Opinion
No. 04-17-00501-CV
07-05-2018
Ronald BURGI, Appellant v. Mary Jo HARTMAN, Appellee
MEMORANDUM OPINION
From the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 32855
Honorable Enrique Fernandez, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice AFFIRMED
Ronald Burgi appeals a summary judgment the trial court rendered in favor of Mary Jo Hartman. In the summary judgment, the trial court rendered a take-nothing judgment on Burgi's tort claims and awarded Hartman her attorney's fees based on her immunity from liability as a professional employee of a school district. We affirm the trial court's judgment.
BACKGROUND
This case arises out of a Child Protective Services report alleging Burgi physically abused and medically neglected his son, W.B. At approximately 2:00 a.m. one day, Del Rio Police Department officers performed a child welfare check at Burgi's home. The officers explained to Burgi they were investigating a report that W.B. recently had sustained gunshot wounds in a hunting accident and that Burgi failed to seek medical attention for over an hour. Burgi and his wife explained W.B. had been injured in a hunting accident two years prior.
Approximately two weeks before the child welfare check, W.B. discussed the hunting accident while attending his high school EMT class. Hartman was the class's teacher. According to W.B., the topic for his EMT class that day was puncture wounds, including gunshot and stab wounds. W.B. explained to his classmates and to Hartman that while he was hunting with his father, he was hit by four pieces of birdshot. He also stated Burgi asked him whether he wanted to go to the hospital, but W.B. insisted on finishing the day hunting. After hunting, Burgi and W.B. went to the hospital, where a doctor recommended not removing the birdshot because surgery would be more invasive than leaving the birdshot in place. Hartman further questioned W.B. about the incident. CPS thereafter received a report that W.B. had been shot by Burgi with a shotgun and was required to wait over an hour before receiving medical treatment.
Burgi sued Hartman, as well as her husband, Daniel Hartman, with whom Burgi worked at Laughlin Air Force Base. Burgi alleged Daniel Hartman had a vendetta against him because Burgi is a union representative, and he had represented an employee at work who accused Daniel of wrongdoing. Burgi's theories of liability were defamation and intentional infliction of emotional distress. In her answer, Hartman alleged affirmative defenses, including qualified and statutory immunity, based on her being a professional employee of a school district. See TEX. EDUC. CODE ANN. § 22.0511 (West 2012). She also requested her attorney's fees under section 22.0517 of the Texas Education Code. See id. § 22.0517.
Hartman filed a no-evidence and traditional motion for summary judgment. She argued there is no evidence she made the report to CPS or encouraged her husband to do so and that the evidence conclusively established she was acting in the scope of her duties as a school teacher when questioning W.B. about the hunting accident. After Burgi filed a response, the trial court signed an order granting Hartman's motion for summary judgment and awarded her attorney's fees. The trial court severed Burgi's claims against Hartman into a separate cause, making the summary judgment final and appealable. Burgi appeals, challenging both the no-evidence and traditional grounds for summary judgment.
STANDARD OF REVIEW
"We review a summary judgment de novo." Hernandez v. Amistad Ready Mix, Inc., 513 S.W.3d 773, 775 (Tex. App.—San Antonio 2017, no pet.). "To prevail on a traditional motion for summary judgment, the movant must show there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of law." Id. (internal quotation marks omitted). "When a party moves for a no-evidence summary judgment, the nonmovant must produce some evidence raising a genuine issue of material fact." Id. The nonmovant need not marshal its evidence, but "it must produce some evidence that raises a fact issue on the challenged element." Id. "We take as true all evidence favorable to the nonmovant, resolve all conflicts in the evidence in the non-movants favor, and indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id. (internal quotation marks omitted). We review no-evidence grounds first, and address traditional grounds only if necessary. Cerny v. Marathon Oil Corp., 480 S.W.3d 612, 617 (Tex. App.—San Antonio 2015, pet. denied).
NO-EVIDENCE GROUND
In her motion for summary judgment, Hartman argued there is "no evidence to support [Burgi's] claim that [she] made any report to Child Protective Services or any other enforcement agency nor encouraged anyone to make such report concerning him or his son." On appeal, Burgi argues he presented evidence of facts from which a jury could infer Hartman made the false report to CPS or made a false communication to her husband who made the CPS report.
A defamation claim requires the plaintiff to prove the defendant published a false and defamatory statement concerning the plaintiff with a requisite degree of fault and, in some cases, damages. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017). An intentional infliction of emotional distress claim requires the plaintiff to prove the defendant intentionally or recklessly acted in an extreme and outrageous manner causing the plaintiff severe emotional distress. Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017). In his original petition, Burgi based his defamation and intentional infliction of emotional distress claims on Hartman's alleged questioning of W.B. and either making the false CPS report or making a false statement to her husband who then made the false CPS report.
Burgi produced no direct evidence showing Hartman made the CPS report or made a false statement to her husband about what W.B. had said to her. Burgi relies on circumstantial evidence that someone made the CPS report and W.B. informed Hartman about the incident a couple weeks before the report was made. "Circumstantial evidence may be used to establish any material fact, but the circumstances relied on must have probative force sufficient to constitute the basis of a reasonable inference." Alarcon v. Alcolac Inc., 488 S.W.3d 813, 820 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). "An inference is not reasonable if it is premised on mere suspicion, as some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence." Id. (internal quotation marks omitted). "Nor is an inference reasonable if it is susceptible to multiple, equally probable inferences, requiring the fact finder to guess to reach a conclusion." Id. "An inference stacked only on other inferences" is also insufficient. Id. at 821.
It appears from the pleadings, summary judgment evidence, and arguments in the trial court and on appeal, Burgi has two theories about who made the false statement to CPS: (1) Hartman made the false statement to CPS; and (2) Hartman made a false communication to her husband about what W.B. had said to her. But other possibilities raised by Burgi's evidence are (3) Hartman truthfully communicated what W.B. had said to her husband, and her husband then made a false statement to CPS because he had a vendetta against Hartman; and (4) somebody else who knew about the hunting accident made a false statement to CPS. Based on the circumstantial evidence Burgi produced, a factfinder would be required to guess from at least four possibilities that Hartman made a false statement about Burgi to CPS or to her husband. We cannot say Burgi's circumstantial evidence, taken as true, makes either of the possibilities implicating Hartman more probable than the other two possibilities. Taking Burgi's circumstantial evidence as true, Burgi has only raised mere suspicions that Burgi made a false statement to CPS or to her husband. We therefore hold Burgi failed to produce evidence raising a fact issue as to whether Hartman made the CPS report or encouraged her husband to do so. See id. Thus, the trial court did not err by rendering a take-nothing judgment on Burgi's claims against Hartman.
While our standard of review requires that we not draw these inferences against Burgi, we must consider the multiple possible inferences permitted by the circumstantial evidence to determine whether the inference Burgi draws is reasonable. See Alarcon, 488 S.W.3d at 820.
TRADITIONAL GROUND
Burgi also argues the trial court erred by granting Hartman summary judgment on her affirmative defense and counterclaim based on statutory immunity. Hartman's affirmative defense and counterclaim are both based on statutory immunity for professional employees of a school district. See TEX. EDUC. CODE ANN. §§ 22.0511(a), 22.0517.
We address Hartman's affirmative defense first. Section 22.0511(a) of the Texas Education Code provides:
A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion on the part of
the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.Id. § 22.0511(a). Section 22.0511(a) provides an affirmative defense to school teachers who are sued for acts (1) incident to or within the scope of their position and (2) that involve the exercise of judgment or discretion on the employee's part. Id.; see Williams v. Chatman, 17 S.W.3d 694, 697-98 (Tex. App.—Amarillo 1999, pet. denied).
On appeal, the only element of the affirmative defense Burgi challenges is whether Hartman's acts were incident to or within the scope of her duties. Construing his pleading as a whole, Burgi's claims, especially his intentional infliction of emotional distress claim, include Hartman's alleged actions of questioning W.B. about the hunting accident during class and making the CPS report or causing the CPS report to be made. In support of her traditional motion for summary judgment, Hartman produced evidence showing her responsibilities and duties include the duty to report suspected child abuse or child neglect and to reasonably inquire into suspected abuse or neglect for reporting purposes. Burgi produced no evidence to controvert Hartman's evidence. Thus, the summary judgment evidence conclusively establishes the acts of questioning W.B. about the hunting accident and reporting any suspected abuse or neglect were incident to or within the scope of Hartman's duties.
We now turn to Hartman's counterclaim, which is based on her statutory immunity. Section 22.0517 of the Texas Education Code provides a professional employee of a school district may recover attorney's fees. Section 22.0517 provides:
In an action against a professional employee of a school district involving an act that is incidental to or within the scope of duties of the employee's position of employment and brought against the employee in the employee's individual capacity, the employee is entitled to recover attorney's fees and court costs from the plaintiff if the employee is found immune from liability under this subchapter.TEX. EDUC. CODE ANN. § 22.0517. We review the availability of attorney's fees under section 22.0517 de novo. Ward v. Theret, 346 S.W.3d 672, 675 (Tex. App.—El Paso 2009, no pet.).
Making several arguments, Burgi contends the trial court erred by awarding attorney's fees to Hartman. We conclude none of these arguments are meritorious. Burgi first argues Hartman did not establish her affirmative defense of qualified immunity or statutory immunity under section 261.106 of the Texas Family Code, but Hartman's counterclaim for attorney's fees was based on statutory immunity under sections 22.0511(a), not on qualified immunity or the Family Code.
Burgi also contends Hartman failed to conclusively establish her acts were incident to or within the scope of her duties because she produced evidence that she did not make the CPS report. But Hartman is entitled to recover her attorney's fees if she prevails on her affirmative defense and, for purposes of an affirmative defense, we must assume the facts alleged in support of a plaintiff's cause of action as true. See LaGloria Oil & Gas Co. v. Carboline Co., 84 S.W.3d 228, 232 n. 3 (Tex. App.—Tyler 2001, pet. denied) ("By definition, an affirmative defense . . . assumes that the allegations in the plaintiff's petition are true."); Metrocon Const. Co., Inc. v. Gregory Const. Co., 663 S.W.2d 460, 4634 (Tex. App.—Dallas 1983, writ ref'd n.r.e.) (explaining an affirmative defense assumes the truth of the plaintiff's allegations, but avoids liability based on other facts the defendant must prove). It would defeat the purpose of section 22.0517 to require Hartman to incur attorney's fees to defend against a suit involving alleged acts covered by section 22.0517, but then not award attorney's fees to Hartman under section 22.0517 because Burgi could not prove his allegations.
Burgi further argues his claims against Hartman are based solely on Hartman passing along information to her husband. But in his original petition, Burgi expressly pled Hartman questioned W.B. and made the CPS report. He alternatively pled Hartman's husband made the CPS report. We therefore disagree with Burgi's characterization of his pleadings for purposes of this appeal.
Finally, Burgi contends the trial court should have granted his request for more time to conduct additional discovery. However, Burgi has not cited any authority or explained why the trial court erred by denying his request. See TEX. R. APP. P. 38.1(i). Burgi also did not file a verified motion for continuance or affidavit explaining the need for further discovery. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing TEX. R. CIV. P. 166a(g)).
Concluding none of Burgi's arguments have merit, we cannot say the trial court erred by awarding attorney's fees to Hartman under section 22.0517. In light of our conclusion that Hartman conclusively established her statutory immunity, the plain language of section 22.0517 compels the conclusion that Hartman is entitled to recover attorney's fees and court costs from the plaintiff.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice