Ashley Coe v. Sienna Financial Services, LLC ( 2019 )

Affirmed and Memorandum Opinion filed August 13, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00338-CV
ASHLEY COE, Appellant
V.
SIENNA FINANCIAL SERVICES, LLC, Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2017-18655
MEMORANDUM OPINION
After Sienna Financial Services, LLC, fired Ashley Coe, she sued the
company for wrongful termination under the Sabine Pilot exception to the
employment-at-will doctrine.1 A jury returned a verdict for Coe and awarded
damages; the trial court granted Sienna Financial’s motion for judgment
notwithstanding the verdict and Coe timely appealed. We affirm.
1
See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985).
BACKGROUND
Our recitation of the factual background is constrained by the appellate
record before us. We draw the following from the limited record.
In September 2016, Coe saw an advertisement on Craigslist for “tax-
preparer school” and decided to attend. After finishing the ten-week course, she
applied for a job at Sienna Financial (owned by Kutina Harmon and Craig Bryant),
and was hired to prepare tax returns in December 2016. Coe signed an at-will
employment contract with Sienna Financial. She was assigned a Preparer Tax
Identification Number (PTIN) which identified her to the Internal Revenue Service
(IRS) and was required on every tax return she prepared. Between the time she
was hired in December 2016 and the end of January 2017, business was slow and
Coe mostly answered the phone; during that time, she prepared fewer than ten tax
returns. According to Coe, she never received any complaints from Harmon or
Bryant about her work performance during that time.
In the early evening on February 1, 2017, a customer came to Sienna
Financial, introduced himself as the dentist next-door, handed Coe a large
envelope, and asked her to “get this all worked up for” him so he could return the
following day with his wife to “sign everything.” Coe asked him to sign a release
before he left. Coe recalled she and Bryant had the following exchange after the
customer left:
Craig [Bryant] came from the back and he was, like, why did
you let him leave?
And I said, well, he said he wanted to come back tomorrow
with his wife to sign everything and that he had to get back to work.
And he just wanted to drop it off so it could be worked up.
And he’s, like, no, no, no. You should have never let him walk
out the door.
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I was, like, okay. I was, like, but he wanted his wife here to go
over everything.
And then Craig told me, he was, like, no, he didn’t need his
wife here.
I was, like, she has to be here to sign.
He goes, no, he can sign for his wife. And me and the other
lady that was in the office kind of looked at each other and were just
really puzzled.
And I was, like, you know, you can’t sign for your wife.
And he told me, yes, that’s one of the perks of being married is
that you can sign things for your spouse.
And I was very confused and I was, like, I really don’t think
that’s the way it is. We just learned about this in school; so I was, like,
you know, how can that happen.
He was, like, it just is. You have him sign it and it’s done.
After this exchange with Bryant, Coe and a co-worker looked up the circumstances
in which a spouse can sign a tax return for the other spouse on the IRS website.
Coe then told Bryant that a spouse can only sign for his or her spouse: “if you have
a power of attorney, you know, special circumstances. Like if they’re in the
military or sick or if they’ve passed away in the previous tax year. That would be
the only reason and you would need it documented.” Bryant did not say anything
to Coe in response.
Coe was scheduled to work the next afternoon. Because she was upset about
the exchange she had with Bryant, she decided to send an email to Bryant and
Harmon before coming to work the next morning. In her email, Coe expressed
discomfort with “bending the rules” and stated, among others:
Craig,
First, I have to say that I am very happy and proud to be working for
Liberty. I enjoy my time working with and helping people get the
most; not only from their refund, but also from their experience of
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having their taxes filed at Liberty.
I hope that I can be an asset to your team, and I am eager to learn the
ins and outs of the business . . . . And, while I know little about the
business end of things that you see and handle everyday [sic], I do
have a working understanding of laws. Where you may feel
comfortable bending the rules, it makes me very uncomfortable. In
the case of having a husband sign a return for his wife, the law is quite
clear that there are only specific circumstances where this is allowed,
and they have to be documented as such. Doing so outside of those
parameters is forgery and falsifying government documents and can
carry criminal charges. I just cannot, in good conscience, associated
[sic] my name with that. . . . And, while I will always do my best to
bring in business, and give the best service possible to every client, I
am very uncomfortable [ignoring] the laws to do so and I hope that it
is not a condition of my continued employment.
Shortly thereafter, Harmon responded to Coe’s email and fired her via email:
Ashley,
We at Liberty Tax Service are very happy to have you as a part of our
team and think that you have a very bright future.
In no way would we at Liberty Tax Service ever ask you to perform
any task that is illegal, unethical or breaks any government regulatory
laws. However, it is our expectation that staff consults with Liberty
Management prior to interpreting tax laws based upon a novice
understanding. Management’s intervention gives us an opportunity to
assess the circumstances, review the law and to make a conscious and
legal decision about what direction to pursue after prudent research. It
is our goal to create “Raving Liberty Tax Customers” by going the
extra mile to make certain that all efforts to provide excellent
customer service have been exhausted.
It is our apology if you interpreted things in any other way. We thank
you for your service to Liberty Tax and wish you the very best of luck
on [sic] your future endeavors.
After hearing the evidence presented by the parties, the jury found in favor of Coe
on her wrongful termination claim, answering “Yes” in response to Question
Number 1 asking: “Was Ashley Coe discharged for the sole reason that she
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refused to perform an illegal act?” The jury also awarded Coe $4,350.00 in
damages.
Sienna Financial filed a motion for judgment notwithstanding the verdict
and argued that (1) “the evidence conclusively negated that [Sienna Financial]
ordered or required [Coe] to perform an illegal act” or face termination; (2) “[a]t
best, [Coe] provided evidence to a theoretical illegal act or a future illegal act for
which Sabine Pilot is inapplicable”; and (3) no evidence supports the jury’s
damages finding because Coe “presented no facts or data to support [the] award of
past lost earnings.”
Coe filed a response to Sienna Financial’s motion for judgment
notwithstanding the verdict and contended (1) there is more than a scintilla of
evidence to support a finding that she was fired solely for refusing to commit an
illegal act because “[i]t can be reasonably inferred that, as a policy and practice of
the company, there was an expectation that Coe engage in such illegal activity as a
condition of continued employment”; and (2) there is sufficient evidence to support
Coe’s damages award.
The trial court granted Sienna Financial’s motion for judgment
notwithstanding the verdict and signed a take nothing judgment against Coe on
April 18, 2018.
ANALYSIS
In one issue, Coe argues the trial court erroneously granted a judgment
notwithstanding the verdict “after the jury found Sienna wrongfully terminated
Coe under the Sabine Pilot doctrine” because (1) there is some evidence to support
the jury’s finding she “explicitly refused to commit an illegal act” and was fired
solely for refusing to commit an illegal act; and (2) there is some evidence to
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support the jury’s damages award.
A trial court’s decision to grant a judgment notwithstanding the verdict
should be affirmed if there is no evidence to support one or more of the jury
findings on issues necessary to liability. Wal-Mart Stores, Inc. v. Miller, 102
S.W.3d 706, 709 (Tex. 2003) (per curiam). To determine whether a trial court
erred in granting a judgment notwithstanding the verdict, we view the evidence in
the light most favorable to the verdict under the well-settled standards that govern
legal sufficiency review. See id.; see also City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005) (“[T]he test for legal sufficiency should be the same for
summary judgments, directed verdicts, judgments notwithstanding the verdict, and
appellate no-evidence review.”).
Thus, we will affirm a judgment notwithstanding the verdict if (1) there is a
complete absence of evidence of a vital fact; (2) rules of law or evidence preclude
according weight to the only evidence offered to prove a vital fact; (3) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence
conclusively establishes the opposite of the vital fact. Elaazami v. Lawler Foods,
Ltd., No. 14-11-00120-CV, 2012 WL 376687, at *2 (Tex. App.—Houston [14th
Dist.] Feb. 7, 2012, no pet.) (mem. op.); see also City of Keller, 168 S.W.3d at 820.
We must review the evidence in the light most favorable to the verdict and
assume that the jury resolved all conflicts in accordance with the verdict. City of
Keller, 168 S.W.3d at 820. We credit evidence favorable to the jury’s verdict if
reasonable jurors could do so, and we disregard contrary evidence unless
reasonable jurors could not do so. Id. at 827. Thus, if the evidence allows only
one inference, neither jurors nor the reviewing court may disregard it. Id. at 822.
The final test is whether the evidence at trial would enable reasonable and fair-
minded people to reach the verdict under review. Id. at 827.
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In this case, Coe challenges the trial court’s grant of judgment
notwithstanding the verdict. However, an appellant bears the burden of bringing
forward a sufficient record to show that the trial court erred. See Sportscapers
Constr., Inc. v. Mitchell, No. 01-17-00432-CV, 2018 WL 3651620, at *3 (Tex.
App.—Houston [1st Dist.] Aug. 2, 2018, no pet.) (mem. op.).
When an appellant requests a partial reporter’s record, she must include with
that request “a statement of the points or issues to be presented on appeal and [the
appellant] will then be limited to those points or issues.” See Tex. R. App. P.
34.6(c)(1); Mason v. Our Lady of the Sea Catholic Church, 154 S.W.3d 816, 819
(Tex. App.—Houston [14th Dist.] 2005, no pet.). “The appellate court must
presume that the partial reporter’s record designated by the parties constitutes the
entire record for purposes of reviewing the stated points or issues.” Tex. R. App.
P. 34.6(c)(4); Mason, 154 S.W.3d at 819. This presumption applies even if the
statement includes a point or issue complaining of the legal or factual insufficiency
of the evidence to support a specific factual finding identified in that point or issue.
Tex. R. App. P. 34.6(c)(4); Mitchell, 2018 WL 3651620, at *3.
Thus, if an appellant provides a partial reporter’s record without including
the required statement of points or issues, we must presume the omitted portions of
the reporter’s record support the trial court’s findings. Bennett v. Cochran, 96
S.W.3d 227, 229-30 (Tex. 2002) (per curiam) (“There is no question that, had
[appellant] completely failed to submit his statement of points or issues, Rule 34.6
would require the appellate court to affirm the trial court’s judgment.”); Gallagher
v. Fire Ins. Exch., 950 S.W.2d 370, 371 (Tex. 1997) (per curiam) (quoting Crown
Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 122 (Tex. 1991)) (per curiam)
(“The court of appeals was correct in holding that, absent a complete record on
appeal, it must presume the omitted [items] supported the trial court’s judgment”);
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Mason, 154 S.W.3d at 819.
To prevail on her wrongful termination claim under the Sabine Pilot
exception to the employment-at-will doctrine, Coe was required to prove that (1)
she refused to perform an illegal act, and (2) this refusal was the only reason she
was terminated. See Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 659 (Tex.
2012); Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). The
Texas Supreme Court recognized this narrow exception to the employment-at-will
doctrine because of the public policies expressed in our criminal laws and to
prevent employers from forcing employees “to choose between risking criminal
liability and being discharged from [their] livelihood.” See Safeshred, Inc., 365
S.W.3d at 659; Winters v. Houston Chronicle Publ’g Co., 795 S.W.3d 723, 724
(Tex. 1990). Thus, the illegal act an employee is ordered to perform must be one
that subjects the employee to criminal penalty. See Ed Rachal Found. v. D’Unger,
207 S.W.3d 330, 332 (Tex. 2006) (per curiam) (“Sabine Pilot protects employees
who are asked to commit a crime”); see also Mayfield v. Lockheed Eng’g & Scis.
Co., 970 S.W.2d 185, 187 (Tex. App.—Houston [14th Dist.] 1998, pet. denied)
(“To prevail on the Sabine Pilot exception to the employment-at-will doctrine, the
terminated employee must prove his discharge was solely because he refused to
perform an illegal act that could result in criminal penalties against him.”); and
Medina v. Lanabi Inc., 855 S.W.2d 161, 163 (Tex. App.—Houston [14th Dist.]
1993, writ denied) (“Appellants do not dispute that under Sabine Pilot the illegal
act they were required to perform as a condition of continued employment must be
punishable as a crime.”).
The reporter’s record before us consists of a solitary volume containing
excerpts from Coe’s and Harmon’s trial testimony. We do not know if the excerpts
contain Coe’s and Harmon’s entire testimony. The reporter’s record does not
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contain any testimony from Bryant or any of the admitted trial exhibits.
The partial record in this case does not contain any evidence that the act Coe
was asked to perform “could result in criminal penalties against” her as required by
Sabine Pilot. See D’Unger, 207 S.W.3d at 332 (“Sabine Pilot protects employees
who are asked to commit a crime”); Mayfield, 970 S.W.2d at 187 (“To prevail on
the Sabine Pilot exception to the employment-at-will doctrine, the terminated
employee must prove his discharge was solely because he refused to perform an
illegal act that could result in criminal penalties against him.”); Ran Ken, Inc. v.
Schlapper, 963 S.W.2d 102, 105 (Tex. App.—Austin 1998, pet. denied)
(“Necessary to the employee’s proof is evidence that the act could have resulted in
criminal penalties against the employee.”).
However, regardless of the evidence presented in the partial record, this
record before us neither contains a request for a partial reporter’s record nor a
statement of points or issues to be presented on appeal.2 Thus, we must presume
that the omitted portions of the reporter’s record support the trial court’s judgment.
See Tex. R. App. P. 34.6(c)(4); Bennett, 96 S.W.3d at 229; Gallagher, 950 S.W.2d
at 371; Mitchell, 2018 WL 3651620, at *3-4; Mason, 154 S.W.3d at 819-21;
Spring Ctr. Animal Clinic, Inc. v. Haltner & Assocs., Inc. No. 14-01-00278-CV,
2002 WL 27431, at *2 (Tex. App.—Houston [14th Dist.] Jan. 10, 2002, no pet.)
(mem. op., not designated for publication). Accordingly, we must conclude Coe
2
The Harris County District Clerk has certified that Coe did not file a request for a partial
reporter’s record or a statement of points or issues to be presented on appeal. Additionally, in
response to our July 8, 2019 order directing the Harris County District Clerk to file “any request
for a reporter’s record, including any statement of points or issues under Rule 34.6(c),” or certify
that “the item is not a part of the case file,” Coe filed a notice in this court on July 10, 2019,
stating: “On July 8, 2019, the Court issued an order indicating that there was no request for a
reporter’s record. Appellant provides notice that, given the scope of this appeal and the fact that
the relevant portions of the trial testimony were included in the clerk’s record, there is no need
for the reporter’s record.”
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has not shown the trial court erred in granting a judgment notwithstanding the
verdict in favor of Sienna Financial, and we overrule Coe’s issue.
CONCLUSION
We affirm the trial court’s judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Hassan, and Poissant.
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