O P I N I O N This is an appeal from a summary judgment dismissing Appellant Juliet Herrera’s claim against Appellees Paul Resignato and Paul J. Resignato, DPM, PA,[1] for wrongful termination under Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). Herrera argues that the trial court erred by implicitly ruling that (1) Herrera had the burden to disprove Dr. Resignato’s affirmative defense of capacity, (2) there is no evidence that she refused to commit an illegal act, and (3) there is no evidence that she was terminated from her employment solely for any such refusal. We affirm. I. BACKGROUND A. Events leading up to Herrera’s discharge As mandated by the summary judgment standard of review, the following recitation of facts is presented in the light most favorable to Herrera, the nonmovant. See Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 790 (Tex. 2019). Herrera and Aaron Rosas, Dr. Resignato’s son, were both employed at Dr. Resignato’s medical office.[2] On the morning of January 30, 2015, Rosas was sitting next to Herrera at her workstation and was charging his cell phone next to hers. Herrera left her workstation momentarily to get a patient chart and, when she returned, Rosas and both phones were gone. Herrera found Rosas, asked him whether he had taken her phone, and asked him to give it back if he had done so. Rosas checked his pockets and responded that he did not have her phone. Herrera then told Dr. Resignato that her phone was missing. She also told Dr. Resignato that, if she could not recover her phone, she would file a police report and prosecute whoever had stolen it. That same morning, after Herrera remained unable to locate her phone despite having asked her other co-workers, she filed a police report. In doing so, she named Rosas as the person she suspected as having taken it. Rosas had prior criminal convictions including convictions for theft and receipt of stolen property. On February 11, 2015, a co-worker told Herrera that she had seen Rosas with two cell phones, and that she thought that one of them belonged to Herrera. Herrera approached Rosas and “immediately recognized” one of the phones in his possession as hers. Herrera told Rosas that the phone belonged to her and took it from him. She then called Detective Trejo, the officer assigned to her case, and told him that she had recovered the phone from Rosas. Trejo told Herrera not to relinquish possession of the phone because it was evidence of a crime, and he advised her to come to the police station to give a statement. After this phone call, Dr. Resignato confronted Herrera and told her to give the phone back to Rosas, who had claimed it as his own. Herrera refused, reminding Dr. Resignato that Rosas had used her phone. Dr. Resignato then told Herrera to give the phone to him and, when she again refused, told her to bring him proof that the phone belonged to her. Herrera left the office and retrieved the phone’s original packaging and a receipt for its purchase, which showed the phone’s serial number. She returned to the office to show Dr. Resignato these items, along with the phone itself, to demonstrate that the phone’s serial number matched the receipt. She did not have the opportunity to present this proof, though, because Dr. Resignato and Rosas drove out of the office parking lot just when she returned. During her lunch break, while Dr. Resignato was still out of the office, Herrera went to the police station and gave a statement regarding the incident to Detective Trejo. Trejo told Herrera that she had to leave her phone with him because it was evidence in an ongoing investigation. Herrera complied, leaving the phone with Trejo and returning to the office without it. At the end of that same workday, Dr. Resignato asked Herrera if she had brought proof that the cell phone belonged to her. Herrera answered that she had left the phone with Detective Trejo, gave Dr. Resignato Trejo’s business card, and told him to go to the police station or call Trejo if he needed proof. Dr. Resignato then yelled that he wanted the phone and told Herrera to get out, which she did. The following morning, Dr. Resignato called Herrera into his office and again told her to give him proof that the phone belonged to her. She again told him that the police had the phone and that he could contact them for proof. He told Herrera to get the proof herself, but then told her that it would be best if she resigned. After she refused to resign, he fired her. B. Herrera’s claim Herrera sued Dr. Resignato for wrongful termination under Sabine Pilot, contending that she was fired “solely because [she] refused to act as an aider or abettor in [Dr. Resignato's] intended crime of tampering with evidence.” Herrera later amended her petition to add Resignato PA as a defendant.[3] C. Resignato’s grounds for summary judgment Resignato filed a motion purporting to seek both a traditional and a no-evidence summary judgment. As grounds for the no-evidence motion, Resignato asserted that there is no evidence that Herrera refused to perform an illegal act or that she was fired solely for refusal to perform an illegal act. Dr. Resignato also asserted that there is no evidence that he, individually, was Herrera’s employer.[4] As grounds for a traditional summary judgment, Resignato asserted that Herrera “cannot prove” that she refused to perform an illegal act at Dr. Resignato’s request and that there is “no evidence” that her employment was terminated solely because she refused to perform an illegal act. We note that these grounds do not comport with the applicable standard for a traditional summary judgment. See TEX. R. CIV. P. 166a(c) (movant must conclusively establish entitlement to judgment); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (“nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense”). Nevertheless, because Resignato also challenged the “refusal to perform an illegal act” and the “sole reason for termination” elements in the no-evidence motion, whether the evidence raises a genuine issue of fact on those elements is properly before us. The trial court granted Resignato’s motion for summary judgment without specifying the grounds on which it relied. Herrera’s motion for new trial was overruled by operation of law, and this appeal followed. II. DISCUSSION Herrera presents three issues concerning the trial court’s granting of Resignato’s motion for summary judgment: (1) whether the trial court erred by ruling, sub silencio, that Herrera had the burden to disprove Dr. Resignato’s affirmative defense that he was not liable in the capacity in which he was sued; (2) whether the trial court erred in holding, sub silencio, that Herrera presented no evidence of refusal to commit an illegal act and no evidence that she was terminated solely for refusing to commit an illegal act; and, (3) whether the trial court erred in holding, sub silencio, that Herrera could not prove that she refused to commit an illegal act, that there was no indication that she was asked to participate in any criminal act, and holding for the second time that she had no evidence of sole cause. A. Standard of Review A trial court’s order granting summary judgment is subject to de novo review. Ortiz v. State Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019). The moving party bears the burden of proof. Scripps, 573 S.W.3d at 790. For that reason, we “review the evidence in the light most favorable to the nonmovant and indulge every reasonable inference and resolve any doubts against the motion.” Id. While the burdens vary for traditional and no-evidence motions, see TEX. R. CIV. P. 166a(c), (i), where the movant files a hybrid motion and both parties bring forth summary judgment evidence, “the differing burdens are immaterial and the ultimate issue is whether a fact issue exists.” Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013); accord Scripps, 573 S.W.3d at 790. This approach is particularly apt in the present case, where Resignato relied on summary judgment evidence in support of his own no-evidence motion and asserted no-evidence grounds in support of his traditional motion, thus blurring the lines between the two. A nonmovant demonstrates the existence of a fact issue precluding summary judgment if she presents more than a scintilla of probative evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). “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.’” Id. (quoting Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Finally, where, as here, the trial court does not specify the grounds on which it relied in making its ruling, we must affirm the summary judgment if any of the grounds asserted are meritorious. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). B. The essential elements of a Sabine Pilot claim Texas is an “at-will” employment state, meaning that employers and employees are generally permitted to terminate their relationship “at any time for any reason unless they contractually agree otherwise.” Hillman v. Nueces Cty., 579 S.W.3d 354, 358 (Tex. 2019). In Sabine Pilot, the Texas Supreme Court announced “a very narrow exception to the employment-at-will doctrine,” covering “only the discharge of an employee for the sole reason that the employee refused to perform an illegal act.” 687 S.W.2d at 735; see Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 724 (Tex. 1990) (describing Sabine Pilot claim as an employee being “unacceptably forced to choose between risking criminal liability or being discharged from his livelihood”). In other words, Sabine Pilot provides “a remedy when an employee refuses to comply with an employer’s directive to violate the law and is subsequently fired for that refusal.” Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 660 (Tex. 2012). Supreme court precedent thus reveals that the essential elements of a Sabine Pilot claim are: (1) an employer instructed an employee to perform an illegal act; (2) the employee refused; and (3) the employee was discharged solely because of that refusal. See Safeshred, 365 S.W.3d at 660; Sabine Pilot, 687 S.W.2d at 735. The supreme court has also emphasized that what the employee was instructed, but refused to do, must be illegal. For example, in Ed Rachal Foundation v. D’Unger, 207 S.W.3d 330 (Tex. 2006), the court pointed out that “Sabine Pilot protects employees who are asked to commit a crime, not those who are asked not to report one.” Id. at 332. The plaintiff in that case failed to make out a Sabine Pilot claim because “he neither did nor was asked to do anything criminal.” Id. at 333. C. Issues Two and Three: Evidence of a request and refusal to perform an illegal act We begin with Herrera’s second and third issues which present related issues pertaining to Herrera’s claim. As a threshold question, we must determine whether the act which Dr. Resignato instructed Herrera to do, and what she refused to do, was illegal. See id. This question underlies both the first and second essential elements of Herrera’s Sabine Pilot claim—that Dr. Resignato told her to perform an illegal act and that she refused to perform an illegal act. See Safeshred, 365 S.W.3d at 660; Sabine Pilot, 687 S.W.2d at 735. Herrera acknowledges the importance of this inquiry in her brief by stating, “The refusal issue comes down to one question: Is there no evidence that turning over the phone to Dr. Resignato would have been a criminal act?” Herrera alleges that Dr. Resignato’s insistence that she give her phone to him constituted a request to aid and abet him in the commission of the crime of evidence tampering. As pertinent to this appeal, two provisions of the Penal Code are at issue. First, a person commits the offense of evidence tampering if, “knowing that an investigation or official proceeding is pending or in progress, he: alters, destroys, or conceals any . . . thing with intent to impair its . . . availability as evidence in the investigation or official proceeding[.]” TEX. PENAL CODE ANN. § 37.09(a)(1). And, second, a person commits an offense if the person, “ knowing that an offense has been committed, [he] alters, destroys, or conceals any . . . thing with intent to impair its . . . availability as evidence in any subsequent investigation of or official proceeding related to the offense[.]” Id. § 37.09(d)(1). Also as pertinent to this appeal, a person aids or abets, and is criminally responsible for, an offense committed by another person if, “acting with intent to promote or assist the commission of the offense, he . . . aids, or attempts to aid the other person to commit the offense[.]” Id. § 7.02(a)(2). Herrera’s theory is that, by instructing her to give him the phone that was the subject of her theft accusation, Dr. Resignato was instructing her to aid him in impairing the phone’s availability as evidence in an investigation or official proceeding. She urges that, had she complied, she would have been criminally responsible for Dr. Resignato’s offense of evidence tampering. See TEX. PENAL CODE ANN. § 7.02(a)(2). In support of her theory, Herrera contends that Dr. Resignato knew, at the time he told her to give him her phone, that she had accused Rosas of stealing her phone and that there was an ongoing criminal investigation into that theft. Herrera argues that a reasonable inference from this evidence is that Dr. Resignato intended to destroy or conceal the phone so that it would not be available as evidence against his son, who had multiple prior criminal convictions. See TEX. PENAL CODE ANN. § 37.09(a)(1), (d)(1). In other words, Dr. Resignato intended to commit evidence tampering. See id. Herrera argues that a further permissible inference is that, by telling her to give him the phone, Dr. Resignato was instructing her to aid and abet his evidence tampering. Resignato argues that there is no evidence that Herrera refused to aid and abet Dr. Resignato in committing evidence tampering because Dr. Resignato lacked the requisite knowledge to commit that offense. Specifically, he contends that his requests cannot support a claim of evidence tampering because they were made before Herrera told him the police had the phone and before he knew that there was any ongoing investigation. See TEX. PENAL CODE ANN. § 37.09(a)(1) (requiring knowledge of a pending investigation or official proceeding). Herrera counters that this knowledge may be inferred from evidence that (1) she told Dr. Resignato on January 30, 2015, that she would file a police report if she did not recover her phone, (2) she did not, on that date, recover her phone, and (3) she reported the theft to police. We need not determine whether this inference is sufficient to raise a genuine issue of fact concerning Dr. Resignato’s knowledge of a pending investigation because such knowledge is not necessarily required. Evidence tampering may also be predicated on a person’s knowledge that an offense has been committed, even if there is not yet any investigation or official proceeding. See id. at § 37.09(d)(1) (requiring knowledge that an offense has been committed). There is evidence that Dr. Resignato knew that Herrera’s phone had been stolen, and that she accused Rosas of that theft, before he made any request for her to give the phone to him. Resignato also argues that there is no evidence that Herrera refused to aid and abet Dr. Resignato in committing evidence tampering after he was told that the phone had been given to the police because he never asked her to give him the phone after that time. But there is evidence that Dr. Resignato told Herrera he wanted the phone after he knew it was in the possession of the police and shortly before he fired her. In addition, Herrera argues that Dr. Resignato’s requests that she provide proof of ownership (some of which occurred after he knew the police had the phone) constituted requests for the phone, itself, because she could not prove ownership without matching the serial number on the phone to the serial number on her receipt. Nevertheless, even if we conclude that there is some evidence to support Herrera’s contention that Dr. Resignato intended to commit evidence tampering, there is no evidence that he asked her to do anything criminal. See D’Unger, 207 S.W.3d at 333. In other words, there is no evidence that Herrera would have risked criminal liability for aiding and abetting if she had complied with Dr. Resignato’s instructions to give her the phone. See McClellan v. Ritz-Carlton Hotel Co., 961 S.W.2d 463, 465 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (Sabine Pilot plaintiff must show he risked criminal penalties). The penal statute underlying Herrera’s “aiding and abetting” theory provides that a person faces criminal responsibility for the offense of another if, “acting with intent to promote or assist the commission of the offense,” he aids that person to commit the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2). The supreme court in D’Unger focused on the requirement of “intent to assist in the commission of a crime,” and held that the plaintiff in that case did not have a Sabine Pilot claim because there was no evidence that he had this requisite intent. 207 S.W.3d at 332 (citing TEX. PENAL CODE ANN. § 7.02(a)). The same is true in this case. There is no evidence that Herrera had any intent to assist Dr. Resignato in tampering with the evidence that was central to her accusation of theft. As a consequence, nothing in the record or the applicable law supports the conclusion that Herrera would have performed an illegal act if she had given her phone to Dr. Resignato rather than giving it to the police.[5] As in D’Unger, Herrera “neither did nor was asked to do anything criminal,” and there is no evidence that she ever intended to participate in any impending criminal act. See 207 S.W.3d at 332, 333. As for Dr. Resignato’s request for the phone after it had been given to the police, there is again no evidence that Herrera had the intent required to commit the offense of aiding and abetting. In addition, there is no evidence that Herrera refused to comply with the request to give Dr. Resignato the phone. Rather, the evidence is that Herrera did not comply because it was not possible to do so; the phone was no longer in her possession or control. The evidence in this case concerning two essential elements of Herrera’s Sabine Pilot claim—that Dr. Resignato instructed her to perform an illegal act and that she refused to perform an illegal act—does not rise to a level that would enable reasonable and fair-minded people to differ in their conclusions. See King Ranch, 118 S.W.3d at 751; Havner, 953 S.W.2d at 711. Consequently, the record does not demonstrate the existence of a fact issue precluding summary judgment on that claim. King Ranch, 118 S.W.3d at 751. Accordingly, we overrule Herrera’s second and third issues. As our holding is dispositive of the appeal, we need not address Herrera’s remaining issue pertaining to the evidentiary burden of Dr. Resignato’s affirmative defense. See Lightning Oil, 520 S.W.3d at 45 (when order does not specify grounds, courts uphold summary judgment on any meritorious ground). III. CONCLUSION The trial court did not err by granting Resignato’s motion for summary judgment because there is no evidence to support two of the essential elements of Herrera’s Sabine Pilot claim. The trial court’s order granting Resignato’s motion for summary judgment is affirmed. GINA M. PALAFOX, Justice May 6, 2020 Before Rodriguez, J., Palafox, J., and Larsen, J. (Senior Judge) Larsen, J. (Senior Judge), sitting by assignment
