by Michael Fox
Hawthorne alleged that his employer required that he and his crew smell water samples for the presence of ammonia and when he refused to do so, he was terminated. In his opinion this created a Sabine Pilot cause of action, that the sole reason for his termination was the refusal to commit a criminal act. The company filed and won a traditional summary judgment. Unfortunately, it was reversed by the appellate court, and the Supreme Court refused to hear the case.
Back in the trial court, the company tried a second motion for summary judgment, this time using both the traditional and the still relatively new no-evidence summary judgment now permitted by the Texas Rules. The latter proved to be the key to success as the both the trial court and the appellate court found that Hawthorne had failed to offer any evidence that requiring the employees to smell the water samples was in any way linked to a criminal statute. Hawthorne v. Star Enterprise (Tx. App. - Amarillo 7/23/03). In addition to showing the value of the no evidence summary judgment procedure, this case shows how the different workloads in the various appellate courts of Texas can cause a matter to be shifted around the state. The lawsuit was filed in Beaumont, but the initial appeal went to Texarkana, and this most recent decision was by the Amarillo Court of Appeals. It could be that the final word comes from Ausint, but my guess is that the Supreme Court will decline a second time to review the case.