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Opinion issued April 19, 2007
Court of Appeals
First District of
ERIC L. MILLER, Appellant
RAYTHEON AIRCRAFT COMPANY, RAYTHEON TRAVEL AIR, AND FLIGHT OPTIONS, L.L.C., Appellees
On Appeal from the 10th District Court
Trial Court Cause No. 02CV0990
O P I N I O N
In this wrongful discharge case, Eric Miller, an airplane pilot, appeals summary judgments entered in favor of appellees Raytheon Aircraft Company (RAC), Raytheon Travel Air (RTA), and Flight Options, L.L.C. (FOC). Miller contends (1) summary judgment was improper on his wrongful discharge claims under the Sabine Pilot exception to the employment-at-will doctrine, and the trial court erred in considering hearsay in a summary judgment affidavit, (2) his wrongful discharge claims are not preempted by the Airline Deregulation Act of 1978, (3) summary judgment on his breach of contract claims was improper because he was not an at-will employee, and (4) summary judgment was improper on his common law tort, conspiracy, and unpaid wages claims. We conclude that RAC and RTA established that they terminated Miller’s employment for a reason other than his refusal to perform illegal acts, negating the causation required for a Sabine Pilot claim as a matter of law. We further conclude that the Airline Deregulation Act of 1978 preempts Miller’s Sabine Pilot wrongful discharge claim against FOC. Finally, the trial court properly granted summary judgment on Miller’s breach of contract and common law claims. We therefore affirm the trial court’s orders granting summary judgment.
Facts and Procedural History
RAC hired Miller in December 1997 and assigned him to work for RTA as a pilot. RTA was a fractional aircraft ownership business in which customers would buy a share of an aircraft and pay a monthly management fee. Buying a share of an aircraft entitled the customer to a certain number of flight hours per year. RTA managed the aircraft, which included providing pilots, crew, maintenance, fuel, catering, and scheduling services.
In December 2001, RTA formed a joint venture with Flight Options, Inc. (FOI), an RTA competitor. The venture established a new company called Flight Options, L.L.C. (FOC). FOC also engages in a fractional aircraft ownership business and operates RTA’s former fleet of aircraft. RTA initially owned a forty-nine percent interest in FOC, but currently owns a greater than fifty percent interest. As part of the transaction, RTA ceased flight operations upon the effective date of the agreement.
Miller worked for RAC and RTA until the FOC joint venture commenced on April 1, 2002, whereupon Miller began working for FOC. On April 4, just four days after Miller began work, FOC fired Miller, providing as a basis for its decision that it had received complaints that he had been abusive to a female flight attendant, and that he had unnecessarily slowed down an equipment upgrade.
In this lawsuit, Miller alleges that he was fired for a different reason. According to Miller’s affidavit, as a pilot, he was responsible for ensuring that any aircraft he was assigned to fly was fit for service in accordance with the RTA Flight Operations Manual and Federal Aviation Administration (FAA) regulations. Generally, FAA regulations require that all systems and components on an aircraft be operative. An aircraft, however, may nonetheless be dispatched for a flight, or may continue a flight, with certain systems and components inoperative, provided the aircraft has an approved Minimum Equipment List (MEL), and is operated in accordance with the procedures and limitations prescribed by the MEL. Miller alleges that throughout his employment at RAC and RTA, his superiors requested and pressured him to continue flight operations with aircraft that had maintenance problems that required their grounding in accordance with their published MELs. Miller further alleges that he was fired because he refused to fly these aircraft, citing five occasions when he grounded aircraft that did not meet MEL standards.
In addition to a Sabine Pilot wrongful discharge claim, Miller seeks recovery for breach of employment contract, promissory estoppel, fraud, negligent misrepresentation, civil conspiracy, intentional infliction of emotional distress, negligence, and wage and hour violations.
Wrongful Discharge—RAC and RTA
A. Affidavit of William Wallisch
At the outset, Miller contends the trial court abused its discretion in denying his motion to strike the affidavit of William Wallisch, an RTA Vice President, in its entirety. The trial court struck the portion of Wallisch’s affidavit that stated that Miller’s employment with RTA was “at-will,” but refused to strike the remainder of the affidavit. Miller contends that the affidavit fails to demonstrate that Wallisch is competent to offer testimony concerning Miller’s employment status. Miller also contends that Wallisch’s statement in the affidavit referencing an un-appended combination agreement constitutes hearsay. Miller directs us to Texas Rule of Civil Procedure 166a(f), which provides: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Tex. R. Civ. P. 166a(f).
We review a trial court’s decision to admit or
exclude summary judgment evidence for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (
Miller contends Wallisch’s affidavit failed to demonstrate that he was competent to offer testimony concerning Miller’s employment status. Wallisch’s affidavit states:
1. My name is William Wallisch. I am over twenty-one years of age, and I am competent to make this Affidavit. All matters stated herein are true and correct and within my personal knowledge.
2. I am currently the Vice President and Controller for Raytheon Aircraft Parts & Inventory Distribution. From April 1997 through August 2002, I served as the Vice President, Finance of Raytheon Travel Air Company.
Rule 166a(f) requires an affiant to affirmatively show that he is competent to testify to the matters stated in an affidavit. Tex. R. Civ. P. 166a(f). The affidavit must affirmatively demonstrate how the affiant is competent to testify. Jackson T. Fulgham Co. v. Stewart Title Guar. Co., 649 S.W.2d 128, 130 (Tex. App.—Dallas 1983, writ ref’d n.r.e.). “The personal knowledge requirement is satisfied if the affidavit sufficiently describes the relationship between the affiant and the case so that it may be reasonably assumed that the affiant has personal knowledge of the facts stated in the affidavit.” Stucki v. Noble, 963 S.W.2d 776, 780 (Tex. App.—San Antonio 1998, pet. denied).
Here, the assertion in Wallisch’s affidavit that he was Vice President of Finance at RTA from 1997 until 2002 demonstrates a basis for personal knowledge concerning Miller’s employment status. We have held that such an assertion is sufficient to demonstrate personal knowledge and competence to testify. See Waite v. BancTexas-Houston, N.A., 792 S.W.2d 538, 540–41 (Tex. App.—Houston [1st Dist.] 1990, no writ); see also Equisource Realty Corp. v. Crown Life Ins. Co., 854 S.W.2d 691, 695 (Tex. App.—Dallas 1993, no writ); Jackson T. Fulgham Co., 649 S.W.2d at 130. Accordingly, we hold that the factual assertions in Wallisch’s affidavit demonstrate his competence to testify about Miller’s employment status at RTA.
Miller also contends that Wallisch’s statement in the affidavit referring to the combination agreement creating FOC constitutes hearsay. Specifically, Miller objects to the portion of Wallisch’s affidavit that states, “although, pursuant to the parties’ agreements, the pilots would be under the operational control of Flight Options, L.L.C. between March 20, 2002 and April 1, 2002.” RAC and RTA respond that the statement regarding the terms of the agreement constitutes a statement of operative facts, and is therefore not hearsay.
To obtain reversal of a judgment based on error
in the admission or exclusion of evidence, an appellant must show that the
trial court’s ruling was erroneous and that the error was calculated to cause,
and probably did cause, “rendition of an improper judgment.” Tex.
R. App. P. 44.1(a)(1); Malone, 972 S.W.2d at 43; Benavides v. Cushman, Inc., 189
S.W.3d 875, 879 (
Here, Miller included a copy of the combination agreement in his summary judgment evidence. Given that the agreement was present in the record, we hold that Miller could not be harmed by error, if any, in the trial court’s admission of the statement in Wallisch’s affidavit. See Tex. R. App. P. 44.1(a)(1); GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 619–20 (Tex. 1999) (holding that trial court’s error in admitting expert testimony as to whether defendant’s conduct was extreme and outrageous was harmless because expert testimony was cumulative of abundant evidence at trial showing that his conduct was extreme and outrageous); Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d 529, 532 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (holding that any error in admission of evidence was harmless because it was cumulative).
B. Wrongful Discharge
Miller contends the trial court erred in granting RAC and RTA’s traditional motion for summary judgment on his wrongful discharge claims because RAC and RTA did not establish as a matter of law that Miller was terminated for reasons other than his refusal to fly aircraft in violation of FAA regulations.
We review a summary judgment de
The evidence is undisputed that RAC and RTA terminated each and every one of their 500 pilots when RTA ceased its operation of the fractional aircraft ownership business. The master transaction agreement creating FOC provides:
4.5 Employees. Prior to the Closing Date, the Parties will identify the employees of [FOI] and [RTA] that are to be offered employment with [FOC] as of the Closing Date and shall make a formal offer of employment to each such Person and shall inform each such Person of the compensation and benefits for which such Person will be eligible as an employee of [FOC].
In his affidavit, William Wallisch states,
4. On March 20, 2002, Travel Air combined certain of its assets and liabilities with certain assets and liabilities of its competitor Flight Options, Inc., in order to form a separate legal entity, Flight Options, L.L.C.
5. Although Travel Air did not cease to exist as a result of this transaction, it ceased its operation of fractionally-owned aircraft. As a result, the services rendered by the pilots who were employed by Travel Air were no longer necessary, and the employment of Travel Air pilots was officially terminated on or about April 1, 2002 (although, pursuant to the parties’ agreements, the pilots would be under the operational control of Flight Options, L.L.C. between March 20, 2002 and April 1, 2002).
Miller accepted an offer of employment from FOC in February of 2002. RAC executed a termination of employment form on April 2, 2002 that states that Miller’s employment was voluntarily terminated because he obtained another job due to the “[m]erger of Raytheon Travel Air and Flight Options.”
This evidence establishes as a matter
of law that RAC and RTA terminated the employment of all their pilots, including
Miller, because of the creation of FOC and the cessation of RTA’s fractional
aircraft ownership business. See Bell v. Specialty Packaging Prods., 925 F. Supp. 475, 477 (W.D. Tex. 1994) (holding that
because reduction in work force at her plant was at least one reason for
plaintiff’s termination, her Sabine Pilot claim failed); cf. McClellan,
In his second issue, Miller contends the trial court erred in granting FOC’s summary judgment on his Sabine Pilot wrongful discharge claim because the claim is not preempted by the Airline Deregulation Act of 1978 (ADA).
A. General Preemption Law
Federal preemption of state law is grounded in
the Supremacy Clause of the United States Constitution, which provides that “the
Laws of the United States . . . shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.”
“Preemption can take one of several forms.” Black, 116
S.W.3d at 748. A federal law may expressly preempt a state
The purpose of Congress is the ultimate
touchstone in every preemption case. Retail
Clerks Int’l Ass’n v. Schermerhorn,
B. Airline Deregulation Act
In 1978, Congress deregulated the
airline industry by enacting the
Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.
49 U.S.C. § 41713(b)(1).
1. Morales and Wolens
In Morales v. Trans World Airlines, Inc., the United State Supreme Court examined whether the
In American Airlines,
Inc. v. Wolens, the United States Supreme Court again addressed the
2. Kiefer and Black
The Texas Supreme Court first addressed
preemption under the
In 2003, The Texas Supreme Court
again addressed preemption under the
The Texas Supreme Court applied the two-part
analysis from Kiefer and
examined whether the plaintiff’s contract claims related to airline prices,
routes, or services, and
whether the claims constituted the enactment or enforcement of a state law,
regulation, or other provision.
The court also concluded that the plaintiff’s
contract claims, if allowed to proceed, would constitute state enforcement or
enactment of a state law under the preemption provision of the
C. Air Carrier Status
Miller contends the
FOC produced a certificate from the FAA certifying its
status as an air carrier. See 14 C.F.R. § 119.5(a) (2000) (“A
person authorized by the Administrator to conduct operations as a direct air
carrier will be issued an Air Carrier Certificate.”). Miller did not produce any contrary evidence
to raise a fact issue. FOC has therefore
established as a matter of law its status as an air carrier under the
In determining whether the
We begin with the question of whether Miller’s Sabine Pilot wrongful discharge claim is
related to FOC’s prices, routes, or services.
See id. at 281. Miller’s Sabine
Pilot claim authorizes a suit for wrongful discharge when FOC terminated
his employment allegedly for refusing to fly aircraft that did not meet FAA
regulations. See 687 S.W.2d at 735. It is
undisputed that Miller’s refusals to pilot aircraft resulted in the grounding
of the aircraft. Grounding aircraft
directly affected FOC’s point-to-point transportation services. While some variation has arisen among the
courts regarding the definition of the term “services” under the
The second inquiry under the Kiefer analysis is whether Miller’s Sabine Pilot wrongful discharge claim
constitutes the enforcement of a state law, regulation, or other provision
within the meaning of the
The Eighth Circuit’s
decision in Botz v. Omni Air
International supports our decision in this case. 286 F.3d at 495. In Botz,
Omni Air International terminated Anna Botz’s employment as a flight attendant
after she refused a flight assignment that she believed violated federal safety
The Eleventh Circuit’s decision in Branche v. Airtran Airways, Inc. uses a
similar analysis but applies it to different facts. 342 F.3d at 1252. In Branche,
Airtran Airways terminated Michael Branche’s employment as a safety inspector
after he reported Airtran’s violations of federal law to the FAA.
As for the connection between retaliatory discharge claims and airline services, we do not dispute the Eight Circuit’s conclusion that the grounding of an airplane is related to airline services, in particular, the transport of passengers from one place to another. However, in this case, the connection—or, indeed, the potential connection—between Branche’s actions and air carrier services is far more attenuated than in Botz. As the Eighth Circuit said, if a flight attendant refuses to fly and a replacement cannot be found, FAA regulations prevent the plane from leaving the gate, thereby disrupting service. Here, by contrast, we are not concerned with the withdrawal of clearance for a plane to take off based on mechanical concerns, but instead only with Branche’s post hoc reporting of a FAA violation. . . . Had Branche claimed that Airtran fired him in retaliation for refusing to allow a plane to take off due to safety concerns, this would present a situation closer to the one at issue in Botz. But that is not the claim before us.
Factually, our case is closer to Botz than it is to Branche.
We note the limited
applicability of our holding. The
In his fourth issue, Miller contends the trial court erred in granting summary judgment on his breach of contract claims. RAC and RTA attacked the breach of contract claims with a no-evidence motion for summary judgment, while FOC filed a traditional motion for summary judgment.
A. RAC and RTA’s Summary Judgment
In their no-evidence motion for summary judgment, RAC and
RTA contended that Miller produced no evidence that an employment contract
existed. A contract that alters the
at-will employment relationship must “unequivocally indicate [the employer’s]
definite intent to be bound not to terminate the employee except under clearly
specified circumstances.” Brown, 965 S.W.2d at 502; see also Midland Judicial Dist. Cmty. Supervision & Corr. Dep’t v. Jones,
92 S.W.3d 486, 487 (
In a Rule 166a(i)
no-evidence summary judgment, the movant represents that no evidence exists as
to one or more essential elements of the non-movant’s claims, upon which the
non-movant would have the burden of proof at trial. Tex.
R. Civ. P. 166a(i). The non-movant then must
present evidence raising a genuine issue of material fact on the challenged
received a letter from RAC in November of 1997 offering him employment as a
pilot. Miller accepted the offer by
signing the last page of the letter, as requested by RAC. Miller asserts that as a government
contractor, RAC promised that it would employ
Raytheon Aircraft Company is a government contractor
subject to Section 503 of the Rehabilitation Act of 1973 and Section 402 of the
Vietnam Era Veterans Readjustment Assistance Act of 1974. These acts require this company to take action
to employ and advance in employment, in accordance with its policies, qualified
handicapped/disabled individuals, disabled veterans and veterans of the
Miller also executed an employee assignment agreement and an employee confidentiality agreement at the request of RAC. In the assignment agreement, Miller gives RAC permission to search his person or vehicle and he agrees that any inventions he creates or patents he obtains while working at RAC will become the exclusive property of RAC. The agreement does not recite any consideration. In the confidentiality agreement, Miller promises not to disclose confidential information to anyone outside of RAC in consideration of payment of his salary. Miller also executed a compensation agreement that set forth his salary in terms of the amount he was to receive every two weeks. In addition, RTA’s policy manual contains a ten-year pay scale.
evidence does not unequivocally indicate RAC’s or
RTA’s intent to be bound not to terminate Miller except under clearly specified
circumstances. See Brown, 965
S.W.2d at 502. While the federal
affirmative action program requires RAC and RTA to hire and advance
The other evidence cited by Miller,
including the offer letter and employment agreements, also does not indicate
on the part of RAC or RTA to be bound not to terminate Miller except under clearly
specified circumstances. See Jones, 92 S.W.3d at 487–88 (holding offer letter that contained
statements of annual salary and general statement that salary is based on
future performance did not create employment contract); Brown,
S.W.2d at 502 (“An employee who has no formal agreement with his
employer cannot construct one out of indefinite comments, encouragements, or
v. Tex. Commerce Bancshares, Inc., 930
S.W.2d 809, 815 (Tex. App.—Corpus Christi 1996, writ denied)
(holding letter offering employment was not contract because it merely stated
salary and other benefits but did not set term of employment); Massey
v. Houston Baptist Univ., 902 S.W.2d 81, 83–84 (Tex. App.—Houston
[1st Dist.] 1995, writ denied) (holding written employment contract did not
alter at-will employment relationship because contract contained no term
limiting employer’s ability to terminate employee at will); Lee-Wright,
Inc. v. Hall, 840 S.W.2d 572, 578 (Tex. App.—Houston [1st Dist.]
1992, no writ)
(holding at-will status of employment relationship altered by agreement to
employ plaintiff for specific number of years). Miller failed to produce more
than a scintilla of evidence that he had an employment contract with RAC or
B. FOC’s Summary Judgment
In its traditional motion for summary judgment, FOC contends that it established as a matter of law that no employment contract existed between itself and Miller that would limit its ability to terminate Miller’s employment at will. Miller contends that in addition to the evidence cited above, the following evidence establishes an employment contract between himself and FOC.
The combination agreement between FOI and RTA provides:
At the Effective Time, except as specifically provided below in this Section 6.2, [FOC] hereby agrees to assume, and agrees to pay, perform and discharge when due, all obligations and liabilities for compensation and employee benefits, and all other liabilities which are attributable to [FOI’s] or [RTA’s] employment of any employee, agent or independent contractor prior to the Effective Time without regard to whether such obligations or liabilities arose prior to or subsequent to the Effective Time.
In December 2001, RTA’s president, Gary Hart, wrote to RTA’s pilots to announce that all pilots would be offered the opportunity to continue flying for FOC. A few weeks later, Miller received a letter from Kenneth Ricci, Chairman and CEO of FOI. The letter stated, “all pilot positions will be retained and all pilots will be assured of their current flying positions and seniority” at FOC. The letter also contained a comparison between Miller’s salary at RTA and his new salary at FOC. Miller received a letter offering him employment at FOC in February of 2002. He accepted the offer by signing at the bottom of the letter, as requested by FOC.
While FOC expressly agreed to assume the contractual obligations of RTA in the combination agreement, this did not create an employment contract between Miller and FOC. As we determined above, Miller did not have an employment contract with RAC and RTA; thus, there was no contract for FOC to assume. See Brown, 965 S.W.2d at 502.
The letters Miller received from FOC executives also do not indicate FOC’s intent to be bound not to terminate Miller except under clearly specified circumstances. See id. None of Miller’s employment documents guarantees him a minimum term of employment, or otherwise limits FOC’s ability to terminate his employment at will. See Jones, 92 S.W.3d at 487–88 (holding offer letter that contained statements of annual salary and general statement that salary is based on future performance did not create employment contract); Brown, 965 S.W.2d at 502 (“An employee who has no formal agreement with his employer cannot construct one out of indefinite comments, encouragements, or assurances.”); Travel Masters, Inc. v. Star Tours, Inc., 827 S.W.2d 830, 832–33 n.2 (Tex. 1991) (noting mere fact that employee was paid on monthly basis, without any other evidence, failed to establish that she was not at-will employee); Rios, 930 S.W.2d at 815 (holding letter offering employment was not contract because it merely stated salary and other benefits but did not set term of employment); Massey, 902 S.W.2d at 83–84 (holding written employment contract did not alter at-will employment relationship because contract contained no term limiting employer’s ability to terminate employee at will); Hall, 840 S.W.2d at 578 (holding at-will status of employment relationship altered by agreement to employ plaintiff for specific number of years); Ryan v. Superior Oil Co., 813 S.W.2d 594, 595–96 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (holding letters written to employees before merger concerning plan for retaining employees after transition do not form employment contract).
Like the RTA policy manual, the FOC policy and procedures manual provides that all employees at FOC are employed on an “at will” basis, and expressly states that it does not constitute a contract. See Matagorda County Hosp. Dist. v. Burwell, 189 S.W.3d 738, 739–40 (Tex. 2006) (holding employer’s manual stating that employee “may” be dismissed for cause did not modify at-will employment by requiring that dismissal be only for cause); Dutschmann, 846 S.W.2d at 283 (“A disclaimer in an employee handbook, such as the one included by Federal Express, negates any implication that a personnel procedures manual places a restriction on the employment at will relationship.”). Sullivan’s affidavit also states that Miller’s employment at FOC was at will, and that FOC never offered Miller an employment contract.
FOC introduced evidence affirmatively establishing that it employed Miller at will. Accordingly, we hold that FOC has established as a matter of law that Miller’s employment at FOC was at will. See Brown, 965 S.W.2d at 502 (holding employment is presumed to be at will absent specific contrary agreement). The trial court’s summary judgment in favor of FOC on Miller’s breach of contract claim was thus proper.
Common Law Claims
In his fifth issue, Miller contends the trial court erred in granting summary judgment on his common law claims.
A. Promissory Estoppel
Miller contends the trial court erred in granting summary judgment on his promissory estoppel claims. RAC, RTA, and FOC respond that Miller cannot maintain promissory estoppel claims in this case because there was no detrimental reliance as a matter of law.
The elements of a
promissory estoppel claim are: (1) a promise, (2) foreseeability of reliance
thereon by the promisor, and (3) substantial reliance by the promisee to his
detriment. English v. Fischer,
660 S.W.2d 521, 524 (
Miller’s promissory estoppel claims fail as a matter of law because Miller did not rely on any promise to his detriment. The evidence in this case that FOC hired Miller in early 2002 is undisputed, albeit for a short time. Moreover, Miller was not induced to leave his former job—rather, that position was eliminated incident to the creation of FOC. FOC did not promise to retain Miller for any length of time. Thus, even under Roberts, there could be no detrimental reliance in this case as a matter of law. See English, 660 S.W.2d at 524; Roberts, 757 S.W.2d at 50–51. We therefore hold that the trial court properly granted summary judgment on Miller’s promissory estoppel claims.
B. Negligent Misrepresentation
Miller contends the trial court erred in granting summary judgment on his negligent misrepresentation claims. RAC, RTA, and FOC respond that the statements Miller complains of constitute promises of future conduct rather than statements of existing fact and are therefore not actionable.
The elements of a negligent misrepresentation claim are: (1)
the representation is made by a defendant in the course of his business, or in
a transaction in which he has a pecuniary interest; (2) the defendant supplies
“false information” for the guidance of others in their business; (3) the
defendant did not exercise reasonable care or competence in obtaining or
communicating the information; and (4) the plaintiff suffers pecuniary loss by
justifiably relying on the representation.
Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 n.24 (
Miller bases his negligent misrepresentation claims on two specific statements. In December 2001, RTA’s president, Gary Hart, wrote to RTA’s pilots to announce that all pilots would be offered the opportunity to continue flying for FOC. A few weeks later, Kenneth Ricci, Chairman and CEO of FOI, sent a letter to Miller, stating that “all pilot positions will be retained and all pilots will be assured of their current flying positions and seniority” at FOC. Miller asserts that these statements were false because the master transaction agreement creating FOC provides:
4.5 Employees. Prior to the Closing Date, the Parties will identify the employees of [FOI] and [RTA] that are to be offered employment with [FOC] as of the Closing Date and shall make a formal offer of employment to each such Person and shall inform each such Person of the compensation and benefits for which such Person will be eligible as an employee of [FOC].
Miller’s negligent misrepresentation claims fail as a matter of law because the statements made by Hart and Ricci were promises of future conduct rather than statements of existing fact. See Dallas Fire Fighters Ass’n, 156 S.W.3d at 195 (holding statements about movement of ranks consisted of expectation of future conduct, not existing fact, and were not actionable); Swank, 121 S.W.3d at 802–03 (holding oral promises not to fire plaintiff, not to take control of AMPS, and not to exercise stock options were promises of future conduct, not existing fact); Holt, 987 S.W.2d at 141 (holding representations defendant would provide all equipment necessary to start Louisiana plant and would pay plaintiff $55,000 annually were promises of future conduct and not misrepresentations of existing fact); Miksch v. Exxon Corp., 979 S.W.2d 700, 706 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (holding alleged oral promise not to terminate plaintiff was not misrepresentation of existing fact but was promise to refrain from taking action in future). The trial court therefore properly granted summary judgment on Miller’s negligent misrepresentation claims.
Miller contends the trial court erred in granting summary judgment on his fraud claims. RAC, RTA, and FOC respond that Miller’s fraud claims are barred because his employment was at will.
The elements of fraud are: (1) a material representation that was false when
made; (2) when the representation was made, the speaker knew it was false or
made it recklessly as a positive assertion without any knowledge of its truth;
(3) the speaker made the representation with the intent that the other party
should act upon it; (4) the party actually and justifiably relied on the
representation; and (5) thereby suffered injury. Ernst & Young, L.L.P. v.
Miller bases his fraud claims on the statements by Hart and Ricci promising that all RTA pilots would be offered positions at FOC. Miller believes these statements were false when they were made because the master transaction agreement seems to indicate that not all RTA pilots would be offered positions at FOC.
We have already determined that
Miller’s employment with RAC, RTA, and FOC was at will. See
S.W.2d at 502 (holding employment is presumed to be at will absent specific
contrary agreement). This
court has held that “[a]n ‘at will’ employee is barred from bringing a cause of
action for fraud against his employer based upon the employer’s decision to
discharge the employee.” Leach v. Conoco, Inc., 892 S.W.2d
954, 961 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d w.o.j.); see also Brown v. Swett & Crawford
of Tex., Inc., 178 S.W.3d 373, 379–80 (Tex. App.—
D. Civil Conspiracy
Miller contends the trial court erred in granting summary judgment on his civil conspiracy claims. FOC filed a traditional summary judgment motion on Miller’s civil conspiracy claim, alleging that Miller’s claim fails as a matter of law because it is not supported by an underlying tort. RAC and RTA filed a no-evidence summary judgment motion, alleging Miller had produced no evidence of a meeting of the minds.
A civil conspiracy is
a combination by two or more persons to accomplish an unlawful purpose or to
accomplish a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas,
927 S.W.2d 608, 614 (
Miller asserts that RAC, RTA, FOI, and FOC engaged in a civil conspiracy to wrongfully discharge pilots who refused to fly aircraft in violation of federal law. As evidence of this conspiracy, Miller produced the affidavits of Rusty Wharton and Reinhardt Hanold, who testified that John Topliff informed them that he had been instructed by his superiors at RTA to identify for termination any pilots who would not operate aircraft that had been issued flight releases. Wharton and Hanold were both RTA pilots, and Topliff was RTA’s fleet manager. Topliff also testified that executives at FOC pressured pilots to fly aircraft in violation of federal law as well. Additionally, Miller cites the master transaction agreement and the combination agreement, which suggest that some RTA pilots might not be offered employment at FOC.
As we determined above, the
Additionally, Miller produced no
evidence that RAC and RTA had a meeting of the minds to perform an unlawful act
necessary to establish his civil conspiracy claims. See
Alford v. Thornburg, 113 S.W.3d 575,
Miller contends the trial court erred in granting summary judgment on his negligence claims. RAC, RTA, and FOC respond that an employer owes an at-will employee no duty of care in terminating his employment.
A negligence cause of
action has three elements: (1) a legal duty owed by one person to another, (2) a
breach of that duty, and (3) damages proximately caused by the breach. D.
Houston, Inc. v. Love, 92 S.W.3d 450, 454 (
By definition, the employment-at-will doctrine does not require an employer to be reasonable, or even careful, in making its termination decisions. If the at-will doctrine allows an employer to discharge an employee for bad reasons without liability, surely an employer should not incur liability when its reasons for discharge are carelessly formed. Engrafting a negligence exception on our at-will employment jurisprudence would inevitably swallow the rule.
Miller contends that RAC,
RTA, and FOC were negligent in terminating his employment. As we determined above, Miller’s employment
with RAC, RTA, and FOC was at will. See Brown, 965 S.W.2d at 502
(holding employment is presumed to be at will absent specific contrary
agreement). RAC, RTA, and
FOC therefore did not owe Miller a duty of care in terminating his employment. Miller’s negligence claims fail as a matter of
Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (
F. Intentional Infliction of Emotional Distress
Miller contends the trial court erred in granting summary judgment on his intentional infliction of emotional distress claims. Miller maintains that he suffered severe emotional distress because he was required to pilot aircraft that were not safe to fly, and because he did not know whether RTA’s aircraft contained latent mechanical defects due to other pilots having concealed such defects at the request of RAC and RTA.
The elements of
intentional infliction of emotional distress are: (1) the defendant acted
intentionally or recklessly; (2) the conduct was extreme and outrageous; (3)
the defendant’s actions caused the plaintiff emotional distress; and (4) the
emotional distress that the plaintiff suffered was severe. City of
The evidence Miller produced demonstrates that he suffered emotional distress because FOC terminated his employment and he was required to search for a new job. Even if FOC wrongfully terminated Miller, this fact alone would not support a claim for intentional infliction of emotional distress. See id. (“However, the mere fact of termination of employment, even if the termination is wrongful, is not legally sufficient evidence that the employer’s conduct was extreme and outrageous under the rigorous standard that we established in Twyman.”). The trial court therefore properly granted summary judgment on Miller’s intentional infliction of emotion distress claims.
G. Wage and Hour Claims
Miller contends the trial court erred in granting RAC and RTA’s motion for summary judgment on his wage and hour claims. Miller maintains that RAC and RTA only paid him for six weeks of accrued vacation time even though he was entitled to eight weeks’ pay. Miller asserts that RTA is liable for these two weeks of vacation pay because RTA owns a controlling interest in FOC. In their traditional motion for summary judgment, RAC and RTA assert that they are not liable for these wages as a matter of law because they transferred their liability for Miller’s wage and hour claims to FOC.
In his affidavit, William Wallisch states:
In connection with the creation of Flight Options, L.L.C., Travel Air and Flight Options, Inc. agreed that Flight Options, L.L.C. would assume any and all liabilities related to any vacation time that had been accrued by Travel Air pilots, including Plaintiff, prior to the this [sic] transaction.
An examination of the combination agreement confirms Wallisch’s statements.
This undisputed evidence
establishes as a matter of law that RAC and RTA transferred their liability for
Miller’s wages to FOC. See Tex. R. Civ.
P. 166a(c); KPMG Peat Marwick, 988 S.W.2d at 748. The only
evidence Miller cites in support of his wage and hour claims against RAC and
RTA is Wallisch’s testimony that RTA owns a controlling interest in FOC. The fact that RTA now owns a
controlling interest in FOC does not make it liable for these wages. FOC is organized as a
We hold that (1) the trial court did not abuse its discretion in refusing to strike William Wallisch’s affidavit, (2) RAC and RTA established that they terminated Miller’s employment for a reason other than his refusal to perform illegal acts, negating the causation required for a Sabine Pilot claim as a matter of law, (3) the Airline Deregulation Act of 1978 preempts Miller’s Sabine Pilot wrongful discharge claim against FOC, and (4) the trial court properly granted summary judgment on Miller’s breach of contract and common law claims. We therefore affirm the trial court’s orders granting summary judgment.
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (
 49 U.S.C. § 41713(b)(1) (2000).
 FOC also maintains that the trial court’s summary judgment properly disposed of Miller’s wrongful discharge claim because he was fired for reasons other than his refusal to perform an illegal act, and any action that FOC requested him to take would not have resulted in criminal penalties. As we agree with FOC’s preemption argument, we do not address the other potential grounds for the trial court’s summary judgment.
 The Texas Supreme Court consolidated two negligence
cases for the Kiefer opinion. Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 275 (
 Miller contends FOC’s certificate was not properly
before the trial court because it was not attached to FOC’s supplemental motion
for summary judgment. FOC produced the
certificate for the first time in its reply to Miller’s response to the
supplemental motion for summary judgment.
Miller did not move to strike this evidence and the trial court noted
that it considered the “pleadings on file” in its summary judgment order. As the Texas Supreme Court has explained, the
trial court’s ruling on a summary judgment is based upon the “issues raised in the motion, response, and any
subsequent replies.” Stiles
v. Resolution Trust Corp., 867 S.W.2d 24, 26 (
 Additionally, we note that Congress amended the
 The Fourteenth Court of Appeals has held that “[a] promise to provide employment which is subject to termination at any time or for any reason does not provide any assurances about the employer’s future conduct, and does not provide a basis for detrimental reliance as a matter of law.” Collins v. Allied Pharmacy Mgmt., Inc., 871 S.W.2d 929, 937 (Tex. App.—Houston [14th Dist.] 1994, no writ).
 In Collins, the Fourteenth Court of Appeals noted the absurdity of this result: “[W]e believe Roberts abrogates the employment at will doctrine in all cases where the employee must quit an existing job to accept a new offer of employment. Also, we find it would be illogical to hold that an employee has no remedy if he is fired one week after commencing work, but may recover damages if the employer refuses to allow him to commence work at all.” 871 S.W.2d at 937.
 In his appellate brief, Miller also complains about additional negligent misrepresentations concerning flight releases RTA issued to its pilots. Miller did not plead these misrepresentations and the parties did not address them in their summary judgment motions. We cannot address these misrepresentations on appeal because they were not presented to the trial court. Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as ground for reversal.”); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675 (Tex. 1979) (holding issues not expressly presented to trial court may not be considered on appeal as ground for reversal of summary judgment).