Opinion
No. 05-04-01449-CV
Opinion Filed July 1, 2005.
On Appeal from the 162nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-02417-I.
Affirm.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
MEMORANDUM OPINION
Appellant Loretta Anderson appeals two summary judgments granted in favor of appellees the City of Dallas, Texas, d/b/a Communications Information Services Department (City), Rodney Beck, Individually, Jacqueline Lee, Individually, Madoka Armstrong, Officially and Individually, Dr. Joel Holiner, Officially and Individually, Dr. Marvin Clifford (Cliff) Cornette, Officially and Individually, and the Holiner Psychiatric Group, Inc. (HPG). For the reasons set out below, we affirm the trial court's judgments. Appellant is a former employee of the City of Dallas, and her claims in this matter arise from circumstances surrounding her termination by the City. Appellees generally fall into two groups: the City and certain of its employees (Rodney Beck and Jacqueline Lee) (the City Defendants), and the Holiner Psychiatric Group and certain of its owners/employees (Joel Holiner, Madoka Armstrong, and Clifford Cornette) (the Holiner Defendants). In five points of error, appellant complains generally that the trial court erred in granting separate hybrid traditional/no evidence summary judgment motions in favor of the City Defendants on all claims and in favor of the Holiner Defendants on all claims.
Appellant was employed by the City for 29 years, spending the last 16 years in the City's Communications Information Services Department. At the time of her termination, she was a department supervisor. In 1998, Michael Puente was hired as appellant's immediate supervisor. In 2000, Bruce Meeks was hired as Puente's supervisor. It appears that appellant and Puente began having problems as early as 1999, with Puente reprimanding appellant, at one point suspending appellant for 80 hours, and appellant filing various grievances against Puente and the City. Following appellant's suspension in March 2000, the City placed her on administrative leave. Shortly thereafter, Puente requested a fitness for duty evaluation of appellant through the City's Employee Assistance Program. Appellant reported to psychologist Dr. Berke on April 6, 2000, but she altered the language on a medical information release Dr. Berke had requested to indicate that her authorization was not voluntary but was by order of the City. Dr. Berke refused to release her records based on that alteration. Appellant was then ordered in May 2000 to report to appellee the Holiner Psychiatric Group and to sign, without alteration, any release of medical information requested. Appellant met with appellees Dr. Joel Holiner and Madoka Armstrong. Again, appellant altered the medical information release, adding after her signature "order attached" and lining through the word "patient" in two places on the form. Based on the alterations, Dr. Holiner refused to release appellant's records; however, he did provide the City with a letter stating that he did not believe appellant suffered from any "axis I psychiatric diagnosis that would make her unfit for duty." In June 2000, appellant was issued a pre-termination letter signed by Meeks indicating that the City was taking disciplinary action, up to and including termination, due to her alteration of the Holiner Group's release forms against a direct order by the City. After a hearing in June 2000, appellant was terminated on those grounds. Appellant then filed suit. In July 2004, the trial court granted the Holiner Defendants' hybrid traditional/no-evidence summary judgment motion on all claims. In September 2004, the trial court granted the City Defendants' hybrid traditional/no-evidence summary judgment motion on all claims. Appellant appeals those judgments.
The standards for reviewing summary judgment are well established. See Tex. R. Civ. P. 166a(c), 166a(i); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Under a traditional motion for summary judgment, the movant must establish that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). After the movant produces evidence sufficient to show it is entitled to summary judgment, the nonmovant must then present evidence raising a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). When a defendant moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a plaintiff's claim, the burden is on the plaintiff to present evidence to raise a genuine issue of material fact on each of the challenged elements on which the plaintiff has the burden of proof at trial. Tex.R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.) "When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In five points of error, appellant complains that the trial court erred in granting summary judgment on her claims for (1) intentional infliction of emotional distress, (2) common law negligence, (3) vicarious liability-ostensible agency, (4) civil conspiracy, and (5) invasion of privacy. The trial court's order granting summary judgment does not specify the grounds relied on for its ruling. It is at times difficult to assess from appellant's first amended petition, responses to summary judgment motions, and this appeal which of her causes of action are directed at which defendants. We have interpreted her petition and appeal broadly in making those determinations.
Appellant's first amended petition also included claims for false imprisonment, assault, and hostile work environment. Appellant responded to neither the City Defendants' hybrid traditional/no-evidence summary judgment motion nor the Holiner Defendants' hybrid traditional/no-evidence summary judgment motion on those claims. We conclude that summary judgment on those claims was proper. See Tex. R. Civ. P. 166a(i). Even had appellant responded to both motions on those issues, she has not addressed those issues in her appellate brief. We conclude that any complaint with respect to those causes of action is not properly before us. See Tex.R.App.P. 38.1(e).
City Defendants
We first address appellant's claims against the City Defendants. As we read her brief, appellant complains that the trial court erred in granting summary judgment to the City, Beck, and Lee on her claims of invasion of privacy and civil conspiracy. The City responds that it is immune from liability for intentional torts under the doctrine of sovereign immunity. Beck and Lee respond that they are immune from liability under the doctrine of official immunity. Additionally, Lee argues that appellant has alleged no facts against Lee in her first amended petition or, alternatively, that all claims against Lee asserted in appellants original petition are barred by the two-year statute of limitations. The City, Beck, and Lee raised these defenses in their hybrid summary judgment motion, and they could have been the bases for the trial court granting the motion for all of the City Defendants. Appellant was entitled to present argument on all grounds upon which she contends summary judgment was improper. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). However, she has not done so. Her failure to take advantage of the opportunity to present argument on sovereign and official immunity grounds presented by the City, and Beck and Lee, respectively, results in waiver. See Morriss v. Enron Oil Gas Co., 948 S.W.2d 858, 871 (Tex.App.-San Antonio 1997, no writ) . Because summary judgment may have been granted, properly or improperly, on a ground not challenged by appellant, we must affirm the summary judgment. See Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex.App.-Dallas 1992, writ denied) We resolve all of appellant's issues with respect to the City Defendants against appellant. We need not reach Lee's other arguments.
Appellant's first amended petition arguably makes claims against the City Defendants for intentional infliction of emotional distress and common law negligence; however, appellant fails to brief those issues with respect to the City Defendants. We conclude those arguments are waived. See Tex.R.App.P. 38.1(e).
Holiner Defendants
We now turn to appellant's claims against the Holiner Defendants. We first address appellant's intentional infliction of emotional distress claim against Armstrong. Appellant appears to complain that Armstrong's act of providing the City with a letter that appellant contends contained false statements about appellant rises to the level of outrageous conduct. The alleged false statements include that "[appellant] would not change the `added' designation of `order attached' from the release to Melvin Berke, Ph.D.," that "[appellant] verbalized awareness that Dr. Berke would not release the psychological testing requested by this office for a complete fitness for duty evaluation with this designation," and that "[appellant] verbalized that she knew that we would not be able to include this finding in our evaluation with the information for Dr. Berke's office." Armstrong contends appellant has not adequately briefed the issue and has failed to establish that Armstrong's conduct was extreme and outrageous. We agree on both counts.
While appellant's first amended petition appears to direct this claim at all defendants, her brief clearly limits itself to the acts of Armstrong. We conclude that any error with respect to the other appellees pertaining to this cause of action is waived. See Tex.R.App.P. 38.1(e).
Intentional infliction of emotional distress occurs when: (1) a person acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the person's actions caused another person's emotional distress; and (4) the emotional distress suffered by the other person was severe. Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001). Whether a defendant's conduct is "extreme and outrageous" is a question of law. Id. To be extreme and outrageous, conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. Appellant claims that Armstrong's conduct rises to that level. She also claims to have been harmed as a result of that conduct; however, she only references "emotional suffering" generally and points to no specific evidence of that suffering. We conclude appellant has not adequately briefed this issue with respect to damages and has waived error. See Tex.R.App.P. 38.1(h). Even if appellant had adequately briefed the issue, we conclude as a matter of law that Armstrong's conduct does not rise to the level of extreme and outrageous in this case. We resolve appellant's first issue against her with respect to the Holiner Defendants.
We next address appellant's claim for common law negligence. Appellant alleges all of the Holiner Defendants harmed appellant in various ways by their negligent acts. Appellant claims that Armstrong breached her duty to appellant not to report any false information to the City regarding appellant's conduct while in the evaluation. She claims that Dr. Holiner breached his duty to appellant to properly supervise Armstrong. And appellant claims that HPG, Holiner, Cornette, and Armstrong all breached their duty to get a voluntary consent from appellant to perform the requested examination of appellant. The Holiner Defendants argue that they owed no duty to appellant and appellant has provided no evidence to raise a genuine issue of material fact to the contrary.
Common law negligence "consists of three elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach." S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 223 (Tex. 2002). Duty is the "threshold inquiry in a negligence case." Id. Whether a duty exists is a question of law for the court to decide. Id. A doctor's examination of a person solely for the benefit of a third party, such as to determine the person's fitness for employment or extent of disability for a worker's compensation claim, does not create a physician-patient relationship. See Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705, 710 (Tex.Civ.App.-Dallas 1963, writ ref'd n.r.e.). In those situations, no physician-patient relationship existed because the examination was not performed for the benefit of the examinee or for the purpose of providing treatment for the examinee. See Ramirez v. Carreras, 10 S.W.3d 757, 762 (Tex.App.-Corpus Christi 2000, pet. denied).
Appellant's negligence claims arising from all of the Holiner Defendants' alleged failure to get her voluntary consent before examining appellant fails on two grounds. First, appellant has not established that the Holiner Defendants had a duty to her under these circumstances. The burden is on a plaintiff to prove the existence and violation of a legal duty owed by the defendant in order to establish tort liability. Toles v. Toles, 113 S.W.3d 899, 909 (Tex.App.-Dallas 2003, no pet.). Lack of duty is not an affirmative defense because duty is an essential element of a plaintiff's case. Id. Appellant's examination was undertaken for the benefit of the City, and no doctor-patient relationship had been established. Appellant claims that Texas law required the Holiner Defendants to secure a voluntary consent from appellant before examining her; however, appellant provides no citation to applicable statute or case law to support her position. Additionally, appellant has provided no argument or legal authority to show why she was owed a duty of care by the Holiner Defendants outside of the doctor-patient relationship. Finally, appellant has presented no evidence that the alleged failure to get her consent for the psychological examination proximately caused harm to appellant. Accordingly, we conclude that appellant has waived this claim. See Tex.R.App.P. 38.1(h).
Under appellant's issue five, she references section 576.005 of the Texas Health and Safety Code, which establishes that records of a mental health facility are confidential, but nowhere does she point to any statute or case addressing consent to be examined.
Similarly, appellant has provided no argument or legal authority to show why she was owed a duty of care by Armstrong with respect to the letter provided by Armstrong to the City. We conclude that appellant has waived this claim also. See Tex.R.App.P. 38.1(h). Because her negligence claim against Dr. Holiner is premised on his alleged failure to properly supervise Armstrong and appellant has not established that Armstrong was negligent in this case, her claim against Dr. Holiner also fails. We resolve appellant's second issue against her.
We next address appellant's claim for invasion of privacy. Appellant claims her privacy has been intruded upon because she has been forced to undergo a mental health examination by the City. Her claim against the Holiner Defendants appears to be founded on their performance of the examination on behalf of the City. Appellant contends that the Holiner Group should not have performed the mental health evaluation of appellant because they had no reason to expect appellant was "a candidate for a fitness for duty examination." The Holiner Defendants respond that appellant voluntarily participated in the examination.
Appellant also included a claim for false light invasion of privacy in her amended petition; however, she appears to have dropped that claim on appeal. The Holiner Defendants correctly argue that Texas does not recognize a false light invasion of privacy cause of action. Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex. 1994).
The elements of invasion of privacy by intrusion are: (1) intentionally intruding (2) upon the solitude of another or his private affairs (3) which is highly offensive to a reasonable person. Gill v. Snow, 644 S.W.2d 222, 223-24 (Tex.App.-Fort Worth 1982, no writ), overruled on other grounds by Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994). Additionally, courts have required that the intrusion be unreasonable, unjustified, or unwarranted. Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex. 1973).
Appellant argues that the Holiner Defendants should have known she was not a candidate for a mental health examination because she exhibited none of a laundry list of aberrant behaviors she provides in her brief. She appears to contend these behaviors are symptomatic of mental health problems. Appellant does not provide any authority to support that her list is exhaustive or that the Holiner Defendants had no other justification to perform the examination on behalf of the City. She also relies on Dr. Holiner's evaluation of appellant based on the complained of exam as evidence that the exam was not needed. We find this argument to be somewhat circular as the point of the test is to make such a determination. Following appellant's logic, the only valid tests would be those that determined that the examinee did suffer from mental health issues. We do not agree with the Holiner Defendants' claim that appellant voluntarily submitted to the mental health evaluation. In our view, they ignored clear indications of a lack of voluntariness on the part of appellant to participate in the mental health examination. However, appellant has not adequately briefed this issue either, citing no statute or case law to support that the Holiner Defendants had a duty to appellant not to perform the mental health evaluation on behalf of the City. See Tex.R.App.P. 38.1(h). We resolve appellant's fifth point against her.
We next reach appellant's claims for vicarious liability-ostensible agency. As the record is clear that Armstrong is an employee of HPG, we need not address ostensible agency. Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an employee acting within the scope of his or her employment, although the employer has not personally committed a wrong. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995). An employer may also be liable for defamatory comments made by an employee in the scope of his or her employment. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). An action is sustainable against a corporation for defamation by its agent, if such defamation is referable to the duty owing by the agent to the corporation, and was made while in the discharge of that duty. Id.
Appellant claims that HPG is vicariously liable in negligence and defamation. Appellant's vicarious liability claim is based entirely on Armstrong's actions, as HPG's employee, in releasing a letter to the City that appellant claims disparaged her. She raises this as the basis for her vicarious liability claim for the first time in her response to the Holiner Defendants' summary judgment motion. It is a long accepted tenet of Texas civil procedure that pleadings shall be done by petition and answer. See Tex. R. Civ. P. 45(a). Appellant's first amended petition simply claims that HPG is vicariously liable for the actions of Armstrong and Dr. Berke, a doctor who examined appellant but was not named in her petition. She does not link this claim to any of her claims against Armstrong. We conclude that appellant has not pled a cause of action upon which vicarious liability can be assigned to HPG. Further, nowhere in appellant's summary judgment response or appellate brief does appellant set out the elements of a defamation claim or provide any supporting citation to relevant case law or statutes. Appellant's vicarious liability claim against HPG hinges on a finding in her favor on a defamation claim against Armstrong. We conclude that, even if appellant's petition could be read as including a defamation claim against Armstrong, she has waived that claim. See Tex.R.App.P. 38.1(h). Accordingly, her vicarious liability claim against HPG arising from a defamation claim against Armstrong fails. Reading her brief broadly, we also consider that she is claiming the HPG group is vicariously liable for Armstrong's negligence. Having found that her negligence claim fails, we also conclude her claim of vicarious liability on that claim also fails.
We turn now to the propriety of granting summary judgment on appellant's civil conspiracy claim. In Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996), the Texas Supreme Court held that civil conspiracy is a derivative tort and a defendant's liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable. Because we have concluded that the trial court properly granted summary judgment in all appellees' favor on all other claims, we conclude that summary judgment on the civil conspiracy claim was also proper. We overrule appellant's fourth point of error.
We affirm the trial court's judgment.