Vasquez v. Ritchey

973 S.W.2d 406, 1998 Tex. App. LEXIS 4046, 1998 WL 372662
CourtCourt of Appeals of Texas
DecidedJuly 2, 1998
DocketNo. 13-96-556-CV
StatusPublished
Cited by2 cases

This text of 973 S.W.2d 406 (Vasquez v. Ritchey) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vasquez v. Ritchey, 973 S.W.2d 406, 1998 Tex. App. LEXIS 4046, 1998 WL 372662 (Tex. Ct. App. 1998).

Opinion

OPINION

SEERDEN, Chief Justice.

Dominga Vasquez, appellant, brought suit against Angel Ritchey and Haggar Apparel Company, appellees, alleging wrongful discharge and intentional infliction of emotional distress. The trial court granted summary judgment in favor of appellees. We reverse and remand for trial on the merits.

FACTUAL BACKGROUND

Appellant worked for Haggar Apparel Company (“Haggar”) until she voluntarily terminated her employment in 1987. In 1990, appellant contacted her former supervisor, Connie Garcia, for information on possible job opportunities. The summary judgment evidence shows that Garcia informed appellant that there was an opening, and that she [Garcia] would speak with Haggar’s floor manager, Sylvia Barrera. After speaking with Barrera, Garcia contacted Vasquez and told her that she was hired and that she would need to take a drag test. After completing and returning the drug test form, Barrera again told appellant she was hired, and instructed her to report to work the following Monday, September 17,1990.

When appellant arrived at the plant on the following Monday, she was told to wait in the lobby. After waiting for approximately three hours, appellee Ritchey told appellant that Haggar was not going to hire her because she had too many worker’s compensation claims. This was confirmed by the affidavit of Garcia.

Appellant filed suit against appellees alleging that she was wrongfully discharged in violation of article 8307c of the Texas Worker’s Compensation Act,1 and that such wrongful conduct constituted intentional infliction of emotional distress.

Appellees filed a motion for summary judgment arguing that appellant was not entitled to relief under Article 8307c because she was not an employee of Haggar on September 17, 1990, the date of her alleged termination.2 On September 9, 1996, pursuant to appellees’ motion, the trial court granted summary judgment in favor of ap-pellees. Appellant, in two points of error, challenges summary judgment.

The standards for reviewing a motion for summary judgment are well established:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

A defendant who moves for summary judgment must show that the plaintiff has no cause of action. A defendant may meet this burden by either (1) disproving at least one essential element of each theory of recovery, or (2) conclusively proving all elements of an affirmative defense. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 877 (Tex.App.—Corpus Christi 1996, writ denied). Once the movant establishes that it is entitled to summary judgment, the burden shifts to the nonmovant to show why summary judgment should not be granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Neuhaus v. Richards, 846 S.W.2d 70, 77

[408]*408(Tex.App. — Corpus Christi 1992, writ dism’d judgm’t cor.).

In her first point of error, appellant complains that the trial court erred in granting summary judgment because appellees’ motion, based on the non-viability of Vasquez’s claim for wrongful discharge under Article 8307c, did not address her claims for intentional infliction of emotional distress. We disagree.

It is well-settled that one may not be granted a judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997) (limiting summary judgment to those grounds expressly presented in the motion); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993); Chessher v. Southwestern Bell Telephone Co., 668 S.W.2d 663 (Tex.1983). However, even interpreting Vasquez’s petition broadly, it is clear that her claim for intentional infliction of emotional distress claim is dependent upon a finding that she was wrongfully discharged in violation of Article 8307c. In other words, the wrongful conduct that appellant claims caused her emotional distress is appellees’ alleged wrongful discharge.

Therefore, if appellees meet their burden on summary judgment by showing that Vasquez is not entitled to recovery based on wrongful discharge, Vasquez cannot, as a matter of law, recover on her claim of intentional infliction of emotional distress resulting from such conduct. Accordingly, we hold that appellees’ motion for summary judgment does, in fact, address all claims asserted by Vasquez in her petition. Vasquez’s first point of error is overruled.

In her second point of error, appellant argues that the trial court erred in granting summary judgment because a fact question remains as to whether appellant was an employee at the time of her alleged discharge. We agree.

Proving that she was an employee at the time of the wrongful conduct is an element of the claimant’s case. However, where the defendant moves for summary judgment on the grounds that plaintiff was not an employee, the defendant has assumed the burden of showing that the claimant was not an employee as a matter of law. Scroggins v. Twin City Fire Ins. Co., 656 S.W.2d 213, 213-14 (Tex.App.—El Paso 1983, no writ).

Appellees argue that the summary judgment evidence conclusively establishes that appellant never became an “employee” of Haggar because she never began the work of her employer. See Stoker v. Furr’s, Inc., 813 S.W.2d 719, 722 (Tex.App.—El Paso 1991, writ denied). In support of this argument, appellees point to appellant’s own deposition testimony wherein Vasquez admits that she never left the lobby when she presented herself for work, that she never filled out any payroll or tax forms, and that she never set foot on the production floor.

A person becomes an employee under the worker’s compensation provisions when that person, pursuant to an oral or written contract for hire, begins the service of his or her employer. Tex.Rev.Civ. Stat. Ann. article 8309 § 1 (Vernon 1967), repealed by Act of December 13, 1989, 71st Leg., 2nd C.S., ch.l, 1989 Tex. Gen. Laws 1,115, eff. Jan.

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Related

Ritchey v. Vasquez
986 S.W.2d 611 (Texas Supreme Court, 1999)

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Bluebook (online)
973 S.W.2d 406, 1998 Tex. App. LEXIS 4046, 1998 WL 372662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vasquez-v-ritchey-texapp-1998.