East Texas Medical Center D/B/A East Texas Medical Center Emergency Medical Services v. Jody Delaune Individually and as Personal Representative of the Estate of Crystal Delaune, and as Next Friend of D. D., D. D. and D. A. D., Minors

Opinion

ACCEPTED 12-15-00014-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 7/23/2015 11:25:40 AM CATHY LUSK CLERK

ORAL ARGUMENT REQUESTED

No. 12-15-00014-CV FILED IN 12th COURT OF APPEALS

_______________________________________________

TYLER, TEXAS 7/23/2015 11:25:40 AM COURT OF APPEALS CATHY S. LUSK Clerk

for the

TWELFTH DISTRICT OF TEXAS

Tyler, Texas

_______________________________________________

East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services Appellant,

v.

Jody Delaune, Individually and as Personal Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of D.D., D.D. and DA.D, Minors Appellees.

_______________________________________________

Appeal from Cause No. 13-0984-A TH 7 District Court, Smith County, Texas Honorable Kerry L. Russell, Presiding Judge

_______________________________________________

APPELLANT’S REPLY BRIEF ON THE MERITS

_______________________________________________

Russell G. Thornton THIEBAUD REMINGTON THORNTON BAILEY LLP Two Energy Square 4849 Greenville Avenue, Suite 1150 Dallas, Texas 75206 (214) 954-2200 – Telephone (214) 754-0999 – Telecopier

ATTORNEYS FOR DEFENDANT – APPELLANT East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services

July 23, 2015

LIST OF PARTIES AND COUNSEL

In order that members of the Court may determine disqualification or

recusal, Appellant certifies that the following is a complete list of the names and

addresses of parties to this appeal and their counsel:

APPELLEES: Jody Delaune, Individually and as Personal Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of D.D., D.D. and DA.D., Minors

COUNSEL FOR APPELLEES: Mr. Ryan Krebs, M.D., J.D.

THE LAW OFFICE OF RYAN KREBS 805 W. 10th Street, Suite 300 Austin, Texas 78701

APPELLANT: East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services

COUNSEL FOR APPELLANT: Russell G. Thornton (Appeal)

Stan Thiebaud (Trial) R. Gregg Byrd (Trial) THIEBAUD REMINGTON THORNTON BAILEY LLP 4849 Greenville Avenue, Suite 1150 Dallas, Texas 75206

i

TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................... iii

REPLY ARGUMENT ..............................................................................................3

I. Necessary Underlying “Actionable Tort” is Absent ............................ 3

II. Appellees Fail to Rebut ETMC’s Supportive Authority That There is Legally Insufficient Evidence of the Applicable Standard of Care and Breach by ETMC ............................................10

III. ETMC’s Case Law Shows Appellees’ Standard of Care and Breach Evidence is Legally Insufficient ............................................15

CONCLUSION .......................................................................................................19

PRAYER .................................................................................................................21

CERTIFICATE OF COMPLIANCE ......................................................................22

CERTIFICATE OF SERVICE ...............................................................................23

APPENDIX ........................................................................................................ TAB

A. Mackey v. U.P. Enterprises, Inc., 935 S.W.2d 446 (Tex. App.—Tyler 1996, no pet.)

B. Patino v. Complete Tire, Inc., 158 S.W.3d 655 (Tex. App.—Dallas 2005, pet. denied)

C. Allsup’s Convenience Stores, Inc. v. Warren, 934 S.W.2d 433 (Tex. App.—Amarillo 1996, writ denied)

D. Lermon v. Minyard Food Stores, Inc., 2014 Tex. App. LEXIS 12498 (Tex. App.—Dallas)(Nov. 19, 2014) (pet. denied)(mem. op.)

ii

INDEX OF AUTHORITIES

UNITED STATES DISTRICT COURT CASES:

Zidell v. Morris, 2013 U.S. Dist. LEXIS 264432 (N.D. Tex. 2013) ..............................................4, 6, 7

TEXAS SUPREME COURT CASES:

Cash America International, Inc. v. Bennett, 35 S.W.3d 12 (Tex. 2000) .....................................................................................7, 8

Jackson v. Axelrad, 221 S.W.3d 650 (Tex. 2007) .....................................................................................8

TEXAS COURTS OF APPEALS CASES:

Allsup’s Convenience Stores, Inc. v. Warren, 934 S.W.2d 433 (Tex. App.—Amarillo 1996, writ denied) ...................................15

Brown v. Swett & Crawford of Texas, Inc., 178 S.W.3d 373 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ............................. 9

Ching v. Methodist Children’s Hospital, 134 S.W.3d 235 (Tex. App.—Amarillo 2003, pet. denied) ..............................11, 14

Denton Regional Medical Center v. Lacroix, 947 S.W.2d 941 (Tex. App.—Fort Worth 1997, pet. dism’d by agmt.) ................... 3

Dill v. Fowler, 255 S.W.3d 681 (Tex. App.—Eastland 2008, no pet.) ............................................. 8

Durham Transportation Inc. v. Valero, 897 S.W.2d 404 (Tex. App.—Corpus Christi 1995, writ denied) ..............11, 12, 14

Gonzales v. Willis, 995 S.W.2d 729 (Tex. App.—San Antonio 1999), overruled in part, on o.g., Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004) ..................4, 9

iii

Greater Houston Transportation v. Zrubeck, 850 S.W.2d 579 (Tex. App.—Corpus Christi 1993, writ denied) ..............11, 12, 14

Latimer v. Memorial Hermann Hosp. Sys., 2011 Tex. App. LEXIS 423 (Tex. App.—Houston [14th Dist.])(Jan. 20, 2011)(no pet.)(mem. op.) ..........................................................................................................4

Lermon v. Minyard Food Stores, Inc., 2014 Tex. App. LEXIS 12498 (Tex. App.—Dallas)(Nov. 19, 2014)(pet. denied)(mem. op.) .......................................................................................16, 17, 18

Mackey v. U.P. Enterprises, Inc., 935 S.W.3d 446 (Tex. App.—Tyler 1996, no pet.) ................................................15

Nowzaradan v. Ryans, 347 S.W.3d 734 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ........................... 8

Patino v. Complete Tire, Inc., 158 S.W.3d 655 (Tex. App.—Dallas 2005, pet. denied) ........................................15

OTHER REFERENCES:

Edgar Sales, Texas Torts & Remedies, §4.01[4][d] ................................................. 4

iv

No. 12-15-00014-CV

___________________________________________________

COURT OF APPEALS for the

TWELFTH DISTRICT OF TEXAS

Tyler, Texas

___________________________________________________

East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services

Appellant,

v.

Jody Delaune, Individually and as Personal Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of D.D., D.D. and DA.D., Minors, Appellees.

___________________________________________________

Appeal from Cause No. 13-0984-A 7th Judicial District Court, Smith County, Texas Honorable Kerry L. Russell, Presiding Judge

___________________________________________________

TO THE TWELFTH COURT OF APPEALS:

Appellant East Texas Medical Center d/b/a East Texas Medical Center

Emergency Medical Services, Defendant in Cause No. 13-0984-A in the

7th Judicial District Court of Smith County, Texas, Honorable Kerry L. Russell

presiding, respectfully submits its Reply Brief on the Merits. Appellees are

Jody Delaune, Individually and as Personal Representative of the Estate of

2

Crystal Delaune, Deceased; and as Next Friend of D.D., D.D. and DA.D., Plaintiffs

in the district court.

3

REPLY ARGUMENT

I. NECESSARY UNDERLYING “ACTIONABLE TORT” IS ABSENT:

Appellees do not dispute – and cannot dispute – that their sole claim against

ETMC is for an alleged failure to train Ms. Moore and Ms. Spurgers on the use of

restraint in patients like Ms. Delaune (See, Appellant’s Brief on the Merits,

pages 6-7).

A. Lacroix Is Not Relevant or Applicable:

Appellees argue that Denton Regional Medical Center v. Lacroix,

947 S.W.2d 941 (Tex. App.—Fort Worth 1997, pet. dism’d by agmt.) is applicable

and supports their contention the existence of an actionable tort by Ms. Moore or

Ms. Spurgers is not an essential element of their failure to train claim (Brief of

Appellees, pages 7-8). Lacroix is not relevant or applicable to this appeal because

it does not involve the failure to train, or some other dependent tort. Id. at 949-50.

B. Existence Of An Actionable Tort Is An Essential Element Of Appellees’ Failure To Train Claim:

Appellees’ contention that dependent torts only require that a “recognized

injury” was suffered as a direct result of an employer’s conduct and that an

“actionable tort” by the employee(s) is not required is flat wrong (See, Brief of

Appellees, page 10). The applicable case law clearly and unequivocally

establishes that in order to prevail on a dependent tort like Appellees’ failure to

train claim against ETMC, claimant must show the employee(s) in question

4

committed an “actionable tort.” See, Zidell v. Morris, 2013 U.S. Dist. LEXIS

264432 *23-24 (N.D. Tex. 2013)(to prevail on claim of negligent training, plaintiff

must “establish…that the employee committed an actionable tort…”)(applying

Texas law)(emphasis added); Latimer v. Memorial Hermann Hosp. Sys., 2011 Tex.

App. LEXIS 423 *10 (Tex. App.—Houston [14th Dist.])(Jan. 20, 2011)(no

pet.)(mem. op.)(No negligent supervision claim against Hermann Hospital because

“there is no separate actionable tort [by the hospital’s employee] to support the

negligent supervision claim”)(emphasis added); Gonzales v. Willis, 995 S.W.2d

729, 740 (Tex. App.—San Antonio 1999, overruled in part, on o.g., Hoffman-

LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447-48 (Tex. 2004)(“Because

[plaintiff] failed to establish [the employee] committed an actionable tort, her

negligence claims [negligent hiring, retention, training and supervision] are

precluded as a matter of law.”)(emphasis added)

In fact, authority cited by Appellees in their brief recognizes that if

Ms. Moore or Ms. Spurgers did not commit an actionable tort on the occasion in

question, Appellees have not been injured in the eyes of the law and there is no

proximate cause because ETMC’s alleged failure to train did not cause Appellees a

legally compensable injury (See, Brief of Appellees, page 10 (quoting Edgar Sales,

Texas Torts & Remedies, §4.01[4][d], at pages 4-10)). Accordingly, the

commission of an actionable tort by Ms. Moore or Ms. Spurgers is an essential

5

element of Appellees’ failure to train claim against ETMC. If the essential

actionable tort element is absent, there is no proximate cause because ETMC’s

alleged failure to train Ms. Moore or Ms. Spurgers did not cause Appellees to

suffer a legally compensable injury. Put another way, if Ms. Moore or

Ms. Spurgers did not cause or inflict a legally compensable injury on Appellees,

ETMC’s alleged failure to train Ms. Moore or Ms. Spurgers cannot be a proximate

cause of any injury to Appellees.

Appellees sued Ms. Moore and Ms. Spurgers for negligence in caring for

Ms. Delaune (CR 6; 1 CR 10). On July 29, 2014, the trial court dismissed with

prejudice Appellees’ negligence claims against Ms. Spurgers and Ms. Moore

(CR 365, 2 CR 119). Thus, on July 29, 2014, the trial court determined as a matter

of law that Ms. Spurgers and Ms. Moore did not commit an actionable tort in

connection with their care and treatment of Ms. Delaune (CR 365-66; 2 CR 119-

20). As such, Appellees could not (and cannot) establish that essential element of

their failure to train claim against ETMC.

Appellees argue that because their negligence claim against Ms. Spurgers’

and Ms. Moore is judged under Texas law by a willful and wanton standard and

Ms. Moore and Ms. Spurgers were not “absolved of ordinary negligence,” this is

somehow relevant to or excuses Appellees’ inability to (and failure to) establish

Ms. Moore and Ms. Spurgers committed an actionable tort (See, Brief of

6

Appellees, page 13). Appellees’ argument is flawed because a dependent tort like

negligent hiring is not dependent on the “ordinary negligence” of an employee; it is

dependent on the commission of an “actionable tort” by an employee. The bottom

line is that if Ms. Moore or Ms. Spurgers did not commit an actionable tort, for

whatever reason, Appellees cannot recover from ETMC for negligent training.

Zidell v. Morris, 2013 U.S. Dist. LEXIS 26432 (N.D. Tex. 2013), illustrates this

point.

In Zidell, plaintiff alleged that two Bureau of Prison employees, Morris and

Brown, assaulted him and that the United States was liable to him for the negligent

hiring, training, retention and supervision of Morris and Brown. Id. at *1-2, *21,

*23-24. The court held that the actions of Morris and Brown fell within an

immunity privilege provided under the TEXAS PENAL CODE and, therefore, Morris

and Brown did not commit an actionable tort against plaintiff. Id. at *22-24.

The court then discussed that for plaintiff to prevail on his claim of negligent

hiring, training, retention and supervision, “the employee must have committed an

actionable tort against the plaintiff.” Id. at *24 (emphasis added). The court then

stated, “[h]ere, the court has determined that Morris and Brown committed no tort

against plaintiff. Accordingly, plaintiff’s claim of negligent hiring, training,

retention, and supervision fails as well.” Id.

7

Zidell directly addresses and rebuts Appellees’ argument that because Texas

law places a higher burden of proof on Appellees’ negligence claim against

Ms. Moore and Ms. Spurgers (or effectively makes them immune from suit as

argued by Appellees), the trial court’s dismissal of their negligence claim against

Ms. Moore and Ms. Spurgers does not bar their ability to recover from ETMC

(Brief of Appellees, page 11). Zidell shows that because Ms. Moore and

Ms. Spurgers did not commit an actionable tort as a matter of law, Appellees

cannot establish a failure to train claim against ETMC. Id.

Appellees’ argument that the Texas Supreme Court’s holding in Cash

America International, Inc. v. Bennett, 35 S.W.3d 12 (Tex. 2000) is relevant and

applicable is also erroneous. Appellees cite Cash America International as

standing for the propositions (1) that abrogation of a common law cause of action

by reason of statutory enactment is disfavored, (2) that the existence of statutory

damage-immunity cannot prevent an actionable tort from occurring, and (3) that

any statutory tightening of Appellees’ right-to-recover against Ms. Moore and

Ms. Spurgers would abrogate a common law right to recover from ETMC (Brief of

Appellees, pages 7, 11, 12). Specifically, Appellees cite to page 16 of the Cash

America International opinion as where the Texas Supreme Court makes these

holdings and rulings. While it is true that Cash America International stands for

the first proposition – that Texas law disfavors a statute that deprives a person of a

8

common law right – Cash America International does not stand for the second and

third propositions. Id. at 16.

Cash America International has no relevance or application to this matter

because there is no abrogation or deprivation of a common law right by statute

here. Section 75.152 of the TEXAS CIVIL PRACTICE & REMEDIES CODE does not

abrogate or deprive any claimant of a common law right to sue for negligence, as

claimed by Appellees. It simply places a different legal standard of care on

emergency medical services providers in certain circumstances. See, Dill v.

Fowler, 255 S.W.3d 681, 683 (Tex. App.—Eastland 2008, no pet.)(citing Jackson

v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007))(interpreting similar willful and

wanton standard of proof applicable to emergency room services under Section

74.153 of the TEXAS CIVIL PRACTICE & REMEDIES CODE). Thus, what is at issue is

a different applicable standard of proof, not the abrogation or deprivation of a

common law right. See, Nowzaradan v. Ryans, 347 S.W.3d 734, 741-42 (Tex.

App.—Houston [14th Dist.] 2011, no pet.)(interpreting similar willful and wanton

standard of proof applicable to emergency room services under Section 74.153 of

the TEXAS CIVIL PRACTICE & REMEDIES CODE).

One cannot dispute with any degree of credibility that under Texas law a

dependent tort like Appellees’ negligent training claim against ETMC is dependent

on Ms. Moore or Ms. Spurgers committing an “actionable tort.” On July 29, 2014,

9

the trial court determined that as a matter of law neither Ms. Moore nor

Ms. Spurgers committed an actionable tort. For this reason, Appellees could not

establish that essential element of their negligent training claim against ETMC.

Just as important is Appellees’ failure to prove and secure a finding at trial

that Ms. Moore or Ms. Spurgers were negligent (committed an actionable tort) on

the occasion in question. In fact, Appellees failed to provide any evidence at trial

would or could support a finding that Ms. Moore’s or Ms. Spurgers’ actions

constituted even ordinary negligence. In order to prevail on their dependent tort

failure to train claim, Appellees had to prove at trial that Ms. Moore or

Ms. Spurgers committed an actionable tort in connection with their care and

treatment of Ms. Delaune. See, Brown v. Swett & Crawford of Texas, Inc.,

178 S.W.3d 373, 384 (Tex. App.—Houston [1st Dist.] 2005, no pet.)(holding that

to recover on a negligent supervision claim, a plaintiff must prove that the

employee committed an actionable tort); Gonzales, 995 S.W.2d at 740 (“Because

[plaintiff] failed to establish [the employee] committed an actionable tort, her

negligence claims [negligent hiring, retention, training and supervision] are

precluded as a matter of law.”)(emphasis added).

Wholly absent from the appellate record is any finding or stipulation that

Ms. Moore’s or Ms. Spurgers’ actions were negligent. Also wholly absent from

the record is any evidence of either the standard of care applicable to an emergency

10

medical technician or paramedic like Ms. Moore or Ms. Spurgers in treating

someone like Ms. Delaune on the occasion in question, or a breach of the standard

of care applicable to an emergency medical technician or paramedic in treating a

patient like Ms. Delaune on the occasion in question. Thus, even if an ordinary

negligence standard applies, – which it does not – Appellees still failed to establish

the commission of an actionable tort by Ms. Moore or Ms. Spurgers (or to provide

any evidence upon which such a finding could have been made), an essential

element of their failure to train claim against ETMC.

For the above reasons, there is no evidence of an essential element

(proximate cause) of Appellees’ failure to train claim against ETMC. Accordingly,

the Tyler Court of Appeals should reverse the trial court’s December 23, 2014

Final Judgment against ETMC and in favor of Appellees and enter a take nothing

judgment in favor of ETMC and against Appellees.

II. APPELLEES FAIL TO REBUT ETMC’S SUPPORTIVE AUTHORITY THAT THERE IS LEGALLY INSUFFICIENT EVIDENCE OF THE APPLICABLE STANDARD OF CARE AND BREACH BY ETMC:

In its Brief on the Merits, ETMC cited case law that specifically addresses

and shows the defects in and legal insufficiency of Appellees’ trial evidence on the

standard of care applicable to ETMC and a breach of that standard of care by

ETMC (Appellant’s Brief on the Merits, pages 39-43). Appellees do not cite or

reference these cases even once in their brief. Appellees also failed to provide this

11

Court any authority that establishes or supports their claim the evidence presented

at trial is legally sufficient evidence of the applicable standard of care and a breach

of that standard by ETMC.

The only authority cited by Appellees on this issue are Durham

Transportation Inc. v. Valero, 897 S.W.2d 404 (Tex. App.—Corpus Christi 1995,

writ denied); Greater Houston Transportation v. Zrubeck, 850 S.W.2d 579 (Tex.

App.—Corpus Christi 1993, writ denied); and Ching v. Methodist Children’s

Hospital, 134 S.W.3d 235 (Tex. App.—Amarillo 2003, pet. denied). Not one of

these cases shows that the evidence Appellees produced at trial was sufficient to

establish the standard of care applicable to ETMC in training personnel like

Ms. Moore and Ms. Spurgers and a breach of this standard of care.

Durham Transportation, Inc. v. Valero, involves a claim that Perez, a school

bus driver, was not properly trained and supervised. Durham Transportation,

897 S.W.2d at 411. Testimony by a former associate of Perez, Briseno, stated how

and why Perez was improperly trained to drive a school bus. Specifically, Briseno

testified Perez was not given the required hours of classroom instruction, and was

not observed driving for the required number of hours before he was allowed to

drive children. Id. at 411. The evidence also showed that time cards related to

driver training were falsified, and that Perez was not certified by the Texas

Education Association as a school bus driver. Id. at 413.

12

Greater Houston Transportation Co. v. Zrubeck, involved a bus driver’s

failure to secure a wheelchair rider to his wheelchair with a seat belt. Zrubeck,

850 S.W.2d at 581. In Zrubeck, there was evidence that the driver’s employer

“never instructed [the driver] with regard to proper procedures for these

passengers.” Id. at 591. The driver in question also admitted that she and other

drivers regularly allowed wheelchair passengers to ride without seatbelts. Id. at

592. Finally, the evidence established that the driver in question was not aware of

the employer’s safety handbook or mandatory seat belt policy until after the

incident. Id.

At trial in this matter, Appellees did not provide any evidence about

Ms. Moore or Ms. Spurgers even remotely similar to the evidence presented in

Durham Transportation and Zrubeck. Appellees provided no evidence that

Ms. Moore or Ms. Spurgers were improperly trained because they were not given

the required hours of classroom instruction, that they did not demonstrate their

clinical competence before ETMC allowed them to work in one of its ambulances,

that they were not certified to provide emergency medical services, that they were

not instructed on the use of restraints, that they regularly did not use restraints

when indicated, or that they were not aware of or given the ETMC policy on the

use of restraint before they cared for Ms. Delaune.

13

In fact, the evidence at trial established just the opposite. It was undisputed

at trial that by the time Ms. Moore and Ms. Spurgers cared for Ms. Delaune they

had gone through paramedic school, they had been trained and educated on the use

of restraints before working with ETMC and while working at ETMC, they were

certified paramedics, they had demonstrated their competence through testing to

obtain and maintain their certifications and by testing at ETMC, that ETMC had a

policy on the use of restraints they were aware of, that ETMC had specifically

taught Ms. Moore and Ms. Spurgers on the use of restraint, and that ETMC’s

educational program for training personnel like Ms. Moore and Ms. Spurgers

followed the standardized national training curriculum (See, Appellant’s Brief on

the Merits, pages 10-14). Thus, in no way is the evidence here in any way, shape,

or form similar to the evidence presented in Durham Transportation and Zrubeck.

If anything, Durham Transportation and Zrubeck illustrate and show the deficient

nature of Appellees’ evidence.

Ching v. Methodist Children’s Hospital, has nothing whatsoever to do with

whether or not the evidence produced at trial by Appellees was legally sufficient to

establish either the standard of care applicable to ETMC in training personnel like

Ms. Moore and Ms. Spurgers or a breach of that standard of care by ETMC in

training personnel like Ms. Moore or Ms. Spurgers. On page 241 of Ching, the

page cited by Appellees in their brief (Brief of Appellees, pages 30 and 31), the

14

Amarillo Court of Appeals only mentions the fact that a hospital has a common

law duty to periodically monitor and review the competency of its medical staff.

Ching, 134 S.W.3d at 241. Absent from Ching is any information that describes

factually what a hospital would be required to do to discharge this duty or what

would constitute legally sufficient evidence of the applicable standard of care

related to that duty or a breach of that duty.

This brings up a final point on this authority cited by Appellees. Contrary to

Appellees’ claim in their brief, at no place on page 413 of Durham Transportation,

pages 591-92 of Zrubreck, or page 241 of Ching – or elsewhere in these opinions

for that matter – does the Corpus Christi Court of Appeals or the Amarillo Court of

Appeals hold or state that “[t]he efficacy of a hospital’s implementation and

enforcement of its policies must be measured by how well it succeeds in preparing

its personnel to respond to known hazards, and not by how comprehensive the

syllabus appears on paper” (Brief of Appellees, page 31). In fact, nothing even

remotely close to this is stated or held by the Corpus Christi Court of Appeals or

the Amarillo Court of Appeals in these opinions. This statement in Appellees’

brief is nothing more than the argument of counsel. This statement does not

represent the binding or persuasive opinion of any court.

For these reasons, Appellees’ authority fails to establish or support a claim

that the evidence presented at trial was legally sufficient to establish the standard

15

of care applicable to ETMC, a breach of that standard of care by ETMC, or that

Ms. Moore and Ms. Spurgers were not properly trained.

III. ETMC’S CASE LAW SHOWS APPELLEES’ STANDARD OF CARE AND BREACH EVIDENCE IS LEGALLY INSUFFICIENT:

The Mackey v. U.P. Enterprises, Inc., 935 S.W.3d 446 (Tex. App.—Tyler

1996, no pet.); Patino v. Complete Tire, Inc., 158 S.W.3d 655 (Tex. App.—Dallas

2005, pet. denied); and Allsup’s Convenience Stores, Inc. v. Warren, 934 S.W.2d

433 (Tex. App.—Amarillo 1996, writ denied) opinions cited and discussed in

ETMC’s Brief on the Merits are pertinent, relevant and on point because they each

directly address the specific evidence that a claimant like Appellees must produce

to establish a failure to train (Appellant’s Brief on the Merits, pages 41-43).

The take-home points from Mackey, Patino, and Allsup’s are (1) Appellees

did not controvert ETMC’s specific factual evidence showing the sufficiency of its

training of Ms. Moore and Ms. Spurgers, (2) Appellees had to provide specific

factual evidence of training that ETMC negligently failed to provide, and (3)

Appellees had to present specific factual evidence showing the training ETMC

should have provided to Ms. Moore and Ms. Spurgers, but did not provide

(Appellant’s Brief on the Merits, pages 41-43). Copies of the Mackey, Patino, and

Allsup’s opinions are attached to this brief (See, Appendix A, B and C,

respectively). As shown by ETMC in its earlier brief, Appellees’ “evidence” on

16

these issues is legally insufficient primarily because it is conclusory in nature

(Appellant’s Brief on the Merits, pages 26-39).

Lermon v. Minyard Food Stores, Inc., 2014 Tex. App. LEXIS 12498 (Tex.

App.—Dallas)(Nov. 19, 2014)(pet. denied)(mem. op.)(Appendix D) further shows

that Appellees did not present legally sufficient evidence of the standard of care

applicable to ETMC or a breach of that standard of care.

In Lermon, claimant sued Minyard for malicious prosecution. Lermon

asserted Minyard was negligent in hiring, retaining, training and supervising an

employee, Rodney Lee. Id. at *23. Specifically, Lermon claimed Minyard did not

adequately train Mr. Lee to perform the duties he was performing when he

investigated a theft Lermon was claimed to have committed. Id. at *23. A jury

verdict was entered in favor of Lermon and against Minyard. An appeal followed.

The Dallas Court of Appeals discussed that to support a claim for negligent

training and supervision “a plaintiff must prove that a reasonably prudent employer

would have provided training and supervision beyond that which was given…” Id.

at *25. More specifically, the Dallas Court of Appeals required plaintiff to

produce evidence of the specific training an employer exercising ordinary

prudence would provide to its employees. Id. at *28. Because Lermon failed to

present specific evidence of what additional training was available and commonly

used, but was not provided, the Dallas Court of Appeals found that Lermon had

17

failed to establish a negligent training claim against Minyard and it reversed the

jury verdict and trial court judgment in favor of Lerman and against Minyard. Id.

at *28-29.

As in Lerman, the evidence here establishes that Ms. Moore and

Ms. Spurgers had pre-existing training and experience on the use of restraint. See,

id. at *27-28. As in Lerman, there is no evidence that prior to the incident that

involved Ms. Delaune there was any basis from which a reasonable employer

could conclude that Ms. Moore or Ms. Spurgers were unfit or unqualified to

perform their job duties. See, id. at *29. As in Lerman, Appellees failed to present

any evidence of additional training available or commonly used by employers like

ETMC that was not used in training Ms. Moore and Ms. Spurgers. See, id. at *28.

As in Lerman, Appellees failed to present any evidence that there was some

training available to employers like ETMC that was superior to the training ETMC

provided. See, id. Finally and most important, as in Lerman, Appellees presented

no evidence about what additional or different training an employer like ETMC

should have provided, but failed to provide. See, id.

The fact of the matter is that Appellees did not and could not produce

evidence of this nature at trial because, as admitted by Appellees’ expert

Dr. Wayne, ETMC’s training program tracked what is required by the national

registry for emergency medical services provider certification (3 RR 11-19). For

18

these reasons, as established and illustrated by Lerman, Appellees “failed to

produce any evidence a reasonably prudent employer would have provided training

… to [Moore and Spurgers] beyond that which [ETMC] provided,” and, thus,

“failed to show [ETMC] was negligent.” See, id. at *29. As such, the Tyler Court

of Appeals should reverse the trial court’s judgment in favor of Appellees and

enter judgment that Appellees take nothing.

19

CONCLUSION

Here is where things stand prior to the submission of this matter for

determination by the Court – with or without oral argument.

First, Appellees’ only claim against ETMC is for its alleged failure to train

Ms. Moore and Ms. Spurgers on the use of restraint.

Second, under Texas law, Appellees’ failure to train claim is a dependent

tort.

Third, in order to prevail on a dependent tort claim, Appellees had to

establish that one of ETMC’s employees, Ms. Moore or Ms. Spurgers, committed

an actionable tort on the occasion in question.

Fourth, the trial court determined as a matter of law that Ms. Moore and

Ms. Spurgers did not commit an actionable tort on the occasion in question.

Fifth, at trial Appellees had to produce legally sufficient evidence of the

standard of care applicable to ETMC in training employees like Ms. Moore and

Ms. Spurgers on the use of restraint and a breach of that standard of care by

ETMC.

Sixth, Appellees’ evidence does not state what specific training a reasonably

prudent emergency medical services provider like ETMC should provide to

employees like Ms. Moore or Ms. Spurgers.

20

Seventh, Appellees’ evidence does not state what specific training a

reasonably prudent emergency medical services provider like ETMC should

provide to employees like Ms. Moore or Ms. Spurgers, but was not provided to

Ms. Moore and Ms. Spurgers by ETMC.

For these reasons, Appellees’ evidence of the applicable standard of care,

breach of that standard of care and proximate cause on their claim against ETMC

is legally insufficient. Because Appellees’ evidence against ETMC is legally

insufficient in these respects, the Tyler Court of Appeals should reverse the trial

court’s Final Judgment in favor of Appellees and against ETMC, and enter a take

nothing judgment in favor of ETMC and against Appellees.

21

PRAYER

WHEREFORE, PREMISES CONSIDERED, East Texas Medical Center

d/b/a East Texas Medical Center Emergency Medical Services, respectfully

requests that the Twelfth Court of Appeals grant it the following relief:

1. Reverse the verdict and Final Judgment against it in the trial court,

and;

2. Enter a take nothing judgment against Appellees and in favor of East

Texas Medical Center d/b/a East Texas Medical Center Emergency

Medical Services.

Respectfully Submitted, THIEBAUD REMINGTON THORNTON BAILEY LLP

By: /s/Russell G. Thornton RUSSELL G. THORNTON State Bar Card No. 19982850 rthornton@trtblaw.com 4849 Greenville Avenue, Suite 1150 Dallas, Texas 75206 (214) 954-2200 (214) 754-0999 (Fax)

COUNSEL FOR APPELLANT EAST TEXAS MEDICAL CENTER d/b/a EAST TEXAS MEDICAL CENTER EMERGENCY MEDICAL SERVICES

22

CERTIFICATE OF COMPLIANCE

Pursuant to TEXAS RULES OF APPELLATE PROCEDURE 9.4(i)(3) Appellant

certifies that its Reply Brief on the Merits, filed on July 23, 2015 in the Twelfth

Court of Appeals, contains 4,040 words.

/s/ Russell G. Thornton RUSSELL G. THORNTON

23

CERTIFICATE OF SERVICE

The undersigned certifies that on the 23rd day of July, 2015, a true and

correct copy of the foregoing document was delivered to counsel listed below:

Mr. Ryan Krebs, M.D., J.D. VIA E-SERVE & E-MAIL THE LAW OFFICE OF RYAN KREBS 805 W. 10th Street, Suite 300 Austin, Texas 78701 ryan@ryankrebsmdjd.com

/s/Russell G. Thornton RUSSELL G. THORNTON

APPENDIX

APPENDIX – “A”

Page 1

GLENDA MACKEY, APPELLANT v. U.P. ENTERPRISES, INC., D/B/A TACO BELL, APPELLEE

NO. 12-94-00011-CV

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

935 S.W.2d 446; 1996 Tex. App. LEXIS 4878

October 30, 1996, delivered October 30, 1996, Filed

SUBSEQUENT HISTORY: [**1] Released for Mackey appeals the decision of the trial court, raising ten Publication January 17, 1997. points of error. We will affirm in part and reverse and remand in part.

PRIOR HISTORY: APPEAL FROM THE 241ST UPE's motion for summary [**2] judgment was JUDICIAL DISTRICT COURT. SMITH COUNTY, supported by the affidavit and deposition of Richard TEXAS. Clayton, Hon. Joe, Judge.

Upshaw ("Upshaw"), vice-president and Director of Operations of UPE, the deposition of Mackey, and the dep-

DISPOSITION: Affirmed in part, reversed in part, ositions of two other employees, Roxie Hall ("Hall") and and remanded.

Jessica Jones ("Jones"). From this evidence, it appears that UPE, a franchisee of TBC, owns and operates several Taco Bell restaurants in Tyler, Smith County, Texas.

COUNSEL: WHITEHURST, BOB, TYLER, TX, for In November 1990, UPE employed Mackey as an hourly appellant.

wage employee in one of its restaurants where she was under the supervision of Smith. She was later transferred BUFE, JOHN F., EVANS, DEBORAH O., TYLER, TX, to a second restaurant where she was under the supervifor appellee.

sion of Johnson. Mackey was terminated in August 1991. UPE denies that any sexual harassment towards Mackey JUDGES: Chief Justice Tom B. Ramey, Jr., Justice took place, but that if it did, it was totally unauthorized, Charles R. Holcomb, Justice A. Roby Hadden (AUunexpected , and unforeseen by UPE. Furthermore, UPE THOR)

claims that Mackey's injuries, if any, were sustained in the course of her employment and were, therefore, barred OPINION BY: ROBY HADDEN by the exclusive remedy provisions of the Texas Worker 's Compensation Act ("the Act"). 1 UPE's summary OPINION judgment proof also shows that during her employment [*449] This is an appeal of a summary judgment with UPE, Mackey received several written reprimands granted in favor of U.P. Enterprises, Inc., d/b/a Taco Bell for failure to report to work as scheduled [**3] and for ("UPE"). Glenda Mackey ("Mackey") sued her employ- rudeness to customers. UPE claims that it was for these er, UPE, two of its managers, Ron Smith and Greg reasons that her employment was terminated. Johnson ("Smith" and "Johnson"), and Taco Bell Corporation ("TBC"), the franchisor, alleging eight separate 1 Act of December 13, 1989, 71st Leg., 2nd causes of action. Mackey's underlying allegations were C.S., Ch. 1, § 4.01, 1989 Tex. Sess. Law Serv. that she was sexually harassed by Smith and Johnson. 32, repealed by Act of May 22, 1993, 73rd Leg., The trial court granted UPE's motion for summary judg- Ch. 269, § 5(2), 1993 Tex. Sess. Law Serv. 1275 ment on all causes of action and severed Mackey's causes (current version at TEX. LABOR CODE ANN. § of action against UPE from the remainder of the case. 408.001 (Vernon Supp. 1996)).

Page 2 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

Mackey's summary judgment proof shows that she very busy road and ordered me from the was sexually harassed by Smith and Johnson while they car. Ron Smith then told me that if I were employed by UPE, and that she was allegedly ter- would not have sex with him, I could minated from her employment because she would not walk. Although it was several miles, I give in to their sexual demands. Mackey claims that the walked home. Texas Worker's Compensation Act was not applicable to After that incident Ron Smith would her because the sexual assaults by Smith and Johnson brush up against me "accidentally". Ron were personal to her and that her injuries were not re-

Smith also started calling me such names ceived in the course of her employment. 2 The summary as "fat droopy titty", "sticky", "slouchy", judgment proof includes the following affidavit by and "sorry" in front of other workers at Mackey:

TACO BELL.

...

Near the first of March 1993, Ron Smith touched my breast and asked me if Greg Johnson and Ron Smith made I was sure I wanted to be transferred to their work policies clear to me, after apanother store. My response was yes".

proximately one month of [**4] employment . First, Ron Smith, and then, lat- My transfer to TACO BELL store on er, Greg Johnson asked me to have sexual Troop (sic) Highway was intended as a intercourse and perform sexual favors for punishment or the result of a bet between them. Frequently, Ron Smith and Greg Ron Smith and Greg Johnson, that is that Johnson used slang terms such as "let me Greg bet Ron that he could have sexual touch you up". When I refused them, my intercourse with me. Once at the Troop scheduled hours were systematically re- (sic) store, the harassment continued with duced. Their [*450] requests for sexual even more frequency. favors happened with regularity. At one point I was informed by Ron Smith that, In April [**6] of 1991, I caught "if I did it, I'd get more hours." Greg Johnson and employee Jessica Jones engaging in oral sex. I was then called in-

2 UPE was a subscriber under to the office by Greg Johnson and he told the Texas Worker's Compensation me not to tell anyone or he would "fire Act during Mackey's employment. my ass if talked". From April of 1991 to However, Mackey did not file a August of 1991, the following incidences claim nor seek benefits under the occurred [sic]: Act.

(1) Greg Johnson would I felt pressured to give in to their de- remark to me that he mands for sexual favors in order to keep wanted to "touch it up" working at Taco Bell. At the time of my employment, I did not have a reliable (2) Greg Johnson form of transportation. One afternoon would "accidentally" brush around mid-February of 1991, when I was up against me touching my working at the Gentry store, Ron Smith breasts and buttocks. offered to give I (sic) a ride home if I (3) Greg Johnson would pay him $ 2.00. I thanked him and called me "shithead", "stuexplained that I would pay Ron Smith pid ass", and "fat ass" in once I got home because my [**5] front of some of the workmoney was at home. I got into the car and ers of Taco Bell. Ron Smith started for my home across town. After a few minutes Ron Smith said that he did not want the money but instead wanted sex. I said no, that I would rather At one point Greg Johnson arranged pay. For the next several minutes Ron for me to be alone with him in the store. Smith and I argued about the method of At this time Greg Johnson demanded sex. payment. I would not give in. Furious, When I denied Greg Johnson, I received a Ron Smith pulled over to the side of a written reprimand. It was obvious the more I denied Greg Johnson, the more I

Page 3 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

was penalized. In addition to the above, Jessica Jones of the stressful working sit- Greg Johnson would belittle me in front uation and the constant sexual demands. of coworkers and customers by criticizing I also informed Roxie Hall (manager) of my work and by calling me names. what happened, who laughed and said she would do something about it. At the next Regardless if a female worker comstore meeting, Greg Johnson informed the plied or not Greg Johnson would verbally employees, that whatever happened in his and physically harass all the females at store was to remain there or else. Greg work. Greg Johnson would ask personal Johnson was staring directly at me, when questions about my home life and my sex this was said. I was fired later that day.

life. Greg Johnson would come up to me [**7] and touch me on the breasts or I unsuccessfully attempted to commit fondle my buttocks. Greg Johnson would suicide three times since this incidence. I ask me what I thought of other women's have been forced to go on welfare, to take physical attributes. I had all of these inci- care of my children, when I didn't believe dents happen to me from April of 1991 to in welfare before this. August of 1991.

The sexual harassment and assault as In July/August of 1991 I made ar- stated above did not have any connection rangements for Greg Johnson to pick me to my employment in serving food, taking up at home for a ride to work, because I money for food, cleaning up the store, or had no adequate means of transportation. other duties that I was assigned. I am Payment was never discussed and I be- [**9] not now, nor have never claimed lieved that Defendant had given other in any proceeding that I had been injured employees rides before. When Greg in the course of my employment or that Johnson, in this TACO BELL uniform, the sexual harassment and assault arose came to my door I let him in. I was out of or originated in my employment. I dressed in my TACO BELL uniform and have never filed a claim for Workers' ready to go to work. Greg Johnson in- Compensation benefits with the Texas formed me that we were going to have Industrial Accident Board. The behavior sex. I told him no. His response was "that of these two managers as described above if I did not have sex with him, he would was personal toward me, and not related not take me to work." Greg Johnson also to my job as set out above. said that if I was late for work he would fire me. I looked at the clock and there was only 15 minutes until I was required In her suit against UPE, Mackey alleged eight separate to be at work. There was not enough time causes of action as follows: for me to walk or even call a cab. I felt I 1. Assault;

had to comply, or I [*451] would lose my job. If I lost my job I couldn't take 2. Intentional infliction of emotional distress; care of my kids. I believed that I did not have a choice and that Greg Johnson 3. Negligent infliction of emotional distress; knew that. I felt like I was raped. When I 4. Sexual harassment; arrived [**8] at work I was emotionally upset and crying. 5. Tortious interference with contract;

Around the end of August of 1991, I 6. Wrongful discharge;

spoke to another ("TACO BELL") man- 7. Slander; and ager on the phone, by the name of Jessica Jones. Jessica Jones had "worked" her 8. Negligent supervision, training, and evaluation of way up through the store to become a Smith and Johnson. manager. The trial court granted a global summary judgment, During this conversation, I proceeded and, therefore, summary judgment was granted against to tell Jessica Jones that Greg Johnson, a Mackey on all eight of her causes of action. Furthermore, married man, had caused a female em- since the trial court did not specify the grounds upon ployee to become pregnant. I also told which it granted summary judgment on each of Mackey's

Page 4 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

causes of action, it was Mackey's burden to show that APPLICABILITY OF THE TEXAS WORKER'S each independent argument alleged by UPE in its motion COMPENSATION ACT TO CLAIMS FOR ASSAULT for summary judgment [**10] was insufficient to sup- AND INTENTIONAL INFLICTION OF EMOTIONAL port the trial court's order. Summary judgment will be DISTRESS affirmed if any of the theories advanced by UPE are As one of its grounds for summary judgment, UPE meritorious. Insurance Co. of N. Am. v. Security Ins.

claims that Mackey's injuries from assault and intentional Co., 790 S.W.2d 407, 410 (Tex. App. - Houston [1st infliction of emotional distress committed by Smith and Dist.] 1990, no writ).

Johnson were sustained in the course of her employment In points of error two through eight Mackey alleges and were therefore barred by the exclusive remedy prothat the trial court erred in granting summary judgment visions of the Texas Worker's Compensation Act. Howin her causes of action based on assault, intentional in- ever, Mackey claims that the conduct of Smith and fliction of emotional distress, sexual harassment, tortious Johnson were personal toward her, not related to her job interference with contract, wrongful discharge, and neg- of serving food, taking money for food, cleaning up the ligent supervision, training and evaluation. On appeal, store, or other duties that she was assigned. Therefore, Mackey has abandoned her cause of action for negligent Mackey argues that she was not injured in the scope and infliction of emotional distress for the obvious reason course of her employment with UPE, all as set out in her that the Texas Supreme Court has held in Boyles v. Kerr, summary judgment affidavit. Mackey asserts that her 855 S.W.2d 593 (Tex. 1993) that there is no general duty common law claims for assault [**13] and intentional in Texas not to negligently inflict emotional distress. In infliction of emotional distress are not barred by the Act addition, Mackey has abandoned slander as a separate because her injuries fall within an exception to coverage, cause of action; however, we will consider the alleged which reads as follows: slanderous comments insofar as they are material to the other causes of action on appeal. An insurance carrier is not liable for compensation if:

The function of summary judgment is to "eliminate patently unmeritorious claims and untenable defenses. " [**11] Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d ...

929, 931 (1952); Mayhew v. Town of Sunnyvale, 774 (4) The injury arose out of an act of a S.W.2d 284, 286 (Tex. App. - Dallas 1989, writ denied), third person intended to injure the emcert . denied, 498 U.S. 1087, [*452] 112 L. Ed. 2d ployee because of personal reasons and 1049, 111 S. Ct. 963 (1991). The purpose of allowing not directed at the employee as an emsummary judgment is to "provide a method of summarily ployee or because of the employment.

terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact." Mayhew, 774 S.W.2d at 287.

Act of December 13, 1989, 71st Leg., 2nd C.S., Ch. 1, § The standard for appellate review of a summary 3.02, 1989 Tex. Sess. Law Serv. 14, repealed by Act of judgment in favor of a defendant is whether the summary May 22, 1993, 73rd Leg., Ch. 269, § 5(2), 1993 Tex. judgment proof establishes as a matter of law that there Sess. Law Serv. 1275 (current version at TEX. LABOR is no genuine issue of fact as to one or more of the essen- CODE ANN. § 406.032(1)(c) (Vernon Supp. 1996)). tial elements of the plaintiff's cause of action. Gibbs v.

Two incidents of sexual harassment took place away General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).

from work. However, Mackey was at work when the The movant has the burden to show that there is no genalleged acts of "touching," "brushing up," fondling her uine issue of material fact and that it is entitled to judgbreasts and buttocks, and other demeaning acts took ment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., place. Although one's employment may be the occasion 690 S.W.2d 546, 548-49 (Tex. 1985). Evidence favorable for the wrongful act or may give a convenient opporto the nonmovant will be taken as true in deciding tunity for execution, an injury does not arise out of one's whether there is a disputed material fact issue. Id. Every employment if the assault is not connected with the emreasonable inference must be indulged [**12] in favor ployment, or is for reasons personal to the victim as well of the nonmovant and any doubts resolved in its favor.

[**14] as the assailant. Highlands Underwriters Ins.

Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.

Co. v. McGrath, 485 S.W.2d 593, 595 (Tex. 1972). The 1984). In addressing the trial court's summary judgment mere fact that the injury is caused by a co-employee is action on each of Mackey's six remaining causes of acnot controlling of the question of whether the injury is tion brought here on appeal, we will view the summary compensable under the Texas Worker's Compensation judgment evidence in light of these admonitions.

Act. Shutters v. Domino Pizza, 795 S.W.2d 800 (Tex.

Page 5 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

App. - Tyler 1990, no writ). Whether Mackey's injuries F. Supp. 596 (W.D. Tex. 1988), the plaintiff alleged and were sustained in the course of her employment is ordi- the court found that she was assaulted and sexually harnarily a question of fact. Shutters, 795 S.W.2d at 802. assed by a "team leader" of Church's Fried Chicken.

However, the court found no liability upon the employer From the summary judgment evidence, we conclude because the team leader was not authorized to use force, that a material issue of fact exists as to whether Mackey's and because the sexual assault on the employee was injuries for assault and intentional infliction of emotional purely personal.

distress were sustained in the course of her employment. However, it is not necessary to remand [*453] this Furthermore, when the servant turns aside, for howcase for a determination of that issue. If it were found ever a short time, from the prosecution of the master's that Mackey's injuries were sustained in the course of her work [**17] to engage in an affair wholly his own, he employment, as defined by the Act, then her recovery ceases to act for the master, and the responsibility for under these two causes of action would be barred by the that which he does in pursuing his own business or exclusivity of the Act. If Mackey's injuries were not sus- pleasure is upon him alone. Dieter, 739 S.W.2d at 407; tained in the course of her employment and fall within Tierra Drilling Corp., 666 S.W.2d at 663 (quoting Galthe exception above-described, then Mackey would be veston, Houston, and San Antonio R.R. v. Currie, 100 free to assert her common law remedies [**15] for as- Tex. 136, 96 S.W. 1073 (1906)). See also, Gibraltar Savsault and intentional infliction of emotional distress. ings Assoc. v. Turnbough, 610 S.W.2d 515 (Tex. Civ. However, in the trial court and on appeal, UPE claims App. - Houston [1st Dist.] 1980, writ dism'd); Calhoun v. that even if Mackey's causes of action for assault and Hill, 607 S.W.2d 951 (Tex. Civ. App. - Eastland 1980, no intentional infliction of emotional distress were not writ). barred by the exclusivity of the Act, it was entitled to In Kendall v. Whataburger, Inc., 759 S.W.2d 751 summary judgment in these two causes of action on (Tex. App. - Houston [1st Dist.] 1988, no writ), a food Mackey's common law claims as well. For the following service employee struck a customer with a french-fry reasons, we agree.

basket. There, the court found, as a matter of law, that ASSAULT the assault could not have been so connected with and immediately arising out of the employee's job of taking Mackey claims that the assaultive acts of Smith and food orders and preparing and delivering food orders to Johnson directed towards her were within the course and customers so that his authorized employment tasks and scope of their employment with UPE, and were thus imthe assault could have merged into one indivisible tort putable to UPE. UPE takes the position that the job duimputable to the master. Id. at 755. If the assault by an ties of Smith and Johnson did not include any of the acts employee can be traced to a remote cause unrelated to directed toward Mackey, and that if they committed the the business of the [**18] employer, the employer alleged acts of which Mackey complains, they were not cannot be held liable. See Viking v. Circle K Convenacting within the course and scope of their employment.

ience Stores, 742 S.W.2d 732, 734 (Tex. App. - Houston Therefore, UPE argues, such acts of intentional conduct [1st Dist.] 1987, writ denied) (assault was not in course cannot be imputed to UPE.

and scope of employment for an employee to leave the A longstanding Supreme Court case has been often store unattended and follow victim into public street to cited for the proposition that it is not ordinarily within shoot him over personal reasons); [*454] Green v. the scope of a servant's authority to commit an assault Jackson, 674 S.W.2d 395, 399 (Tex. App. - Amarillo upon a third person. Texas & Pac. Ry. Co. v. Hagenloh, 1984, writ ref'd n.r.e.) (not in course and scope when 151 Tex. 191, 247 S.W.2d 236 (1952). Assault [**16] is employee fought with customer over a long-simmering considered as an expression of personal animosity and and rancorous personal animosity arising out of personal not for the purpose of carrying out a master's business. debt); Tierra Drilling Corp., 666 S.W.2d at 662 (not in Tierra Drilling Corp. v. Detmar, 666 S.W.2d 661 (Tex. course and scope of employment for supervisor to assault App. - Corpus Christi 1984, no writ) (citing Texas & employee over supervisor's dislike of Texans). Pac. Ry. Co. v. Hagenloh). In order to impose liability Mackey cites the case of Frito-Lay, Inc. v. Ramos, upon an employer for the tort of its employee under the 770 S.W.2d 887 (Tex. App. - El Paso 1989), rev'd on doctrine of respondeat superior, the act of the employee other grounds, 784 S.W.2d 667 (Tex. 1990) in support of must fall within the scope of the general authority of the her argument that under the summary judgment facts of employee and must be in furtherance of the employer's this case Smith and Johnson were acting in the course of business for the accomplishment of the object for which their employment with UPE. In Frito-Lay, a snack comthe employee was hired. Dieter v. Baker Serv. Tools, pany employee shoved his company's customer while 739 S.W.2d 405 (Tex. App. - Corpus Christi 1987, writ attempting to take the company's merchandise rack from denied). In Valdez v. Church's Fried Chicken, Inc., 683 the store after [**19] the customer informed the em-

Page 6 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

ployee that he no longer wanted to carry the company's incidents. In Twyman v. Twyman, 855 S.W.2d 619 (Tex. snack products. There, the court reasoned that a 1993), the Texas Supreme Court recognized the tort of fact-finder could find that the employee was acting intentional infliction of emotional distress as set forth in within the scope of his employment when he assaulted Section 46(1) of the Restatement (Second) of Torts the customer while trying to retrieve company property. (1965). The elements of intentional infliction of emo- In a similar case, Durand v. Moore, 879 S.W.2d 196 tional distress are: (1) the defendant acted intentionally (Tex. App. - Houston [14th Dist.] 1994, no writ), a or recklessly; (2) the conduct was extreme and outradoorkeeper of a night club, in his overzealous enforce- geous; (3) the actions of the defendant caused the plainment of the club's criteria for admittance, assaulted two tiff emotional distress; and (4) the emotional distress customers who were waiting for admission. There, the suffered by the plaintiff was severe. Tidelands Automocourt held that the doorkeeper was acting in the course of bile Club v. Walters, 699 S.W.2d 939, 942-44 (Tex. App. his employment in enforcing his employer's rules for - Beaumont 1985, writ ref'd n.r.e.). From the summary admission. judgment proof outlined above, it is clear [*455] that UPE did not authorize or direct any of the alleged acts of The instant case is not like Frito-Lay, Inc. or Dusexual harassment [**22] committed by Smith and rand, but is analogous to Kelly v. Stone, 898 S.W.2d 924 Johnson against Mackey. Furthermore, when Smith and (Tex. App. - Eastland 1995, writ denied). In Kelly, a Johnson were hired, UPE explained its written policies senior billing clerk sued her office manager for sexual against sexual harassment, notices of which were posted harassment, which included sexual advances such as at each work place. The notices included instructions to rubbing her on the bottom. There, the court reasoned that report violations of this policy to UPE officials. Mackey the office manager's duties did not include the use or did not respond with any summary judgment evidence threat of physical force or physical conduct against emshowing that UPE intentionally or recklessly committed ployees, nor was he ever directed by a company officer these acts which allegedly caused Mackey emotional [**20] to assault the billing clerk. The conduct of the distress. Thus, the first prong of the cause of action for office manager was simply not work-related. The court intentional infliction of emotional distress has not been there stated that the office manager was clearly motivatmet . The trial court did not err in granting summary ed by his personal obsession towards the billing clerk, judgment on Mackey's claim for intentional infliction of and that his conduct was a pursuit of his own personal emotional distress.

gratification. Kelly, 898 S.W.2d at 929.

Points of error one, two, three and four are over-

In the instant case, there was no relationship beruled .

tween the assaultive acts of Smith and Johnson and their duties as managers of a food service restaurant. The SEXUAL HARASSMENT summary judgment evidence shows that Smith and Next, Mackey charges UPE with sexual harassment Johnson would "brush up" against Mackey, would touch resulting in a hostile work environment and an economic her breasts, and fondle her buttocks. None of these alharm to her. She claims that such activity constitutes a leged assaultive acts were directed by UPE officials.

violation of Article 5221k of the Texas Revised Civil Furthermore, the summary judgment evidence shows that Statutes, commonly known as the Texas Commission on none of these acts were within the scope of Smith and Human Rights Act ("Texas Human Rights Act"). The Johnson's general authority as employees of UPE. Each pertinent provisions are as follows:

was employed to manage a restaurant, which would include taking food orders, preparing the food, and deliv-

Sec. 5.01. It is unlawful employment ering it to customers. There is simply no connection bepractice for an employer:

tween these duties and the alleged sexual assaults directed towards Mackey. We, therefore, conclude that the (1) [**23] to fail or refuse to hire alleged sexual assaults were solely the acts of Smith and or to discharge an individual or otherwise Johnson, and that they were [**21] not acting within to discriminate against an individual with the scope of their general authority conferred by UPE at respect to compensation or the terms, that time. There is no genuine issue of fact in that regard, conditions, or privileges of employment and the trial court did not err in granting summary judg- because of race, color, handicap, religion, ment on Mackey's cause of action for assault. sex, national origin, or age; or INTENTIONAL INFLICTION OF EMOTIONAL (2) to limit, segregate, or classify an DISTRESS employee or applicant for employment in a way that would deprive or tend to de-

Mackey also asserts that UPE is liable for intentional prive an individual of employment opinfliction of emotional distress arising from the alleged portunities or otherwise adversely affect

Page 7 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

the status of an employee because of race, of Title VII discrimination claims to sexual harassment color, handicap, religion, sex, national in the work place have been sufficiently outlined in origin, or age. Flagship, Dundee, and Meritor, and its background will not be again detailed here. Two types of sexual harassment are outlined in these cases: (1) harassment that, TEX. REV. CIV. STAT. ANN. art. 5221k § 5.01(1)(2) while not affecting economic benefits, creates a hostile (Vernon 1987). 3 or offensive [**26] work environment, and (2) harassment that involves the conditioning of concrete employ-

3 Repealed by Act of May 22, 73rd Leg., R.S., ment benefits on sexual favors. However, every instance Ch. 269, Sec. 5(1), 1993 Tex. Sess. Law Serv. of sexual harassment does not give rise to a Title VII 1275 (current version at TEX. LABOR CODE claim against an employer. The complaining party must ANN. § 21.051 (Vernon 1996)). allege and prove a number of elements in order to establish his claim. These elements are:

UPE responded that an employer can be held liable for sexual harassment only if the employer knew or (1) The employee belongs to a protecshould have known of the harassment in question and tive group, i.e., a simple stipulation that failed to take prompt, remedial action. UPE contends that the employee is a man or a woman;

[**24] the summary judgment evidence established the following: (1) that the wrongful conduct of Smith and (2) The employee was subject to un- Johnson was against UPE policy, (2) that UPE did not welcome sexual harassment, i.e., sexual know of the harassment in question, (3) that Mackey advances, request for sexual favors, and never complained to UPE until after her termination, and other verbal or physical conduct of a sex- (4) that Upshaw immediately initiated corrective ual nature that is unwelcome in the sense measures after it was reported to him. Mackey contends that it is unsolicited or unincited and is that her summary judgment evidence establishes that she undesirable or offensive to the employee; complained to UPE, but that it failed to take prompt re-

(3) The harassment complained of medial action. Furthermore, she argues that her summary was based upon sex, i.e., that but for the judgment evidence shows that the harassment was perfact of her sex, the plaintiff would not vasive and severe, that it altered the conditions of her have been the object of harassment;

employment with UPE, creating an abusive working environment . (4) The harassment complained of affected a "term, condition, or privilege of When reviewing a case brought pursuant to the employment, "i.e., the sexual harassment Texas Human Rights Act, we may look not only to the must be sufficiently pervasive so as to alstate statute, but also to the analogous federal provisions ter the conditions of employment and crecontained in Title VII of the Civil Rights Act of 1964, 42 ate an abusive working environment. In U.S.C. § 2000e, et seq. ("Title VII"). Eckerdt v. Frostex the type of harassment that involves the Foods, Inc., 802 S.W.2d 70 (Tex. App. - Austin 1990, no conditioning [**27] of concrete emwrit ) ("The stated purpose of the Texas Act suggested ployment benefits on sexual favors, i.e., the state legislature intended it to conform to the policies quid pro quo, the employee must show contained in the federal act; therefore, [**25] we may that the employer required sexual considconsider how the federal act is implemented under erations from the employee in return for clauses similar to those in issue in the Texas Act"). Bejob benefits.

cause Texas has little case law interpreting and applying the Texas Human Rights Act, the federal court decisions (5) Respondeat superior, i.e., that the emaddressing Title VII issues may provide us with guidance ployer knew or should have known of the as well. Speer v. Presbyterian Children's Home & Serv.

harassment in question and failed to take Agency, 824 S.W.2d 589, 593 (Tex. App. - Dallas 1991), prompt remedial action.

vacated, 847 S.W.2d 227 (Tex. 1993).

Sexual harassment is a form of employment discrimination prohibited by Title VII. Meritor Savings Flagship, 793 F.2d at 719-720; Henson, 682 F.2d at Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, [*456] 903-905. 106 S. Ct. 2399 (1986); Jones v. Flagship Int'l, 793 F.2d In the instant case, elements one and three above are 714, 719 (5th Cir. 1986) cert. denied, 479 U.S. 1065, 93 uncontroverted, that is, Mackey belongs to a protected L. Ed. 2d 1001, 107 S. Ct. 952 (1987); Henson v. City of group, i.e., she is a woman, and the harassment com-

Dundee, 682 F.2d 897 (11th Cir. 1982). The application

Page 8 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

plained of was based upon sex. However, as to elements We next turn to element number five, respondeat two and four listed above, UPE argues that its summary superior. UPE contends that even if the sexual harassjudgment evidence shows that it investigated the alleged ment took place and was sufficiently pervasive so as to harassment and concluded that it did not occur; however, alter Mackey's [**30] employment conditions and creif it did occur, it was not sufficiently pervasive so as to ate an abusive working environment, the element of realter the conditions of Mackey's employment, and it did spondeat superior is not present since UPE did not know not create an abusive working environment for her. nor should it have known of the alleged harassment. UPE Mackey's summary judgment evidence indicates that contends that it was not informed of the sexual harasssexual advances, requests for sexual favors, and other ment until after Mackey was terminated, at which time it verbal and physical conduct of Smith and Johnson of a took prompt, remedial action. However, in her deposisexual nature indeed took place. The evidence suggests tion, Mackey stated that before she was terminated, she that these [**28] gestures were unwelcome in the sense informed UPE supervisor, Hall, about Smith and Johnthat they were unsolicited and unincited, and that it was son's sexual harassment. Hall allegedly laughed and said undesirable and offensive to Mackey. Mackey's supervi- she would do something about it. However, Hall did sors regularly demanded sexual intercourse from her and nothing about it. Rather, at the next store meeting, Johnothers , brushed up against her, touched and fondled her son informed all employees that whatever happened in breasts and buttocks, called her demeaning names in his store "was to remain there or else." In her deposition, front of fellow workers. Furthermore, the supervisors Hall denies that Mackey told her about the sexual harsexually harassed other female employees in the work assment. Although the evidence does not show whether place and even got one pregnant. Mackey's supervisors Hall was present at that meeting, she stated that she altold her and the other employees not to tell anyone what ways attended the staff meetings because she supervised was going on at work. Such working conditions inevita- and evaluated the managers. At the time Mackey allegbly created an abusive and intolerable working environ- edly informed Hall of the sexual harassment, Hall had ment at Mackey's work place. been with UPE thirteen years and held a supervisory position with UPE. She worked out of the home office as Furthermore, Mackey's summary judgment evidence supervisor of [**31] training, with responsibilities over shows that her employment benefits were conditioned on all five Taco Bell restaurants in Tyler and 100-136 emsexual favors for her supervisors. Smith and Johnson ployees.

were managers with authority to hire, fire, and set the number of hours of their workers. When Smith's requests It is true that Mackey must show that the employer, for sexual favors were refused, Smith reduced Mackey's UPE, knew or should have known of the harassment in scheduled working hours, resulting in less pay. At one question and failed to take prompt remedial action. time, Smith told Mackey, "If I did it, I get more hours." However, an employee can demonstrate that her corpo- Johnson used his authority to force silence on Mackey. rate employer knew of the harassment by showing that She stated that she was "called into the office [**29] by she complained to "higher management" of the harass- Greg Johnson and he told me not to tell [*457] anyone ment, Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 or he would fire my ass if talked." Johnson had the au- F.2d 934, 943 (D.C. Cir. 1981), or by showing the perthority to evaluate employees' work performance and to vasiveness of the harassment which gives rise to the inreprimand them, which authority he used to coerce sexu- ference of knowledge or constructive knowledge by the al favors. Mackey stated that when she denied sex to employer. Taylor v. Jones, 653 F.2d 1193, 1199 (8th Johnson she would receive a written work-related repri- Cir. 1981). Hall, being the supervisor of training in all mand. She stated that the more she denied Johnson, the five stores, appears to have held a position of "higher more she was penalized. One day when Johnson gave management" and, according to Mackey's affidavit, Hall Mackey a ride to work, he used his authority to hire and not only failed to restrain Smith and Johnson, but failed fire to force sexual intercourse from Mackey. We con- to bring the matter to the attention of other officers of the clude from the summary judgment evidence outlined corporation. above that a genuine issue of fact exists relative to ele-

Furthermore, UPE was generally aware of increased ment number two, that is, whether Mackey was subject sexual harassment problems in the work place and had to unwelcome sexual harassment. It is further our conrecently dealt with a sexual harassment problem in its clusion that a genuine issue of fact exists in regards to own company which had involved Johnson. UPE argues element number four, both as to whether the sexual har-

[**32] that the summary judgment evidence shows that assment created a hostile work environment and whether the conduct complained of was against the policies of the harassment involved a quid pro quo in the work UPE, that those policies and procedures for complaints place, affecting Mackey's economic benefits.

were posted, and that Mackey did not follow those procedures . However, having a policy against discrimination

Page 9 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

and a grievance procedure, coupled with Mackey's fail- UPE shows that Mackey had neither an oral or written ure to invoke that procedure, does not insulate UPE from employment contract with UPE, and that she was an liability. Meritor Savings Bank v. Vinson, 477 U.S. 57, "at-will" employee. Mackey presented no controverting 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). While those evidence. Generally, in the absence of a contract to the factors are relevant, they are not dispositive in this sum- contrary, an employer in Texas has the authority to dismary judgment case. Although Mackey knew she could charge an employee with or without cause. The discharge "inform Mr. Upshaw of such harassment," she was "not of an employee requires no justification unless the emaware of the grievance procedures to follow when sex- ployer's right to discharge an employee is limited by ually harassment (sic)." Moreover, a reasonable proce- contract. Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d dure for lodging complaints would have been [*458] 536 (Tex. App. - Corpus Christi 1982, no writ). The emto inform one's supervisor which, in this case, was either ployment-at-will [**35] doctrine places no duties on an Smith or Johnson, the alleged perpetrators. Based upon employer regarding an employee's continued employthe above, we conclude that a genuine issue of fact re- ment. Winters v. Houston Chronicle Pub. Co., 795 mains regarding the fifth element of Mackey's sexual S.W.2d 723 (Tex. 1990); Jones v. Legal Copy, 846 harassment cause of action, that is, whether or not UPE S.W.2d 922 (Tex. App. - Houston [1st Dist.] 1993, no knew or should have known of the harassment in ques- writ). tion and failed to take prompt, remedial action. Accord-

Nevertheless, Mackey alleges that UPE breached its ingly, [**33] Mackey's point of error five is sustained.

duty of good faith and fair dealing by terminating her TORTIOUS INTERFERENCE WITH CONTRACT employment. However, Texas law does not impose the duty of good faith and fair dealing on the employer in the As further grounds for summary judgment, UPE al-

"at-will" employment context. Federal Express Corp. v.

leges that Mackey has not stated a cause of action of Dutschmann, 846 S.W.2d 282, 284 (Tex. 1993); Winters, tortious interference with a contract. Mackey charges 795 S.W.2d at 724 n. 2; Day & Zimmermann, Inc. v.

that Smith and Johnson interfered with her working en-

Hatridge, 831 S.W.2d 65 (Tex. App. - Texarkana 1992, vironment in order to deprive her of wages and employwrit denied). Mackey's reliance upon such theory is ment benefits under an employment contract and to unwithout merit. Casas v. Wornick Co., 818 S.W.2d 466 dermine her prospects for advancement in the future.

(Tex. App. - Corpus Christi 1991), rev'd on other Mackey attempts to impute such conduct to UPE. Howgrounds , 856 S.W.2d 732 (Tex. 1993).

ever, it appears from the summary judgment evidence that Mackey does not have an oral or written contract However, there are statutory exceptions to the emwith UPE. UPE responds that the cause of action is ployment-at-will doctrine, such as Section 5.01 of the without merit since there is no contract with which to Texas Human Rights Act. Its provisions make it unlawinterfere . Furthermore, UPE argues that, assuming ar- ful for an employer to discharge an employee because of guendo that UPE and Mackey had entered into an en- his or her sex. Dutschmann, 846 S.W.2d at 284. 4 Mackey forceable employment contract, as a matter of law, there therefore has a cause of action [**36] if the sexual harcan be no interference with the contract by UPE. Tor- assment conduct [*459] by Smith and Johnson resulttious interference with a contract occurs when a person ed in her discharge. Flagship, 793 F.2d at 720. intentionally and improperly interferes with the performance of a contract with a third party. We agree. A party 4 For a discussion of the burdens of proof and cannot tortiously interfere with his own contract. In Tex- production in employment discrimination cases, as, employment contracts are protected from tortious see Texas Dept. of Human Services v. Hinds, 904 interference [**34] by outsiders. Sterner v. Marathon S.W.2d 629, 636 (Tex. 1995). Oil Co., 767 S.W.2d 686 (Tex. 1989). A party to a busi-

UPE presented summary judgment evidence showness relationship cannot tortiously interfere with himself;

ing that Mackey had received several reprimands for liability must be founded upon acts of an interfering third being rude to customers and for being late to work. On party. Baker v. Welch, 735 S.W.2d 548, 549 (Tex. App.

the day of her discharge, Upshaw personally witnessed - Houston [1st Dist.] 1987, writ dism'd). We hold that the Mackey being rude to a customer and ordered Johnson to trial court did not err in granting summary judgment for terminate her, which he did. However, the summary UPE on Mackey's cause of action for tortious interferjudgment evidence also showed that Johnson told ence with contract. Accordingly, Mackey's point of error Mackey that he would fire her if she talked about the six is overruled.

sexual activity at the restaurant. On one occasion, when WRONGFUL DISCHARGE Johnson was giving Mackey a ride to work, he told her that she was going to have sex with him or he would not Mackey also alleged wrongful discharge as a cause take her to work. Johnson told Mackey that if she was of action. The summary judgment evidence presented by late for work, he would fire her. Since there was not

Page 10 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

enough time for Mackey to walk or [**37] even call a 668 S.W.2d 307, 309 (Tex. 1983). An employer has a cab, she complied in order to keep her job. Mackey then duty to adequately hire, train, and supervise employees. complained of the sexual harassment to Jones, a fellow The negligent performance of those duties may impose employee, whose response was, "Well, you know Greg." liability on an employer if the complainant's injuries are Mackey also complained to Hall, a supervisor. At the the result of the employer's failure to take reasonable next employee meeting, which was on the day Mackey precautions to protect the complainant from misconduct was terminated, Johnson said to the group, "My employ- of its employees. See Dieter, 739 S.W.2d at 408. Liabilees , what goes on in this store, stays in this store. And for ity for negligent supervision is not dependent upon a all of you that's running your mouth, it's going to stop." finding that the employee was acting in the course and Then, as Johnson was looking at Mackey, he stated, scope of his employment when the tortious act occurred. "Some of you with your big ass mouth, I'm going to get Id. rid of you." Later that same day, assistant restaurant UPE's summary judgment evidence shows that it manager, Daryl Friend, told Mackey that Johnson had had a written policy statement against sexual harassment called and that she was fired. We conclude that Mackey's and that it was [*460] posted at all of its stores. UPE summary judgment evidence controverted UPE's version required all new employees to read the store policy and of her termination, and that a genuine factual issue exists to sign a statement acknowledging that they had [**40]

as to whether Mackey was terminated in violation of the read it and understood it. UPE stressed to all employees Texas Human Rights Act. Therefore, based upon the that sexual harassment was strictly against company polabove , we hold that the trial court committed error in icy. UPE conducted training sessions with its managers granting summary judgment for UPE on Mackey's cause and employees at least twice per month, and at these of action for wrongful discharge. Accordingly, Mackey's meetings it was stressed that sexual harassment was point of error seven is sustained.

strictly against company policy. More specifically, the NEGLIGENT SUPERVISION, TRAINING AND managers were told what it included, i.e., that it included EVALUATION physical touching, words with sexual connotations, and any sexual conduct which took place among employees Finally, Mackey [**38] alleges that UPE was negor by employees towards customers. The managers were ligent in its supervision, training, and evaluation of told that they were responsible for controlling such pro-

Smith and Johnson. Specifically, Mackey's claims hibited conduct. UPE established and implemented a against UPE include: (1) failing to adequately monitor grievance procedure which was also posted at each of the Smith and Johnson's supervisory practices in their posirestaurants . An officer of the company visited each restions of store manager, (2) failing to detect and take actaurant daily in order to monitor the activities of the emtion to deter the alleged sexual harassment by Smith and ployees. Supervisors from the home office visited each Johnson, and (3) failing to implement and monitor prostore daily and performed on-site supervision and evalucedures for the handling of employee grievances. UPE ation of the managers and employees. UPE argues that responds by asserting that such a negligent claim by its conduct in this regard conclusively shows that it acted Mackey was barred by the exclusive remedy provision of as a reasonable, prudent employer and was not negligent the Texas Worker's Compensation Act. We agree. The in supervising, training, and evaluating Smith and John-

Texas Worker's Compensation Act is the exclusive remson . Mackey's summary judgment evidence does [**41]

edy for work-related injuries based upon negligence.

not controvert these facts. She simply relies upon the Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985).

allegations of sexual harassment by Smith and Johnson.

Thus, the Act bars Mackey's claims based upon In order to avoid the adverse ruling of the trial court, it work-related negligence. Jones, 846 S.W.2d at 925-926.

was necessary for Mackey to submit summary judgment Again, Mackey alleges that the injuries she received evidence controverting these facts or specifying other from the conduct of Smith and Johnson were not acts or omissions of UPE showing that it failed to moniwork -related, and that their conduct was personal toward tor Smith and Johnson's supervisory practices, failed to her. Therefore, she argues, her common law cause of detect or take action to deter the alleged sexual harassaction survives. If Mackey's injuries were sustained in ment, or that it failed to implement and monitor procethe course of her employment, then her recovery [**39]

dures for handling grievances. See Musgrave v. Lopez, would be barred by the exclusivity of the Act. If not, then 861 S.W.2d 262, 264 (Tex. App. - Corpus Christi 1993, the Act does not disturb Mackey's alleged common law no writ). Mackey failed to do so. We therefore conclude remedies for negligent supervision, training, and evaluathat there is no genuine issue of fact regarding Mackey's tion, which we will now address.

alleged negligent supervision, training, and evaluation.

Generally, the employer-employee relationship cre- Accordingly, we hold that the trial court did not err in ates a duty on the part of the employer to control the em- granting summary judgment for UPE on this cause of ployee's conduct. See Otis Engineering Corp. v. Clark, action. Mackey's point of error eight is overruled.

Page 11 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

REMAINING POINTS OF ERROR her third amended petition. On January 14, 1993, the trial court signed a scheduling order setting pretrial deadlines Mackey's point of error nine states: "The trial court pursuant to the court's local rules. The order required all erred in granting summary judgment for Appellee in its amended pleadings to be filed by November 10, 1993.

filing of response to Appellant's motion for summary Mackey did not file her third amended petition until Dejudgment ." Mackey's point and her argument under this cember 3, 1993, which was untimely according to the point are not [**42] clear. TEX. R. APP. P. 74(f) recourt 's order. Texas Rule of Civil Procedure 63 provides, quires that the argument in the brief shall include: (1) a in pertinent part:

fair, condensed statement of the facts pertinent to such points . . .; and (2) such discussion of the facts and the Parties may amend their pleadings . . .

authorities relied upon as may be requisite to maintain by filing such pleas with the clerk at such the point at issue. Mackey's point of error and argument time as not to operate as a surprise to the do not comply with the requirements of Rule 74(f);

opposite party; provided, that any pleadhowever , in the interest of justice, we will attempt to ings, responses or pleas offered for filing address this point.

within seven days of the date of trial or UPE filed its motion for summary judgment with thereafter, or after such time as may be appropriate summary judgment evidence attached. ordered by the judge under Rule 166, shall Mackey then filed a response to the summary judgment be filed only after leave of the judge is motion and attached her summary judgment evidence. obtained, which leave shall be granted by Thereafter, UPE filed "Defendant's Reply to Plaintiff's the judge unless there is a showing that Response to Defendant's Motion for Summary Judg- such filing will operate as a surprise to the ment" in which UPE presented to the trial court argu- opposite party. ments and authorities supporting their summary judgment motion. UPE's response was simply procedural and added no new substantive matters. UPE's argument in its TEX. R. CIV. P. 63. Texas Rule of Civil Procedure 166 reply was that Mackey had not presented sufficient or expressly provides, in pertinent part: competent summary judgment evidence controverting its The court shall make an order which summary judgment evidence on several of the causes of recites the action taken at the pretrial action alleged by Mackey. Mackey apparently argues conference, [**45] the amendments that the granting of summary [**43] judgment based on allowed to the pleadings, the time within UPE's response and argument would be an illegal shift- which same may be filed, and the agreeing of the burden, and would constitute the granting of a ments made by the parties as to any of the default judgment in a summary judgment proceeding. matters considered . . . and such order when issued shall control the subsequent It is true, as Mackey argues, that summary judgment course of the action, unless modified at may not be obtained by default for lack of an answer or the trial to prevent manifest injustice.

response to the summary judgment motion when the movant's evidence is legally insufficient. Cotton v. Ratholes, Inc., 699 S.W.2d 203 (Tex. 1985); City of Hou-

TEX. R. CIV. P. 166; see also Forscan Corp. v. Dresser ston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.

Industries, Inc., 789 S.W.2d 389, 393 (Tex. App. - Hou-

1979). However, when movant's summary judgment ston [14th Dist.] 1990, writ denied).

[*461] evidence is legally sufficient, nonmovant must produce summary judgment evidence controverting the Mackey argues that her third amended petition was movant's summary judgment proof in order to avoid an filed well in advance of the seven-day rule provided for adverse summary judgment ruling. Musgrave, 861 in TEX. R. CIV. P. 63. However, Mackey does not ad- S.W.2d at 264. In this point of error, Mackey fails to dress the effect of TEX. R. CIV. P. 166, which provides recognize that UPE has presented legally sufficient that a scheduling order, when issued, shall control the summary judgment evidence, that it was clear, positive, subsequent course of action of the parties. Nevertheless, direct, and free from inconsistencies, and could have in the interest of justice, we will address the action of the been readily controverted by Mackey. Therefore, the trial court under the appropriate abuse of discretion evidence supports summary judgment in four of her standard. Forscan Corp., 789 S.W.2d at 393. causes of action as outlined above. Point of error nine is In her third amended petition, Mackey added in sevoverruled .

eral places the allegation that TBC was the employer of In her tenth point of error, Mackey alleges [**44] Mackey, Smith, and Johnson. However, Mackey had that the trial court erred in refusing to allow her to file already made these allegations in various other para-

Page 12 935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

graphs in her second amended petition, [**46] and filed afford Mackey any greater actual or theoretical bafurthermore , the allegations against TBC would not be sis for overcoming the summary judgment. Therefore, material in this case against UPE. Also, in her third the error, if any, did not amount to such a denial of amended petition, Mackey added allegations that Smith Mackey's rights that it would reasonably be calculated to and Johnson were "managers." This allegation had been cause or probably did cause, the rendition of an improper previously asserted by Mackey in her second amended judgment. TEX. R. APP. P. 81(b)(1). We conclude that petition. The only other change made in her third the trial court did not abuse its discretion in refusing to amended petition was the elimination of her claim of allow Mackey to file her third amended petition. negligent infliction of emotional distress. As stated Mackey's point of error ten is overruled. above, such cause of action would be without merit since The judgment of the trial court granting summary there is no general duty in Texas not to negligently inflict judgment in Mackey's causes of action based on sexual emotional distress. Boyles, 855 S.W.2d at 597.

harassment and Mackey's cause of action based on Based on our review of the record, it appears that wrongful discharge is reversed and remanded to the trial Mackey did not attempt to add any new causes of action court for further proceedings in accordance with this in her third amended petition or factual allegations nec- opinion. In all other respects, the judgment of the trial essary to support subsequent proof. Moreover, the record court is affirmed. does not show that the trial court refused to consider ROBY HADDEN Mackey's allegations that Smith and Johnson acted as managers. Justice Furthermore, even if the trial court erred in disal- Opinion delivered October 30, 1996.

lowing the filing of Mackey's third amended petition, the error was harmless. The third amended petition did not Panel consisted of Ramey, Jr., C.J., Holcomb, J., and add any [*462] significant allegations to her case, nor Hadden, J. would allowing the third amended petition [**47] to be

APPENDIX – “B”

Page 1

REYNALDO C. PATINO, Appellant v. COMPLETE TIRE, INC., Appellee

No. 05-04-00561-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

158 S.W.3d 655; 2005 Tex. App. LEXIS 1841

March 10, 2005, Opinion Filed

SUBSEQUENT HISTORY: [**1] Released for received medical attention. Complete Tire, Inc. termi- Publication April 8, 2005. nated Patino on July 3, 2002. Patino alleged that Com- Petition for review denied by Patino v. Complete Tire, plete Tire, Inc., was negligent in failing to provide train- Inc., 2005 Tex. LEXIS 454 (Tex., June 10, 2005) ing and supervision on the proper method and safety hazards of removing and repairing flat tires and that, as a PRIOR HISTORY: On Appeal from the County result of these failures, he was injured. Court of Law No. 2. Dallas County, Texas. Trial Court Complete Tire, Inc. served discovery requests upon Cause No. CC-03-6515-B.

Patino, to which Patino served objections and responses. [**2] After Patino failed to supplement his answers, DISPOSITION: AFFIRMED.

Complete Tire, Inc. filed a combined motion to compel and motion for sanctions, asserting that Patino's answers were deficient. Patino responded to the motion to compel COUNSEL: For APPELLANT: Mr. Kent Wade Starr, and motion for sanctions and supplemented [*659] his STARR & ASSOCIATES, Dallas, TX.

discovery responses. After a hearing, the trial court granted the motion to compel. Subsequently, the trial For APPELLEE: John Walter Reeder, Plano, TX.

court heard the motion for sanctions and ordered Patino to pay $ 1,500 in attorney's fees to Complete Tire, Inc.

JUDGES: Before Justices Bridges, Richter, and Lang. Opinion By Justice Lang. Complete Tire, Inc.'s initial motion for no-evidence summary judgment was denied as premature. Subse-

OPINION BY: DOUGLAS S. LANG quently, Complete Tire, Inc. filed a "reasserted"

no-evidence motion for summary judgment. Patino re-

OPINION sponded and supported his response with evidence. The trial court granted the motion for summary judgment.

[*658] Opinion By Justice Lang The prior order on discovery sanctions was specifically In two issues, Reynaldo C. Patino challenges the made a part of the order granting summary judgment.

summary judgment and discovery sanctions granted in This appeal timely followed. favor of Complete Tire, Inc. For the reasons below, we resolve Patino's two issues against him and affirm the II. PROPRIETY OF SUMMARY JUDGMENT trial court's summary judgment.

In his first issue, Patino contends the trial court erred in granting Complete Tire, Inc.'s no-evidence motion for I. BACKGROUND summary judgment.

Complete Tire, Inc. hired Patino in May 2002 to A. Standard of Review and Applicable Law remove and repair flat truck tires. According to the allegations in Patino's original petition, on June 10, 2002, When a motion for summary judgment is presented while removing a large flat tire from the rim, he was [**3] under rule of civil procedure 166a(i) asserting struck in the head by a piece of pipe and was injured. He there is no evidence of one or more essential elements of

Page 2 158 S.W.3d 655, *; 2005 Tex. App. LEXIS 1841, **

the nonmovant's claims upon which the nonmovant After stating the elements of a negligence cause of would have the burden of proof at trial, the burden shifts action and the no-evidence summary judgment standard, to the nonmovant to present enough evidence to be enti- Complete Tire, Inc.'s "Reasserted No-Evidence Motion tled to a trial, that is, evidence that raises a genuine fact for Summary Judgment" states: issue on the challenged elements. TEX. R. CIV. P.

Therefore, Defendant is entitled to summary judg-

166a(i) & cmt.; S.W. Elec. Power Co. v. Grant, 73 ment because Plaintiff cannot demonstrate any evidence S.W.3d 211, 215, 45 Tex. Sup. Ct. J. 502 (Tex. 2002);

to support his negligence claims. Specifically, Plaintiff Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d cannot prove the existence of a specific legal duty owned 827, 832 (Tex. App.-Dallas 2000, no pet.). If the nonto him, the breach of that duty, that any such breach movant is unable to provide enough evidence, the trial caused him injury, and that his alleged continuing medijudge must grant the motion. Gen. Mills Rests., Inc., 12 cal problems are causally related to any alleged injury he S.W.3d at 832.

suffered as a result of Defendant's negligence.

Because a no-evidence summary judgment is essen-

We conclude the motion states the [**6] elements tially a pretrial directed verdict, we apply the same legal of Patino's negligence claim as to which there is no evisufficiency standard in reviewing a no-evidence sumdence as required by rule 166a(i). See TEX. R. CIV. P.

mary judgment as we apply in reviewing a directed ver-

166a(i); cf. Killam, 53 S.W.3d at 3-4 (concluding that dict. Id. at 832-33. Thus, our task as an appellate court is motion stating defendants "are entitled to summary to determine whether the nonmovant produced any evijudgment because the Plaintiffs cannot by pleading, depdence of probative force to raise a fact issue on the mateosition , answers to interrogatories or other admissible rial questions presented. Id. at 833. [**4] We consider evidence demonstrate there is any evidence to support all the evidence in the light most favorable to the party the declaratory judgment seeking to declare the road in against whom the no-evidence summary judgment was question a public thoroughfare" and generally challengrendered , disregarding all contrary evidence and infering plaintiff's factual allegations failed to state elements ences. Id.

of causes of action as to which there was no evidence Because it is undisputed that Complete Tire, Inc. is a and was legally insufficient). Accordingly, we reject workers' compensation nonsubscriber, Patino must estab- Patino's argument that the motion for summary judgment lish negligence by Complete Tire, Inc. in order to recov- was legally insufficient. er. See Werner v. Colwell, 909 S.W.2d 866, 868, 38 Tex.

Next, we address Patino's argument that the trial Sup. Ct. J. 1113 (Tex. 1995); TEX. LAB. CODE ANN. § court erred in granting the no-evidence motion for sum-

406.033(d) (Vernon 2004-05) (providing that, in action mary judgment because he brought forth more than a against employer who lacks workers' compensation inscintilla of evidence to prove his negligence claim.

surance coverage, "the plaintiff must prove negligence of the employer"). The elements of a negligence cause of 1. Standard of Care action are: (1) the defendant owed a particular duty to the plaintiff; (2) the defendant breached that duty by failing An employer has a duty to adequately hire, train, to adhere to a recognized standard of care; and (3) the and supervise employees. Allen v. A & T Transp. Co., 79 breach of duty proximately caused the plaintiff injury. S.W.3d 65, 70 (Tex. App.-Texarkana 2002, [**7] pet. See Van Horn v. Chambers, 970 S.W.2d 542, 544, 41 denied). The negligent performance of those duties may Tex. Sup. Ct. J. 1168 (Tex. 1998). impose liability on an employer if the complainant's injuries result from the employer's failure to take reasonable precautions to protect the complainant from the mis-

B. Discussion conduct of its employees. Id. Although an employer is Initially, we address Patino's argument in his re- not an insurer of its employees' safety at work, it has a sponse and on appeal that Complete Tire, Inc.'s motion duty to use ordinary care in providing a safe workplace. for summary judgment was conclusory and did not attack Id. This includes providing rules and regulations for the any of the essential [**5] elements of his negligence safety of employees, warning employees of the hazards cause of action. If a no-evidence motion for summary of their employment, and supervising their activities. Id. judgment is not [*660] specific in challenging a partic- The age and experience of the employee should be conular element or is conclusory, the motion is legally insuf- sidered in measuring the duty of the employer. Id. ficient as a matter of law. Callaghan Ranch, Ltd., v. Killam, 53 S.W.3d 1, 3 (Tex. App.-San Antonio 2000, pet. As an offshoot of this duty, the employer is also redenied ) (citing McConnell v. Southside Indep. Sch. Dist., quired to instruct employees in the safe use and handling 858 S.W.2d 337, 342, 36 Tex. Sup. Ct. J. 792 (Tex. of products and equipment used in and around an em- 1993); see Cimarron Hydrocarbons Corp. v. Carpenter, ployer's premises or facilities. Id. However, an employer 143 S.W.3d 560, 563 (Tex. App.-Dallas 2004, pet. filed). has no duty to adopt safety rules where its business is

Page 3 158 S.W.3d 655, *; 2005 Tex. App. LEXIS 1841, **

neither complex nor hazardous or where the dangers in- essary or proper by a reasonably prudent employer, that cident to the work are obvious or are of common is, the training and supervision Complete Tire, Inc. negknowledge and fully understood by the employee. Id. ligently failed to provide. See id. We conclude that Patino failed to bring forth any evidence showing a breach of The duty to warn or caution an employee of a danger any standard of care. See TEX. R. CIV. P. 166a(i).

arises when: (a) the employment [**8] is of a dangerous character requiring skill and caution for its safe and 3. Causation proper discharge, and (b) the employer is aware of the danger and has reason to [*661] know the employee is Proximate cause comprises two elements: cause in unaware of the danger. Id. However, an employer's duty fact and foreseeability. Excel Corp. v. Apodaca, 81 to instruct applies to an inexperienced employee, but not S.W.3d 817, 820, 45 Tex. Sup. Ct. J. 962 (Tex. 2002). to one who is experienced in the work he is assigned. Id. The test for cause in fact, or "but for cause," is whether the act or omission was a substantial factor in causing the In his response, Patino stated that he had "retained injury "without which the harm would not have ocan expert with 33 years of experience in the tire industry curred." Id. (quoting Doe v. Boys Clubs of Greater Dalwho will be testifying regarding training necessary to las, Inc., 907 S.W.2d 472, 477, 38 Tex. Sup. Ct. J. 732 prevent injuries and deaths of individuals charged with (Tex. 1995)). Although it appears that Complete Tire, changing large diesel tires." Patino did not identify the Inc. acknowledges that Patino was injured while using a alleged expert. Patino did not attach to his response an tire iron, Patino provided no evidence as to what actually affidavit from any person setting forth the standard of happened and how he was injured. Thus, he provided no care regarding training and supervision of a person with evidence linking his injuries to anything Complete Patino's experience in tire changing. Patino did not pro-

[**11] Tire, Inc. did or failed to do. See id. at 822.

duce any evidence as to his experience or knowledge, Patino argues that he provided the injury reports of two Complete Tire, Co.'s knowledge of his experience at the former employees who were injured "in the exact same time of the incident, or the specific equipment or procemanner " as he was. But evidence of work-place injury is dure for which he lacked training or supervision. Acno evidence that, if [*662] Complete Tire, Inc. "had cordingly, we conclude that Patino failed to bring forth done something different," Patino would not have been any evidence as to the challenged element of standard of injured or would not have received the specific injuries care. [**9] See TEX. R. CIV. P. 166a(i).

he claimed. See id. at 820. Accordingly, Patino failed to bring forth any evidence as to the element of causation.

2. Breach of Duty See TEX. R. CIV. P. 166a(i).

Patino argues that a breach of an employer's duty to Having concluded that Patino failed to bring forth provide a safe work place for its employees can be estabany evidence as to the challenged elements, we resolve lished when evidence is provided that training beyond his first issue against him.

that given by the employer would be necessary or proper by a reasonably prudent employer. See Allsup's Conven-

III. PROPRIETY OF SANCTIONS ience Stores, Inc. v. Warren, 934 S.W.2d 433, 437 (Tex. App.-Amarillo 1996,writ denied). Here, Patino points to In his second issue, Patino contends the trial court the affidavits of two former co-workers, who stated that erred in granting Complete Tire, Inc.'s, motion for disthey never received any type of training. This is no evi- covery sanctions. dence as to the absence of any training as to Patino.

A. Standard of Review and Applicable Law Patino's summary judgment evidence included A trial court's ruling on a motion for sanctions is re-

Complete Tire, Inc.'s interrogatory response, in which it viewed under an abuse of discretion standard. Cire v.

stated that, for the first two days of employment, Patino Cummings, 134 S.W.3d 835, 838, 47 Tex. Sup. Ct. J. 465 was sent out on calls with an experienced tire technician (Tex. 2004). The test for an abuse of discretion is not and "at that time his tire changing technique would have whether, in the opinion of the reviewing court, the facts been observed and any necessary comments made conpresent an appropriate case for the trial court's action, cerning adjustments that may have been necessary in his [**12] but "whether the court acted without reference tire changing technique and examples of proper tire to any guiding rules and principles." Id. at 838-39 (citachanging techniques would have been shown to him" and tion omitted). The trial court's ruling should be reversed that "[a] few times after that initial two day period, only if it was arbitrary or unreasonable. Id. at 839. Sanc-

[Patino] [**10] accompanied a more experienced tire tions are used to assure compliance with discovery and technician on an assigned job." However, Patino predeter those who might be tempted to abuse discovery in sented no evidence showing that training and supervision the absence of a deterrent. Id. However, a trial court may beyond that given by Complete Tire, Inc. would be necnot impose a sanction that is more severe than necessary

Page 4 158 S.W.3d 655, *; 2005 Tex. App. LEXIS 1841, **

to satisfy its legitimate purpose. Id.; see TransAmerican covery responses were not amended until October 6, four Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917, 34 days before the hearing; and, the amended responses, Tex. Sup. Ct. J. 701 (Tex. 1991) (holding that rule of civil "while an improvement in some areas," were incomplete procedure 215 requires that any sanctions imposed be [**14] and evasive in other areas. The trial court just, meaning that they must relate directly to the abuse granted the motion to compel as to many of the responsfound and not be excessive). es.

Texas Rule of Civil Procedure 215.2 allows a trial After a hearing on the motion for sanctions, the trial court to sanction a party for failure to comply with a court signed a supplemental [*663] order on the modiscovery order or request. TEX. R. CIV. P. 215.2. Pur- tion to compel discovery and motion for sanctions, in suant to rule 215.2(b), a trial court may order the disobe- which it "referenced the findings it made in its prior ordient party to pay reasonable expenses, including attor- der" on the motion to compel and found that an award of ney's fees, caused by the failure to obey the order. TEX. $ 1,500 in attorney's fees associated with compelling R. CIV. P. 215.2(b)(8) [**13] . responses to discovery was appropriate.

Patino argues that the discovery requests were over-

B. Discussion ly broad and were not limited as to a time period. How-

On June 27, 2003, Complete Tire, Inc. sent a request ever, as detailed above, the record shows that Patino for disclosures, interrogatories, and requests for produc- asked for and was granted additional time to answer, tion to Patino. The parties entered a Rule 11 agreement provided insufficient answers, and developed his answers allowing Patino until August 13, 2003 to respond to the further only in response to a motion to compel. Even discovery. On August 8, Complete Tire, Inc. received after providing supplemental answers, the trial court Patino's responses to discovery. On August 13, Complete found those answers to be "incomplete and evasive." On Tire, Inc. notified Patino by letter that the discovery re- this record, we conclude the trial court did not abuse its sponses were "inadequate and incomplete" and required discretion in granting Complete Tire, Inc.'s motion for immediate supplementation within ten days. On August sanctions. See Cire, 134 S.W.3d at 838-39. We resolve 29, when no response was received, Complete Tire, Inc. Patino's second issue against him. filed a motion to compel Patino to respond more fully to discovery requests and motion for sanctions. IV. CONCLUSION A hearing on the motion to compel was set for Oc- Having resolved Patino's two issues against him, we tober 10. On October 3, Patino sent amended discovery affirm the [**15] trial court's summary judgment. responses to Complete Tire, Inc. In its order on the mo-

DOUGLAS S. LANG tion to compel, the trial court found that Patino's responses were "incomplete and evasive"; the motion to JUSTICE compel was filed after Patino failed to serve supplemental responses within the ten-day deadline; the dis-

APPENDIX – “C”

Page 1

ALLSUP'S CONVENIENCE STORES, INC., APPELLANT v. JACKIE WARREN, APPELLEE

NO. 07-96-0122-CV

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

934 S.W.2d 433; 1996 Tex. App. LEXIS 5160

November 21, 1996, Decided

SUBSEQUENT HISTORY: [**1] Appellee's Agreeing there was a lack of evidence of negligence, we Motion for Rehearing Overruled December 20, 1996. will reverse and render.

Warren, employed by Allsup as a store manager in PRIOR HISTORY: FROM THE 222ND JUDICIAL Hereford, filed her action against Allsup and Affiliated DISTRICT COURT OF DEAF SMITH COUNTY; NO.

Foods, [**2] Inc., alleging their negligence was the CI-94F-102; HONORABLE DAVID WESLEY GULproximate cause of injuries she received on 8 June 1992 LEY, JUDGE.

and 13 July 1992 while lifting cardboard boxes, each containing six one gallon jugs of milk, out of an Affili-

DISPOSITION: Reversed and rendered ated Foods delivery truck while in the scope of her employment with Allsup. Because Allsup was not a subscriber under Texas Workers' Compensation laws, she COUNSEL: Ed McConnell, David Duncan, SMITH grounded her action on Texas Labor Code section STORRS WILSON & MCCONNELL PC, Amarillo, 406.033(d), 1 and alleged Allsup's violation of Texas Re-

Texas.

vised Civil Statute article [*435] 5182a to show the requisite negligence. 2 Sears Roebuck & Company v.

Jeffrey B. Jones, Bradley M. Pettiet, John D. Rosentreter, Robinson, 154 Tex. 336, 280 S.W.2d 238, 239 (1955).

JONES FLYGARE GALEY BROWN & WHARTON, Lubbock, Texas.

1 The Labor Code provides that in an action against an employer for an injury received in the JUDGES: PANEL E, Before BOYD, C.J., REAVIS, J.

course and scope of employment, where the emand REYNOLDS, S.J. * Opinion by Senior Justice Reynployer does not have workers' compensation inolds .

surance coverage, "plaintiff must prove negligence of the employer or of an agent or servant of * Charles L. Reynolds, Chief Justice (Ret.), the employer acting within the general scope of Seventh Court of Appeals, sitting by assignment.

the agent's or servant's employment." Tex. Labor Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Code Ann. § 406.033(d) (Vernon Pamph. 1997).

Supp. 1996).

2 Texas Revised Civil Statute article 5182a was repealed after Warren filed suit on 3 June 1994.

OPINION BY: Charles L. Reynolds Acts 1995, 74th Leg., ch. 76, § 954(c), eff. Sept. 1, 1995. However, prior to its repeal, section 3 OPINION provided that "Every employer shall furnish and [*434] Allsup's Convenience Stores, Inc. (Allsup) maintain employment and a place of employment challenges the judgment rendered against it on Jackie which shall be reasonably safe and healthful for Warren's negligence cause of action for personal injuries, employees. Every employer shall install, maincontending there was no evidence concerning (1) negli- tain, and use such methods, process, devices, and gence, (2) proximate cause, and (3) causal connection. safeguards, . . . as are reasonably necessary to

Page 2 934 S.W.2d 433, *; 1996 Tex. App. LEXIS 5160, **

protect the life, health, and safety of such em- expenses and wages. Additionally, Allsup specially exployees , and shall do every other thing reasona- cepted to Warren's interpretation of and reliance upon bly necessary to render safe such employment article 5182a, supra, but no action on the special excepand place of employment." Id. tion is recorded. [**3] Specifically, Warren alleged that Allsup The record reveals that in April of 1992, Warren was was negligent in its: hired by Dale McDonald, a supervisor for Allsup, as an assistant manager of Allsup's Store No. 111. Later, she became manager of the store after McDonald had fired all the other employees at the store. Although the store 1. Failure to provide a safe place manager normally hires and fires the employees, and of employment as required by Tex. Rev. schedules their work hours, McDonald hired the em- Civ. Stat. Ann. art. 5182a, section 3; ployees for this store. Subsequently, on 4 July 1992, Warren was transferred as manager to Store No. 112, where the employees previously had been hired. The 2. Failure to provide Plaintiff with as- manager was responsible for, among other things, unsistance in unloading supplies from the loading the merchandise delivered to the store by trucks rear of a tractor bed from a height of chest of Affiliated Foods, Allsup's supplier, and to see that the level or above; trucks were not delayed in any way. McDonald told Warren that she needed to schedule one of the men to unload the truck every time, the advice given each fe-

3. Failure to adequately or properly male store [**5] manager.

train the employees in any manner in lift-

Among other testimony, the jury heard Warren's deing heavy or awkward items from the rear scription of the events surrounding the two incidents. At of a tractor trailer bed from a height of Store No. 111, she had scheduled a young boy to work chest level or above;

on June 8, the day of the delivery, but he failed to show. She telephoned McDonald for help, but none arrived. Because the Affiliated Foods driver would not wait for 4. Failure to provide adequate equipher to get help, Warren unloaded the truck alone by carment to lift items from the rear of a tractor rying the boxes off the tailgate of the delivery truck and trailer bed from a height of chest level or setting them down inside the store, hurting her back in above;

the process. 3 Her depiction of the events at Store No. 112 on July 13 was substantially the same.

5. Failure to provide safety equipment 3 There was no testimony concerning how to lift items from the rear of a tractor many boxes Warren actually carried off the detrailer bed from a height of chest level or livery truck.

above;

Ten members of the twelve person jury found that both Allsup and Warren were negligent, but Affiliated 6. Failure to adhere to safety require- was not. 4 They attributed 25% of the negligence to Allment under the Occupational Safety and sup and 75% to Warren. 5 And they found that $ 75,000 Health Act, by failing to provide safety [*436] was reasonable compensation for Warren's past equipment in order to unload by lifting and future pain, mental anguish, lost earning [**6] caitems from the rear of a tractor trailer bed pacity, disfigurement, physical impairment, and medical from a height of chest level or above; and care.

4 Affiliated is not a party to this appeal.

7. Failure to provide assistance in the 5 No allegation of error pursuant to Chapter 33 operation of the convenience store while of the Texas Civil Practice & Remedies Code unloading the Affiliated [**4] Foods, Annotated (Vernon 1986 & Supp. 1997) is made, Inc. tractor trailer. presumably since Texas Labor Code section 406.033(a), supra, provides that contributory negligence by Warren is not a defense.

Allsup generally denied Warren's action and affirmatively asserted its right to offsets for payment of medical

Page 3 934 S.W.2d 433, *; 1996 Tex. App. LEXIS 5160, **

Allsup filed a motion for judgment notwithstanding Of course, the jury was entitled to draw its own conthe verdict. The basis of the motion was a lack of any clusions from the evidence, provided there was evidence evidence concerning negligence or causation. to support its findings. Id. In our own examination of the contentions of no evidence, we must review the entire The trial court denied the motion and rendered record to determine whether there is more than a scintilla judgment on the verdict. The judgment provides for of evidence to support the findings, Garza v. Alviar, 395 Warren's recovery of $ 33,490, 6 together with pre- and S.W.2d 821, 823 (Tex. 1965), and if there is, we must post-judgment interest and costs of court against Allsup.

uphold the findings. Stedman v. Georgetown S. & L. Ass'n, 595 S.W.2d 486, 488 (Tex. 1979). Evidence is 6 This figure represents the jury award less merely a scintilla when it is so weak as to do nothing offsets for medical expenses previously paid by more than create a mere surmise or suspicion of a fact.

Allsup and stipulated to by Warren.

Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, [**7] The genesis for this appeal is the denial of 755 (Tex. 1970). We must consider only the evidence Allsup's motion for judgment notwithstanding the ver- and the reasonable inferences which can be drawn theredict . Allsup contends the motion should have been from in their most favorable light to support the jury's granted because there was no evidence presented con- findings while disregarding all contrary evidence and cerning (1) negligence, (2) proximate cause, or (3) causal inferences. Browning-Ferris, [**9] Inc. v. Reyna, connection. 865 S.W.2d 925, 928 (Tex. 1993). If there is some evidence in the record to support the jury's findings, the Warren responds that there was some evidence of challenge to the legal sufficiency will fail. Cameron v.

negligence, proximate cause and causal connection. Spe-

Terrell & Garrett, Inc., 618 S.W.2d 535, 541 (Tex. 1981).

cifically, she represents that in connection with her pleaded acts of negligence, To be successful in her allegation of negligence, Warren must have marshalled some evidence to show (1)

2 and 7, Allsup failed to provide her a legal duty owed her by Allsup, (2) that Allsup breached adequate assistance in unloading Affiliat- that duty, and (3) that the breach was the proximate ed's trucks; cause of damages. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). The existence of a duty is a question of law for the court to decide from the facts sur-

3, Allsup failed to properly train her in rounding the occurrence. Greater Houston Transp. Co.

lifting the boxes from the trucks; v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). The lack of evidence to show a breach of a legal duty owed Warren is the premise of Allsup's initial contention of error.

4, Allsup failed to provide a loading dock for the unloading of the trucks; and The mere occurrence of an event causing injury is not evidence of negligence. Farriell v. Davis, 606 S.W.2d 344, 345 (Tex.Civ.App.--Eastland 1980, no writ). Thus, 5, Allsup failed to provide her with a negligence or a failure to perform a duty required by law back brace or safety belt. 7 is never presumed as a fact, [*437] but must be proved by evidence. Wells v. Texas Pacific Pole and Oil Company , 140 Tex. [**10] 2, 164 S.W.2d 660, 662 (1942). The burden of proving it is on the party seeking a recovery of damages by reason of such negligence. Jones v.

7 With respect to her sixth allegation of negli- Nafco Oil and Gas, Inc., 380 S.W.2d 570, 574 (Tex. gence, Warren concedes that there was no evi- 1964); Trio Transport, Inc. v. Henderson, 413 S.W.2d dence of the OSHA standards and, hence, no ev- 806, 812 (Tex.Civ.App.--Amarillo 1967, writ ref'd idence of their violation. n.r.e.).

Given the premise that Allsup owed Warren a statu-

Warren concludes that since it was medically [**8] tory duty to provide a safe work place pursuant to article evidenced that she received injuries on the dates alleged, 5182a, supra, we review the recorded evidence to ascerit was within the province of the jury to sift through the tain whether it was evinced that the duty was breached in evidence and arrive at its own conclusions, Texas Rule of the manner alleged by Warren. If not, then, as the Su- Civil Procedure 226(a), which are not to be disturbed. preme Court has held, "it is the duty of the trial court to Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere

Page 4 934 S.W.2d 433, *; 1996 Tex. App. LEXIS 5160, **

surmise or suspicion of the existence of a fact sought to failed to provide, Jones v. Nafco Oil and Gas, Inc., 380 be established." Joske v. Irvine, 91 Tex. 574, 44 S.W. S.W.2d at 574, but she did not provide that proof. 1059, 1063 (1898).

Warren claimed, apparently in connection with All-

With regard to Warren's claim that Allsup was neg- sup's nondelegable duty to furnish her with reasonably ligent in failing to provide her with assistance in unload- safe instrumentalities with which to work, Fort Worth ing the trucks, she argues that it was Allsup's standard Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, operating procedure for male employees to unload the 401 (1934), 8 that Allsup did not provide her with a back trucks, that she was instructed by McDonald to schedule brace or belt for lifting the [*438] merchandise off the one of the men to unload the truck [**11] every time, delivery trucks, or provide a loading dock. Her testimoand that when the males she had scheduled to unload the ny, and that of McDonald, was consistent that neither trucks did not report for duty, her call for assistance was was provided. unanswered. However, because Warren does not suggest that Allsup failed to adequately staff the stores, the ar- 8 An unrelated portion of the opinion in this gument is refuted by the evidence that Allsup did not cause was disapproved in Wright v. Gifford-Hill control the movements of the store employees, but that it & Co., Inc., 725 S.W.2d 712, 714 (Tex. 1987). was Warren's sole responsibility to schedule the workers However, Warren admittedly never requested Allsup for duty, and by her admission that the failure of the emto provide a back brace or safety belt for the lifting, nor ployees to report for duty was not Allsup's fault. Absent did she complain of the unloading as unsafe on any ocevidence of a special relationship between Allsup and casion. Rather, she testified she had unloaded delivery Warren which imposed a duty upon Allsup apart from trucks on other occasions without injury. Neither was Warren's to insure that the scheduled employees reported there any evidence that [**14] a back brace or safety for duty, Allsup had no duty to control the scheduled belt was commonly used in, or had been established by employees' conduct. Greater Houston Transp. Co. v.

industry standards or customs as a safety measure for, Phillips, 801 S.W.2d at 525. Thus, without proof of this unloading merchandise from trucks as was involved in necessary element for Allsup's liability, Warren cannot this cause, or that a reasonably prudent employer would prevail under her theory that Allsup was negligent in have provided such instrumentality. Nor was there any failing to provide her assistance in unloading the trucks.

medical evidence that a back brace or safety belt would Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, have prevented the injuries sustained by Warren.

720 (Tex. 1995).

In brief, because the evidence showed that the un-

Although Warren, in support of her allegation that loading of the trucks may be performed in the usual and Allsup was negligent in failing to properly train her, tesproper way in safety without a protective back brace or tified [**12] to the legal conclusion that she was not safety belt, Warren did not evince that Allsup was under trained in lifting heavy items, the testimony was not vala duty to furnish the protective instrumentality. St. Louis idated by the evidence. Warren disclosed her familiarity Southwestern Ry. Co. v. Weatherly, 2 S.W.2d 555, with Allsup's Safety Manual, which directs that all per-

558-58 (Tex.Civ.App.--Texarkana 1928, no writ). Absonnel be instructed in proper lifting procedures as sent a duty to furnish Warren a back brace or safety belt, shown in its text and diagrams, but she could not recall Allsup could not be guilty of negligence for failing to do following any of the lifting procedures outlined in the so. Triplex Communications, Inc. v. Riley, 900 S.W.2d manual. Undisputed is the testimony of McDonald that at 720.

he demonstrated to Warren how to unload a truck, including milk boxes, and unloaded her first truck with her, With respect to Warren's claim that Allsup was negligent showing her how to unload it. Warren admitted that she in failing to provide a loading dock, it was undisputed was physically capable of unloading an Affiliated truck, that there was no room at either convenience store for a that she had unloaded the trucks since she became manloading dock. The only evidence bearing on the comparager , and that there was nothing unusual about what she ison of a [**15] loading dock at another store with Allhad to do in unloading the trucks.

sup's stores was adduced by Warren's counsel's ques-

What is missing from the record to sustain Warren's tioning of McDonald who, after testifying that he had claim is evidence of any training beyond that given worked at Buddies Food, a supermarket in Plainview, Warren for lifting items from the truck which would be was asked and replied as follows: necessary or proper by a reasonably prudent employer. Warren's bald conclusion that she was not properly Q Did it have a dock? trained in lifting heavy items does not, without more, supply that evidence. It was her burden to provide factual proof of the training that [**13] Allsup negligently A Yeah, at the back.

Page 5 934 S.W.2d 433, *; 1996 Tex. App. LEXIS 5160, **

A No, I don't believe so. I have han-

Q Who was their grocery supplier? dled them both.

A Fleming. Q Is it easier to get items off of a truck and into the store in unicarts?

***

Q They delivered by semi-truck? A I don't think it's any easier, I think its's --I just I don't [**16] like unicarts because I think unicarts are dan-

A Yes, sir. gerous.

Q Just like Affiliated Foods? No other meaningful evidence concerning a loading dock was offered.

This evidence does not raise the issue whether All-

A That's right.

sup failed to provide Warren a safe place to work because of the absence of a loading dock. The fact that a supermarket in another town had a loading dock does Q Did they use unicarts or were they not, standing alone, establish that Allsup had a duty to hand-stacked?

provide a loading dock at its convenience stores, nor that Allsup was negligent for not providing a loading dock. That the convenience stores were an unsafe place to A I don't really know . . . .

work may not be presumed from Warren's injuries; there must be proof that the absence of a loading dock was negligence, Jones v. Nafco Oil and Gas, Inc., 380 S.W.2d Q Do you recall if at Buddies the at 574, which is lacking in this record.

goods off of a semi-truck would be unloaded onto the dock and then into the Because the evidence failed to show that Allsup was back of the store? negligent in any manner alleged by Warren, Allsup was entitled to have its motion for an instructed verdict granted. We, therefore, sustain Allsup's first point of A I don't recall. I believe I recall seeing error, which pretermits an address of its other points. unicarts, I think so. Tex. R. App. P. 90(a).

[*439] Accordingly, the judgment is reversed and Q Okay. In your opinion do you think judgment is hereby rendered that Warren take nothing by the use of unicarts is safer than the use of her action against [**17] Allsup. hand-stacked loads (like the unloading of Charles L. Reynolds Affiliated trucks at Allsup)?

Senior Justice

APPENDIX – “D”

Page 1

JAMES LERMON, Appellant/Cross-Appellee v. MINYARD FOOD STORES, INC., AND RODNEY LEE, Appellees

No. 05-13-00034-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2014 Tex. App. LEXIS 12498

November 19, 2014, Opinion Filed

SUBSEQUENT HISTORY: Rehearing denied by Ler- The trial court rendered judgment on Lermon's malicious mon v. Minyard Food Stores, Inc., 2014 Tex. App. LEXIS prosecution claim. 13957 (Tex. App. Dallas, Dec. 29, 2014)

In his appeal, Lermon contends the trial court erred Petition for review denied by Lermon v. Minyard Food in failing to enter judgment on the jury findings affording Stores, Inc., 2015 Tex. LEXIS 598 (Tex., June 19, 2015)

him the greatest recovery. In its cross-appeal, Minyard contends the evidence is both legally and factually insuf-

PRIOR HISTORY: [*1] On Appeal from the ficient to support Lermon's claims for malicious prosecu-

County Court at Law No. 1, Dallas County, Texas. Trial tion, negligence, and gross negligence. It also challenges Court Cause No. CC-10-02955-A.

the jury's award of actual and punitive damages. We conclude the evidence is legally insufficient to support the jury's verdict on Lermon's [*2] claims. Accordingly, COUNSEL: For Appellants: Curtis L. Marsh, Bruce K.

we reverse the trial court's judgment and render judg-

Thomas, Thomas D. Malone, Dallas, TX.

ment that Lermon take nothing.

For Appellees: David E. Keltner, Matthew d. Stayton, Background Marianne Marsh Auld, Fort Worth, TX; David Hill Bradley, Houston, TX. At 4:11 a.m. on September 4, 2006, $76,000 was stolen from the safe of a Carnival grocery store owned JUDGES: Before Justices O'Neill, Lang-Miers, and Ev- by Minyard. Surveillance videos taken at the store ans. Opinion by Justice O'Neill. showed the thief entering and exiting the store as well as the actual theft. The thief, however, used an umbrella to OPINION BY: MICHAEL J. O'NEILL shield his face from the camera's view. The thief had a key to the store and knew the store's alarm code and the OPINION combination of the safe. The thief was also able to quickly locate the alarm and the safe and then retrieve MEMORANDUM OPINION the cash deposit, suggesting the theft was an inside job.

In the months prior to the theft, two similar thefts oc-

Opinion by Justice O'Neill curred at other stores owned by Minyard.

James Lermon sued Minyard Food Stores and Rod-

Minyard immediately reported the offense to Plano ney Lee (collectively Minyard) for malicious prosecupolice . Detective Jeff Dalton investigated. Minyard also tion, negligence, and gross negligence. A jury found in conducted its own internal investigation, led by its Lermon's favor on all claims and awarded Lermon vice-president of loss prevention, Rodney Lee, who was $830,000 in actual damages and $115,000 in punitive assisted by loss prevention investigators Susan Caldwell damages on his malicious prosecution claim and and Bobby LaJuett. During the course of Minyard's in-

$175,000 in actual damages and $1 million in punitive vestigation, Lee provided information to Detective Daldamages on his negligence and gross negligence claims.

ton and ultimately identified the thief as Lermon, who

Page 2 2014 Tex. App. LEXIS 12498, *

had recently [*3] retired from Minyard. A grand jury sent the [*5] hard drive to a private company in an eflater indicted Lermon for the offense and the Collin fort to obtain even clearer shots.1 County District Attorney's Office tried him for the offense . Lermon's first trial ended in a mistrial. The DA 1 The company was unable to obtain better tried Lermon a second time, resulting in his acquittal. images. Lermon then brought this suit for malicious prosecution, Lee further stated that on September 6, 2006 (two negligence, and gross negligence against Minyard and days after the theft), the Carnival store received a set of Lee asserting they were responsible for the damages he manager's keys for that store in an interoffice envelope.

suffered from the criminal prosecution.

The handwriting on the envelope was identified as Ler-

To show Minyard and Lee maliciously prosecuted mon's. Lee stated Lermon had retired from Minyard on him, Lermon relied on certain information Lee gave to August 3, 2006, but would have had access to both the Detective Dalton, which Lermon asserts Lee knew was store's safe combination and the security alarm code befalse . In particular, Lermon relies on a September 12, cause he had worked at the store since the alarm code 2006 "Voluntary Statement" and a September 15, 2006 changed. memo addressed to Detective Dalton.

Lee stated he went to Lermon's home and asked him In the September 12, 2006, "Voluntary Statement," about the keys. Lermon confirmed the handwriting on Lee stated: the interoffice envelope was his. Lermon told Lee he had returned the keys to a Sack 'N Save (a Minyard owned Following an investigation of a stolen store) on September 2, 2006 (two days prior to the theft)

cash deposit at our Carnival Foodstore when he went to that store to pick up a prescription. Lee #129 on 9/4/06 we determined the suspect said he confirmed Lermon had in fact returned the keys to be an ex-employee James Lermon. Af- on September 2, giving them to a cashier. However, ter reviewing video and still shots and Lermon did not pick up a prescription on that date and visiting with Mr. Lermon on 9/8/06 it is the last time he had picked up a prescription from that clear he is the person in the pictures. (Ad- location was August 19, 2006. ditionally, Mr. Lermon misrepresented Lee also stated that after he spoke to Lermon, he several aspects of information pertaining "took note [*6] of his shaggy white beard" and "longer to his returning store keys [*4] upon his than normal" white hair, which "confirmed what we saw retirement 8/3/06) Mr. Lermon worked at in the video."2 Lee concluded his memo by stating all this location as a "fill-in" Asst. Mgr. in known evidence, employee statements, photographs, and 6/06 and had previously worked as an videos had been turned over to Detective Dalton.

Asst. Mgr. prior as well. Mr. Lermon would have had the safe combination and 2 Lee had previously told Caldwell that it alarm codes when he worked at this store looked like the thief might be wearing a hair net in June. After reviewing all eviand beard net.

dence/information I am convinced this is Mr. Lermon who committed this crime. About a month after Lee's memo and voluntary statement, Detective Dalton prepared a probable cause affidavit requesting a warrant for Lermon's arrest. In his affidavit, Dalton states that he "has good reason to be-

In the September 15, 2006 memo, Lee provided Delieve and does believe" that Lermon committed the theft.

tective Dalton a "Case Narrative" of the theft. In it, he With respect to the thief's identity, Dalton stated James included further details of his investigation. Lee stated Luna, the manager that opened the store the morning that immediately after the theft, he and loss prevention after the theft, told him that he had watched the surveilinvestigators Caldwell and LaJuett were called to the lance video with loss prevention investigators and that store. He said after reviewing the surveillance video, the the thief "looked like" Lermon to him. Dalton also said suspect immediately appeared "familiar" to them, but it Lee gave him a copy of the store's surveillance video.

was difficult to identify the suspect from the video. He Detective Dalton watched the video and said it showed a said they compiled a list of all management that had acwhite male that appeared to have white hair and a beard.

cess to the store's alarm code since it changed in April 2006, and then excluded all non-white individuals be- Detective Dalton said that although the man used an cause the suspect in the video was clearly an older white umbrella to shield his identity, still pictures obtained male. They then requested a Fort Worth police officer to from the video captured [*7] the back and the side of "clean-up" the video and provide still shots of the thief. the thief's head. Finally, Detective Dalton stated that Lee They were able to obtain clearer images, but Minyard had told him that he had known Lermon for twenty

Page 3 2014 Tex. App. LEXIS 12498, *

years, Lee reviewed the surveillance video and still pho- 290 (Tex. 1994). Specifically, a plaintiff's right to recover tographs taken from the video, and the man on the video damages for being subjected to unjustified criminal prowas Lermon. ceedings must sometimes yield to society's greater interest in encouraging citizens to report crimes, real or per-

A magistrate issued a warrant for Lermon's arrest ceived. Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d based on Detective Dalton's affidavit, and Dalton filed 788, 792 (Tex. 2006). Thus, a plaintiff must prove not the case with the DA's office. When he did so, Detective only that the defendant commenced criminal proceedings Dalton gave the DA's office his "summary" of the chargagainst him and he is innocent of the crime charged, but es. In the summary, Dalton states, among other things, also that the defendant lacked probable cause and harthat Lee "believed" Lermon had used an "old key" that bored malice toward him. Id. These latter elements guard he had not returned upon retirement to unlock the door of against a jury's natural inclination to punish those who, the store.

through error but not malevolence, commence criminal William Coleman Sylvan, the lead prosecutor in proceedings against a person who is ultimately exoner-

Lermon's second trial, testified for Minyard. According ated. Id. to Sylvan, he had a "good" case against Lermon and it To prove causation, a plaintiff must specifically "was a case [he] believed in and believed needed to be show the defendant "initiated or procured" the criminal prosecuted."Sylvan also testified that at no time during prosecution. See Lieck, 881 S.W.2d at 292-93; Dangerhis prosecution of the case did he believe Minyard was field v. Ormsby, 264 S.W.3d 904, 910 (Tex. App.--Fort acting maliciously toward Lermon, nor did he believe Worth 2008, no pet.). A defendant "initiates" a prosecu-

Minyard was trying to cause Lermon to be prosecuted.

tion when it files "formal charges" against the plaintiff.

Further, Sylvan testified that before a prosecutor takes a See Lieck, 881 S.W.2d at 293; Dangerfield, 264 S.W.3d case to trial, he has to evaluate it on his own to determine at 910. A person "procures" [*10] a criminal prosecu-

[*8] whether it has merit. He said if he had the sense tion "if his actions are enough to cause the prosecution, that Minyard was trying to falsely prosecute Lermon, he and but for his actions the prosecution would not have would not have gone forward with the case.

occurred." Lieck, 881 S.W.2d at 292. Procurement gener-

On cross-examination, Sylvan said he knew a "sig- ally requires that a person's actions be both a "necessary nificant portion" of information obtained by Detective and a sufficient cause of the criminal prosecution." Id. Dalton about the theft came from Lee. Sylvan also Generally, a person cannot be held liable for maliacknowledged that the statement in Detective Dalton's cious prosecution if the decision whether to prosecute is summary -- that Lee believed Lermon used an old key to left to the discretion of law enforcement officials. King v.

enter the store that he failed to return upon retirement --

Graham, 126 S.W.3d 75, 76 (Tex. 2003) (per curiam). An would have been a "factor" in deciding whether to prosexception exists if the person provides information to ecute. However, Sylvan also testified that Lee had told those officials which he knows is false. Id. In such cases, him before Lermon's second trial that Lermon had rethe plaintiff must further prove the false information turned the keys before the theft. Sylvan could not recaused the criminal prosecution by proving the decision member exactly what Lee said about the timing of the to prosecute would not have been made but for the false key's return, but he knew the keys had been returned.

information supplied by the defendant. Id.

Sylvan also testified he personally reviewed the videotape of the crime. On re-direct, Sylvan testified he still Actions for malicious prosecution are not favored in would have felt he had a good case even if he was not the law and therefore we strictly adhere to the tort's presented information about the key. carefully defined elements. Luce v. Interstate Adjusters, Inc., 26 S.W.3d 561, 566 (Tex. App.--Dallas 2000, no Because the issues raised in Minyard's cross-appeal pet.) Even a small departure from the exact prerequisites are dispositive, we address them at the outset. In its first for liability may threaten the delicate balance between issue, Minyard asserts there is no evidence to support protecting against wrongful prosecution and encouraging Lermon's claim for malicious prosecution [*9] because reporting of criminal conduct. Lieck, 881 S.W.2d at 291.

the decision to prosecute Lermon was made by law enforcement officials and Lermon did not otherwise show Standard of Review Minyard or Lee initiated or procured the prosecution. We agree. An appellant attacking the legal sufficiency of an adverse finding on [*11] an issue on which it did not Malicious Prosecution have the burden of proof must demonstrate there is no evidence to support the adverse finding. Croucher v.

The tort of malicious prosecution creates a unique Croucher, 660 S.W.2d 55, 58 (Tex.1983); Affordable tension between important competing societal concerns.

Power, L.P. v. Buckeye Ventures, Inc., 347 S.W.3d 825, See Browning-Ferris Indus. v. Lieck, 881 S.W.2d 288,

Page 4 2014 Tex. App. LEXIS 12498, *

830 (Tex. App.--Dallas 2011, no pet.). A "no evidence" In Kroger, a Kroger employee stopped the plaintiff point must be sustained when the record discloses (1) a for shoplifting. Id. at 594-95. The plaintiff was taken to complete absence of evidence of a vital fact, (2) the court an [*13] office and Kroger contacted police. Id. at 595. is barred by the rules of law or evidence from giving When police arrived, the plaintiff was told she had been weight to the only evidence offered to prove a vital fact, accused of shoplifting and she was immediately arrested (3) the evidence offered to prove a vital fact is no more and taken to jail. Id. To show Kroger "initiated" the than a mere scintilla, or (4) the evidence conclusively prosecution, the plaintiff relied on evidence that the establishes the opposite of a vital fact. See City of Keller Kroger store manager had told police on their arrival that v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). Kroger "wanted to prosecute" and that the manager signed "the report or whatever they had [him] sign" on When examining a legal sufficiency challenge, we behalf of Kroger. Id. at 597. We concluded the jury review the evidence in the light most favorable to the could have determined from that evidence that Kroger challenged finding and indulge every reasonable inferhad "filed a formal charge" against the plaintiff.3 Id.

ence that would support it. Id. at 822. Evidence is legally sufficient if it rises to a level that would enable a rea-

3 We further concluded that, even if the plainsonable and fair-minded jury to make the finding. Id. at tiff failed to show Kroger initiated the prosecu-

810. In making this determination, evidence cannot be tion, there was sufficient evidence that it protaken out of context in a way that makes it seem to supcured the prosecution. See Kroger, 113 S.W.3d at port a verdict when in fact it never did. Id. at 812. We do 597.

not consider the evidence "in isolated bits and pieces divorced from its surroundings; it must be viewed in its In this case, the record before us contains the "Volproper context with other evidence." AutoZone, Inc. v. untary Statement" that Lermon asserts was used to initi- Reyes, 272 S.W.3d 588, 592 (Tex.2008). ate his prosecution. The witness statement is not a "formal charge" nor did it actually operate to initiate the Evidence that is "so weak as to do no more [*12]

criminal prosecution. Instead, the record shows Detective than create a mere surmise or suspicion" of a fact is not Dalton initiated the prosecution when he "formally legally sufficient evidence that the fact exists. Kroger charged" Lermon by presenting his own probable cause Tex. Ltd. P'ship, 216 S.W.3d at 793(quoting Ford Motor affidavit to a magistrate. See Restatement (Second) of Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)). If a Torts § 653 cmt. c (1977) ("Criminal proceedings are claim is supported by only meager circumstantial eviinitiated by [*14] making a charge before a public offidence , the evidence does not rise above a scintilla if jucial or body in such form as to require the official or rors would have to guess as to whether a vital fact exists.

body to determine whether process shall or shall not be City of Keller,168 S.W.3d at 813. When circumstances issued against the accused."); see also Lieck, 881 S.W.2d are equally consistent with either of two facts, neither at 292-93. In reviewing a sufficiency complaint, we fact can be inferred. Id. Additionally, an inference cannot disregard undisputed evidence that supports only stacked only on other inferences is not legally sufficient one conclusion. See City of Keller, 168 S.W.3d at 814.

evidence. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex.2003) (per curiam); Sears & Roebuck Co. Minyard next asserts there is no evidence that it or v. AIG Annuity Ins. Co., 270 S.W.3d 632, 637 (Tex. Lee "procured" Lermon's prosecution because the un- App.--Dallas 2008, pet. denied). disputed evidence shows the decisions to arrest and prosecute Lermon were made by law enforcement offi-

Application cials. King, 126 S.W.3d at 76. Here, unlike many malicious prosecution cases, it is undisputed Minyard was the In this issue, Minyard asserts Lermon failed to show victim of a felony theft. Detective Dalton investigated either it or Lee initiated or procured the prosecution.

that theft for Plano police, and ultimately filed an affida-

Lermon responds the evidence is sufficient to show Lee vit in which he swore that he believed and had good reaboth initiated and procured the prosecution. Lermon first son to believe that Lermon committed the crime. See asserts Lee "initiated" the prosecution when he gave De-

TEX. CODE CRIM. PRO.2.13(a)(b)(1) (West 2005) (peace tective Dalton a "Voluntary Statement" identifying Lerofficers have a duty to preserve the peace and to prevent mon as the thief with the "hope" that Detective Dalton and suppress crime). The DA's office also investigated would move forward to have Lermon arrested and prosthe offense and twice made the decision to pursue crimiecuted . To show such a statement can constitute a "fornal charges against Lermon. See TEX. CODE CRIM.

mal charge," Lermon relies on this Court's opinion in PRO.2.01 (West 2005) (the primary duty of prosecuting Kroger v. Suberu, 113 S.W.3d 588, 597 (Tex.

attorneys is not to convict, but to see that justice is done).

App.--Dallas 2003), rev'd on other grounds, 216 S.W.3d 788 (Tex. 2006). Lermon nevertheless [*15] asserts he presented sufficient evidence that Dalton and the prosecutors based

Page 5 2014 Tex. App. LEXIS 12498, *

their decisions to prosecute on false information provid- Further, Detective Dalton and the prosecutors had the ed by Lee. First, he asserts their decisions were based on video before them and could determine for themselves Lee's false identification of Lermon as the thief. An hon- whether Lermon's appearance was consistent with the est mistake in identifying a suspect is insufficient to hold thief's. the reporting party responsible in damages. Cf. Schnaufer v. Price, 124 S.W.2d 940, 942 (Tex. Civ. App.--Waco 5 Not only can glasses be easily taken on and 1939, writ ref'd) (false imprisonment case); see also off, a person's need for glasses can change over McHenry v. Tom Thumb Page Drug Stores, 696 S.W.2d time. Indeed, by the time of trial, Lermon himself 664, 665 (Tex. App.--Dallas 1985, writ dism'd); Yianitsas no longer required glasses, having had cataract v. Mercantile Nat'l Bank, 410 S.W.2d 848, 851 (Tex. Civ. surgery. App.--Dallas 1967, no writ). But a person may be held Lermon also contends Lee's identification constitutliable if he willfully identifies the wrong person as the ed "false information" because Lee claimed to be certain.

criminal for the purpose of having him arrested and Lermon asserts the jury could have inferred Lee was not prosecuted. See Schnaufer, 124 S.W.2d at 942. Accordmerely mistaken, but was lying, because the tape showed ing to Lermon, Lee did just that, by identifying him as any certainty would have been impossible. Even if we the thief, knowing he was innocent.4 could agree that a witness's level of certainty in identifying a suspect could constitute false "information," the 4 He asserts Lee's motive for doing so was to record shows Lee told Detective Dalton he could not "save his job" by solving the three thefts that ocmake a positive identification on his initial review of the curred "on his watch" and to try to obtain restituvideotape . Lee's subsequent positive identification was tion for Minyard from Lermon. The only evibased on what he had initially perceived about the thief's dence he directs us to support these motives is stature, walk, and gait, in addition to his later review of that the thefts occurred and that Lee made inquirstill [*18] shots and his discovery that Lermon had ies to prosecutors about the possibility of obtaingrown his hair and a beard since his retirement. Further, ing restitution for Minyard. This evidence is en-

Detective Dalton and prosecutors could determine for tirely, if not more, consistent with an honest bethemselves whether they believed a positive identificalief that Lermon was the thief.

tion was possible from the video. We conclude evidence To show Lee identified Lermon knowing he was of Lee's positive identification is legally insufficient to innocent, Lermon asserts the surveillance video [*16] show Dalton or prosecutors based their discretionary showing the thief --when compared to photographs taken decisions to prosecute Lermon on information Lee proof him at the same location -- establishes Lee could not vided and that Lee knew was false. possibly have honestly believed Lermon was the thief.

Lermon also asserts Lee gave Detective Dalton false Specifically, he asserts the thief did not "look like" him information when he stated in his "Voluntary Statement"

because he wears glasses and is tall, but the thief was not that Lermon misrepresented "several aspects" about his wearing glasses and was "a full head shorter."

return of the keys to Minyard. To show this statement After reviewing the video and the photographs, we was both false and Lee knew it was false, Lermon relies cannot agree they constitute any evidence that Lee knew on Lee's testimony at trial that the only misrepresentation it was not Lermon on the video. First, evidence the thief Lee could remember was Lermon's claim that he had was not wearing glasses does not establish the thief did returned the keys to the store on the same date he picked not "look like" Lermon or otherwise constitute any evi- up a prescription. According to Lermon, because Lee dence that Lee must have known the person on the tape could remember only a single misrepresentation, his teswas not Lermon.5 Second, the surveillance video and timony shows his prior claim that there were "several" photographic evidence do not depict a height discrepancy was knowingly false. We cannot agree Lee's testimony so dramatic that would allow a jury to reasonably find supports such an inference.6 Moreover, Lermon has (1) Lee would have been able to perceive the discrepancy wholly failed to show that but for Lee's [*19] vague from reviewing the video, (2) Lee did in fact perceive the allegation regarding Lermon's return of the keys, either discrepancy, and (3) cognizant of the discrepancy, Lee Detective Dalton or the district attorney would not have nevertheless identified Lermon to Detective Dalton any- made the decision to prosecute Lermon. King, 126 way. Indeed, even Lermon's own brother-in-law, when S.W.3d at 78-79. asked to identify the differences in appearance between the thief and Lermon, responded "maybe some height, 6 We note the record shows that Lee obtained [*17] maybe some weight." Lermon himself -- knowing his information regarding Lermon's return of the Lee had identified him -- testified that that he was not keys from Lermon himself and from the cashier, aware of any "false" information Lee gave authorities. April Beard. Lermon also had failing memories

Page 6 2014 Tex. App. LEXIS 12498, *

concerning his conversation with Lee about the prisonment because a plaintiff must prove defendant keys and could not remember telling Lee he re- knowingly provided false information). turned the keys on a specific date, but vaguely Assuming a "knowing failure" to disclose could remembered saying something about returning support a claim for malicious prosecution, the jury in this the keys at the same time he picked up a prescripcase was charged, without objection, that it was required tion from the Sack 'N Save. Lermon's brothto find Lee provided information that he knew was false, er-in-law, who worked at the same Sack 'N Save, not that he failed to disclose information. We must testified Beard told him she had mistakenly told therefore measure the sufficiency of the evidence by the Lee that Lermon returned the keys on September charge as given. St. Joseph Hosp. v. Wolff, 94 S.W.3d 2, 2006 instead of August 19, 2006. Although 513, 530 (Tex.2002); Noell v. City of Carrollton, 431 both dates were prior to the theft, the focus on the S.W.3d 682, 709 (Tex. App.--Dallas 2014, pet. ref'd). As date was apparently to show Lermon returned the a consequence, evidence Lee failed to disclose inforkeys at his first convenience after he retired and mation to Dalton cannot support the jury's verdict. See to show it was not suspicious that the keys ar-

Wal-Mart Stores, Inc., 92 S.W.3d at 510 (failing to make rived at the store two days after the theft.

a full and fair disclosure is not the equivalent of know-

Lermon also contends he presented evidence Lee ingly providing false information).

gave Detective Dalton information he knew was false Moreover, Lermon failed [*22] to show Lee when Lee told Detective Dalton Lermon had a key [*20]

knowingly failed to disclose material information or that to the store at the time of the theft, when Lee knew Ler-

Dalton would not have made the decision to prosecute mon had returned the key. To show Lee gave Dalton this had he been aware of any information that was not actufalse information, Lermon relies on the summary Detecally disclosed. According to Lermon, Lee failed to distive Dalton gave to the district attorney in which Dalton close that: (1) Lermon was "much taller" than the perpestates that Lee believed Lermon used an "old key" to trator and wore glasses, (2) Lee had initially believed unlock the door of the business, which he did not return two other employees had provided the store keys and upon retiring. But in Lee's prior September 15, 2006 codes to the thief, (3) Lee did not question Lermon about memo to Detective Dalton, Lee clearly informed Dalton the theft or determine whether he had an alibi, (4) the last that Lermon returned his keys to the store before the time Lermon had worked at the store prior to June 2006 theft. Further, Lermon has again failed to show that but was over ten years before the theft, (5) Minyard did not for this information, either Detective Dalton or the diskeep track of who had access to keys to the store, and (6)

trict attorney would not have made the decision to pros-

Lermon returned the keys to the store before the theft.

ecute Lermon. King, 126 S.W.3d at 78-79 (testimony from investigative officer that false information "could To show this information was not disclosed in the possibly" have influenced his investigation is insufficient first instance, Lermon appears to rely on Lee's failure to to show the decision to prosecute would not have been include the information in his Voluntary Statement and made but for the false information). Indeed, Sylvan testi- the memo containing Lee's "Case Narrative" that folfied he knew before Lermon's second trial that Lermon lowed. We first note that although Lermon's claim rehad returned the keys before the theft. Yet, he proceeded quired him to show the reason Dalton decided to prosewith the prosecution anyway. cute and Dalton investigated the offense for two months, Lermon did not call Dalton as a witness or otherwise Finally, Lermon contends there is evidence Lee attempt to show what information [*23] Dalton had procured the prosecution by "failing to disclose" material acquired before he obtained the warrant. The record does facts. To support his contention that [*21] a failure to show however that Dalton was given photographs of disclose information can support a malicious prosecution Lermon wearing glasses. The record also shows that Lee claim, Lermon relies on dicta in the Supreme Court's told Dalton two other employees were suspected in the opinion in Richey v. Brookshire Grocery Co., 952 S.W.2d theft. Lee also told Dalton that Lermon had returned the 515, 519 (Tex. 1997). In that case, the Supreme Court keys to the store before the theft. Even if we could constated "failing to fully and fairly disclose all material clude Lermon presented sufficient proof that Lee failed information and knowingly providing false information to disclose information, we cannot agree the evidence to the prosecutor are relevant to the malice and causation supports a reasonable inference that Dalton would not elements of a malicious prosecution claim but have no have prosecuted Lermon but for Lee's failure to disclose.

bearing on probable cause." Richey, 952 S.W.2d at 519(emphasis added); but see Wal-Mart Stores, Inc. v. We conclude there is no evidence to show Minyard Rodriguez, 92 S.W.3d 502, 510 (Tex. 2002) (evidence of or Lee initiated or procured Lermon's criminal prosecua failure to disclose cannot support claim for false im- tion and therefore there is no evidence to support Lermon 's malicious prosecution claim.

Page 7 2014 Tex. App. LEXIS 12498, *

Stages, Inc., 89 S.W.3d 643, 652 (Tex. App.--Dallas Negligent Hiring, Retention, Training, and Supervision 2002, pet. denied); TXI Transp. Co. v. Hughes, 224 S.W.3d 870, 902 (Tex. App.--Fort Worth 2007), rev'd on Minyard also asserts the evidence is legally insuffiother grounds, 306 S.W.3d 230 (Tex. 2010).

cient to support Lermon's direct negligence claim against it. Lermon sued Minyard asserting it was negligent in Negligent hiring, retention, supervision, and training hiring, retaining, training, and supervising Lee. To sup- claims focus on the employer's own negligence, not the port these claims, Lermon relied on evidence that Min- negligence of the employee. See Leake v. Half Price yard did not adequately train Lee to perform the duties Books, Records, Magazines, Inc., 918 S.W.2d 559, 563 he was performing when he investigated the theft and did (Tex. App.--Dallas 1996, no writ). An employer can be not adequately [*24] supervise Lee during his investi- liable for negligence if its failure to use due care in hirgation .7 ing, retaining, training, or supervising an employee creates an unreasonable risk of harm to others. See Leake, 7 The Supreme Court has yet to rule defini- 918 S.W.2d at 563; Martinez v. Hays Const., Inc., 355 tively on the "existence, elements, and scope of S.W.3d 170, 180 (Tex. App.--Houston [1st Dist.] 2011, [causes of action for negligent retention and su- no pet.). To support a claim for negligent hiring or retenpervision ] and related torts such as negligent tion, a plaintiff must prove the employer hired or retraining and hiring." See Waffle House, Inc. v. tained an incompetent or unfit employee whom it knows, Williams, 313 S.W.3d 796, 804 (Tex. 2010). The or by the exercise of reasonable care should have known, Supreme Court has, however, indicated that to was incompetent or unfit. Ogg v Dillard's, Inc., 239 recover, a plaintiff must show "more than just S.W.3d 409, 420 (Tex. App.--Dallas 2007, pet. denied). negligent hiring practices;" he must also present To support a claim for negligent training and supervievidence of harm caused by the employee's mis- sion, a plaintiff must prove that a reasonably prudent conduct." Wansey v. Hole, 379 S.W.3d 246, 247 employer would have provided training and supervision (Tex. 2012). In doing so, it cited opinions from beyond that which was given and the failure to do so our sister courts holding a plaintiff must prove, in caused his injuries. See Patino v. Complete Tire, Inc., addition to the employer's negligence, an action- 158 S.W.3d 655, 661 (Tex. App.--Dallas 2005, pet. deable tort by the employee. See id. (citing Brown nied); Dangerfield, 264 S.W.3d at 912; see Allsup's v. Swett & Crawford of Tex., Inc., 178 S.W.3d Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 437 373, 384 (Tex. App.--Houston [1st Dist.] 2005, (Tex. App.--Amarillo 1996, writ denied). no pet.); Gonzales v. Willis, 995 S.W.2d 729, 739 On appeal, [*26] Minyard asserts Lermon failed to (Tex. App.--San Antonio 1999, no pet.), overruled present any evidence of a standard of care or that it in part on other grounds by Hoffmann--La Roche breached any such standard of care. Minyard specifically Inc. v. Zeltwanger, 144 S.W.3d 438, 447-48 (Tex.

asserts Lermon failed to show it did not act as a reasona-

2004); Mackey v. U.P. Enters., Inc., 935 S.W.2d bly prudent grocery store chain would have under the 446, 459 (Tex. App.--Tyler 1996, no writ). Here, same or similar circumstances. Lermon responds he was the jury charge did not require the jury to first not required to present any expert testimony or "other find Lee committed a tort before finding Minyard testimony" to establish a standard of care because the negligent. Although Minyard complains the trial jury was charged on the "ordinary care" standard.

court erred in submitting a separate "damages" question based on Minyard's negligence, it does Regardless of whether Lermon had to present exnot complain that the charge did not predicate the press testimony on the standard of care, Lermon had the question regarding Minyard's negligence on a burden to present sufficient evidence that Minyard did finding of Lee's tortious conduct. Because we not use the degree of care a grocery store chain owner of conclude there is no evidence of negligence, we "ordinary prudence" would use "under the same or simineed not consider Minyard's complaint regarding lar circumstances." Cf. Jackson v. Axelrad, 221 S.W.3d the separate damages question. [*25] 650, 656 (Tex. 2007) (ordinary care standard requires jury to consider defendant's circumstances and superior To sustain a cause of action for negligence it is necskills ); Townsel v. Dadash, Inc., No. 05-10-01482-CV, essary to produce evidence of a duty, a breach of that 2012 Tex. App. LEXIS 3185, 2012 WL 1403246, at * 3 duty, proximate cause and damages. Colvin v. Red Steel (Tex. App.--Dallas April 24, 2012, no pet.); TXI Transp.

Co., 682 S.W.2d 243, 245 (Tex. 1984). Here, the duty Co., 224 S.W.3d at 902. We conclude he failed to do so.

Minyard owed Lermon was to act as a reasonably prudent grocery store chain would act under the same or The only evidence in the record concerning Lee's similar circumstances regarding any reasonably foresee- qualifications and training came from Lee. He testified able risk. See id; see also Rosell v. Central W. Motor that he started working for Minyard in 1975 packing

Page 8 2014 Tex. App. LEXIS 12498, *

groceries and soon began doing other jobs inside the Minyard provided. See Patino, 158 S.W.3d at 661; Danstore . Later, he worked in the corporate offices in human gerfield, 264 S.W.3d 910. We further conclude Lermon [*27] resources. In 1987 or 1988, Lee was transferred failed to present any evidence that a reasonably prudent to loss prevention. Lee had no "formal education" in law employer would have been aware Lee was unfit or unenforcement and was never given any "formal training" qualified to perform his job duties. Thus, Lermon has in investigation techniques. Lee said he was, however, failed to show Minyard was negligent. As a consegiven on-the-job training in loss prevention. Specifically, quence, he has also failed to show gross negligence. See when Lee was first transferred to loss prevention, he be- Seaway Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, gan by sitting through investigations with a loss preven- 659 (Tex. App.--Fort Worth 2004, no pet.); Ballesteros v. tion manager. Lee later conducted his own investigations Jones, 985 S.W.2d 485, 500 (Tex. App.--San Antonio under the supervision of a manager. After four or five 1998, pet. denied). years, Lee became a loss prevention manager himself.

Having concluded there is no evidence to support Lee was ultimately promoted to vice-president of loss Lermon's claims, we do not reach the issues presented in prevention, the position he held when he made the accu-

Lermon's appeal, all of which concern damages. Minyard sations against Lermon.

has, however, presented an issue requesting this Court to At that time, Lee's supervisor was Alan Vaughn, assess sanctions against Lermon under Texas Rule of Minyard's senior vice-president of risk management. Lee Appellate Procedure 45. It asserts the issues raised in said Vaughn did not conduct any interviews, take any Lermon's appeal were frivolous and that Lermon could photographs, or otherwise have any "hands-on" in- not have believed those issues would result in a rendition volvement in the investigation of the theft. Lee testified of a greater award of punitive damages in his favor. It that Vaughn was, however, involved on a day-to-day further complains that Lermon's purpose in bringing the basis overseeing what Lee was doing. Lee did not, how- appeal, which he filed [*30] before the trial court had ever, provide any written reports to higher management ruled on Minyard's motion for new trial and well before during his investigation. the notice of appeal was due, was to obtain the strategic advantage of being designated as the "appellant."

According to Lermon, the jury could have found Minyard did not exercise [*28] ordinary care in hiring, Under rule 45, after considering the record, briefs, retaining, training, or supervising Lee because Lee had or other papers filed in this Court, we may award a preno "formal" training or education in "law enforcement" vailing party damages if we objectively determine that an or "investigation techniques." Lermon's claim is prem- appeal is frivolous. TEX. R. APP. P. 45; Smith v. Brown, ised on his contention that some specialized training or 51 S.W.3d 376, 381 (Tex.App.--Houston [1st Dist.] 2001, skill was necessary to give Lee the expertise necessary to pet. denied). An appeal is frivolous when the record, perform his job duties. Lermon, however, has failed to viewed from the perspective of the advocate, does not show what kind of "formal" training a business exercis- provide reasonable grounds for the advocate to believe ing ordinary prudence would provide its loss prevention that the case could be reversed. Smith, 51 S.W.3d at 381. investigators. For example, there is no evidence showing The decision to grant appellate sanctions is a matter of what kind of "formal" training is available or commonly discretion that an appellate court exercises with prudence used in the industry or to show how any such "formal" and caution and only after careful deliberation. Id. Betraining would have been superior to on-the-job training cause our disposition of this case makes it unnecessary to or would have reduced the risk of harm to third parties. review the merits of Lermon's appeal or consider the trial court's award of punitive damages, we will not consider We also conclude Lermon has failed to present any whether the appeal was frivolous solely for the purposes evidence that Minyard failed to use ordinary care in suof assessing sanctions.

pervising Lee. According to Lermon, the jury could have found Minyard was negligent because Lee's supervisor Because Lermon failed to present legally sufficient did not have any "hands on" involvement in the investi- evidence to support his causes of action, we reverse the gation, and Lee did not give written reports to manage- trial court's judgment and render judgment that he take ment during the investigation. Lee, however, had nearly nothing on his claims. twenty years of experience in loss-prevention and was /Michael J. O'Neill/ [*31]

himself a vice-president [*29] and supervisor. Lermon has directed us to no evidence showing Minyard had any MICHAEL J. O'NEILL prior notice that Lee was unfit or incompetent to perform JUSTICE his job duties or should have been more closely supervised . We conclude Lermon failed to present any evidence a reasonably prudent employer would have pro- JUDGMENT vided training or supervision to Lee beyond that which

Page 9 2014 Tex. App. LEXIS 12498, *

In accordance with this Court's opinion of this date, It is ORDERED that appellees/cross-appellants the judgment of the trial court is REVERSED and Minyard Food Stores, Inc. and Rodney Lee recover their judgment is RENDERED that appellant/cross-appellee costs of this appeal from James Lermon. James Lermon take nothing.

Judgment entered this 19th day of November, 2014.