Affirmed in Part, Reversed and Remanded in Part, and Majority and
Dissenting Opinions filed June 30, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-01112-CV

                       DAVIS-LYNCH, INC., Appellant
                                       V.

ASGARD TECHNOLOGIES, LLC, MANGROVE, INC., TALENT FORCE,
  INC., PHOENIX OFFSHORE SERVICES, L.L.C., TALENT FORCE
    TECHNICAL, L.L.C., ASGARD RESOURCES, LLC, ASGARD
 RESOURCES OF TEXAS, L.L.C., AND ARTHUR P. GRIDER, Appellees

                   On Appeal from the 334th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2011-10745

                   DISSENTING OPINION

      I agree with the majority’s determinations that (1) Asgard owed no fiduciary
duty to DLI; (2) there was no agency-principal relationship giving rise to formal
fiduciary duties and no informal fiduciary relationship between DLI and Asgard;
and (3) Asgard conclusively established it had no contractual duty to perform a
background check.      I further join in the majority’s conclusion that Asgard
conclusively established it owed no duty to DLI to manage or supervise Moreno
because her activities were under the control of DLI.        I also agree with the
majority’s conclusion that Asgard had no duty to perform a background check, and
without doing so, Asgard neither could have nor should have known the
embezzlement would occur.        Finally, I agree with the majority that Asgard
conclusively established it had no right to control Moreno’s day-to-day activities in
the accounting department; therefore, the trial court’s order granting summary
judgment on DLI’s respondeat superior claim is proper.

      However, I respectfully dissent from the majority’s conclusion that there is a
fact issue on DLI’s negligent retention claim.          I would hold that Asgard
conclusively established it owed no duty to DLI in support of its negligent
retention claim—a tort does not exist in the absence of duty. See Porter v. Nemir,
900 S.W.2d 376, 384 (Tex. App.—Austin 1995, no pet.) (holding “the threshold
inquiry in a negligent retention case involves duty. . . .”) (citing Greater Houston
Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) which stated the
“threshold inquiry in a negligence case is duty.”).

      Under the tort of negligent hiring, supervision, or retention, an
      employer who negligently hires an incompetent or unfit individual
      may be directly liable to a third party whose injury was proximately
      caused by the employee’s negligent or intentional act. (citation
      omitted) Both of the elements of duty and proximate cause required
      to establish a claim of negligent retention are premised on
      foreseeability.
See CoTemp, Inc. v. Houston West Corp., 222 S.W.3d 487, 492 (Tex. App.—
Houston [14th Dist.] 2007, no pet.) (emphasis added).

      As noted above, the majority correctly determines that Asgard owed no duty
to DLI on its negligent hiring, supervision and management claims because there

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was no contractual or other special relationship imposing a duty. Yet, after holding
Asgard owed no duty to perform a background check, the majority then concludes
the summary judgment was improper as to negligent retention because there is a
fact issue that Moreno’s embezzlement was foreseeable.

      I would hold that negligent retention also fails as a matter of law because the
undisputed evidence shows that DLI unilaterally transferred Moreno from her
receptionist position to the position of accounting clerk. DLI then promoted her to
the head of the accounting department and retained her in that position until it
terminated her employment.        DLI never requested that Asgard perform a
background check, nor did DLI do so. The evidence reflects that at all times when
Moreno was in DLI’s employ in the accounting department, DLI supervised her
day-to-day activities. I also question how any negligent retention claim can be
pursued in the absence of a negligent hiring claim, which the majority holds does
not survive summary judgment.

      Therefore, I conclude Asgard conclusively established it was not foreseeable
that Moreno would embezzle funds from DLI. Asgard initially placed Moreno at
DLI as a receptionist whose responsibilities included answering phones and
performing clerical duties. At DLI’s sole discretion, and without Asgard’s prior
input, DLI transferred Moreno to the accounting department as a clerk and
promoted her to the head of its accounting department where Moreno was granted
nearly unlimited access to DLI’s financial systems. Under these facts, Asgard
conclusively established it was not foreseeable that a receptionist would be
promoted to the head of accounting and embezzle $15 million during her eight
years of employment in the accounting department under DLI’s supervision. See
Guidry v. Nat’l Freight, 944 S.W.2d 807, 811 (Tex. App.—Austin 1997, no writ)
(considering a negligent hiring claim and holding that it was not foreseeable a

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truck driver would sexually assault a third party).

      I would also note that there is no evidence that any third party was harmed
by Moreno’s actions—a key consideration in negligent retention cases.             See
CoTemp, 222 S.W.3d at 493—94 (concluding harm to third party was foreseeable
because it could have been reasonably anticipated that harm would result by
retention of the employee). Rather, Moreno’s embezzlement was unforeseeable
and it affected only DLI, the entity which promoted her and retained her in its
accounting department.

      Thus, I believe the majority is incorrect in its determination that there is a
genuine issue of material fact on the negligent retention claim.          Under this
scenario, I disagree with the majority that the trial court erred in granting Asgard’s
motion for summary judgment on DLI’s negligent retention claim. Accordingly, I
would affirm the trial court’s order granting summary judgment in its entirety.




                                       /s/       John Donovan
                                                 Justice


Panel consists of Justices Boyce, Jamison, and Donovan. (Jamison, J., majority).




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