                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00190-CV


WALTER WALLACE JOHNSON                                            APPELLANT

                                       V.

LLOYD DOUGLAS ENTERPRISES                                          APPELLEE
I, LTD. D/B/A SUNFLOWER PARK
HEALTH CARE, INC.


                                    ----------

          FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 153-263639-13

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                       MEMORANDUM OPINION 1

                                    ----------

      This is a retaliation case. Appellant Walter Wallace Johnson was hired in

June 2012 as the administrator for Sunflower Park Health Care Center, a nursing

care facility in Kaufman, Texas.   He reported to his supervisors that he was

concerned that employees at the health care center were working under the

      1
      See Tex. R. App. P. 47.4.
influence of drugs. In late July 2012, he reported the same concerns to the local

police department and to the Texas Department of Aging and Disability Services

(DADS). On August 2, 2012, Johnson’s employment was terminated.

       After his employment was terminated, Johnson sued Appellee Lloyd

Douglas Enterprises I, Ltd. d/b/a Sunflower Park Healthcare Inc. (LDE) alleging

that he was fired as an act of retaliation for reporting patient abuse. The trial

court granted summary judgment for LDE, and Johnson now appeals.

       In four issues, Johnson argues that he raised a fact issue on his retaliation

claim and on whether LDE is the proper defendant. Because we hold that the

summary judgment evidence does not raise a fact issue about whether LDE is

the proper defendant, we affirm.

                               Standard of Review

       We review a summary judgment de novo. 2 A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

traditional summary judgment on that claim. 3      Once the defendant produces

sufficient evidence to establish the right to summary judgment, the burden shifts

to the plaintiff to come forward with competent controverting evidence that raises

a fact issue. 4


       2
        Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
       3
        Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
       4
        Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999).


                                         2
      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s

claim or defense. 5 The motion must specifically state the elements for which

there is no evidence. 6     The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of

material fact. 7 If the nonmovant brings forward more than a scintilla of probative

evidence that raises a genuine issue of material fact, then a no-evidence

summary judgment is not proper. 8

      In reviewing a summary judgment, we consider the evidence presented in

the light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the




      5
       Tex. R. Civ. P. 166a(i).
      6
       Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
      7
      See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425,
426 (Tex. 2008).
      8
     Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004).


                                        3
nonmovant unless reasonable jurors could not. 9 We indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. 10

      When a party moves for summary judgment under both rules 166a(c) and

166a(i), we will first review the trial court’s judgment under the standards of rule

166a(i). 11 If the appellant failed to produce more than a scintilla of evidence

under that burden, then there is no need to analyze whether the appellee’s

summary judgment proof satisfied the less stringent rule 166a(c) burden. 12

                                     Analysis

      After Johnson filed suit, LDE filed an answer in which it stated that it did

not and had never operated under the assumed name of Sunflower Park Health

Care, Inc. and that it had never employed Johnson or terminated his

employment. LDE then filed a motion for traditional and no-evidence summary

judgment. The motion raised four grounds. First, LDE asserted that it never

employed Johnson and was therefore not a proper defendant. It claimed that it

had never operated under the assumed name of Sunflower Park Health Care,

Inc. as alleged in Johnson’s petition and that Johnson worked for and was

      9
      Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009); Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 582 (Tex. 2006)); Sudan v. Sudan, 199 S.W.3d 291,
292 (Tex. 2006).
      10
          20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
      11
          Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
      12
          Id.


                                         4
terminated by Sunflower Park Health Care Providers, L.P. (Sunflower Park L.P.).

That is, it asserted that Johnson’s former employer was Sunflower Park L.P. and

that regardless of the proper name of Johnson’s former employer, LDE was not

that entity.     In support of this ground, LDE provided an affidavit from Steve

Robinson, who stated that he is the director of operations at Sunflower Park

Health Care Center; an affidavit from LDE’s attorney; and exhibits attached to the

two affidavits.

      Robinson stated in his affidavit that LDE did not employ or make any hiring

decisions with respect to Johnson and that Johnson was employed by Sunflower

Park L.P., which operated the facility. He stated that he had hired Johnson on

behalf of Sunflower Park L.P. to serve as an interim administrator and that

Johnson communicated to Robinson that he understood he was hired on an

interim basis.

      Robinson attached several exhibits to his affidavit, including LDE’s

answers to interrogatories 13 in which it stated that LDE has not operated under

the assumed name of Sunflower Park Health Care, Inc. and did not hire, employ,

pay, supervise, retain, or terminate Johnson. LDE’s attorney attached to his

affidavit a printout from the website of the Texas Secretary of State, which stated

that there were no assumed names on file for LDE.


      13
        See Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (“Generally, a
party cannot rely on its own answer to an interrogatory as summary judgment
evidence.”).


                                         5
      LDE’s second summary judgment ground was that the reports that

Johnson made did not concern a violation of law or rule, a requirement to support

a retaliation claim. It contended that the legal basis for Johnson’s retaliation

claim was unclear from his petition but that Johnson could only have based his

retaliation claim on two possible grounds: section 260A.014 14 of the health and

safety code, which provides a cause of action against health care facilities that

retaliate against their employees, and section 242.322 15 of the health and safety

code, which pertains to retaliation against nursing home administrators by a

nursing home facility.

      With respect to section 260A.014, LDE argued that Johnson had to have

shown that he reported a violation of a law or rule, and neither of the reports he

made did so. It alleged that in a report he made to DADS, he notified the agency

of alleged drug abuse by former Sunflower Park employees. LDE asserted that

the police report that Johnson had filed “made vague and unsubstantiated

allegations that did not concern patient care at Sunflower Park.” It maintained

that neither report referenced any former or current patients at the facility, did not


      14
         Tex. Health & Safety Code Ann. § 260A.014(b) (West Supp. 2014)
(stating that an employee of a facility has a claim against a facility, its owner, or
another employee of the facility that terminates a person’s employment “for
reporting to the employee’s supervisor, . . . a state regulatory agency, or a law
enforcement agency a violation of law, . . . or for initiating or cooperating in any
investigation or proceeding of a governmental entity relating to care, services, or
conditions at the facility.”) (emphasis added).
      15
        Id. § 242.322 (West 2010).


                                          6
allege that any incidents took place on the facility’s premises, and did not

implicate a violation of any other laws or rules applicable to Sunflower Park.

Thus, LDE argued, Johnson could not sustain a claim under section 260A.014.

      In support of these statements, LDE again relied on Robinson’s affidavit

and exhibits attached to it. Robinson discussed both reports that Johnson had

made. He stated that Johnson had made a complaint to the Kaufman police

department about allegations of drug use by former employees of the facility, did

not allege any violations of a law or rule by the facility, and did not assert any

allegations concerning patient care at the facility. Robinson further stated that

the report to DADS also did not allege abuse of any patients at the facility and did

not allege any violations of laws or rules applicable the facility.        Robinson’s

affidavit was limited to addressing the provision in section 260A.014 about

patient abuse and violations of the law; he did not address whether Johnson’s

report initiated or related to an investigation of conditions on the property. 16

      Robinson attached to his affidavit copies of the two reports. Johnson’s

attached report to DADS stated,

             I am reporting that two employees separately came to me to
      complain that they suspected drug use by co-workers. I talked to the
      director of nursing, Candace Nachtigall, about these reports of drug
      use and that I felt we need to do drug testing and criminal
      background checks. We contacted the regional manager, Steve
      Robinson, and he came to the building that afternoon. I told him that
      I had reports of four former employees who got caught in a meth lab
      arrest. In our conversation, he told me that didn’t mean that our

      16
        See id. § 260A.014(b).


                                           7
      current employees had a drug problem. But our activities director,
      Elizabeth Barnette, said that she saw some of the former employees
      in the building after their firings. I told Steve [that] I thought we
      should do drug testing immediately, criminal background checks, put
      a letter in employee payroll envelopes that they are subject to
      random drug tests. Steve told me I was over-reacting, that I had no
      basis for concern, that I should not drug test or put out a letter, just
      do the nursing registry and CNA registry once a year. He did not
      want to have the families think there might be a drug problem in our
      building. I felt I was obligated to turn this information into the
      Kaufman police department and the detective that handled the case,
      Billy Frosch, Badge 915, felt I should report this info ASAP.
      [Emphasis added.]

The attached police report stated,

             Tuesday the 24th day of July 2012 at approximately 13:20
      hours, I[,] Officer Billy Frosch # 915[,] was dispatched to the
      Kaufman Police Department to meet with complainant Walter
      Johnson the administrator for Sun Flower Park Health Care . . . in
      the City of Kaufman.

           Johnson stated that he was approached by some of his
      employees telling him if he would do a drug test on his employees
      he would lose approximately 20% of his staff due to drug use.

             Johnson stated he was concerned about the drug problem so
      he called his Regional Manager Steve Robinson to see if he could
      drug test the employees. Robinson told Johnson that he was over
      reacting and to drop it and that he did not want to upset the
      patients[’] families.

            Johnson stated the reason why he notified the Police
      Department is that he is concerned about the patients[’] care and
      that he was also going to notify the State Health Department.
      [Emphasis added.]

      Regarding a claim under section 242.322, LDE asserted that the summary

judgment evidence did not support any claim under that section, and Johnson

makes no argument about the applicability of that section on appeal.




                                         8
      LDE’s third traditional summary judgment ground was that Johnson was

discharged because he had completed his temporary assignment as interim

administrator of the nursing home.     It asserted that Johnson was an at-will

employee whose job was terminated when his duties as interim administrator had

ended. It argued that the evidence showed that he would have been terminated

even if he had not made any report.

      Robinson’s affidavit stated that he had hired Johnson on June 13, 2012 on

an interim basis and that “Johnson agreed to serve as the center’s administrator

on an interim basis and communicated to [Robinson] that he understood that he

was hired on an interim basis.”       He further stated that “Johnson’s interim

administrator assignment ended in August 2012 and he was not retained in a

permanent position.   He was discharged from his employment on August 2,

2012.” Robinson stated that “[t]he decision to terminate his employment was

made by [Sunflower Park L.P.]. Johnson acknowledged his termination resulted

from completion of the interim assignment by executing a termination summary

stating the same.”

      Attached as an exhibit to Robinson’s affidavit was a “Termination

Summary” regarding Johnson’s termination.         The document contained a

handwritten notation that said, “Interim Assignment Completed.     Employment

Was Temporary Agreement.” Johnson signed this document. The document

however, contained no statement indicating that by signing the document,

Johnson agreed with or accepted the reason he was given for his termination.


                                        9
      LDE’s no-evidence grounds were that Johnson had no evidence to prove

that LDE was his employer; that Johnson made a report of a violation of the law

by the facility or initiated or cooperated in an investigation of the facility; that

Johnson reported patient abuse; that Johnson refused to engage in an act or

omission that would constitute a violation of chapter 242; or that LDE took

adverse action against him for reporting a violation of applicable law or

cooperating in an investigation of the facility.

      In his summary judgment response, Johnson countered that he was

entitled to the statutory presumption of retaliation under section 260A.014

because he reported concerns about employees abusing drugs in the course of

their employment to his supervisors, 17 who ignored the concerns and told

Johnson to drop them, and when he nevertheless reported his suspicions to

DADS, his employment was terminated just days later.

      In Johnson’s attached affidavit, he contradicted Robinson’s affidavit

statements that his reports only related to former employees. Johnson stated

that in his first week on the job, a housekeeping technician named James told

him that many of the employees there at the facility used drugs and were under

the influence of drugs at work. James told Johnson that “if [Johnson] conducted

drug testing on the staff[,] James believed at least twenty (20%) percent of the

staff would fail and should be terminated according to company policy.”

      17
          See id. (providing a claim against a facility who fires an employee for
initiating an investigation into conditions at the property).


                                          10
      Johnson also stated that a few weeks later, Elizabeth Barnette, the

facility’s activity director, informed him that before he began working there, she

had witnessed employees “shooting up” in the staff parking lot.           Like the

housekeeping technician, Barnette expressed concerns that employees were

using drugs on the premises and were under the influence of drugs while at work.

      Johnson further stated that based on these conversations, he became

concerned about the possibility that employees were either using drugs on the

premises or working while under the influence of drugs. He took his concerns to

the director of nursing, Candace Nachtigall, who told him in response that

“Kaufman is a small town and there is not much to do, so if employees are using

drugs it is probably on the weekends and that it is not a big deal.”

      He also relayed his concerns to Robinson and suggested that employees

should be drug tested. Robinson responded that Johnson was over-reacting and

that Robinson “did not want to alarm or upset the patients’ families.” Based on

the responses of Nachtigall and Robinson, Johnson felt obligated to report his

concerns to the police in order “to ensure the residents[’] and employees[’] safety

and to comply with [his] duties as an administrator.”

      Addressing LDE’s claim that he was only an interim administrator and his

employment was terminated at the end of the interim period, Johnson alleged

that he had been hired until the time that a full-time administrator could be hired

but then was terminated before that position was filled. In his affidavit, Johnson

stated that he interviewed for his position with Robinson, who told Johnson that


                                         11
the company was opening a new location in El Paso that was currently under

construction. Johnson told Robinson that he would be interested in opening the

new location there as he had lived in El Paso before and was interested in

returning. A few days later, Robinson called him and offered him the position as

administrator at the company’s Kaufman location and told him that he would

serve in that position until the El Paso location was completed, at which time

Johnson would be transferred to that facility.

      Instead of being transferred, his employment was terminated. Johnson

stated that at the time of his termination, no permanent administrator had been

hired for the Kaufman facility; the administrator from the company’s Graham

location was brought in to temporarily serve as the Kaufman administrator.

      To address LDE’s ground that it had not employed Johnson, he stated that

his pay stubs listed “Sunflower Park Health Care, Inc.” as his employer, not

Sunflower Park L.P.      The W-2 and paystubs attached by Johnson to his

response, however, listed only “Sunflower Park Health Care” as his employer.

      Johnson alleged that the superficially distinct entities represented a single,

integrated enterprise, and he asked that if the court were to determine that

Sunflower Park, L.P. was Johnson’s employer, it substitute that entity as the true

name of the defendant under civil procedure rule 28. 18

      18
       Tex. R. Civ. P. 28 (stating that “[a]ny partnership, unincorporated
association, private corporation, or individual doing business under an assumed
name” may be sued in its assumed name but on a motion, “the true name may
be substituted.”).


                                         12
      The trial court granted summary judgment for LDE without specifying the

grounds. Johnson appeals from that judgment.

      Johnson’s four issues on appeal each include arguments related to both

LDE’s traditional and no-evidence grounds. In Johnson’s first issue, he argues

generally that the trial court erred by granting either traditional or no-evidence

summary judgment for LDE. In his second issue, Johnson argues that the trial

court erred by granting either traditional or no-evidence summary judgment for

LDE because Johnson established a prima facie case of retaliation that was not

controverted by LDE. In his third issue, he argues that the trial court erred by

granting either traditional or no-evidence summary judgment for LDE on the

ground that he had been hired only as a temporary employee. And in his fourth

issue, he argues that the trial court erred by granting summary judgment on the

ground that LDE was not his employer.

      We begin our analysis, as we must, with Johnson’s arguments relating to

LDE’s no-evidence grounds. 19 We agree that no-evidence summary judgment

could not have properly been granted on the ground that there was no evidence

that Johnson initiated an investigation of the facility or on the ground that there

was no evidence that LDE took adverse action against him for doing so in

violation of section 260A.014.    Health and safety code section 260A.014(b)

provides a cause of action against a facility or the owner of the facility by an


      19
        See Ford Motor Co., 135 S.W.3d at 600.


                                        13
employee if his employment was terminated because he initiated an investigation

or proceeding relating to conditions at the facility. 20 Johnson produced summary

judgment evidence that he reported to his supervisor, to the police, and to DADS

his suspicions that employees of the facility were under the influence of drugs

while on the job and that his employment was terminated very soon after his

reports were made. He also produced evidence sufficient to raise a fact issue

about whether he had been hired with the understanding that his employment at

the facility would continue until a new administrator had been hired and he was

moved to the El Paso facility, and that the reason stated for his termination was a

pretext. Johnson therefore raised a fact issue on LDE’s no-evidence grounds

related the reasons for his termination and the applicability of section 260A.014.

We sustain the part of Johnson’s second and third issues addressing these no-

evidence grounds.

      In Johnson’s fourth issue, he argues that he presented sufficient evidence

to raise a fact question about what entity hired him and then terminated his

employment. He further argues that under civil procedure rule 28, if LDE were

not the proper defendant, the proper party could be substituted, and therefore the

trial court erred by granting summary judgment on the ground that LDE d/b/a

Sunflower Park Health Care, Inc., was not Johnson’s employer. After reviewing

the summary judgment evidence, however, we must disagree.


      20
        Tex. Health & Safety Code Ann. § 260A.014.


                                        14
      Johnson produced no evidence showing any basis of liability against LDE

for his termination.     No summary judgment evidence explains what the

connection is between LDE and Sunflower Park Health Care Center or Sunflower

Park, L.P. No evidence raises a fact issue about whether LDE, an entity called

“Sunflower Park Health Care, Inc.,” or any entity other than Sunflower Park L.P.

was Johnson’s employer.

      LDE’s summary judgment motion and evidence create the implication that

the entities are connected in some way. But no evidence indicates that LDE is

an entity that may, under the law, be held liable for the acts of Sunflower Park

Health Care. Johnson’s W-2 and pay stubs list his employer as “Sunflower Park

Health Care,” not LDE, “Sunflower Park Healthcare, L.P.,” or “Sunflower Park

Healthcare, Inc.” Even were we to consider LDE’s evidence—and we do not in

ruling on the no-evidence grounds 21—neither Robinson nor LDE’s attorney

explained any connection among the entities in their affidavits, and none of

LDE’s other evidence raised a fact issue on the matter.

      Although Johnson argues that the trial court should have substituted the

proper party under rule 28, that rule provides for the substitution of the true name

of an entity that was sued under an assumed name. 22 Nothing in the record

      21
        See Tex. R. Civ. P. 166a(i).
      22
        See Seidler v. Morgan, 277 S.W.3d 549, 553 (Tex. App.—Texarkana
2009, pet. denied) (“Before the use of a common name is adequate under Rule
28, there must be a showing that the named entity is in fact doing business under
that common name.”) (emphasis added).


                                        15
indicates that LDE is operating the facility under an assumed name or that LDE is

the true name of Sunflower Park Health Care.

      Misnaming a defendant is a different proposition from suing the wrong

defendant. 23   To maintain a suit against LDE, Johnson needed to produce

evidence raising a fact issue about why LDE may be held liable for the

termination of his employment. We therefore are compelled to hold that because

Johnson did not produce evidence raising such a fact issue, the trial court did not

err by granting summary judgment for LDE on this ground.

      Johnson counters that LDE cannot have properly been granted summary

judgment on this ground because it never filed a verified denial raising a defect of

parties. 24 Johnson is correct that to raise the issue that the plaintiff has sued the

wrong party, the defendant must file a verified plea. 25 Johnson did not, however,

raise an objection below to LDE’s failure to file a verified denial; both parties

made arguments and submitted evidence on the issue, with no objection to the

lack of a verified pleading. Accordingly, Johnson waived any defect in LDE’s

pleading on the issue. 26 We overrule Johnson’s fourth issue and hold that the


      23
        See Enserch Corp. v. Parker, 794 S.W.2d 2, 4–5 (Tex. 1990) (discussing
the difference between misnomer of a defendant and misidentification of a
defendant).
      24
        See Tex. R. Civ. P. 93(4).
      25
        Id.
      26
      See Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009) (holding that
Deere had waived any defect in Ingram’s failure to file a verified denial in

                                         16
trial court did not err by granting no-evidence summary judgment on the

retaliation claim on the ground that there was no evidence that LDE was his

employer.

      Because Johnson’s fourth issue is dispositive, we need not reach

Johnson’s remaining issues. 27

                                   Conclusion

      Having overruled Johnson’s fourth issue, we affirm the trial court’s

summary judgment.




                                                /s/ Lee Ann Dauphinot
                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

DELIVERED: January 22, 2015




response to Deere’s claim of partnership when both parties presented evidence
of the issue and developed it during trial without objection).
      27
       See Tex. R. App. P. 47.1.


                                        17
