Summary
noting that no cause of action for false imprisonment arises when a plaintiff voluntarily complies with a simple request to remain and establish his or her innocence
Summary of this case from Wray v. Home Depot U.S.A., Inc.Opinion
No. 05-04-01306-CV
Opinion Filed August 24, 2005.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. CC-03-10763-A.
Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
MEMORANDUM OPINION
Appellant, Pastor Bobby Broadnax, appeals the trial court's final summary judgment in favor of appellees, Kroger Texas, L.P. (Kroger) and Securitas Security Systems U.S.A., Inc. (Securitas), for matters arising from his false imprisonment claim.
The record shows appellant's name is Bobby Broadnax and he is the founder and pastor of the nondenominational Cathedral of Prayer Church, Inc.
Securitas was formerly known as Wells Fargo Guard Services.
In ten issues, Broadnax argues the trial court erred when it granted traditional summary judgment in favor of Securitas, and traditional and no-evidence summary judgment in favor of Kroger. Broadnax complains the trial court erred because: (1) he is a consumer under the Texas Deceptive Trade Practices Act (DTPA) as it applies to his claims; (2) there is an issue of fact regarding the terms of the contract between Securitas and Kroger; (3) he was a third-party beneficiary under the contract between Securitas and Kroger; and (4) Texas law does not require the establishment of an agency relationship to affix vicarious liability for his DTPA and false imprisonment claims.
For the reasons set out below, we decide Broadnax's ten issues against him. We affirm the trial court's final summary judgment. Because the issues in this appeal are well settled, we issue this memorandum opinion. See Tex.R.App.P. 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1994, Securitas contracted with Kroger to provide security services at Kroger's store in Bellaire, Texas. That contract provided for "general security services," including uniformed guards on the premises, but not for the protection of customers. No third parties were mentioned in the contract.
On April 23, 2003, Broadnax entered the Kroger store, paid for items at the pharmacy, then proceeded toward the exit doors. Before reaching the exit, Broadnax was approached by a male security guard. Broadnax was 6'2" tall and weighed 250 pounds. The male security guard was between 5'5" and 5'8" tall, and weighed approximately 150 pounds. The record does not reflect that the security guard was armed.
The security guard asked to see Broadnax's bags. Broadnax asked whether such a search was "normal store policy." The security guard said that it was not, and again, in a "louder" voice, asked to search the bags. Broadnax held up his bags and allowed the security guard to check their contents against his receipt. The security guard patted Broadnax down and then, he walked away.
The encounter between Broadnax and the security guard lasted less than five minutes. During this encounter, the security guard did not: (1) put his hands on Broadnax to move or confine him; (2) ask Broadnax to go to some other part of the store; or (3) tell Broadnax he could not leave the store.
Broadnax sued Kroger and Securitas for false imprisonment, breach of contract, and violation of the DTPA. Securitas filed a motion for traditional summary judgment seeking judgment, as a matter of law, on Broadnax's causes of action. Broadnax responded with his two page, two paragraph affidavit and excerpts from his deposition. Securitas generally objected to Broadnax's affidavit claiming: (1) it makes conclusory statements of fact and law without offering legal or factual support; and (2) it is a sham affidavit because it contradicts Broadnax's deposition testimony. Also, Securitas specifically objected to paragraph two of Broadnax's affidavit claiming: (1) it presents improper legal conclusions; (2) it gives opinions that are not within Broadnax's personal knowledge; (3) it constitutes hearsay; and (4) it contradicts Broadnax's earlier deposition testimony. The trial court overruled Securitas's general objections and sustained its specific objections to paragraph two of the affidavit. Also, the trial court granted Securitas's motion for traditional summary judgment without stating the grounds for its decision.
Approximately one month after Securitas filed its motion for traditional summary judgment, Kroger filed its own motion for traditional and no-evidence summary judgment. Broadnax responded with the same affidavit and deposition testimony he offered in opposition to Securitas's motion for traditional summary judgment. Kroger objected to Broadnax's affidavit. Kroger's objections were identical to Securitas's objections. The record does not contain a ruling on Kroger's objections. The trial court granted Kroger's motion for summary judgment, which requested summary judgment on both traditional and no-evidence grounds, without stating the grounds for its decision and issued its final summary judgment ordering that Broadnax take nothing on any of his claims.
II. EVIDENTIARY CONSIDERATIONS
Kroger argues we may not consider Broadnax's affidavit because it was excluded by the trial court and Broadnax has not properly challenged the trial court's ruling on appeal. As a result, before we may address the merits of Broadnax's issues, we must determine whether we may consider Broadnax's affidavit.
The record shows the trial court expressly overruled Securitas's general objections and sustained it's specific objections to paragraph two of Broadnax's affidavit. Broadnax does not appeal the trial court's ruling that sustained Securitas's objections to paragraph two of his affidavit. Accordingly, we do not consider any of the testimony in paragraph two of Broadnax's affidavit when evaluating whether the trial court erred when it granted traditional summary judgment in favor of Securitas.
A. Kroger's Objections to Broadnax's Affidavit
Kroger generally objected to Broadnax's affidavit claiming: (1) it makes conclusory statements of fact and law without offering legal or factual support; and (2) it is a sham affidavit because it contradicts Broadnax's deposition testimony. Kroger's general objections state the following:
1. General Objections: Throughout his affidavit, Bobby Broadnax makes conclusory statements of fact and law without offering legal or factual support. These conclusory statements are improper summary judgment evidence. [citations omitted]. Since almost all of the statements made in the affidavit are conclusory, [Kroger] prays that the affidavit of Bobby Broadnax be stricken in its entirety.
Moreover, [Kroger] objects to this sham affidavit, in that it appears to be contradicted by [Broadnax's] earlier deposition testimony in an attempt to create a fact issue. A "sham" affidavit is one that contradicts the affiant's earlier testimony for the purpose of creating a fact issue to avoid summary judgment. [citation omitted]. A party cannot defeat a motion for summary judgment with an affidavit contradicting earlier testimony without explaining a reason for the change. [citations omitted].
Also, Kroger specifically objected to paragraph two of Broadnax's affidavit claiming: (1) it presents improper legal conclusions; (2) it gives opinions that are not within Broadnax's personal knowledge; (3) it constitutes hearsay; and (4) it contradicts Broadnax's earlier deposition testimony. Kroger's specific objections state the following:
2. Paragraph 2: [Kroger] objects to the improper legal conclusions and opinions presented herein that are not within [Broadnax's] personal knowledge, as well as hearsay contained herein.
[Kroger] further objects to this paragraph because it is in contradiction to [Broadnax's] earlier testimony. For example, in [Broadnax's] [affidavit, he states that the Securitas employee "intentionally blocked my path to the exit of the store." He further states that the Securitas employee" restricted my movement. . . ." In his deposition, [Broadnax] testified that the Securitas security guard merely stood in front of him and did not physically block the entire path of the aisle in which they were standing at the time of the encounter in question. [reference omitted].
Moreover, in his Affidavit [sic], [Broadnax] states that the Securitas employee "made it clear to me that I was not free to leave until he finished with whatever investigation he was going to do." However, in his deposition, [Broadnax] testified that the Securitas security guard never told him that he could not leave the store during the encounter in question. [reference omitted].
Paragraph two of Broadnax's affidavit states:
2. On April 23, 2003, I was detained by a Securitas employee in the Kroger store at 10677 East Northwest Highway in Dallas, Texas. All of the employee's actions were done without my consent. The employee intentionally blocked my path to the exit of the store. The employee interfered substantially with my liberty. The employee restricted my movement without my consent. The employee made it clear to me that I was not free to leave until he finished with whatever investigation he was going to do. The employee yelled at me in a loud and unprofessional tone, and demanded that I permit him to search my bags. This threat of detention inspired in me a just fear of injury to my person, reputation, or property. In my opinion, it was the employee's specific intent to confine and detain me in order to subject me to an unreasonable search.
B. Trial Court's Rulings on Kroger's Objections
Kroger contends we may not consider Broadnax's affidavit because the trial court orally sustained its objections to his affidavit, excluding it from evidence. In the alternative, Kroger contends it is implied that the trial court sustained its objections because the trial court sustained Securitas's objections.
1. Trial Court Did Not Expressly Rule
There is nothing in the record showing the trial court ruled on any of Kroger's objections to Broadnax's affidavit. Kroger claims the trial court orally sustained its objections to Broadnax's affidavit. However, no reporter's record has been filed in this case. We conclude there is no express ruling by the trial court sustaining Kroger's objections to Broadnax's affidavit. Accordingly, we review the record to determine whether the trial court implicitly sustained Kroger's objections.
2. Trial Court Implicitly Ruled
The record shows Kroger and Securitas both objected to Broadnax's affidavit on the same grounds. The trial court expressly overruled Securitas's general objections and sustained it's specific objections to paragraph two of Broadnax's affidavit. Also, the trial court granted summary judgment in favor of both Kroger and Securitas.
The Texas Rules of Appellate Procedure permit a trial court's ruling to be either express or implicit. See Tex.R.App.P. 33.1(a)(2)(A). A ruling is implicit if it is unexpressed, but capable of being understood from something else. Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex.App.-San Antonio 2000, no pet.). For there to be an implicit ruling on a party's objections to summary judgment evidence, there must be some indication that the trial court ruled on the objections in the record or in the summary judgment itself, other than the mere granting of the summary judgment. See e.g., SSP Partners v. Gladstrong Investments (USA) Corp., No. 13-02-671-CV, 2005 WL 774505 (Tex.App.-Corpus Christi 2005, no pet. h.).
There is a split of authority regarding whether, pursuant to Texas Rule of Appellate Procedure 33.1(a)(2)(A), an objection to summary judgment evidence can be preserved by an implicit ruling without a written, signed order. Stewart v. Sanmina Texas L.P., 156 S.W.3d 198, 206 (Tex.App.-Dallas 2005, no pet.); Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 661-63 (Tex.App.-Waco 2002, no pet.). However, it is clear the better practice is for the trial court to disclose, in writing, its rulings on all evidence before the time it enters the order granting or denying summary judgment. See Stewart, 156 S.W.3d at 206; Allen, 97 S.W.3d at 663. On this record, we decline the invitation to conclude the trial court implicitly ruled on Kroger's objections. Accordingly, we review Kroger's objections to determine if Kroger preserved them for appeal and, if so, whether Kroger's objections prohibit us from considering Broadnax's affidavit.
C. Preservation
For preservation purposes, an appellate court treats a party's objections to defects in the "form" and "substance" of a document differently. See Choctaw Properties, L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex.App.-Waco 2003, no pet.). Defects in the form of the affidavit must be objected to and the opposing party must have the opportunity to amend the affidavit. Brown v. Brown, 145 S.W.3d 745, 751 (Tex.App.-Dallas 2004, pet. denied). The failure to obtain a ruling on an objection to the form of the affidavit waives the objection. Id. For example, objections to defects in the form of an affidavit include: (1) lack of personal knowledge; (2) hearsay; (3) statement of an interested witness that is not clear, positive, direct, or free from contradiction; and (4) competence. See Stewart, 156 S.W.3d at 207 (lack of personal knowledge and hearsay); Choctaw, 127 S.W.3d at 241 (interested witness, hearsay, and lack of personal knowledge); Rizkallah v. Conner, 952 S.W.2d 580, 585-86 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (lack of personal knowledge and competence).
Defects in the substance of an affidavit are not waived by the failure to obtain a ruling from the trial court on the objection, and may be raised by an appellee for the first time on appeal. See Stewart, 156 S.W.3d at 207. Substantive defects are those that leave the evidence legally insufficient, and include affidavits which are nothing more than legal or factual conclusions. Stewart, 156 S.W.3d at 207. For example, objections to defects in the substance of an affidavit include: (1) conclusory statements; and (2) lack of jurat. See Stewart, 156 S.W.3d at 207 (conclusory); Brown, 145 S.W.3d at 751 (conclusory); Choctaw, 127 S.W.3d at 241-42 (lack of jurat and conclusory).
1. Objections to Defects in the Form of Broadnax's Affidavit
Kroger's general objection that Broadnax's affidavit is a sham affidavit because it contradicts his deposition testimony is an objection complaining of a defect in the form of his affidavit. See Choctaw, 127 S.W.3d at 241 (objection that statement of an interested witness is not clear, positive, direct, or free from contradiction is defect of form complaint). Also, Kroger complains of a defect in the form of Broadnax's affidavit in its specific objections that complain paragraph two of the affidavit: (1) gives opinions that are not within Broadnax's personal knowledge; (2) constitutes hearsay; and (3) contradicts Broadnax's earlier deposition testimony. See Stewart, 156 S.W.3d at 207; Choctaw, 127 S.W.3d at 241.
A party cannot file an affidavit that contradicts that party's own deposition testimony, without explanation, for the purpose of creating a fact issue to avoid summary judgment. When there is no explanation, it is assumed that the sole purpose of the affidavit was to avoid summary judgment, and as such, the affidavit merely presents a "sham" fact issue. Burkett v. Welborn, 42 S.W.3d 282, 286 (Tex.App.-Texarkana 2001, no pet.). We recognize that there are variances between Broadnax's deposition testimony and his affidavit testimony. However, we decline to conclude these differences are so egregious that the trial court abused its discretion by not ruling on its objection that requested it strike the affidavit. See Shaw v. Maddox Metal Works, Inc., 73 S.W.3d 472, 478 (Tex.App.-Dallas 2002, no pet.).
We conclude Kroger's objections that Broadnax's affidavit is a sham affidavit, is not within his personal knowledge, is hearsay, and contradicts his deposition testimony have not been preserved for appellate review because Kroger did not obtain an express or implied ruling on these objections and they allege defects of form. See e.g., Choctaw, 127 S.W.3d at 241. Accordingly, we must review the record to determine whether Kroger's remaining objections complaining of a defect in the substance of Broadnax's affidavit prohibit us from considering it when reviewing the merits of his appeal.
2. Objections to Defects in the Substance of Broadnax's Affidavit
Kroger's remaining objections to Broadnax's affidavit which complain of a defect in the substance of the affidavit are: (1) Kroger's general objection that Broadnax's affidavit makes conclusory statements of fact and law without offering legal or factual support; and (2) Kroger's specific objection that paragraph two of his affidavit presents improper legal conclusions.
Kroger does not identify which statements in the affidavit are conclusory and improper legal conclusions, or describe the basis for its objections. It is unclear how the unidentified statements in the affidavit are conclusory or improper legal conclusions. Kroger's objections are not sufficiently specific. See Stewart, 156 S.W.3d at 207. Accordingly, we conclude that we may consider Broadnax's affidavit in our review of the merits of his appeal as to Kroger because Kroger has not shown that Broadnax's affidavit is substantially defective.
III. SUMMARY JUDGMENT STANDARD OF REVIEW
When the trial court does not specify the basis for its summary judgment, the appealing party must show on appeal that each independent ground alleged is insufficient to support the summary judgment granted. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); see also Adams v. First Nat. Bank of Bells/Savoy, 154 S.W.3d 859, 867 (Tex.App.-Dallas 2005, no pet.); Caldwell v. Curioni, 125 S.W.3d 784, 789 (Tex.App.-Dallas 2004, pet. denied). Both the no-evidence and traditional grounds for summary judgment are evaluated to determine whether the trial court was correct under any theory. See Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex.App.Corpus Christi 2003, no pet.); McKillip v. Employers Fire Ins. Co., 932 S.W.2d 268, 270 (Tex.App.Texarkana 1996, no pet.). An appellate court must affirm the summary judgment if any one of the movant's theories, which supports the summary judgment, has merit. Star-Telegram, 915 S.W.2d at 473; Adams, 154 S.W.3d at 867.
A. Traditional Summary Judgment
The standard for reviewing a traditional summary judgment under Texas Rule of Civil Procedure 166a(c) is well established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Caldwell, 125 S.W.3d at 789. A traditional summary judgment is reviewed de novo to determine whether a party's right to prevail is established as a matter of law. Caldwell, 125 S.W.3d at 789; Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). When reviewing the record in an appeal involving a traditional summary judgment, the reviewing court must: (1) place the burden of showing that there is no genuine issue of material fact on the party that moved for traditional summary judgment; (2) take all evidence favorable to the nonmovant as true; and (3) indulge every reasonable inference and resolve all doubts in favor of the nonmoving party. Eg., M.D. Anderson Hosp. Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24 (Tex. 2000) (per curiam) ; see also Caldwell, 125 S.W.3d at 789.
B. No-evidence Summary Judgment
The same legal sufficiency standard of review that is applied when reviewing a directed verdict is also applied when reviewing a no-evidence summary judgment. See Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). When reviewing a no-evidence summary judgment, an appellate court must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Gen Mills, 12 S.W.3d at 833. A reviewing court views all of the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered and disregards all contrary evidence and inferences. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); see also Gen. Mills, 12 S.W.3d at 833. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Gen. Mills, 12 S.W.3d at 833. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow, 953 S.W.2d at 711.
IV. DECEPTIVE TRADE PRACTICES ACT
In his second and third issues, Broadnax contends the trial court erred when it granted Securitas's traditional motion for summary judgment and Kroger's traditional and no-evidence motion summary judgment because he raised an issue of material fact regarding his consumer status under the DTPA. Securitas and Kroger respond that Broadnax failed to raise an issue of material fact precluding summary judgment on his DTPA claim. Securitas contends Broadnax's underlying claim fails to give rise to a DTPA claim because the security services were incidental to the grocery store's goods and services, and Broadnax was the subject, not the recipient, of the security services. Kroger contends that Broadnax's DTPA claim is not based on the goods and services he sought or purchased. We agree with Securitas and Kroger on these points.
A. Applicable Law
To prove a cause of action for a violation of the DTPA, a plaintiff must first establish his status as a "consumer." Eckman v. Centennial Sav. Bank, 784 S.W.2d 672, 674 (Tex. 1990). The DTPA defines a "consumer" as "an individual who seeks or acquires by purchase or lease, any goods or services." Tex. Bus. Com. Code Ann. § 17.45(4) (Vernon Supp. 2004). There is a two part test for determining whether a person is a "consumer" under the DTPA: (1) the plaintiff must have sought or acquired goods or services by purchase or lease; and (2) the goods or services sought or acquired must form the basis of the DTPA complaint. Ramirez v. H.E. Butt Grocery Co., 909 S.W.2d 62, 68 (Tex.App.-Waco 1995, writ denied). Regardless, the service must be directly related to the sale of the goods and not merely incidental. See, e.g., id.; Henry v. Cullum Co., 891 S.W.2d 789, 794 (Tex.App.-Amarillo 1995, writ denied). A plaintiff's status as a "consumer" is a question of law. See Allied Towing Serv. v. Mitchell, 833 S.W.2d 577, 581 (Tex.App.-Dallas 1992, no writ).
B. Application of the Law to the Facts
Broadnax alleged DTPA violations against both Kroger and Securitas. He claims he is a consumer under the DTPA because he sought to acquire goods from Kroger or, in the alternative, because he was a beneficiary of the services provided by Securitas to Kroger. Broadnax cites us to Allied to support his argument that he is a consumer under the DTPA. See Allied, 833 S.W.2d 577. He claims Allied is similar to the facts of his case because: (1) he was lawfully on Kroger's premises; (2) although he did not go to Kroger to buy security services, those security services form the basis of his complaint; and (3) Kroger directly benefitted from the security services.
In his third amended petition, Broadnax alleged Kroger and Securitas violated the DTPA claiming: (1) he is a consumer because he sought to acquire goods from Kroger or, in the alternative, because he was a beneficiary of the services provided by Securitas to Kroger; (2) Kroger and Securitas committed wrongful acts, including misrepresenting that an agreement conferred rights, remedies, or obligations that it did not, and engaging in an unconscionable action or course of action; (3) the agreement conferred on him the right to be free of the kind of harassment that befell him and Kroger's and Securitas's pursuit of such harassment was unconscionable; (4) Kroger and Securitas intentionally and knowingly engaged in these deceptive practices; and (5) Kroger and Securitas are liable for the wrongful acts of their agents and employees under the doctrine of respondeat superior. In his second and third issues on appeal, Broadnax argues only that he raised an issue of material fact regarding his status as a consumer under the DTPA. Accordingly, we do not address the other elements of his DTPA claims.
In Allied, the plaintiff was a consumer of services at a bar that provided free parking for patrons only. Id. at 580. To provide that service, the bar hired a towing company to patrol the parking lot and tow unauthorized vehicles. While plaintiff was at the bar, the towing service removed his car. The plaintiff ultimately paid the towing company for the tow, then brought suit for damages to his vehicle. Id. at 581. In finding that plaintiff was a "consumer" under the DTPA, the court looked to the connection between the plaintiff's use of the bar's free parking and his car being towed. Id. at 582. Also, the court noted that plaintiff paid for the unsolicited service. Id. at 581.
The facts in this case are distinguishable from the facts in Allied. Broadnax received no services from Securitas. Rather, he was briefly questioned by a security guard hired by Kroger for "general security services." Also, the security services Broadnax claims Kroger misrepresented were security services provided by Securitas to Kroger to prevent shoplifting and are incidental to Kroger's sale of goods to Broadnax. These facts are unlike the facts of Allied, which involved involuntary acquisition or involuntary bailment, where the plaintiff paid for the involuntary or incidental service. Broadnax made no payment to Securitas or Kroger for security services.
Accordingly, we conclude Broadnax did not raise an issue of material fact regarding his status as a "consumer," precluding summary judgment on his DTPA claims against Securitas and Kroger.
Broadnax's second and third issues are decided against him.
V. FALSE IMPRISONMENT
In his fifth and sixth issues, Broadnax claims the trial court erred when it granted Securitas's traditional motion for summary judgment and Kroger's traditional and no-evidence motion for summary judgment on his false imprisonment claims. Securitas and Kroger respond that the trial court properly granted summary judgment because they disproved the elements of detention and lack of consent. We agree with Securitas and Kroger.
A. Applicable Law
To establish the intentional tort of false imprisonment, a plaintiff must plead and prove that the defendant: (1) willfully detained him; (2) without his consent; and (3) without legal authority or justification. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Any intentional conduct that places a person in a position where he cannot exercise his will in going where he may lawfully go constitutes false imprisonment. Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 520-21 (Tex.App.-San Antonio 1996, pet. denied). Specifically, a detention may be accomplished by violence, threats, or any other means that restrains or wrongfully interferes with a person's freedom. Randall's Food Markets, 891 S.W.2d at 644-45. However, where a plaintiff voluntarily complies with a simple request to remain and establish his or her innocence, no cause of action for false imprisonment arises. See Martinez v. Goodyear Tire Rubber Co., 651 S.W.2d 18, 21 (Tex.App.-San Antonio 1983, no writ); J.C. Penny Co. v. Romero, 318 S.W.2d 129, 130 (Tex.Civ.App.-San Antonio 1958, writ ref'd n.r.e.).
A person can be detained by physical force or by threat. See Odem, 929 S.W.2d at 520-21 (holding that plaintiff was detained by force when employee grabbed her arm, stopped her and searched her purse). However, the physical force or threat must result in the detention, and not mere intimidation of the person. Safeway Stores v. Amburn, 388 S.W.2d 443, 447 (Tex.App.-Fort Worth 1965, no writ). Where it is alleged that a detention is effected by a threat, the plaintiff must demonstrate that the threat was such as would inspire in the threatened person a just fear of injury to his person, reputation, or property. Randall's Food Markets, 891 S.W.2d at 645. In considering whether a person was so threatened, the court should consider several factors, such as the relative size, age, experience, sex and physical demeanor of the participants. Black v. Kroger Co., 527 S.W.2d 794, 800 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ dism'd).
In Fojtik v. Charter Medical Corp., 985 S.W.2d 625 (Tex.App.-Corpus Christi 1999, pet. denied), the plaintiff, an alcohol-rehabilitation patient, filed a false imprisonment claim arising out of the hospital's alleged refusal to allow him to leave. Plaintiff was not physically restrained, but alleged that he was detained against his will by threats that, if he did not submit to his detention, he would be forcibly committed and "brought in in [sic] handcuffs." Fojtik, 985 S.W.2d at 630. In deciding whether the evidence raised a question of fact, the court of appeals sought to determine "to what extent must plaintiffs insist on their freedom and have it denied to them before they can recover for false imprisonment?" Id. at 631. After comparing the plaintiff and defendant, the court concluded that "[n]one of the factors that are considered in evaluating whether threats are sufficient to overcome the plaintiff's free will, i.e., the relative size, age, experience, sex, and physical demeanor of the participants, weigh in Fojtik's favor." Id. The court noted that plaintiff was not small in stature, nor was he physically restrained, and "[a]lthough he was threatened with the police, there were no other factors adding to the intimidating effect of those threats[.]" Id. Finally, the court concluded that "there is nothing in this case to suggest that Fojtik was a person whose weakness or susceptibility to intimidation might excuse his failure to insist on leaving when he felt he was falsely imprisoned." Id. Accordingly, there was no issue of material fact which survived summary judgment. Id.
B. Application of the Law to the Facts
Broadnax argues he raised an issue of material fact regarding whether the Securitas security guard willfully detained him without his consent. Securitas argues there was no detention because Broadnax was never physically restrained and he consented to the security guard's search of his bag. Kroger argues Broadnax cannot maintain his false imprisonment claim because he was not willfully detained as a matter of law.
First, we address Broadnax's claim that he raised an issue of material fact regarding the element of willful detention for his false imprisonment claims against Kroger and Securitas. Broadnax relies on his deposition testimony to support his contentions. He argues the following deposition testimony shows the security guard stood in front of him and blocked his path:
To the extent that Broadnax relies on his affidavit to show he raised an issue of material fact regarding willful detention, we do not consider his affidavit with regard to his argument against Securitas because Broadnax has not appealed the trial court's ruling sustaining Securitas's objections to paragraph two of his affidavit.
COUNSEL: How did this man tell you stop?
BROADNAX: At first approach it was not anything verbal. He just approached me and stood in front of me. There was no command to stop.
COUNSEL: What did you do in response to that?
BROADNAX: I stopped walking and I looked at him.
COUNSEL: Why did you stop walking?
BROADNAX: He invaded my progress from stepping forward by stepping out in front of me.
COUNSEL: When [the security guard] stood in front of you, did he block the entire path between the bank and the cash registers?
BROADNAX: No.
Also, Broadnax argues the following deposition testimony shows the security guard became loud and forcefully commanded Broadnax to allow him to search his bags:
COUNSEL: What did you do next?
BROADNAX: He stated that he wanted to search my bags.
COUNSEL: What are the words he used?
BROADNAX: That he wanted to search my bags.
COUNSEL: What did you do in response to that?
BROADNAX: I then asked him is this normal store policy for him to search my bags.
COUNSEL: Is that the way you said it?
BROADNAX: I said it in a normal tone.
COUNSEL: How did he respond to that?
BROADNAX: He said no. And then he began to command very loudly and very forcibly that he wanted to search my bags.
In addition, Broadnax argues the following deposition testimony shows the security guard's actions conveyed to him that he did not have a choice in the matter:
COUNSEL: What do you mean by you allowed him to search your bags?
BROADNAX: By his overtones I feel as though I didn't have a choice.
Further, Broadnax argues the following deposition testimony shows the security guard searched his bags:
COUNSEL: Did you hand him the bag?
BROADNAX: No. I stood there and I held the bag [sic] while he searched them. He also asked me for the receipt.
COUNSEL: Did you still have the bag in your hand?
BROADNAX: Yes.
COUNSEL: Did he take the bag from you to look in it?
BROADNAX: No.
COUNSEL: Now, after you say that he loudly told you he wanted to search the bag, did you simply-how-describe your actions next.
BROADNAX: As I was carrying the bags-there were two bags. I was carrying them in one of the hands [sic], which one I don't know. When he commanded that I show him the receipt and that he search the bags, I simply stood there-and this is the second command in which when I challenged him after the first-I just stood there, and I spread the bag [sic] open one at a time.
COUNSEL: Describe his search through your bags.
BROADNAX: As I recall he first pulled out the receipt as though he was checking the items listed on the receipt. Then he began to search the contents of the bag, looking as though he was matching the items listed on the receipt with the contents which were in the bags.
Broadnax does not assert that he was physically restrained, rather he claims that threats constituted his restraint. According to Broadnax, the confrontation lasted less than five minutes. Broadnax described the guard as being approximately 5'5" to 5'8" in height and 150 pounds, in contrast to Broadnax's 6'2" height and 250 pound weight. Much like Fojtik, "[n]one of the factors that are considered in evaluating whether threats are sufficient to overcome the plaintiff's free will, i.e., the relative size, age, experience, sex, and physical demeanor of the participants" weigh in Broadnax's favor.
Second, we address Broadnax's claims that he raised an issue of material fact regarding the element of consent for his false imprisonment claims against Kroger and Securitas. Broadnax focused his argument on the element of willful detention, claiming his affidavit proves he did not consent. We do not consider Broadnax's claim regarding consent with regard to Securitas because the only evidence he argues raised a fact issue on consent was his affidavit and the trial court's express ruling sustaining Securitas's objections to paragraph two of his affidavit was not brought forward on appeal. Nevertheless, we determined that Broadnax's affidavit could be considered when reviewing whether the trial court properly granted summary judgment in favor of Kroger.
Broadnax acknowledged in his deposition that the security guard did not tell him that he could not leave the store, rather he complains the security guard stood in front of him and did not block the entire aisle. Unlike Fojtik, Broadnax does not claim he was threatened with a call to the police. Additionally, the second paragraph of Broadnax's affidavit does not reflect that Broadnax was in a position where he could not exercise his free will to go when he may lawfully go. The affidavit addresses his consent by stating: (1) the security guard's actions "were done without my consent"; (2) the security guard "restricted my movement without my consent"; (3) the security guard "made it clear to me that I was not free to leave"; (4) the security guard "yelled" demanding that Broadnax permit his bags to be searched; and (5) this demand by the security was referred to by Broadnax as a "threat," which inspired in him a fear of injury. Finally, in the affidavit, Broadnax offers his opinion that the security guard had the "specific intent" to confine him. These allegations are insufficient to raise a fact issue. On this record, we cannot conclude that these facts "excuse his failure to insist on leaving when he felt he was falsely imprisoned." See Fojtik, 985 S.W.2d at 631; see also Amburn, 388 S.W.2d 446 (concluding that plaintiff was not falsely imprisoned despite confrontation that lasted "thirty to forty minutes").
We conclude the summary judgment evidence conclusively shows Broadnax was not willfully detained without consent. Rather, he voluntarily complied with a request to remain and establish his innocence. See Martinez, 651 S.W.2d at 21; J.C. Penny Co., 318 S.W.2d at 130. Accordingly, we conclude the trial court did not err when it granted summary judgment in favor of Securitas and Kroger on Broadnax's false imprisonment claims.
We decide Broadnax's fifth and sixth issues against him.
VI. TERMS OF THE CONTRACT
In his ninth issue, Broadnax contends the trial court erred when it granted Kroger's motion for traditional and no-evidence summary judgment on his breach of contract claim. He argues the phrase, "other security duties as agreed on," in the contract between Kroger and Securitas creates an issue of material fact that precludes summary judgment. Kroger responds that: (1) Broadnax did not raise a claim against it that he was a third-party beneficiary of its contract with Securitas; (2) a third-party beneficiary contract cannot be created by implication; and (3) a third-party who receives only an incidental benefit does not have a right to enforce the contract. We agree with Kroger.
A. Applicable Law
To prove an action for breach of contract, a plaintiff must establish that he was in privity with the defendant at the time of the breach. C C Partners v. Sun Exploration Prod., 783 S.W.2d 707, 721 (Tex.App.-Dallas 1989, writ denied), overruled on other grounds, Formosa Plastics Corp. USA v. Presidio, 960 S.W.2d 41 (Tex. 1998). A plaintiff can establish privity by proving that he was: (1) in direct privity with the defendant; or (2) a third-party beneficiary under the contract. Id.
It is axiomatic that a plaintiff must prove a contractual relationship in order to have standing to sue for breach. See Citizens Real Estate Mortgage Co. v. Sharp, 246 S.W.2d 698, 701 (Tex.Civ.App.-Texarkana 1952, no writ); Temple EasTex, Inc. v. Old Orchard Creek Partners, Ltd., 848 S.W.2d 724, 730 (Tex.App.-Dallas 1992, writ denied) ("[g]enerally, only parties to a contract have a right to sue for its breach"); IP Petroleum Co., Inc. v. Wevanco Energy, L.L.C., 116 S.W.3d 888, 898 (Tex.App.-Houston [1st Dist] 2003, pet. denied) ([g]enerally, a plaintiff "may not enforce a contract to which he is not a party.").
B. Application of the Law to the Facts
Broadnax did not assert a third-party beneficiary claim against Kroger. Rather, he contends the terms of the contract, particularly the phrase "other security duties as agreed on," create an issue of material fact. We conclude Broadnax lacks standing to enforce the terms of the contract against Kroger because Broadnax is not a party to the contract between Kroger and Securitas and he did not assert a third-party beneficiary claim against Kroger. See IP Petroleum Co., 116 S.W.3d at 898.; see also C C Partners, 783 S.W.2d at 721.
We decide Broadnax's ninth issue against him.
VII. THIRD-PARTY BENEFICIARY
In his eighth issue, Broadnax contends the trial court erred when it granted traditional summary judgment in favor of Securitas on his breach of contract claim. He argues he raised an issue of material fact regarding whether he was an intended third-party beneficiary of the contract between Securitas and Kroger. Securitas responds that Broadnax was not an intended third-party beneficiary of its contract with Kroger and he does not fall within any of the exceptions to the general rule regarding third-party beneficiaries. We agree with Securitas on this point.
A. Applicable Law
A third party may recover on a contract made between other parties only if: (1) the other parties intended to secure some benefit for that third party; and (2) the contracting parties entered into the contract directly for the third party's benefit. Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002); MCI Telecomm. Corp. v. Texas Util. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999). To show the other parties intended to secure some benefit for the third party, the third party must demonstrate he is either a donee or creditor beneficiary of the performance of the contract. See Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d at 651; Dallas Firefighters Ass'n v. Booth Research Group, Inc., 156 S.W.3d 188, 192-93 (Tex.App.-Dallas 2005, pet. denied). A third party is a donee beneficiary if the performance promised under the contract will, when rendered, come to the third party as a pure donation. See Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d at 651. A third party is a creditor beneficiary if the performance comes to the third party in satisfaction of a legal duty owed to that third party by the promisee. See Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d at 651. The legal duty owed to a creditor beneficiary by the promisee may be an indebtedness, contractual obligation, or other legally enforceable commitment. See Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d at 651. The fact that a third party might receive an incidental benefit from a contract does not give that third party a right to enforce the contract. See Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d at 651.
The intention to contract or confer a benefit to a third party must be clearly and fully spelled out in order to show the contracting parties entered into the contract directly for the third party's benefit. See Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d at 651. A presumption exists that the parties contracted for themselves, unless it "clearly appears" that they intended a third party to benefit from the contract. MCI, 995 S.W.2d at 651; Dallas Firefighters, 156 S.W.3d at 193. A court will not create a third-party beneficiary contract by implication. MCI, 995 S.W.2d at 651; Dallas Firefighters, 156 S.W.3d at 193. If there is any reasonable doubt as to the intent of the contracting parties to confer a direct benefit on the third party, then the third-party beneficiary claim must fail. Dallas Firefighters, 156 S.W.3d at 193; Whitten v. Vehicle Removal Corp., 56 S.W.3d 293, 312 (Tex.App.-Dallas 2001, pet. denied); see MJR Corp. v. BB Vending Co., 760 S.W.2d 4, 10 (Tex.App.-Dallas 1988, writ denied).
B. Application of the Law to the Facts
Broadnax argues the language of the contract between Kroger and Securitas does not establish their lack of intent to confer a benefit on him. He maintains Kroger owed him a legal duty to protect him, an invitee, from foreseeable, unreasonable risks of harm from criminal conduct. And to fulfill its duty, Kroger contracted with Securitas for security services. Also, Broadnax argues his situation is similar to a liability insurance contract, where a claimant against the insured becomes an intended third-party beneficiary.
First, we address Broadnax's claim that the language of the contract does not establish Kroger's and Securitas's lack of intent to confer a benefit on him. To do so, we scrutinize the contract between Kroger and Securitas. The contract for Securitas to provide security services to Kroger states, in part:
THIS AGREEMENT made the 3rd day of June 1994, [is] by and between [Securitas] . . . and [Kroger].
WHEREAS, [Securitas] . . . is offering to provide agreed upon security services to [Kroger] . . . to service the premises owned or leased by [Kroger], hereafter known as The Serviced Premises, at various locations in Texas to be specifically designated by [Kroger]. .
Also, article I of the contract under the heading "services provided" states, in part:
[Securitas] obligates itself and agrees as follows:
1. [Securitas] agrees to provide security services as requested by [Kroger] for the Serviced [sic] premises. The general security services provided herein shall include Uniformed [sic] security services on premises and other security duties as agreed on.
Neither Broadnax nor Kroger's patrons are identified in the contract as an intended third-party beneficiary. See Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d at 651 (intention to contract or confer benefit to third party must be clearly and fully spelled out).
Second, we address Broadnax's claim that we should treat his situation like a liability insurance contract, where a claimant against the insured, as a judgment creditor, becomes an intended third-party beneficiary. Broadnax cites to State Farm County Mut. Ins. Co. of Texas v. Ollis, 768 S.W.2d 722 (Tex. 1989), to support his argument. However, Ollis involved a third party's claim under an automobile liability insurance policy. See id. at 723. The Texas Supreme Court has held that a party injured by the insured is a third-party beneficiary of a liability insurance policy. Id. However, that holding merely recognized than an injured party is a third-party beneficiary of statutorily required coverage. Becker v. Allstate Ins. Co., 678 S.W.2d 561, 562 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.); see also Dairyland County Mut. Ins. Co. of Texas v. Childress, 650 S.W.2d 770, 775 (Tex. 1983). There is no such statutory mandate in this case. We conclude the trial court did not err when it granted summary judgment in favor of Securitas finding, as a matter of law, that Broadnax was not an intended third-party beneficiary of the contract between Kroger and Securitas.
We decide Broadnax's eighth issue against him.
VIII. VICARIOUS LIABILITY BASED ON AGENCY
In his fourth, seventh, and tenth issues, Broadnax argues the trial court erred when it granted no-evidence summary judgment in favor of Kroger on his DTPA and false imprisonment claims because Texas law does not require the establishment of an agency relationship to affix vicarious liability. Our conclusions on Broadnax's second, third, fifth, sixth, eighth, and ninth issues dispose of his claims against both Kroger and Securitas. Accordingly, we need not address Broadnax's fourth, seventh, and tenth issues. See Tex.R.App.P. 47.1.
IX. GENERAL TRIAL COURT ERROR IN GRANTING SUMMARY JUDGMENT
In his first issue on appeal, Broadnax argues generally that the trial court erred when it granted summary judgment in favor of Kroger and Securitas. Our conclusions on Broadnax's second, third, fifth, sixth, eighth, and ninth issues dispose of his claims against both Kroger and Securitas. Accordingly, we need not address Broadnax's first issue. See Tex.R.App.P. 47.1.
X. CONCLUSION
We conclude the trial court did not err when it granted summary judgment in favor of Securitas and Kroger because Broadnax did not raise an issue of material fact on his DTPA, false imprisonment, and breach of contract claims. We decide Broadnax's second, third, fifth, sixth, eighth, and ninth issues against him. Based on our resolution of those issues, we need not address Broadnax's first, fourth, seventh, and tenth issues. See Tex.R.App.P. 47.1.
The trial court's final summary judgment is affirmed.