1 The judgment does not specify or

state the gr

ound upon whic h it was based. NO. 07-02-0458-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JULY 23, 2003

______________________________ W ILLIAM HAW THORNE, APPELLANT

V. STAR ENTERPRISE, INC., APPELLEE

_________________________________ FROM THE 60TH DIS TRICT CO URT OF JEF FERSON COU NTY; NO. B-160,501; H ONORABLE GAR Y SANDER SON, JUDGE

_______________________________ MEMORA NDUM OPIN ION Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. Presenting five issues , William Hawthorne requestswe reverse and remand for trial the summary judg ment rendered upon consideration of Star Enterpri se, Inc.’s s econd motion for summary j udgment, 1 that he take an d recover n othing b y his action seeking2 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 sa mples weretaken after the water

had been processed throu gh a unit designed to rem ove hazardous substances such as ammonia, hydrogen sulfide , phenol, and water meta llic sul fides. 2 damages against Star for his wrongful discharge because he refused to perform an ill egal act. By his issues, Hawthorn e contends (1) Simmons Airl ines v. Lag rotte 2 is not appli cable; (2) Star did not establi sh as a matter of law without factual issues tha t Hawthorne was a just cause employ ee; (3) Star did not establi sh as a matte r of law without factu al issues thatthe collecti ve bargai ning agr eement provide d con trac tual safeguardsfor being wrongfully

terminated; (4) the Labor Managem ent Relations Act does not pree mpt his Sabine Pilot

3 cause of action; an d (5) the tr ial court erred by g ranting summary judg ment
on issues that s hould have been presented by special exception. Based u pon the rationale expressed h erein, weaffirm.
Hawthornewas employ ed by Star a t its refiner y in Port Arthur and ser

ved as an assistant operator and head operator in th e sulfur complex of the refinery . Contending he
was an at-will employee, asserting only one cause of actio n based o n Sabine Pilot , Hawthornealleged ( 1) he and his crew were ordered by Star to commit an allegedly illegal act of smelling w

ater samples 4 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 )5 29 U.S. § 185(a).
6 DelC ostello v . International Bhd. of Teamsters, 462 U .S. 151, 170-71, 103S.Ct. 2282, 76 L.Ed.2d 476 (1983). 3 as a resu lt ofhis re fus al, h is em ploym ent wa s terminated. To es tablish his claim for wrongful termination under Sabine Pilot , Hawthor ne had the burden to establish:

• he refused to perform an illegal act; and

• his refusal w

as the only reason he was terminated.
See Sabine Pilot , 687 S. W .2d at 735; Haw thorne 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 w

as effective to put

Hawthorn e 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 b y the Labor M anagement Relati ons Act, 5 (2) barre d in whole or in part by the six- month DelCostello 6 limitations period, and (3) barred by his failure to exhaust grievance and arbitrati on provisions under the applicable collective bargainin g agreement.
The summary judg ment based on Star’ s first trad itional m otion wasreverse d and remanded on first appeal. See Hawthorne , 45 S.W.3d at 757. The clerk’ s record presented here does not i nc lude St ar’s first motion for summ ary judgment; however, according to the Texarkana Court’s opi nion, the gr ound for Star’s fir

st motion asser

ted Hawthorne’s Sabine Pilot claim failed as a matter of law becaus e ther

e wassome7 By i ssues one, two, t hree, and four, Haw thorne addresses

Star’s tw

o traditional summary judg ment grounds and by issuefive, he addre sses Star’s no-evidence ground. 4 summary judgment ev idence negati ng the sole cause requir ement of a Sabine Pilot claim

. 45 S.W.3d at 759. Noting that nei ther party made an issue of the l egality or illeg ality of smelling the water, the court conc luded the first e lementof 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 ev idence that Hawthorn e was ter minated for refusing to do an illegal act because a no-ev idence motion w as not presented. Id . at 762 n.3.
Star’s second motion wasa combination tr aditional and no- evidence moti on for
summa ryj udgment. By its first t raditional g round, Star con tended the Sabine Pilot exception to th e em ploym ent- at-wil l doc trine was ina ppli cabl e bec ause Hawt horne ’s employment

was covered by the collective bargainin g agreement. As its second tradit ional ground, Star

contended Haw

thorne’s cl aims were preempted by s ection 301 of the Labor Management

Relations Act and barred by his failure to exhaust g rievance and arbitrati on provisions. Then, by its no-evidence motion, Sta r cont ended “there is no evidence supporting applicabili ty of a cri minal statute tha t [Hawthor ne] was discharg ed for refusing to violate.” 7 Because the g rounds of the second motion were not presented i n the first motion, the law as s tated in the firs t appeal rev ersing su mmary judg ment does not control
our disposition of this appeal. See Glen n v. Prestegor d, 456 S.W.2d 901, 902 (Tex. 1970);
see also Allstate Insurance Compan y v. Smith, 471 S.W .2d 620, 622 (T ex. Civ.App.- -El Paso 1971, no w rit). We commence our rev iew by considering Hawthorn e’s fifth issue.5 No-Ev idence Summar y Jud gment Stan dard of R eview Rule 166a(i)
Rule 166a(i) entit led “No -Evidence Motion,” pr ovides that a party may move for
summa ryjudgment on the ground that the re is no ev idence of one or moreessential elements of a claim or defense on which an adverse par ty would have the burden of proof attrial. Where, as here, the summary j udgment does not specify or

state the gr

ounds relied on, it will be affirmed on appeal ifany of the grounds pre sented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567 , 569 ( Tex. 1 989); Insur ance C o. Of N. Am.
v. Security

Ins., 790 S.W.2d 407, 410 (Tex.App.–Hou ston [1st Dist.] 1990, no writ). Wh ere a motion is pre sented under Rul e 166 a(i) as serting there is no evidence of one or more essential elements of the no n-movant's claim s upo n which the n on-m ovan t woul d have the burden of proof at trial, the movant does not bear the burden of establishing each element of its own c laim or defense as under subparag raph (a) or ( b). Rather, alth ough the nonmoving party is not requir ed to marshal its proof, it must p resent evidence that raises a genuine fact issue on the challenged el ements. See Tex. R. Ci v. P. 16 6a, Notes a nd Comments.
Because a no-evidence summary jud gment is ess entially a pretrial directed verdict , we appl y the same legal sufficiency standard in reviewing a no-evidence summa ry judgment

as we appl y in rev iewing a directed verdic t. Rot h v. FFP Operati ng Partners , 994 S.W.2d 190, 195 (Tex.A pp.--Amaril lo 1999, pet. deni ed); Jackson v. Fiesta Mart, Inc. , 9796

S.W.2d 68 , 70 (Tex.App.--Austin 1998, no pe t.). Thus, our task as an appellat e court is to ascertain w hether the non-movant produced any

evidence of pr

obative force to raise a fact i ssue on the material questions pr esented. Id . We consider all the ev idence in the light most favo rabl e to t he pa rty aga inst wh om the no-evi dence summary j udgment was rendered, disregar

ding all contrary ev idence and inferences. M errill D ow Pharmaceuticals
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) , cert

. denied , 523 U.S. 1119, 11 8 S.Ct. 1799, 140 L.Ed.2d 939 (1998) . A no-evi denc e summary judg ment is improper ly gr anted if the non-movant

presents more than a scintill a of probative evidence toraise a g enuine issue of material fact. Fiesta Mar t, Inc ., 979 S.W .2d at 70-71. More than a scintilla of evidence existswhen the ev idence “ri ses to a level that woul d enable reasonabl e and fair-minded people to diff er in their conclusions.” Havner , 953 S.W.2d at 711. By his fi fth issue direc

ted to Star’s no-evidenceground, Haw thorne contends t he trial court erred in granting summary judgment on issues that he co nten ds sh ould have been presented by

special exception. W e disagree. Because this i ssue impl icat es th e text and substance of Star’s no-evidence motion, and to dem onstrate our analysis, we set out the complete tex

t of that portion of the motion.
C. Plainti ff Present

s No Ev idence of Applicabilit y of Criminal Statute. B efore a Sabine Pilot case may go to the jury, the trial ju dge mus t “determine if a statute with a cr iminal pena lty is involved.” Sabine Pilot Ser vice, Inc. v. Hauc

k, 687 S.W .2d 733, 736 (Tex. 1985 ) (Kil garlin , concurri ng)

. Despite adequate time for discovery, there is no evidence supporting applicabili ty of a criminal statute that

plaintiff wasdischarg ed for7

refusing to violate. F or this addit ional reason, plaintiff has no cas e and summary judgment should be granted in defendant’s f avor. (Emphasis added). This ground comports with Hawthorne’s response and obj ection in the trial court. Haw

thorne is correct i n his contenti on that a summary judgment shoul d not be used to test pleadi ngs. See Alashmawi v. IBP, Inc ., 65 S.W.3d 162, 174 (Tex.App--Amarillo 2001, pet. denied), cit ing Masse y v. Armco Steel Co., 6 52 S.W.2d 932, 934 (Tex. 1983). However, Star’s motio n was not an attack on Hawthorn e’s pleading s. Under Sabine Pilot, the narrow exception tothe at-will doctrine exists only where the employee i s discharg ed because “the employ ee refused to perform an illegal act.” BecauseHawthorn e did n ot contend in the trial court and does n ot argue her e that the motion did not comply with Rule 166a(i) of the Texas Rul es of Civi l Procedure, or that it fail ed to giv e him fair no tice , see Roth v. FFP Op erating Par tners, 994 S.W.2d 190,194 (Tex.App. --Amarill o 1999, pe t

. denied), we concl ude Star’s moti on was sufficient to impose the burden on Haw thorne to
re spond with summar

y judgment evidence showing t he existence of any fact ques ti on s which, i f found, would const itute proof of the elements of any offense.
Hawthornedid not present any summary

judgment ev idence ad dress ing the noevidenc e motion or pres enting a fact q uestion that smel ling the w ater samples w

oul d constitute proof of the elements of any offense. Moreover , even if Hawthor ne’s claim th at smelling the water samples taken after the water h ad been processed by the “s tripping unit” implicated an illegal act, a q u estion we do not decide, he di d not produce any summary judgment ev idence creati ng a fact issu e thatthe samples contained hazardo us8 Hydrog en sulfide. 8

materials, if smelled. Fu rther, althoug h the Material Safety Data Sheet suggests

that inhaling H 2 S, 8 comm onl y known as “rotten egg” gas, can cause “headache, dizziness, nausea, vom iti ng, and d iar rhea ” if the conce ntr atio n of H 2 S is at a certain lev el, Hawt horne did not present any

summary judg ment evidence c reating a fact question that t he concentration of H 2 S was sufficient to cause any ofthe conditions mention ed. Hawthorne’s fifth issue is overruled.
Because the judgment does not specify o r

state the ground upon w hich it isbased, and shoul d be affirmed on appeal if any of the grounds pr

esented are meri torious, see Carr , 776 S.W.2d at 569 and Insu ranc e Co. of N. A m. , 790 S.W.2d at 410, our disposi tion of Hawthorn e’s fifth issue address ing the no-ev idence ground renders our considerati o n of h is rem aini ng iss ues u nne cess ary. Accordingl y, the judg ment of the trial court is affirmed.

Don H. Reavis Justice