                                                                                               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



                                       1
Crystal Delaune, Deceased; and as Next Friend of D.D., D.D. and DA.D., Plaintiffs

in the district court.




                                       2
                                  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

                                          3
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



                                        4
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



                                         5
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.




                                             6
      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



                                          7
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,



                                       8
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



                                         9
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

                                         10
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.



                                          11
      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.




                                         12
      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



                                         13
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



                                           14
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




                                          15
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



                                        16
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



                                         17
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.




                                        18
                                  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.




                                          19
      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.




                                        20
                                        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




                                         21
                     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




                                          22
                        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




                                       23
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 Op-
                                                              erations 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 sever-
                                                              al 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 supervi-
for 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 (AU-
                                                              unexpected, 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 Work-
                                                              er'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 Corpo-
ration ("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 ap-
                                                                   another store. My response was yes".
       proximately one month of [**4] em-
       ployment. 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", "stu-
       explained that I would pay Ron Smith                               pid ass", and "fat ass" in
       once I got home because my [**5]                                   front of some of the work-
       money 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 com-
                                                            store 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 pro-
that the trial court erred in granting summary judgment        visions of the Texas Worker's Compensation Act. How-
in 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 em-
cert. 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 em-
summary 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 gen-
                                                               alleged acts of "touching," "brushing up," fondling her
uine issue of material fact and that it is entitled to judg-
                                                               breasts 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 oppor-
to 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 em-
reasonable 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 ac-
                                                               not 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 har-
narily 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 how-
case 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 Gal-
the 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 Sav-
sault 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 im-
                                                               the assault could have merged into one indivisible tort
putable to UPE. UPE takes the position that the job du-
                                                               imputable 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 Conven-
acting 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 com-
the 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 outra-
doorkeeper of a night club, in his overzealous enforce-        geous; (3) the actions of the defendant caused the plain-
ment 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 Automo-
court 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 Du-
                                                               sexual 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 em-
                                                               showing 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 motivat-
                                                               met. 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 be-
                                                               ruled.
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 al-
                                                               harm 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 in-
clude taking food orders, preparing the food, and deliv-
                                                                         Sec. 5.01. It is unlawful employment
ering it to customers. There is simply no connection be-
                                                                      practice for an employer:
tween these duties and the alleged sexual assaults di-
rected 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 op-
infliction 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 harass-
                                                               ment 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) harass-
                                                               ment 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 estab-
                                                               lish 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 protec-
should 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 per-
                                                                      fact 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 en-
vironment.                                                                 (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 al-
state statute, but also to the analogous federal provisions
                                                                      ter the conditions of employment and cre-
contained 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 em-
writ) ("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 consid-
consider how the federal act is implemented under
                                                                      erations from the employee in return for
clauses similar to those in issue in the Texas Act"). Be-
                                                                      job 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 em-
addressing 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 dis-
crimination 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 harass-
judgment 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 cre-
if it did occur, it was not sufficiently pervasive so as to   ate an abusive working environment, the element of re-
alter 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 harass-
sexual 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 deposi-
sexual 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 John-
that 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, John-
others, 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 har-
sexually 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 al-
told 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 alleg-
bly 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 em-
sexual 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 per-
thority to evaluate employees' work performance and to        vasiveness of the harassment which gives rise to the in-
reprimand 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 con-
                                                              recently 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 pro-
                                                              cedures. 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 dis-
mary 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 em-
aware 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 em-
to 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 employ-
the 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 employ-
                                                              writ denied). Mackey's reliance upon such theory is
ment benefits under an employment contract and to un-
                                                              without 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. How-
                                                              grounds, 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 em-
with 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 unlaw-
interfere. 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 har-
can be no interference with the contract by UPE. Tor-         assment conduct [*459] by Smith and Johnson result-
tious interference with a contract occurs when a person       ed in her discharge. Flagship, 793 F.2d at 720.
intentionally and improperly interferes with the perfor-
mance 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 show-
ness 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 interfer-
                                                              judgment 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. Liabil-
ees, 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 pol-
above, 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 neg-
                                                                or 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 posi-
                                                                restaurants. An officer of the company visited each res-
tions of store manager, (2) failing to detect and take ac-
                                                                taurant daily in order to monitor the activities of the em-
tion 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 pro-
                                                                store daily and performed on-site supervision and evalu-
cedures 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 rem-
                                                                son. 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 moni-
work-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 harass-
action survives. If Mackey's injuries were sustained in
                                                                ment, or that it failed to implement and monitor proce-
the 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 evalua-
                                                                that 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 De-
judgment." 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) re-
                                                              court'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 plead-
however, 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 judg-
ment 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 agree-
ing 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 sev-
overruled.
                                                              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 ba-
furthermore, 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 alle-
gations 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 non-
                                                                to 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 medi-
judge 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 evi-
sufficiency standard in reviewing a no-evidence sum-
                                                                dence 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 evi-
                                                                judgment because the Plaintiffs cannot by pleading, dep-
dence of probative force to raise a fact issue on the mate-
                                                                osition, 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 challeng-
rendered, disregarding all contrary evidence and infer-
                                                                ing 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 in-
                                                                scintilla 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 in-
                                                                juries result from the employer's failure to take reasona-
                                                                ble 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 con-
ular 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 re-
denied) (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. neg-
knowledge and fully understood by the employee. Id.          ligently failed to provide. See id. We conclude that Pati-
                                                             no 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 danger-
ous 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 oc-
an expert with 33 years of experience in the tire industry
                                                             curred." Id. (quoting Doe v. Boys Clubs of Greater Dal-
who 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 proce-
                                                             manner" as he was. But evidence of work-place injury is
dure for which he lacked training or supervision. Ac-
                                                             no 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 estab-
                                                             any 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 dis-
they 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 con-
                                                             present 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 (cita-
changing 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 pre-
                                                             deter 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 nec-
                                                             not 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 respons-
found 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 mo-
discovery 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 or-
dient 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 re-
sponses were "incomplete and evasive"; the motion to               JUSTICE
compel was filed after Patino failed to serve supple-
mental 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 GUL-
                                                             proximate 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 em-
                                                             ployment with Allsup. Because Allsup was not a sub-
                                                             scriber 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 em-
and REYNOLDS, S.J. * Opinion by Senior Justice Reyn-
                                                                    ployer does not have workers' compensation in-
olds.
                                                                    surance coverage, "plaintiff must prove negli-
                                                                    gence 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, main-
contending 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 ex-
       ployees, 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 excep-
       and 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, un-
       sistance 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 de-
       ing 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 equip-
                                                              her to get help, Warren unloaded the truck alone by car-
       ment 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 de-
       trailer 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 All-
       ment 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] ca-
       items 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 affirma-
tively 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 con-
the 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 there-
dict. 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 evi-
                                                             dence 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 ques-
                                                             tion 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 Com-
                                                             pany, 140 Tex. [**10] 2, 164 S.W.2d 660, 662 (1942).
                                                             The burden of proving it is on the party seeking a recov-
                                                             ery 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 ascer-
it 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 testimo-
and 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 em-
                                                              to 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 oc-
evidence 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, tes-
                                                              proper 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 val-
                                                              a 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). Ab-
sonnel 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, in-
cluding 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 man-
                                                              loading dock. The only evidence bearing on the compar-
ager, and that there was nothing unusual about what she
                                                              ison of a [**15] loading dock at another store with All-
had 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 be-
                                                            cause 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 un-
      loaded 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 prosecu-
                                                          police. 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 Dal-
damages 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 ef-
later indicted Lermon for the offense and the Collin         fort to obtain even clearer shots.1
County District Attorney's Office tried him for the of-
fense. 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 be-
false. 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 evi-
                                                                    and 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 De-
                                                             lieve 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 surveil-
investigators 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 ac-
                                                             white 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 pro-
was Lermon.                                                    ceedings must sometimes yield to society's greater inter-
                                                               est 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 charg-
                                                               against 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 har-
that 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; Danger-
his 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 mali-
acknowledged 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 pros-
                                                               exception 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 re-
                                                               the plaintiff must further prove the false information
turned the keys before the theft. Sylvan could not re-
                                                               caused 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 vide-
otape 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 en-
forcement 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 infer-
                                                               had "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 plain-
sonable 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 pro-
taken out of context in a way that makes it seem to sup-
                                                                       cured 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 "Vol-
proper 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 "for-
                                                               mal 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 evi-
                                                               initiated by [*14] making a charge before a public offi-
dence, the evidence does not rise above a scintilla if ju-
                                                               cial 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 mali-
                                                               cious 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 rea-
both 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 Ler-
                                                               officers 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 pros-
                                                               the offense and twice made the decision to pursue crimi-
ecuted. To show such a statement can constitute a "for-
                                                               nal 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 constitut-
liable 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. Accord-
                                                               merely 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 identify-
                                                               ing 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 oc-
                                                               make a positive identification on his initial review of the
       curred "on his watch" and to try to obtain restitu-
                                                               videotape. Lee's subsequent positive identification was
       tion for Minyard from Lermon. The only evi-
                                                               based 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 inquir-
                                                               still [*18] shots and his discovery that Lermon had
       ies to prosecutors about the possibility of obtain-
                                                               grown 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 be-
                                                               themselves whether they believed a positive identifica-
       lief 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 pro-
of 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 tes-
was 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 prescrip-
                                                              case was charged, without objection, that it was required
       tion from the Sack 'N Save. Lermon's broth-
                                                              to 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 infor-
       keys 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 actu-
false information, Lermon relies on the summary Detec-
                                                              ally disclosed. According to Lermon, Lee failed to dis-
tive Dalton gave to the district attorney in which Dalton
                                                              close that: (1) Lermon was "much taller" than the perpe-
states 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 dis-
                                                              keep 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 fol-
fied he knew before Lermon's second trial that Lermon         lowed. We first note that although Lermon's claim re-
had returned the keys before the theft. Yet, he proceeded     quired him to show the reason Dalton decided to prose-
with 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 con-
stated "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 prosecu-
a failure to disclose cannot support claim for false im-      tion and therefore there is no evidence to support Ler-
                                                              mon'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 insuffi-
                                                              other 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 hir-
gation.7                                                      ing, retaining, training, or supervising an employee cre-
                                                              ates 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 reten-
       pervision] and related torts such as negligent         tion, a plaintiff must prove the employer hired or re-
       training 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 supervi-
       evidence 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. de-
       able 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 ex-
       not 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 simi-
       need 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 nec-
                                                              skills); 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 pru-
dent 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; Dan-
store. 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 un-
enforcement 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 conse-
given 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 pre-
no "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. Be-
training 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 su-
                                                              of 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 super-
vised. We conclude Lermon failed to present any evi-
dence 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.
