages as a result of that

termination. To the contrary, the record contains evidence that, while on approved

short-term disability leave from Sedgwick, Soukup attained new employment as a

workers’ compensation claims adjuster with another company at a higher salary,

that she started her new job on the day she was expected to return to work at

Sedgwick from her leave, and that she retained her new job through the date of her

deposition. See generally Gulf Consol. Int’l, Inc. v. Murphy, 658 S.W.2d 565, 566

(Tex. 1983) (per curiam) (stating that aggrieved employee must use reasonable

efforts to mitigate or reduce her loss or damage by seeking other employment).


3
      Soukup also cites to testimony from her deposition, filed with her motion for new
      trial. As discussed above, we cannot consider evidence that was not part of the
      summary judgment record in reviewing the trial court’s summary judgment orders.

                                           14
      2.     Soukup cannot recover mental anguish damages

      Generally, mental anguish damages are not recoverable on a claim for

tortious interference with a contract. See Creditwatch, Inc. v. Jackson, 157 S.W.3d

814, 818 (Tex. 2005) (stating that “Texas law already recognizes claims for

wrongful eviction and tortious interference with contract, neither of which allow

mental anguish damages,” and plaintiff could not circumvent that restriction by

bringing her action as claim for intentional infliction of emotional distress) (citing

Am. Nat’l Petroleum Co. v. Transcon. Gas Pipe Line Corp., 798 S.W.2d 274, 278

(Tex. 1990)); Delgado v. Methodist Hosp., 936 S.W.2d 479, 486 (Tex. App.—

Houston [14th Dist.] 1996, no writ) (stating that mental anguish damages were not

recoverable for tortious interference with contract); see also Crisalli v. Willis Re

Inc., 560 F. Supp. 2d 512, 515 & n.2 (E.D. Tex. 2006) (recognizing “unavailability

of mental anguish damages under [plaintiff’s] claim for tortious interference with a

contract” and noting that before Creditwatch there was conflict in case law as to

whether emotional distress damages were recoverable for tortious interference).

      This is because the measure of actual damages for tortious interference with

a contract is the same as the measure of damages for breach of the interfered-with

contract, Am. Nat’l Petroleum Co., 798 S.W.2d at 278, and mental anguish

damages generally are not available for breach of a contract. See City of Tyler v.

Likes, 962 S.W.2d 489, 498 (Tex. 1997); see also Delgado, 936 S.W.2d at 486

                                         15
(“mental anguish damages are not recoverable in any tort action based on rights

growing out of the breach of a contract”); Doe v. SmithKline Beecham Corp., 855

S.W.2d 248, 258 (Tex. App.—Austin 1993) (“As a general rule, mental anguish

does not constitute an element of damages that may be recovered in an action

either for breach of contract or for a tort based on a right growing out of a breach

of contract.”), aff’d, 903 S.W.2d 347 (Tex. 1995). Mental anguish damages are

available in “a very limited number of contracts dealing with intensely emotional

noncommercial subjects such as preparing a corpse for burial or delivering news of

a family emergency.” Likes, 962 S.W.2d at 496. An ordinary employment contract

does not fall within this narrow category. See Myrtle Springs Reverted Indep. Sch.

Dist. v. Hogan, 705 S.W.2d 707, 710−11 (Tex. App.—Texarkana 1985, writ ref’d

n.r.e.) (holding that mental anguish damages may not be recovered on breach of

employment contract claim). Soukup has not alleged any special relationship with

Sedgwick that would give rise to a right to recovery of mental anguish damages.

      Because Soukup may not recover mental anguish damages on her tortious

interference claim and failed to present evidence of any recoverable damages or

loss, we hold that the trial court did not err in granting summary judgment on

Soukup’s tortious interference claims against Bridgestone and Smith.




                                        16
                               Motion for New Trial

      Although Soukup’s issues on appeal reference error in the trial court’s denial

of her motion for new trial, she does not raise any arguments challenging that order

other than her arguments challenging the summary judgment orders. Thus, because

we have held that the trial court did not err in granting summary judgment on each

of Soukup’s claims in this action, we hold that Soukup has not demonstrated any

abuse of discretion by the trial court in denying her motion for new trial.

                                     Conclusion

      Because Soukup failed to present sufficient evidence to raise an issue of fact

on at least one element of each of her claims, we affirm the trial court’s orders

granting summary judgment and denying new trial.




                                               Harvey Brown
                                               Justice

Panel consists of Justices Bland, Massengale, and Brown.




                                          17
