ORAL ARGUMENT REQUESTED 

No. 12-15-00014-CV 

_______________________________________________

COURT OF APPEALS

for the 

TWELFTH DISTRICT OF TEXAS

Tyler, Texas 

_______________________________________________ 

East Texas Medical Center d/b/a East Texas Medical Center

Emergency Medical Services

Appellant,

v. 

Jody Delaune, Individually and as Personal Representative of the Estate of 

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

Appellees.

_______________________________________________ 

Appeal from Cause No. 13-0984-A 

7TH District Court, Smith County, Texas 

Honorable Kerry L. Russell, Presiding Judge

_______________________________________________ 

APPELLANT’S REPLY BRIEF ON THE MERITS

_______________________________________________ 

Russell G. Thornton 

THIEBAUD REMINGTON THORNTON BAILEY LLP

Two Energy Square 

4849 Greenville Avenue, Suite 1150 

Dallas, Texas 75206 

(214) 954-2200 – Telephone 

(214) 754-0999 – Telecopier

ATTORNEYS FOR DEFENDANT – APPELLANT

East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services

July 23, 2015 

ACCEPTED

12-15-00014-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

7/23/2015 11:25:40 AM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 7/23/2015 11:25:40 AM CATHY S. LUSK Clerk
i

LIST OF PARTIES AND COUNSEL

In order that members of the Court may determine disqualification or 

recusal, Appellant certifies that the following is a complete list of the names and 

addresses of parties to this appeal and their counsel:

APPELLEES: Jody Delaune, Individually and as 

Personal Representative of the Estate 

of Crystal Delaune, Deceased; and as 

Next Friend of D.D., D.D. and DA.D., 

Minors 

COUNSEL FOR APPELLEES: Mr. Ryan Krebs, M.D., J.D.

THE LAW OFFICE OF RYAN KREBS

805 W. 10th Street, Suite 300

Austin, Texas 78701

APPELLANT: East Texas Medical Center d/b/a East 

Texas Medical Center Emergency 

Medical Services 

COUNSEL FOR APPELLANT: Russell G. Thornton (Appeal)

Stan Thiebaud (Trial)

R. Gregg Byrd (Trial)

THIEBAUD REMINGTON THORNTON 

 BAILEY LLP

4849 Greenville Avenue, Suite 1150

Dallas, Texas 75206
ii

TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................... iii

REPLY ARGUMENT ..............................................................................................3

I. Necessary Underlying “Actionable Tort” is Absent ............................3

II. Appellees Fail to Rebut ETMC’s Supportive Authority That 

There is Legally Insufficient Evidence of the Applicable 

Standard of Care and Breach by ETMC ............................................10

III. ETMC’s Case Law Shows Appellees’ Standard of Care and 

Breach Evidence is Legally Insufficient ............................................15

CONCLUSION .......................................................................................................19

PRAYER .................................................................................................................21

CERTIFICATE OF COMPLIANCE ......................................................................22

CERTIFICATE OF SERVICE ...............................................................................23

APPENDIX ........................................................................................................ TAB

A. Mackey v. U.P. Enterprises, Inc.,

935 S.W.2d 446 (Tex. App.—Tyler 1996, no pet.)

B. Patino v. Complete Tire, Inc.,

158 S.W.3d 655 (Tex. App.—Dallas 2005, pet. denied)

C. Allsup’s Convenience Stores, Inc. v. Warren,

934 S.W.2d 433 (Tex. App.—Amarillo 1996, writ denied)

D. Lermon v. Minyard Food Stores, Inc.,

2014 Tex. App. LEXIS 12498 (Tex. App.—Dallas)(Nov. 19, 2014)

(pet. denied)(mem. op.)
iii

INDEX OF AUTHORITIES

UNITED STATES DISTRICT COURT CASES:

Zidell v. Morris, 

2013 U.S. Dist. LEXIS 264432 (N.D. Tex. 2013) ..............................................4, 6, 7

TEXAS SUPREME COURT CASES:

Cash America International, Inc. v. Bennett, 

35 S.W.3d 12 (Tex. 2000) .....................................................................................7, 8

Jackson v. Axelrad, 

221 S.W.3d 650 (Tex. 2007) .....................................................................................8

TEXAS COURTS OF APPEALS CASES:

Allsup’s Convenience Stores, Inc. v. Warren,

934 S.W.2d 433 (Tex. App.—Amarillo 1996, writ denied) ...................................15

Brown v. Swett & Crawford of Texas, Inc., 

178 S.W.3d 373 (Tex. App.—Houston [1st Dist.] 2005, no pet.) .............................9

Ching v. Methodist Children’s Hospital, 

134 S.W.3d 235 (Tex. App.—Amarillo 2003, pet. denied) ..............................11, 14

Denton Regional Medical Center v. Lacroix, 

947 S.W.2d 941 (Tex. App.—Fort Worth 1997, pet. dism’d by agmt.) ...................3

Dill v. Fowler, 

255 S.W.3d 681 (Tex. App.—Eastland 2008, no pet.) .............................................8

Durham Transportation Inc. v. Valero, 

897 S.W.2d 404 (Tex. App.—Corpus Christi 1995, writ denied) ..............11, 12, 14

Gonzales v. Willis, 

995 S.W.2d 729 (Tex. App.—San Antonio 1999), overruled in part, on o.g., 

Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004) ..................4, 9
iv

Greater Houston Transportation v. Zrubeck, 

850 S.W.2d 579 (Tex. App.—Corpus Christi 1993, writ denied) ..............11, 12, 14

Latimer v. Memorial Hermann Hosp. Sys., 

2011 Tex. App. LEXIS 423 (Tex. App.—Houston [14th Dist.])(Jan. 20, 2011)(no 

pet.)(mem. op.) ..........................................................................................................4

Lermon v. Minyard Food Stores, Inc., 

2014 Tex. App. LEXIS 12498 (Tex. App.—Dallas)(Nov. 19, 2014)(pet.

denied)(mem. op.) .......................................................................................16, 17, 18

Mackey v. U.P. Enterprises, Inc., 

935 S.W.3d 446 (Tex. App.—Tyler 1996, no pet.) ................................................15

Nowzaradan v. Ryans, 

347 S.W.3d 734 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ...........................8

Patino v. Complete Tire, Inc., 

158 S.W.3d 655 (Tex. App.—Dallas 2005, pet. denied) ........................................15

OTHER REFERENCES: 

Edgar Sales, Texas Torts & Remedies, §4.01[4][d] .................................................4
1

No. 12-15-00014-CV

___________________________________________________

COURT OF APPEALS

for the 

TWELFTH DISTRICT OF TEXAS

Tyler, Texas

___________________________________________________

East Texas Medical Center d/b/a East Texas Medical Center 

Emergency Medical Services

Appellant,

v.

Jody Delaune, Individually and as Personal Representative of the Estate of 

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

Appellees.

___________________________________________________

Appeal from Cause No. 13-0984-A

7th Judicial District Court, Smith County, Texas

Honorable Kerry L. Russell, Presiding Judge

___________________________________________________

TO THE TWELFTH COURT OF APPEALS:

Appellant East Texas Medical Center d/b/a East Texas Medical Center 

Emergency Medical Services, Defendant in Cause No. 13-0984-A in the 

7th Judicial District Court of Smith County, Texas, Honorable Kerry L. Russell

presiding, respectfully submits its Reply Brief on the Merits. Appellees are

Jody Delaune, Individually and as Personal Representative of the Estate of 
2

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

in the district court. 
3

REPLY ARGUMENT

I. NECESSARY UNDERLYING “ACTIONABLE TORT” IS ABSENT:

Appellees do not dispute – and cannot dispute – that their sole claim against 

ETMC is for an alleged failure to train Ms. Moore and Ms. Spurgers on the use of 

restraint in patients like Ms. Delaune (See, Appellant’s Brief on the Merits, 

pages 6-7). 

A. Lacroix Is Not Relevant or Applicable:

Appellees argue that Denton Regional Medical Center v. Lacroix, 

947 S.W.2d 941 (Tex. App.—Fort Worth 1997, pet. dism’d by agmt.) is applicable 

and supports their contention the existence of an actionable tort by Ms. Moore or 

Ms. Spurgers is not an essential element of their failure to train claim (Brief of 

Appellees, pages 7-8). Lacroix is not relevant or applicable to this appeal because 

it does not involve the failure to train, or some other dependent tort. Id. at 949-50.

B. Existence Of An Actionable Tort Is An Essential Element Of 

Appellees’ Failure To Train Claim:

Appellees’ contention that dependent torts only require that a “recognized 

injury” was suffered as a direct result of an employer’s conduct and that an 

“actionable tort” by the employee(s) is not required is flat wrong (See, Brief of 

Appellees, page 10). The applicable case law clearly and unequivocally 

establishes that in order to prevail on a dependent tort like Appellees’ failure to 

train claim against ETMC, claimant must show the employee(s) in question 
4

committed an “actionable tort.” See, Zidell v. Morris, 2013 U.S. Dist. LEXIS

264432 *23-24 (N.D. Tex. 2013)(to prevail on claim of negligent training, plaintiff

must “establish...that the employee committed an actionable tort...”)(applying 

Texas law)(emphasis added); Latimer v. Memorial Hermann Hosp. Sys., 2011 Tex. 

App. LEXIS 423 *10 (Tex. App.—Houston [14th Dist.])(Jan. 20, 2011)(no 

pet.)(mem. op.)(No negligent supervision claim against Hermann Hospital because 

“there is no separate actionable tort [by the hospital’s employee] to support the 

negligent supervision claim”)(emphasis added); Gonzales v. Willis, 995 S.W.2d 

729, 740 (Tex. App.—San Antonio 1999, overruled in part, on o.g., HoffmanLaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447-48 (Tex. 2004)(“Because 

[plaintiff] failed to establish [the employee] committed an actionable tort, her 

negligence claims [negligent hiring, retention, training and supervision] are 

precluded as a matter of law.”)(emphasis added) 

In fact, authority cited by Appellees in their brief recognizes that if 

Ms. Moore or Ms. Spurgers did not commit an actionable tort on the occasion in 

question, Appellees have not been injured in the eyes of the law and there is no 

proximate cause because ETMC’s alleged failure to train did not cause Appellees a 

legally compensable injury (See, Brief of Appellees, page 10 (quoting Edgar Sales, 

Texas Torts & Remedies, §4.01[4][d], at pages 4-10)). Accordingly, the 

commission of an actionable tort by Ms. Moore or Ms. Spurgers is an essential 
5

element of Appellees’ failure to train claim against ETMC. If the essential 

actionable tort element is absent, there is no proximate cause because ETMC’s

alleged failure to train Ms. Moore or Ms. Spurgers did not cause Appellees to 

suffer a legally compensable injury. Put another way, if Ms. Moore or 

Ms. Spurgers did not cause or inflict a legally compensable injury on Appellees, 

ETMC’s alleged failure to train Ms. Moore or Ms. Spurgers cannot be a proximate 

cause of any injury to Appellees.

Appellees sued Ms. Moore and Ms. Spurgers for negligence in caring for 

Ms. Delaune (CR 6; 1 CR 10). On July 29, 2014, the trial court dismissed with 

prejudice Appellees’ negligence claims against Ms. Spurgers and Ms. Moore 

(CR 365, 2 CR 119). Thus, on July 29, 2014, the trial court determined as a matter 

of law that Ms. Spurgers and Ms. Moore did not commit an actionable tort in 

connection with their care and treatment of Ms. Delaune (CR 365-66; 2 CR 119-

20). As such, Appellees could not (and cannot) establish that essential element of 

their failure to train claim against ETMC.

Appellees argue that because their negligence claim against Ms. Spurgers’ 

and Ms. Moore is judged under Texas law by a willful and wanton standard and

Ms. Moore and Ms. Spurgers were not “absolved of ordinary negligence,” this is 

somehow relevant to or excuses Appellees’ inability to (and failure to) establish 

Ms. Moore and Ms. Spurgers committed an actionable tort (See, Brief of 
6

Appellees, page 13). Appellees’ argument is flawed because a dependent tort like 

negligent hiring is not dependent on the “ordinary negligence” of an employee; it is 

dependent on the commission of an “actionable tort” by an employee. The bottom 

line is that if Ms. Moore or Ms. Spurgers did not commit an actionable tort, for 

whatever reason, Appellees cannot recover from ETMC for negligent training. 

Zidell v. Morris, 2013 U.S. Dist. LEXIS 26432 (N.D. Tex. 2013), illustrates this 

point. 

In Zidell, plaintiff alleged that two Bureau of Prison employees, Morris and 

Brown, assaulted him and that the United States was liable to him for the negligent 

hiring, training, retention and supervision of Morris and Brown. Id. at *1-2, *21, 

*23-24. The court held that the actions of Morris and Brown fell within an 

immunity privilege provided under the TEXAS PENAL CODE and, therefore, Morris 

and Brown did not commit an actionable tort against plaintiff. Id. at *22-24. 

The court then discussed that for plaintiff to prevail on his claim of negligent 

hiring, training, retention and supervision, “the employee must have committed an 

actionable tort against the plaintiff.” Id. at *24 (emphasis added). The court then 

stated, “[h]ere, the court has determined that Morris and Brown committed no tort 

against plaintiff. Accordingly, plaintiff’s claim of negligent hiring, training, 

retention, and supervision fails as well.” Id. 
7

Zidell directly addresses and rebuts Appellees’ argument that because Texas 

law places a higher burden of proof on Appellees’ negligence claim against 

Ms. Moore and Ms. Spurgers (or effectively makes them immune from suit as 

argued by Appellees), the trial court’s dismissal of their negligence claim against 

Ms. Moore and Ms. Spurgers does not bar their ability to recover from ETMC 

(Brief of Appellees, page 11). Zidell shows that because Ms. Moore and 

Ms. Spurgers did not commit an actionable tort as a matter of law, Appellees

cannot establish a failure to train claim against ETMC. Id. 

Appellees’ argument that the Texas Supreme Court’s holding in Cash 

America International, Inc. v. Bennett, 35 S.W.3d 12 (Tex. 2000) is relevant and 

applicable is also erroneous. Appellees cite Cash America International as 

standing for the propositions (1) that abrogation of a common law cause of action 

by reason of statutory enactment is disfavored, (2) that the existence of statutory 

damage-immunity cannot prevent an actionable tort from occurring, and (3) that 

any statutory tightening of Appellees’ right-to-recover against Ms. Moore and 

Ms. Spurgers would abrogate a common law right to recover from ETMC (Brief of 

Appellees, pages 7, 11, 12). Specifically, Appellees cite to page 16 of the Cash 

America International opinion as where the Texas Supreme Court makes these 

holdings and rulings. While it is true that Cash America International stands for 

the first proposition – that Texas law disfavors a statute that deprives a person of a 
8

common law right – Cash America International does not stand for the second and 

third propositions. Id. at 16.

Cash America International has no relevance or application to this matter 

because there is no abrogation or deprivation of a common law right by statute

here. Section 75.152 of the TEXAS CIVIL PRACTICE & REMEDIES CODE does not 

abrogate or deprive any claimant of a common law right to sue for negligence, as 

claimed by Appellees. It simply places a different legal standard of care on 

emergency medical services providers in certain circumstances. See, Dill v. 

Fowler, 255 S.W.3d 681, 683 (Tex. App.—Eastland 2008, no pet.)(citing Jackson 

v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007))(interpreting similar willful and 

wanton standard of proof applicable to emergency room services under Section 

74.153 of the TEXAS CIVIL PRACTICE & REMEDIES CODE). Thus, what is at issue is 

a different applicable standard of proof, not the abrogation or deprivation of a 

common law right. See, Nowzaradan v. Ryans, 347 S.W.3d 734, 741-42 (Tex. 

App.—Houston [14th Dist.] 2011, no pet.)(interpreting similar willful and wanton 

standard of proof applicable to emergency room services under Section 74.153 of 

the TEXAS CIVIL PRACTICE & REMEDIES CODE).

One cannot dispute with any degree of credibility that under Texas law a 

dependent tort like Appellees’ negligent training claim against ETMC is dependent 

on Ms. Moore or Ms. Spurgers committing an “actionable tort.” On July 29, 2014, 
9

the trial court determined that as a matter of law neither Ms. Moore nor 

Ms. Spurgers committed an actionable tort. For this reason, Appellees could not

establish that essential element of their negligent training claim against ETMC.

Just as important is Appellees’ failure to prove and secure a finding at trial 

that Ms. Moore or Ms. Spurgers were negligent (committed an actionable tort) on 

the occasion in question. In fact, Appellees failed to provide any evidence at trial 

would or could support a finding that Ms. Moore’s or Ms. Spurgers’ actions 

constituted even ordinary negligence. In order to prevail on their dependent tort 

failure to train claim, Appellees had to prove at trial that Ms. Moore or 

Ms. Spurgers committed an actionable tort in connection with their care and 

treatment of Ms. Delaune. See, Brown v. Swett & Crawford of Texas, Inc., 

178 S.W.3d 373, 384 (Tex. App.—Houston [1st Dist.] 2005, no pet.)(holding that 

to recover on a negligent supervision claim, a plaintiff must prove that the 

employee committed an actionable tort); Gonzales, 995 S.W.2d at 740 (“Because 

[plaintiff] failed to establish [the employee] committed an actionable tort, her 

negligence claims [negligent hiring, retention, training and supervision] are 

precluded as a matter of law.”)(emphasis added).

Wholly absent from the appellate record is any finding or stipulation that 

Ms. Moore’s or Ms. Spurgers’ actions were negligent. Also wholly absent from 

the record is any evidence of either the standard of care applicable to an emergency 
10

medical technician or paramedic like Ms. Moore or Ms. Spurgers in treating 

someone like Ms. Delaune on the occasion in question, or a breach of the standard 

of care applicable to an emergency medical technician or paramedic in treating a 

patient like Ms. Delaune on the occasion in question. Thus, even if an ordinary 

negligence standard applies, – which it does not – Appellees still failed to establish 

the commission of an actionable tort by Ms. Moore or Ms. Spurgers (or to provide 

any evidence upon which such a finding could have been made), an essential 

element of their failure to train claim against ETMC. 

For the above reasons, there is no evidence of an essential element 

(proximate cause) of Appellees’ failure to train claim against ETMC. Accordingly, 

the Tyler Court of Appeals should reverse the trial court’s December 23, 2014 

Final Judgment against ETMC and in favor of Appellees and enter a take nothing 

judgment in favor of ETMC and against Appellees.

II. APPELLEES FAIL TO REBUT ETMC’S SUPPORTIVE 

AUTHORITY THAT THERE IS LEGALLY INSUFFICIENT 

EVIDENCE OF THE APPLICABLE STANDARD OF CARE AND 

BREACH BY ETMC:

In its Brief on the Merits, ETMC cited case law that specifically addresses 

and shows the defects in and legal insufficiency of Appellees’ trial evidence on the 

standard of care applicable to ETMC and a breach of that standard of care by 

ETMC (Appellant’s Brief on the Merits, pages 39-43). Appellees do not cite or 

reference these cases even once in their brief. Appellees also failed to provide this 
11

Court any authority that establishes or supports their claim the evidence presented 

at trial is legally sufficient evidence of the applicable standard of care and a breach 

of that standard by ETMC. 

The only authority cited by Appellees on this issue are Durham 

Transportation Inc. v. Valero, 897 S.W.2d 404 (Tex. App.—Corpus Christi 1995, 

writ denied); Greater Houston Transportation v. Zrubeck, 850 S.W.2d 579 (Tex. 

App.—Corpus Christi 1993, writ denied); and Ching v. Methodist Children’s 

Hospital, 134 S.W.3d 235 (Tex. App.—Amarillo 2003, pet. denied). Not one of 

these cases shows that the evidence Appellees produced at trial was sufficient to 

establish the standard of care applicable to ETMC in training personnel like 

Ms. Moore and Ms. Spurgers and a breach of this standard of care. 

Durham Transportation, Inc. v. Valero, involves a claim that Perez, a school 

bus driver, was not properly trained and supervised. Durham Transportation, 

897 S.W.2d at 411. Testimony by a former associate of Perez, Briseno, stated how

and why Perez was improperly trained to drive a school bus. Specifically, Briseno 

testified Perez was not given the required hours of classroom instruction, and was 

not observed driving for the required number of hours before he was allowed to 

drive children. Id. at 411. The evidence also showed that time cards related to 

driver training were falsified, and that Perez was not certified by the Texas 

Education Association as a school bus driver. Id. at 413.
12

Greater Houston Transportation Co. v. Zrubeck, involved a bus driver’s 

failure to secure a wheelchair rider to his wheelchair with a seat belt. Zrubeck,

850 S.W.2d at 581. In Zrubeck, there was evidence that the driver’s employer 

“never instructed [the driver] with regard to proper procedures for these

passengers.” Id. at 591. The driver in question also admitted that she and other 

drivers regularly allowed wheelchair passengers to ride without seatbelts. Id. at 

592. Finally, the evidence established that the driver in question was not aware of 

the employer’s safety handbook or mandatory seat belt policy until after the

incident. Id. 

At trial in this matter, Appellees did not provide any evidence about 

Ms. Moore or Ms. Spurgers even remotely similar to the evidence presented in 

Durham Transportation and Zrubeck. Appellees provided no evidence that 

Ms. Moore or Ms. Spurgers were improperly trained because they were not given 

the required hours of classroom instruction, that they did not demonstrate their 

clinical competence before ETMC allowed them to work in one of its ambulances, 

that they were not certified to provide emergency medical services, that they were 

not instructed on the use of restraints, that they regularly did not use restraints

when indicated, or that they were not aware of or given the ETMC policy on the 

use of restraint before they cared for Ms. Delaune.
13

In fact, the evidence at trial established just the opposite. It was undisputed 

at trial that by the time Ms. Moore and Ms. Spurgers cared for Ms. Delaune they 

had gone through paramedic school, they had been trained and educated on the use 

of restraints before working with ETMC and while working at ETMC, they were 

certified paramedics, they had demonstrated their competence through testing to 

obtain and maintain their certifications and by testing at ETMC, that ETMC had a 

policy on the use of restraints they were aware of, that ETMC had specifically 

taught Ms. Moore and Ms. Spurgers on the use of restraint, and that ETMC’s 

educational program for training personnel like Ms. Moore and Ms. Spurgers 

followed the standardized national training curriculum (See, Appellant’s Brief on 

the Merits, pages 10-14). Thus, in no way is the evidence here in any way, shape, 

or form similar to the evidence presented in Durham Transportation and Zrubeck. 

If anything, Durham Transportation and Zrubeck illustrate and show the deficient 

nature of Appellees’ evidence.

Ching v. Methodist Children’s Hospital, has nothing whatsoever to do with 

whether or not the evidence produced at trial by Appellees was legally sufficient to 

establish either the standard of care applicable to ETMC in training personnel like 

Ms. Moore and Ms. Spurgers or a breach of that standard of care by ETMC in 

training personnel like Ms. Moore or Ms. Spurgers. On page 241 of Ching, the 

page cited by Appellees in their brief (Brief of Appellees, pages 30 and 31), the 
14

Amarillo Court of Appeals only mentions the fact that a hospital has a common 

law duty to periodically monitor and review the competency of its medical staff. 

Ching, 134 S.W.3d at 241. Absent from Ching is any information that describes 

factually what a hospital would be required to do to discharge this duty or what 

would constitute legally sufficient evidence of the applicable standard of care 

related to that duty or a breach of that duty.

This brings up a final point on this authority cited by Appellees. Contrary to 

Appellees’ claim in their brief, at no place on page 413 of Durham Transportation, 

pages 591-92 of Zrubreck, or page 241 of Ching – or elsewhere in these opinions 

for that matter – does the Corpus Christi Court of Appeals or the Amarillo Court of 

Appeals hold or state that “[t]he efficacy of a hospital’s implementation and 

enforcement of its policies must be measured by how well it succeeds in preparing 

its personnel to respond to known hazards, and not by how comprehensive the 

syllabus appears on paper” (Brief of Appellees, page 31). In fact, nothing even 

remotely close to this is stated or held by the Corpus Christi Court of Appeals or 

the Amarillo Court of Appeals in these opinions. This statement in Appellees’ 

brief is nothing more than the argument of counsel. This statement does not 

represent the binding or persuasive opinion of any court.

For these reasons, Appellees’ authority fails to establish or support a claim 

that the evidence presented at trial was legally sufficient to establish the standard 
15

of care applicable to ETMC, a breach of that standard of care by ETMC, or that 

Ms. Moore and Ms. Spurgers were not properly trained.

III. ETMC’S CASE LAW SHOWS APPELLEES’ STANDARD OF 

CARE AND BREACH EVIDENCE IS LEGALLY INSUFFICIENT:

The Mackey v. U.P. Enterprises, Inc., 935 S.W.3d 446 (Tex. App.—Tyler 

1996, no pet.); Patino v. Complete Tire, Inc., 158 S.W.3d 655 (Tex. App.—Dallas 

2005, pet. denied); and Allsup’s Convenience Stores, Inc. v. Warren, 934 S.W.2d 

433 (Tex. App.—Amarillo 1996, writ denied) opinions cited and discussed in 

ETMC’s Brief on the Merits are pertinent, relevant and on point because they each 

directly address the specific evidence that a claimant like Appellees must produce 

to establish a failure to train (Appellant’s Brief on the Merits, pages 41-43). 

The take-home points from Mackey, Patino, and Allsup’s are (1) Appellees 

did not controvert ETMC’s specific factual evidence showing the sufficiency of its 

training of Ms. Moore and Ms. Spurgers, (2) Appellees had to provide specific

factual evidence of training that ETMC negligently failed to provide, and (3) 

Appellees had to present specific factual evidence showing the training ETMC 

should have provided to Ms. Moore and Ms. Spurgers, but did not provide 

(Appellant’s Brief on the Merits, pages 41-43). Copies of the Mackey, Patino, and 

Allsup’s opinions are attached to this brief (See, Appendix A, B and C, 

respectively). As shown by ETMC in its earlier brief, Appellees’ “evidence” on 
16

these issues is legally insufficient primarily because it is conclusory in nature 

(Appellant’s Brief on the Merits, pages 26-39).

Lermon v. Minyard Food Stores, Inc., 2014 Tex. App. LEXIS 12498 (Tex. 

App.—Dallas)(Nov. 19, 2014)(pet. denied)(mem. op.)(Appendix D) further shows 

that Appellees did not present legally sufficient evidence of the standard of care 

applicable to ETMC or a breach of that standard of care.

In Lermon, claimant sued Minyard for malicious prosecution. Lermon 

asserted Minyard was negligent in hiring, retaining, training and supervising an 

employee, Rodney Lee. Id. at *23. Specifically, Lermon claimed Minyard did not 

adequately train Mr. Lee to perform the duties he was performing when he 

investigated a theft Lermon was claimed to have committed. Id. at *23. A jury 

verdict was entered in favor of Lermon and against Minyard. An appeal followed.

The Dallas Court of Appeals discussed that to support a claim for negligent 

training and supervision “a plaintiff must prove that a reasonably prudent employer 

would have provided training and supervision beyond that which was given...” Id. 

at *25. More specifically, the Dallas Court of Appeals required plaintiff to 

produce evidence of the specific training an employer exercising ordinary 

prudence would provide to its employees. Id. at *28. Because Lermon failed to 

present specific evidence of what additional training was available and commonly 

used, but was not provided, the Dallas Court of Appeals found that Lermon had 
17

failed to establish a negligent training claim against Minyard and it reversed the 

jury verdict and trial court judgment in favor of Lerman and against Minyard. Id. 

at *28-29.

As in Lerman, the evidence here establishes that Ms. Moore and 

Ms. Spurgers had pre-existing training and experience on the use of restraint. See,

id. at *27-28. As in Lerman, there is no evidence that prior to the incident that 

involved Ms. Delaune there was any basis from which a reasonable employer 

could conclude that Ms. Moore or Ms. Spurgers were unfit or unqualified to 

perform their job duties. See, id. at *29. As in Lerman, Appellees failed to present 

any evidence of additional training available or commonly used by employers like 

ETMC that was not used in training Ms. Moore and Ms. Spurgers. See, id. at *28. 

As in Lerman, Appellees failed to present any evidence that there was some 

training available to employers like ETMC that was superior to the training ETMC 

provided. See, id. Finally and most important, as in Lerman, Appellees presented 

no evidence about what additional or different training an employer like ETMC 

should have provided, but failed to provide. See, id.

The fact of the matter is that Appellees did not and could not produce 

evidence of this nature at trial because, as admitted by Appellees’ expert 

Dr. Wayne, ETMC’s training program tracked what is required by the national 

registry for emergency medical services provider certification (3 RR 11-19). For 
18

these reasons, as established and illustrated by Lerman, Appellees “failed to 

produce any evidence a reasonably prudent employer would have provided training 

... to [Moore and Spurgers] beyond that which [ETMC] provided,” and, thus, 

“failed to show [ETMC] was negligent.” See, id. at *29. As such, the Tyler Court 

of Appeals should reverse the trial court’s judgment in favor of Appellees and 

enter judgment that Appellees take nothing.
19

CONCLUSION

Here is where things stand prior to the submission of this matter for 

determination by the Court – with or without oral argument.

First, Appellees’ only claim against ETMC is for its alleged failure to train 

Ms. Moore and Ms. Spurgers on the use of restraint.

Second, under Texas law, Appellees’ failure to train claim is a dependent 

tort.

Third, in order to prevail on a dependent tort claim, Appellees had to 

establish that one of ETMC’s employees, Ms. Moore or Ms. Spurgers, committed 

an actionable tort on the occasion in question.

Fourth, the trial court determined as a matter of law that Ms. Moore and 

Ms. Spurgers did not commit an actionable tort on the occasion in question.

Fifth, at trial Appellees had to produce legally sufficient evidence of the 

standard of care applicable to ETMC in training employees like Ms. Moore and 

Ms. Spurgers on the use of restraint and a breach of that standard of care by 

ETMC.

Sixth, Appellees’ evidence does not state what specific training a reasonably 

prudent emergency medical services provider like ETMC should provide to 

employees like Ms. Moore or Ms. Spurgers.
20

Seventh, Appellees’ evidence does not state what specific training a 

reasonably prudent emergency medical services provider like ETMC should 

provide to employees like Ms. Moore or Ms. Spurgers, but was not provided to 

Ms. Moore and Ms. Spurgers by ETMC.

For these reasons, Appellees’ evidence of the applicable standard of care, 

breach of that standard of care and proximate cause on their claim against ETMC 

is legally insufficient. Because Appellees’ evidence against ETMC is legally 

insufficient in these respects, the Tyler Court of Appeals should reverse the trial 

court’s Final Judgment in favor of Appellees and against ETMC, and enter a take 

nothing judgment in favor of ETMC and against Appellees.
21

PRAYER

WHEREFORE, PREMISES CONSIDERED, East Texas Medical Center 

d/b/a East Texas Medical Center Emergency Medical Services, respectfully 

requests that the Twelfth Court of Appeals grant it the following relief:

1. Reverse the verdict and Final Judgment against it in the trial court, 

and;

2. Enter a take nothing judgment against Appellees and in favor of East 

Texas Medical Center d/b/a East Texas Medical Center Emergency 

Medical Services.

Respectfully Submitted,

THIEBAUD REMINGTON THORNTON BAILEY LLP

By: /s/Russell G. Thornton

RUSSELL G. THORNTON

State Bar Card No. 19982850

rthornton@trtblaw.com

4849 Greenville Avenue, Suite 1150

Dallas, Texas 75206

(214) 954-2200

(214) 754-0999 (Fax)

COUNSEL FOR APPELLANT 

EAST TEXAS MEDICAL CENTER d/b/a

EAST TEXAS MEDICAL CENTER 

EMERGENCY MEDICAL SERVICES
22

CERTIFICATE OF COMPLIANCE

Pursuant to TEXAS RULES OF APPELLATE PROCEDURE 9.4(i)(3) Appellant

certifies that its Reply Brief on the Merits, filed on July 23, 2015 in the Twelfth 

Court of Appeals, contains 4,040 words. 

/s/ Russell G. Thornton

RUSSELL G. THORNTON
23

CERTIFICATE OF SERVICE

The undersigned certifies that on the 23rd day of July, 2015, a true and 

correct copy of the foregoing document was delivered to counsel listed below:

Mr. Ryan Krebs, M.D., J.D.

THE LAW OFFICE OF RYAN KREBS

805 W. 10th Street, Suite 300

Austin, Texas 78701

ryan@ryankrebsmdjd.com

VIA E-SERVE & E-MAIL

/s/Russell G. Thornton

RUSSELL G. THORNTON
APPENDIX
APPENDIX – “A”
Page 1

GLENDA MACKEY, APPELLANT v. U.P. ENTERPRISES, INC., D/B/A TACO 

BELL, APPELLEE

NO. 12-94-00011-CV

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

935 S.W.2d 446; 1996 Tex. App. LEXIS 4878

October 30, 1996, delivered 

October 30, 1996, Filed 

SUBSEQUENT HISTORY: [**1] Released for 

Publication January 17, 1997. 

PRIOR HISTORY: APPEAL FROM THE 241ST 

JUDICIAL DISTRICT COURT. SMITH COUNTY, 

TEXAS. Clayton, Hon. Joe, Judge. 

DISPOSITION: Affirmed in part, reversed in part, 

and remanded. 

COUNSEL: WHITEHURST, BOB, TYLER, TX, for 

appellant.

BUFE, JOHN F., EVANS, DEBORAH O., TYLER, TX, 

for appellee. 

JUDGES: Chief Justice Tom B. Ramey, Jr., Justice 

Charles R. Holcomb, Justice A. Roby Hadden (AUTHOR) 

OPINION BY: ROBY HADDEN

OPINION

[*449] This is an appeal of a summary judgment 

granted in favor of U.P. Enterprises, Inc., d/b/a Taco Bell 

("UPE"). Glenda Mackey ("Mackey") sued her employer, UPE, two of its managers, Ron Smith and Greg 

Johnson ("Smith" and "Johnson"), and Taco Bell Corporation ("TBC"), the franchisor, alleging eight separate 

causes of action. Mackey's underlying allegations were 

that she was sexually harassed by Smith and Johnson. 

The trial court granted UPE's motion for summary judgment on all causes of action and severed Mackey's causes 

of action against UPE from the remainder of the case. 

Mackey appeals the decision of the trial court, raising ten 

points of error. We will affirm in part and reverse and 

remand in part.

UPE's motion for summary [**2] judgment was 

supported by the affidavit and deposition of Richard 

Upshaw ("Upshaw"), vice-president and Director of Operations of UPE, the deposition of Mackey, and the depositions of two other employees, Roxie Hall ("Hall") and 

Jessica Jones ("Jones"). From this evidence, it appears 

that UPE, a franchisee of TBC, owns and operates several Taco Bell restaurants in Tyler, Smith County, Texas. 

In November 1990, UPE employed Mackey as an hourly 

wage employee in one of its restaurants where she was 

under the supervision of Smith. She was later transferred 

to a second restaurant where she was under the supervision of Johnson. Mackey was terminated in August 1991. 

UPE denies that any sexual harassment towards Mackey 

took place, but that if it did, it was totally unauthorized, 

unexpected, and unforeseen by UPE. Furthermore, UPE 

claims that Mackey's injuries, if any, were sustained in 

the course of her employment and were, therefore, barred 

by the exclusive remedy provisions of the Texas Worker's Compensation Act ("the Act"). 1 UPE's summary 

judgment proof also shows that during her employment 

with UPE, Mackey received several written reprimands 

for failure to report to work as scheduled [**3] and for 

rudeness to customers. UPE claims that it was for these 

reasons that her employment was terminated.

1 Act of December 13, 1989, 71st Leg., 2nd 

C.S., Ch. 1, § 4.01, 1989 Tex. Sess. Law Serv. 

32, repealed by Act of May 22, 1993, 73rd Leg., 

Ch. 269, § 5(2), 1993 Tex. Sess. Law Serv. 1275 

(current version at TEX. LABOR CODE ANN. § 

408.001 (Vernon Supp. 1996)).
Page 2

935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

Mackey's summary judgment proof shows that she 

was sexually harassed by Smith and Johnson while they 

were employed by UPE, and that she was allegedly terminated from her employment because she would not 

give in to their sexual demands. Mackey claims that the 

Texas Worker's Compensation Act was not applicable to 

her because the sexual assaults by Smith and Johnson 

were personal to her and that her injuries were not received in the course of her employment. 2 The summary 

judgment proof includes the following affidavit by 

Mackey:

. . .

 Greg Johnson and Ron Smith made 

their work policies clear to me, after approximately one month of [**4] employment. First, Ron Smith, and then, later, Greg Johnson asked me to have sexual 

intercourse and perform sexual favors for 

them. Frequently, Ron Smith and Greg 

Johnson used slang terms such as "let me 

touch you up". When I refused them, my 

scheduled hours were systematically reduced. Their [*450] requests for sexual 

favors happened with regularity. At one 

point I was informed by Ron Smith that, 

"if I did it, I'd get more hours."

2 UPE was a subscriber under 

the Texas Worker's Compensation 

Act during Mackey's employment. 

However, Mackey did not file a 

claim nor seek benefits under the 

Act.

I felt pressured to give in to their demands for sexual favors in order to keep 

working at Taco Bell. At the time of my 

employment, I did not have a reliable 

form of transportation. One afternoon 

around mid-February of 1991, when I was 

working at the Gentry store, Ron Smith 

offered to give I (sic) a ride home if I 

would pay him $ 2.00. I thanked him and 

explained that I would pay Ron Smith 

once I got home because my [**5] 

money was at home. I got into the car and 

Ron Smith started for my home across 

town. After a few minutes Ron Smith said 

that he did not want the money but instead 

wanted sex. I said no, that I would rather 

pay. For the next several minutes Ron 

Smith and I argued about the method of 

payment. I would not give in. Furious, 

Ron Smith pulled over to the side of a 

very busy road and ordered me from the 

car. Ron Smith then told me that if I 

would not have sex with him, I could 

walk. Although it was several miles, I 

walked home.

After that incident Ron Smith would 

brush up against me "accidentally". Ron 

Smith also started calling me such names 

as "fat droopy titty", "sticky", "slouchy", 

and "sorry" in front of other workers at 

TACO BELL.

Near the first of March 1993, Ron 

Smith touched my breast and asked me if 

I was sure I wanted to be transferred to 

another store. My response was yes".

My transfer to TACO BELL store on 

Troop (sic) Highway was intended as a 

punishment or the result of a bet between 

Ron Smith and Greg Johnson, that is that 

Greg bet Ron that he could have sexual 

intercourse with me. Once at the Troop 

(sic) store, the harassment continued with 

even more frequency.

In April [**6] of 1991, I caught 

Greg Johnson and employee Jessica Jones 

engaging in oral sex. I was then called into the office by Greg Johnson and he told 

me not to tell anyone or he would "fire 

my ass if talked". From April of 1991 to 

August of 1991, the following incidences 

occurred [sic]:

 (1) Greg Johnson would 

remark to me that he 

wanted to "touch it up"

(2) Greg Johnson 

would "accidentally" brush 

up against me touching my 

breasts and buttocks.

(3) Greg Johnson 

called me "shithead", "stupid ass", and "fat ass" in 

front of some of the workers of Taco Bell.

At one point Greg Johnson arranged 

for me to be alone with him in the store. 

At this time Greg Johnson demanded sex. 

When I denied Greg Johnson, I received a 

written reprimand. It was obvious the 

more I denied Greg Johnson, the more I 
Page 3

935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

was penalized. In addition to the above, 

Greg Johnson would belittle me in front 

of coworkers and customers by criticizing 

my work and by calling me names.

Regardless if a female worker complied or not Greg Johnson would verbally 

and physically harass all the females at 

work. Greg Johnson would ask personal 

questions about my home life and my sex 

life. Greg Johnson would come up to me 

[**7] and touch me on the breasts or 

fondle my buttocks. Greg Johnson would 

ask me what I thought of other women's 

physical attributes. I had all of these incidents happen to me from April of 1991 to 

August of 1991.

In July/August of 1991 I made arrangements for Greg Johnson to pick me 

up at home for a ride to work, because I 

had no adequate means of transportation. 

Payment was never discussed and I believed that Defendant had given other 

employees rides before. When Greg 

Johnson, in this TACO BELL uniform, 

came to my door I let him in. I was 

dressed in my TACO BELL uniform and 

ready to go to work. Greg Johnson informed me that we were going to have 

sex. I told him no. His response was "that 

if I did not have sex with him, he would 

not take me to work." Greg Johnson also 

said that if I was late for work he would 

fire me. I looked at the clock and there 

was only 15 minutes until I was required 

to be at work. There was not enough time 

for me to walk or even call a cab. I felt I 

had to comply, or I [*451] would lose 

my job. If I lost my job I couldn't take 

care of my kids. I believed that I did not 

have a choice and that Greg Johnson 

knew that. I felt like I was raped. When I 

arrived [**8] at work I was emotionally 

upset and crying.

Around the end of August of 1991, I 

spoke to another ("TACO BELL") manager on the phone, by the name of Jessica 

Jones. Jessica Jones had "worked" her 

way up through the store to become a 

manager.

During this conversation, I proceeded 

to tell Jessica Jones that Greg Johnson, a 

married man, had caused a female employee to become pregnant. I also told 

Jessica Jones of the stressful working situation and the constant sexual demands. 

I also informed Roxie Hall (manager) of 

what happened, who laughed and said she 

would do something about it. At the next 

store meeting, Greg Johnson informed the 

employees, that whatever happened in his 

store was to remain there or else. Greg 

Johnson was staring directly at me, when 

this was said. I was fired later that day.

I unsuccessfully attempted to commit 

suicide three times since this incidence. I 

have been forced to go on welfare, to take 

care of my children, when I didn't believe 

in welfare before this.

The sexual harassment and assault as 

stated above did not have any connection 

to my employment in serving food, taking 

money for food, cleaning up the store, or 

other duties that I was assigned. I am 

[**9] not now, nor have never claimed 

in any proceeding that I had been injured 

in the course of my employment or that 

the sexual harassment and assault arose 

out of or originated in my employment. I 

have never filed a claim for Workers' 

Compensation benefits with the Texas 

Industrial Accident Board. The behavior 

of these two managers as described above 

was personal toward me, and not related 

to my job as set out above.

In her suit against UPE, Mackey alleged eight separate 

causes of action as follows:

1. Assault;

2. Intentional infliction of emotional distress;

3. Negligent infliction of emotional distress;

4. Sexual harassment;

5. Tortious interference with contract;

6. Wrongful discharge;

7. Slander; and

8. Negligent supervision, training, and evaluation of 

Smith and Johnson. 

The trial court granted a global summary judgment, 

and, therefore, summary judgment was granted against 

Mackey on all eight of her causes of action. Furthermore, 

since the trial court did not specify the grounds upon 

which it granted summary judgment on each of Mackey's 
Page 4

935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

causes of action, it was Mackey's burden to show that 

each independent argument alleged by UPE in its motion 

for summary judgment [**10] was insufficient to support the trial court's order. Summary judgment will be 

affirmed if any of the theories advanced by UPE are 

meritorious. Insurance Co. of N. Am. v. Security Ins. 

Co., 790 S.W.2d 407, 410 (Tex. App. - Houston [1st 

Dist.] 1990, no writ).

In points of error two through eight Mackey alleges 

that the trial court erred in granting summary judgment 

in her causes of action based on assault, intentional infliction of emotional distress, sexual harassment, tortious 

interference with contract, wrongful discharge, and negligent supervision, training and evaluation. On appeal, 

Mackey has abandoned her cause of action for negligent 

infliction of emotional distress for the obvious reason 

that the Texas Supreme Court has held in Boyles v. Kerr, 

855 S.W.2d 593 (Tex. 1993) that there is no general duty 

in Texas not to negligently inflict emotional distress. In 

addition, Mackey has abandoned slander as a separate 

cause of action; however, we will consider the alleged 

slanderous comments insofar as they are material to the 

other causes of action on appeal.

The function of summary judgment is to "eliminate 

patently unmeritorious claims and untenable defenses. " 

[**11] Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 

929, 931 (1952); Mayhew v. Town of Sunnyvale, 774 

S.W.2d 284, 286 (Tex. App. - Dallas 1989, writ denied), 

cert. denied, 498 U.S. 1087, [*452] 112 L. Ed. 2d 

1049, 111 S. Ct. 963 (1991). The purpose of allowing 

summary judgment is to "provide a method of summarily 

terminating a case when it clearly appears that only a 

question of law is involved and that there is no genuine 

issue of fact." Mayhew, 774 S.W.2d at 287.

The standard for appellate review of a summary 

judgment in favor of a defendant is whether the summary 

judgment proof establishes as a matter of law that there 

is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. 

General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). 

The movant has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 

690 S.W.2d 546, 548-49 (Tex. 1985). Evidence favorable 

to the nonmovant will be taken as true in deciding 

whether there is a disputed material fact issue. Id. Every 

reasonable inference must be indulged [**12] in favor 

of the nonmovant and any doubts resolved in its favor. 

Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 

1984). In addressing the trial court's summary judgment 

action on each of Mackey's six remaining causes of action brought here on appeal, we will view the summary 

judgment evidence in light of these admonitions.

APPLICABILITY OF THE TEXAS WORKER'S 

COMPENSATION ACT TO CLAIMS FOR ASSAULT 

AND INTENTIONAL INFLICTION OF EMOTIONAL 

DISTRESS

As one of its grounds for summary judgment, UPE 

claims that Mackey's injuries from assault and intentional 

infliction of emotional distress committed by Smith and 

Johnson were sustained in the course of her employment 

and were therefore barred by the exclusive remedy provisions of the Texas Worker's Compensation Act. However, Mackey claims that the conduct of Smith and 

Johnson were personal toward her, not related to her job 

of serving food, taking money for food, cleaning up the 

store, or other duties that she was assigned. Therefore, 

Mackey argues that she was not injured in the scope and 

course of her employment with UPE, all as set out in her 

summary judgment affidavit. Mackey asserts that her 

common law claims for assault [**13] and intentional 

infliction of emotional distress are not barred by the Act 

because her injuries fall within an exception to coverage, 

which reads as follows: 

 An insurance carrier is not liable for 

compensation if:

. . .

 (4) The injury arose out of an act of a 

third person intended to injure the employee because of personal reasons and 

not directed at the employee as an employee or because of the employment.

Act of December 13, 1989, 71st Leg., 2nd C.S., Ch. 1, § 

3.02, 1989 Tex. Sess. Law Serv. 14, repealed by Act of 

May 22, 1993, 73rd Leg., Ch. 269, § 5(2), 1993 Tex. 

Sess. Law Serv. 1275 (current version at TEX. LABOR 

CODE ANN. § 406.032(1)(c) (Vernon Supp. 1996)).

Two incidents of sexual harassment took place away 

from work. However, Mackey was at work when the 

alleged acts of "touching," "brushing up," fondling her 

breasts and buttocks, and other demeaning acts took 

place. Although one's employment may be the occasion 

for the wrongful act or may give a convenient opportunity for execution, an injury does not arise out of one's 

employment if the assault is not connected with the employment, or is for reasons personal to the victim as well 

[**14] as the assailant. Highlands Underwriters Ins. 

Co. v. McGrath, 485 S.W.2d 593, 595 (Tex. 1972). The 

mere fact that the injury is caused by a co-employee is 

not controlling of the question of whether the injury is 

compensable under the Texas Worker's Compensation 

Act. Shutters v. Domino Pizza, 795 S.W.2d 800 (Tex. 
Page 5

935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

App. - Tyler 1990, no writ). Whether Mackey's injuries 

were sustained in the course of her employment is ordinarily a question of fact. Shutters, 795 S.W.2d at 802.

From the summary judgment evidence, we conclude 

that a material issue of fact exists as to whether Mackey's 

injuries for assault and intentional infliction of emotional 

distress were sustained in the course of her employment. 

However, it is not necessary to remand [*453] this 

case for a determination of that issue. If it were found 

that Mackey's injuries were sustained in the course of her 

employment, as defined by the Act, then her recovery 

under these two causes of action would be barred by the 

exclusivity of the Act. If Mackey's injuries were not sustained in the course of her employment and fall within 

the exception above-described, then Mackey would be 

free to assert her common law remedies [**15] for assault and intentional infliction of emotional distress. 

However, in the trial court and on appeal, UPE claims 

that even if Mackey's causes of action for assault and 

intentional infliction of emotional distress were not 

barred by the exclusivity of the Act, it was entitled to 

summary judgment in these two causes of action on 

Mackey's common law claims as well. For the following 

reasons, we agree.

ASSAULT

Mackey claims that the assaultive acts of Smith and 

Johnson directed towards her were within the course and 

scope of their employment with UPE, and were thus imputable to UPE. UPE takes the position that the job duties of Smith and Johnson did not include any of the acts 

directed toward Mackey, and that if they committed the 

alleged acts of which Mackey complains, they were not 

acting within the course and scope of their employment. 

Therefore, UPE argues, such acts of intentional conduct 

cannot be imputed to UPE.

A longstanding Supreme Court case has been often 

cited for the proposition that it is not ordinarily within 

the scope of a servant's authority to commit an assault 

upon a third person. Texas & Pac. Ry. Co. v. Hagenloh, 

151 Tex. 191, 247 S.W.2d 236 (1952). Assault [**16] is 

considered as an expression of personal animosity and 

not for the purpose of carrying out a master's business. 

Tierra Drilling Corp. v. Detmar, 666 S.W.2d 661 (Tex. 

App. - Corpus Christi 1984, no writ) (citing Texas & 

Pac. Ry. Co. v. Hagenloh). In order to impose liability 

upon an employer for the tort of its employee under the 

doctrine of respondeat superior, the act of the employee 

must fall within the scope of the general authority of the 

employee and must be in furtherance of the employer's 

business for the accomplishment of the object for which 

the employee was hired. Dieter v. Baker Serv. Tools, 

739 S.W.2d 405 (Tex. App. - Corpus Christi 1987, writ 

denied). In Valdez v. Church's Fried Chicken, Inc., 683

F. Supp. 596 (W.D. Tex. 1988), the plaintiff alleged and 

the court found that she was assaulted and sexually harassed by a "team leader" of Church's Fried Chicken. 

However, the court found no liability upon the employer 

because the team leader was not authorized to use force, 

and because the sexual assault on the employee was 

purely personal.

Furthermore, when the servant turns aside, for however a short time, from the prosecution of the master's 

work [**17] to engage in an affair wholly his own, he 

ceases to act for the master, and the responsibility for 

that which he does in pursuing his own business or 

pleasure is upon him alone. Dieter, 739 S.W.2d at 407; 

Tierra Drilling Corp., 666 S.W.2d at 663 (quoting Galveston, Houston, and San Antonio R.R. v. Currie, 100 

Tex. 136, 96 S.W. 1073 (1906)). See also, Gibraltar Savings Assoc. v. Turnbough, 610 S.W.2d 515 (Tex. Civ. 

App. - Houston [1st Dist.] 1980, writ dism'd); Calhoun v. 

Hill, 607 S.W.2d 951 (Tex. Civ. App. - Eastland 1980, no 

writ).

In Kendall v. Whataburger, Inc., 759 S.W.2d 751

(Tex. App. - Houston [1st Dist.] 1988, no writ), a food 

service employee struck a customer with a french-fry 

basket. There, the court found, as a matter of law, that 

the assault could not have been so connected with and 

immediately arising out of the employee's job of taking 

food orders and preparing and delivering food orders to 

customers so that his authorized employment tasks and 

the assault could have merged into one indivisible tort 

imputable to the master. Id. at 755. If the assault by an 

employee can be traced to a remote cause unrelated to 

the business of the [**18] employer, the employer 

cannot be held liable. See Viking v. Circle K Convenience Stores, 742 S.W.2d 732, 734 (Tex. App. - Houston 

[1st Dist.] 1987, writ denied) (assault was not in course 

and scope of employment for an employee to leave the 

store unattended and follow victim into public street to 

shoot him over personal reasons); [*454] Green v. 

Jackson, 674 S.W.2d 395, 399 (Tex. App. - Amarillo 

1984, writ ref'd n.r.e.) (not in course and scope when 

employee fought with customer over a long-simmering 

and rancorous personal animosity arising out of personal 

debt); Tierra Drilling Corp., 666 S.W.2d at 662 (not in 

course and scope of employment for supervisor to assault 

employee over supervisor's dislike of Texans).

Mackey cites the case of Frito-Lay, Inc. v. Ramos, 

770 S.W.2d 887 (Tex. App. - El Paso 1989), rev'd on 

other grounds, 784 S.W.2d 667 (Tex. 1990) in support of 

her argument that under the summary judgment facts of 

this case Smith and Johnson were acting in the course of 

their employment with UPE. In Frito-Lay, a snack company employee shoved his company's customer while 

attempting to take the company's merchandise rack from 

the store after [**19] the customer informed the em-
Page 6

935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

ployee that he no longer wanted to carry the company's 

snack products. There, the court reasoned that a 

fact-finder could find that the employee was acting 

within the scope of his employment when he assaulted 

the customer while trying to retrieve company property. 

In a similar case, Durand v. Moore, 879 S.W.2d 196

(Tex. App. - Houston [14th Dist.] 1994, no writ), a 

doorkeeper of a night club, in his overzealous enforcement of the club's criteria for admittance, assaulted two 

customers who were waiting for admission. There, the 

court held that the doorkeeper was acting in the course of 

his employment in enforcing his employer's rules for 

admission.

The instant case is not like Frito-Lay, Inc. or Durand, but is analogous to Kelly v. Stone, 898 S.W.2d 924

(Tex. App. - Eastland 1995, writ denied). In Kelly, a 

senior billing clerk sued her office manager for sexual 

harassment, which included sexual advances such as 

rubbing her on the bottom. There, the court reasoned that 

the office manager's duties did not include the use or 

threat of physical force or physical conduct against employees, nor was he ever directed by a company officer 

[**20] to assault the billing clerk. The conduct of the 

office manager was simply not work-related. The court 

there stated that the office manager was clearly motivated by his personal obsession towards the billing clerk, 

and that his conduct was a pursuit of his own personal 

gratification. Kelly, 898 S.W.2d at 929.

In the instant case, there was no relationship between the assaultive acts of Smith and Johnson and their 

duties as managers of a food service restaurant. The 

summary judgment evidence shows that Smith and 

Johnson would "brush up" against Mackey, would touch 

her breasts, and fondle her buttocks. None of these alleged assaultive acts were directed by UPE officials. 

Furthermore, the summary judgment evidence shows that 

none of these acts were within the scope of Smith and 

Johnson's general authority as employees of UPE. Each 

was employed to manage a restaurant, which would include taking food orders, preparing the food, and delivering it to customers. There is simply no connection between these duties and the alleged sexual assaults directed towards Mackey. We, therefore, conclude that the 

alleged sexual assaults were solely the acts of Smith and 

Johnson, and that they were [**21] not acting within 

the scope of their general authority conferred by UPE at 

that time. There is no genuine issue of fact in that regard, 

and the trial court did not err in granting summary judgment on Mackey's cause of action for assault.

INTENTIONAL INFLICTION OF EMOTIONAL 

DISTRESS

Mackey also asserts that UPE is liable for intentional 

infliction of emotional distress arising from the alleged 

incidents. In Twyman v. Twyman, 855 S.W.2d 619 (Tex. 

1993), the Texas Supreme Court recognized the tort of 

intentional infliction of emotional distress as set forth in 

Section 46(1) of the Restatement (Second) of Torts

(1965). The elements of intentional infliction of emotional distress are: (1) the defendant acted intentionally 

or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the emotional distress 

suffered by the plaintiff was severe. Tidelands Automobile Club v. Walters, 699 S.W.2d 939, 942-44 (Tex. App. 

- Beaumont 1985, writ ref'd n.r.e.). From the summary 

judgment proof outlined above, it is clear [*455] that 

UPE did not authorize or direct any of the alleged acts of 

sexual harassment [**22] committed by Smith and 

Johnson against Mackey. Furthermore, when Smith and 

Johnson were hired, UPE explained its written policies 

against sexual harassment, notices of which were posted 

at each work place. The notices included instructions to 

report violations of this policy to UPE officials. Mackey 

did not respond with any summary judgment evidence 

showing that UPE intentionally or recklessly committed 

these acts which allegedly caused Mackey emotional 

distress. Thus, the first prong of the cause of action for 

intentional infliction of emotional distress has not been 

met. The trial court did not err in granting summary 

judgment on Mackey's claim for intentional infliction of 

emotional distress.

Points of error one, two, three and four are overruled.

SEXUAL HARASSMENT

Next, Mackey charges UPE with sexual harassment 

resulting in a hostile work environment and an economic 

harm to her. She claims that such activity constitutes a 

violation of Article 5221k of the Texas Revised Civil 

Statutes, commonly known as the Texas Commission on 

Human Rights Act ("Texas Human Rights Act"). The 

pertinent provisions are as follows:

 Sec. 5.01. It is unlawful employment 

practice for an employer:

(1) [**23] to fail or refuse to hire 

or to discharge an individual or otherwise 

to discriminate against an individual with 

respect to compensation or the terms, 

conditions, or privileges of employment 

because of race, color, handicap, religion, 

sex, national origin, or age; or

(2) to limit, segregate, or classify an 

employee or applicant for employment in 

a way that would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect 
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935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

the status of an employee because of race, 

color, handicap, religion, sex, national 

origin, or age.

TEX. REV. CIV. STAT. ANN. art. 5221k § 5.01(1)(2) 

(Vernon 1987). 3

3 Repealed by Act of May 22, 73rd Leg., R.S., 

Ch. 269, Sec. 5(1), 1993 Tex. Sess. Law Serv. 

1275 (current version at TEX. LABOR CODE 

ANN. § 21.051 (Vernon 1996)).

UPE responded that an employer can be held liable 

for sexual harassment only if the employer knew or 

should have known of the harassment in question and 

failed to take prompt, remedial action. UPE contends that 

[**24] the summary judgment evidence established the 

following: (1) that the wrongful conduct of Smith and 

Johnson was against UPE policy, (2) that UPE did not 

know of the harassment in question, (3) that Mackey 

never complained to UPE until after her termination, and 

(4) that Upshaw immediately initiated corrective 

measures after it was reported to him. Mackey contends 

that her summary judgment evidence establishes that she 

complained to UPE, but that it failed to take prompt remedial action. Furthermore, she argues that her summary 

judgment evidence shows that the harassment was pervasive and severe, that it altered the conditions of her 

employment with UPE, creating an abusive working environment.

When reviewing a case brought pursuant to the 

Texas Human Rights Act, we may look not only to the 

state statute, but also to the analogous federal provisions 

contained in Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e, et seq. ("Title VII"). Eckerdt v. Frostex 

Foods, Inc., 802 S.W.2d 70 (Tex. App. - Austin 1990, no 

writ) ("The stated purpose of the Texas Act suggested 

the state legislature intended it to conform to the policies 

contained in the federal act; therefore, [**25] we may 

consider how the federal act is implemented under 

clauses similar to those in issue in the Texas Act"). Because Texas has little case law interpreting and applying 

the Texas Human Rights Act, the federal court decisions 

addressing Title VII issues may provide us with guidance 

as well. Speer v. Presbyterian Children's Home & Serv. 

Agency, 824 S.W.2d 589, 593 (Tex. App. - Dallas 1991), 

vacated, 847 S.W.2d 227 (Tex. 1993).

Sexual harassment is a form of employment discrimination prohibited by Title VII. Meritor Savings 

Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, [*456] 

106 S. Ct. 2399 (1986); Jones v. Flagship Int'l, 793 F.2d 

714, 719 (5th Cir. 1986) cert. denied, 479 U.S. 1065, 93 

L. Ed. 2d 1001, 107 S. Ct. 952 (1987); Henson v. City of 

Dundee, 682 F.2d 897 (11th Cir. 1982). The application 

of Title VII discrimination claims to sexual harassment 

in the work place have been sufficiently outlined in 

Flagship, Dundee, and Meritor, and its background will 

not be again detailed here. Two types of sexual harassment are outlined in these cases: (1) harassment that, 

while not affecting economic benefits, creates a hostile 

or offensive [**26] work environment, and (2) harassment that involves the conditioning of concrete employment benefits on sexual favors. However, every instance 

of sexual harassment does not give rise to a Title VII 

claim against an employer. The complaining party must 

allege and prove a number of elements in order to establish his claim. These elements are:

 (1) The employee belongs to a protective group, i.e., a simple stipulation that 

the employee is a man or a woman;

(2) The employee was subject to unwelcome sexual harassment, i.e., sexual 

advances, request for sexual favors, and 

other verbal or physical conduct of a sexual nature that is unwelcome in the sense 

that it is unsolicited or unincited and is 

undesirable or offensive to the employee;

(3) The harassment complained of 

was based upon sex, i.e., that but for the 

fact of her sex, the plaintiff would not 

have been the object of harassment;

(4) The harassment complained of 

affected a "term, condition, or privilege of 

employment, "i.e., the sexual harassment 

must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. In 

the type of harassment that involves the 

conditioning [**27] of concrete employment benefits on sexual favors, i.e., 

quid pro quo, the employee must show 

that the employer required sexual considerations from the employee in return for 

job benefits.

(5) Respondeat superior, i.e., that the employer knew or should have known of the 

harassment in question and failed to take 

prompt remedial action.

Flagship, 793 F.2d at 719-720; Henson, 682 F.2d at 

903-905.

In the instant case, elements one and three above are 

uncontroverted, that is, Mackey belongs to a protected 

group, i.e., she is a woman, and the harassment com-
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935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

plained of was based upon sex. However, as to elements 

two and four listed above, UPE argues that its summary 

judgment evidence shows that it investigated the alleged 

harassment and concluded that it did not occur; however, 

if it did occur, it was not sufficiently pervasive so as to 

alter the conditions of Mackey's employment, and it did 

not create an abusive working environment for her. 

Mackey's summary judgment evidence indicates that 

sexual advances, requests for sexual favors, and other 

verbal and physical conduct of Smith and Johnson of a 

sexual nature indeed took place. The evidence suggests 

that these [**28] gestures were unwelcome in the sense 

that they were unsolicited and unincited, and that it was 

undesirable and offensive to Mackey. Mackey's supervisors regularly demanded sexual intercourse from her and 

others, brushed up against her, touched and fondled her 

breasts and buttocks, called her demeaning names in 

front of fellow workers. Furthermore, the supervisors 

sexually harassed other female employees in the work 

place and even got one pregnant. Mackey's supervisors 

told her and the other employees not to tell anyone what 

was going on at work. Such working conditions inevitably created an abusive and intolerable working environment at Mackey's work place.

Furthermore, Mackey's summary judgment evidence 

shows that her employment benefits were conditioned on 

sexual favors for her supervisors. Smith and Johnson 

were managers with authority to hire, fire, and set the 

number of hours of their workers. When Smith's requests 

for sexual favors were refused, Smith reduced Mackey's 

scheduled working hours, resulting in less pay. At one 

time, Smith told Mackey, "If I did it, I get more hours." 

Johnson used his authority to force silence on Mackey. 

She stated that she was "called into the office [**29] by 

Greg Johnson and he told me not to tell [*457] anyone 

or he would fire my ass if talked." Johnson had the authority to evaluate employees' work performance and to 

reprimand them, which authority he used to coerce sexual favors. Mackey stated that when she denied sex to 

Johnson she would receive a written work-related reprimand. She stated that the more she denied Johnson, the 

more she was penalized. One day when Johnson gave 

Mackey a ride to work, he used his authority to hire and 

fire to force sexual intercourse from Mackey. We conclude from the summary judgment evidence outlined 

above that a genuine issue of fact exists relative to element number two, that is, whether Mackey was subject 

to unwelcome sexual harassment. It is further our conclusion that a genuine issue of fact exists in regards to 

element number four, both as to whether the sexual harassment created a hostile work environment and whether 

the harassment involved a quid pro quo in the work 

place, affecting Mackey's economic benefits.

We next turn to element number five, respondeat

superior. UPE contends that even if the sexual harassment took place and was sufficiently pervasive so as to 

alter Mackey's [**30] employment conditions and create an abusive working environment, the element of respondeat superior is not present since UPE did not know 

nor should it have known of the alleged harassment. UPE 

contends that it was not informed of the sexual harassment until after Mackey was terminated, at which time it 

took prompt, remedial action. However, in her deposition, Mackey stated that before she was terminated, she 

informed UPE supervisor, Hall, about Smith and Johnson's sexual harassment. Hall allegedly laughed and said 

she would do something about it. However, Hall did 

nothing about it. Rather, at the next store meeting, Johnson informed all employees that whatever happened in 

his store "was to remain there or else." In her deposition, 

Hall denies that Mackey told her about the sexual harassment. Although the evidence does not show whether 

Hall was present at that meeting, she stated that she always attended the staff meetings because she supervised 

and evaluated the managers. At the time Mackey allegedly informed Hall of the sexual harassment, Hall had 

been with UPE thirteen years and held a supervisory 

position with UPE. She worked out of the home office as 

supervisor of [**31] training, with responsibilities over 

all five Taco Bell restaurants in Tyler and 100-136 employees.

It is true that Mackey must show that the employer, 

UPE, knew or should have known of the harassment in 

question and failed to take prompt remedial action. 

However, an employee can demonstrate that her corporate employer knew of the harassment by showing that 

she complained to "higher management" of the harassment, Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 

F.2d 934, 943 (D.C. Cir. 1981), or by showing the pervasiveness of the harassment which gives rise to the inference of knowledge or constructive knowledge by the 

employer. Taylor v. Jones, 653 F.2d 1193, 1199 (8th 

Cir. 1981). Hall, being the supervisor of training in all 

five stores, appears to have held a position of "higher 

management" and, according to Mackey's affidavit, Hall 

not only failed to restrain Smith and Johnson, but failed 

to bring the matter to the attention of other officers of the 

corporation.

Furthermore, UPE was generally aware of increased 

sexual harassment problems in the work place and had 

recently dealt with a sexual harassment problem in its 

own company which had involved Johnson. UPE argues 

[**32] that the summary judgment evidence shows that 

the conduct complained of was against the policies of 

UPE, that those policies and procedures for complaints 

were posted, and that Mackey did not follow those procedures. However, having a policy against discrimination 
Page 9

935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

and a grievance procedure, coupled with Mackey's failure to invoke that procedure, does not insulate UPE from 

liability. Meritor Savings Bank v. Vinson, 477 U.S. 57, 

106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). While those 

factors are relevant, they are not dispositive in this summary judgment case. Although Mackey knew she could 

"inform Mr. Upshaw of such harassment," she was "not 

aware of the grievance procedures to follow when sexually harassment (sic)." Moreover, a reasonable procedure for lodging complaints would have been [*458] 

to inform one's supervisor which, in this case, was either 

Smith or Johnson, the alleged perpetrators. Based upon 

the above, we conclude that a genuine issue of fact remains regarding the fifth element of Mackey's sexual 

harassment cause of action, that is, whether or not UPE 

knew or should have known of the harassment in question and failed to take prompt, remedial action. Accordingly, [**33] Mackey's point of error five is sustained.

TORTIOUS INTERFERENCE WITH CONTRACT

As further grounds for summary judgment, UPE alleges that Mackey has not stated a cause of action of 

tortious interference with a contract. Mackey charges 

that Smith and Johnson interfered with her working environment in order to deprive her of wages and employment benefits under an employment contract and to undermine her prospects for advancement in the future. 

Mackey attempts to impute such conduct to UPE. However, it appears from the summary judgment evidence 

that Mackey does not have an oral or written contract 

with UPE. UPE responds that the cause of action is 

without merit since there is no contract with which to 

interfere. Furthermore, UPE argues that, assuming arguendo that UPE and Mackey had entered into an enforceable employment contract, as a matter of law, there 

can be no interference with the contract by UPE. Tortious interference with a contract occurs when a person 

intentionally and improperly interferes with the performance of a contract with a third party. We agree. A party 

cannot tortiously interfere with his own contract. In Texas, employment contracts are protected from tortious 

interference [**34] by outsiders. Sterner v. Marathon 

Oil Co., 767 S.W.2d 686 (Tex. 1989). A party to a business relationship cannot tortiously interfere with himself; 

liability must be founded upon acts of an interfering third 

party. Baker v. Welch, 735 S.W.2d 548, 549 (Tex. App. 

- Houston [1st Dist.] 1987, writ dism'd). We hold that the 

trial court did not err in granting summary judgment for 

UPE on Mackey's cause of action for tortious interference with contract. Accordingly, Mackey's point of error 

six is overruled.

WRONGFUL DISCHARGE

Mackey also alleged wrongful discharge as a cause 

of action. The summary judgment evidence presented by 

UPE shows that Mackey had neither an oral or written 

employment contract with UPE, and that she was an 

"at-will" employee. Mackey presented no controverting 

evidence. Generally, in the absence of a contract to the 

contrary, an employer in Texas has the authority to discharge an employee with or without cause. The discharge 

of an employee requires no justification unless the employer's right to discharge an employee is limited by 

contract. Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d 

536 (Tex. App. - Corpus Christi 1982, no writ). The employment-at-will [**35] doctrine places no duties on an 

employer regarding an employee's continued employment. Winters v. Houston Chronicle Pub. Co., 795 

S.W.2d 723 (Tex. 1990); Jones v. Legal Copy, 846 

S.W.2d 922 (Tex. App. - Houston [1st Dist.] 1993, no 

writ).

Nevertheless, Mackey alleges that UPE breached its 

duty of good faith and fair dealing by terminating her 

employment. However, Texas law does not impose the 

duty of good faith and fair dealing on the employer in the 

"at-will" employment context. Federal Express Corp. v. 

Dutschmann, 846 S.W.2d 282, 284 (Tex. 1993); Winters, 

795 S.W.2d at 724 n. 2; Day & Zimmermann, Inc. v. 

Hatridge, 831 S.W.2d 65 (Tex. App. - Texarkana 1992, 

writ denied). Mackey's reliance upon such theory is 

without merit. Casas v. Wornick Co., 818 S.W.2d 466

(Tex. App. - Corpus Christi 1991), rev'd on other 

grounds, 856 S.W.2d 732 (Tex. 1993).

However, there are statutory exceptions to the employment-at-will doctrine, such as Section 5.01 of the 

Texas Human Rights Act. Its provisions make it unlawful for an employer to discharge an employee because of 

his or her sex. Dutschmann, 846 S.W.2d at 284. 4 Mackey 

therefore has a cause of action [**36] if the sexual harassment conduct [*459] by Smith and Johnson resulted in her discharge. Flagship, 793 F.2d at 720.

4 For a discussion of the burdens of proof and 

production in employment discrimination cases, 

see Texas Dept. of Human Services v. Hinds, 904 

S.W.2d 629, 636 (Tex. 1995).

UPE presented summary judgment evidence showing that Mackey had received several reprimands for 

being rude to customers and for being late to work. On 

the day of her discharge, Upshaw personally witnessed 

Mackey being rude to a customer and ordered Johnson to 

terminate her, which he did. However, the summary 

judgment evidence also showed that Johnson told 

Mackey that he would fire her if she talked about the 

sexual activity at the restaurant. On one occasion, when 

Johnson was giving Mackey a ride to work, he told her 

that she was going to have sex with him or he would not 

take her to work. Johnson told Mackey that if she was 

late for work, he would fire her. Since there was not 
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935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

enough time for Mackey to walk or [**37] even call a 

cab, she complied in order to keep her job. Mackey then 

complained of the sexual harassment to Jones, a fellow 

employee, whose response was, "Well, you know Greg." 

Mackey also complained to Hall, a supervisor. At the 

next employee meeting, which was on the day Mackey 

was terminated, Johnson said to the group, "My employees, what goes on in this store, stays in this store. And for 

all of you that's running your mouth, it's going to stop." 

Then, as Johnson was looking at Mackey, he stated, 

"Some of you with your big ass mouth, I'm going to get 

rid of you." Later that same day, assistant restaurant 

manager, Daryl Friend, told Mackey that Johnson had 

called and that she was fired. We conclude that Mackey's 

summary judgment evidence controverted UPE's version 

of her termination, and that a genuine factual issue exists 

as to whether Mackey was terminated in violation of the 

Texas Human Rights Act. Therefore, based upon the 

above, we hold that the trial court committed error in 

granting summary judgment for UPE on Mackey's cause 

of action for wrongful discharge. Accordingly, Mackey's 

point of error seven is sustained.

NEGLIGENT SUPERVISION, TRAINING AND 

EVALUATION

Finally, Mackey [**38] alleges that UPE was negligent in its supervision, training, and evaluation of 

Smith and Johnson. Specifically, Mackey's claims 

against UPE include: (1) failing to adequately monitor 

Smith and Johnson's supervisory practices in their positions of store manager, (2) failing to detect and take action to deter the alleged sexual harassment by Smith and 

Johnson, and (3) failing to implement and monitor procedures for the handling of employee grievances. UPE 

responds by asserting that such a negligent claim by 

Mackey was barred by the exclusive remedy provision of 

the Texas Worker's Compensation Act. We agree. The 

Texas Worker's Compensation Act is the exclusive remedy for work-related injuries based upon negligence. 

Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985). 

Thus, the Act bars Mackey's claims based upon 

work-related negligence. Jones, 846 S.W.2d at 925-926. 

Again, Mackey alleges that the injuries she received 

from the conduct of Smith and Johnson were not 

work-related, and that their conduct was personal toward 

her. Therefore, she argues, her common law cause of 

action survives. If Mackey's injuries were sustained in 

the course of her employment, then her recovery [**39] 

would be barred by the exclusivity of the Act. If not, then 

the Act does not disturb Mackey's alleged common law 

remedies for negligent supervision, training, and evaluation, which we will now address.

Generally, the employer-employee relationship creates a duty on the part of the employer to control the employee's conduct. See Otis Engineering Corp. v. Clark, 

668 S.W.2d 307, 309 (Tex. 1983). An employer has a 

duty to adequately hire, train, and supervise employees. 

The negligent performance of those duties may impose 

liability on an employer if the complainant's injuries are 

the result of the employer's failure to take reasonable 

precautions to protect the complainant from misconduct 

of its employees. See Dieter, 739 S.W.2d at 408. Liability for negligent supervision is not dependent upon a 

finding that the employee was acting in the course and 

scope of his employment when the tortious act occurred. 

Id.

UPE's summary judgment evidence shows that it 

had a written policy statement against sexual harassment 

and that it was [*460] posted at all of its stores. UPE 

required all new employees to read the store policy and 

to sign a statement acknowledging that they had [**40] 

read it and understood it. UPE stressed to all employees 

that sexual harassment was strictly against company policy. UPE conducted training sessions with its managers 

and employees at least twice per month, and at these 

meetings it was stressed that sexual harassment was 

strictly against company policy. More specifically, the 

managers were told what it included, i.e., that it included 

physical touching, words with sexual connotations, and 

any sexual conduct which took place among employees 

or by employees towards customers. The managers were 

told that they were responsible for controlling such prohibited conduct. UPE established and implemented a 

grievance procedure which was also posted at each of the 

restaurants. An officer of the company visited each restaurant daily in order to monitor the activities of the employees. Supervisors from the home office visited each 

store daily and performed on-site supervision and evaluation of the managers and employees. UPE argues that 

its conduct in this regard conclusively shows that it acted 

as a reasonable, prudent employer and was not negligent 

in supervising, training, and evaluating Smith and Johnson. Mackey's summary judgment evidence does [**41] 

not controvert these facts. She simply relies upon the 

allegations of sexual harassment by Smith and Johnson. 

In order to avoid the adverse ruling of the trial court, it 

was necessary for Mackey to submit summary judgment 

evidence controverting these facts or specifying other 

acts or omissions of UPE showing that it failed to monitor Smith and Johnson's supervisory practices, failed to 

detect or take action to deter the alleged sexual harassment, or that it failed to implement and monitor procedures for handling grievances. See Musgrave v. Lopez, 

861 S.W.2d 262, 264 (Tex. App. - Corpus Christi 1993, 

no writ). Mackey failed to do so. We therefore conclude 

that there is no genuine issue of fact regarding Mackey's 

alleged negligent supervision, training, and evaluation. 

Accordingly, we hold that the trial court did not err in 

granting summary judgment for UPE on this cause of 

action. Mackey's point of error eight is overruled.
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935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

REMAINING POINTS OF ERROR

Mackey's point of error nine states: "The trial court 

erred in granting summary judgment for Appellee in its 

filing of response to Appellant's motion for summary 

judgment." Mackey's point and her argument under this 

point are not [**42] clear. TEX. R. APP. P. 74(f) requires that the argument in the brief shall include: (1) a 

fair, condensed statement of the facts pertinent to such 

points . . .; and (2) such discussion of the facts and the 

authorities relied upon as may be requisite to maintain 

the point at issue. Mackey's point of error and argument 

do not comply with the requirements of Rule 74(f); 

however, in the interest of justice, we will attempt to 

address this point.

UPE filed its motion for summary judgment with 

appropriate summary judgment evidence attached. 

Mackey then filed a response to the summary judgment 

motion and attached her summary judgment evidence. 

Thereafter, UPE filed "Defendant's Reply to Plaintiff's 

Response to Defendant's Motion for Summary Judgment" in which UPE presented to the trial court arguments and authorities supporting their summary judgment motion. UPE's response was simply procedural and 

added no new substantive matters. UPE's argument in its 

reply was that Mackey had not presented sufficient or 

competent summary judgment evidence controverting its 

summary judgment evidence on several of the causes of 

action alleged by Mackey. Mackey apparently argues 

that the granting of summary [**43] judgment based on 

UPE's response and argument would be an illegal shifting of the burden, and would constitute the granting of a 

default judgment in a summary judgment proceeding.

It is true, as Mackey argues, that summary judgment 

may not be obtained by default for lack of an answer or 

response to the summary judgment motion when the 

movant's evidence is legally insufficient. Cotton v. 

Ratholes, Inc., 699 S.W.2d 203 (Tex. 1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 

1979). However, when movant's summary judgment 

[*461] evidence is legally sufficient, nonmovant must 

produce summary judgment evidence controverting the 

movant's summary judgment proof in order to avoid an 

adverse summary judgment ruling. Musgrave, 861 

S.W.2d at 264. In this point of error, Mackey fails to 

recognize that UPE has presented legally sufficient 

summary judgment evidence, that it was clear, positive, 

direct, and free from inconsistencies, and could have 

been readily controverted by Mackey. Therefore, the 

evidence supports summary judgment in four of her 

causes of action as outlined above. Point of error nine is 

overruled.

In her tenth point of error, Mackey alleges [**44] 

that the trial court erred in refusing to allow her to file 

her third amended petition. On January 14, 1993, the trial 

court signed a scheduling order setting pretrial deadlines 

pursuant to the court's local rules. The order required all 

amended pleadings to be filed by November 10, 1993. 

Mackey did not file her third amended petition until December 3, 1993, which was untimely according to the 

court's order. Texas Rule of Civil Procedure 63 provides, 

in pertinent part:

 Parties may amend their pleadings . . . 

by filing such pleas with the clerk at such 

time as not to operate as a surprise to the 

opposite party; provided, that any pleadings, responses or pleas offered for filing 

within seven days of the date of trial or 

thereafter, or after such time as may be 

ordered by the judge under Rule 166, shall 

be filed only after leave of the judge is 

obtained, which leave shall be granted by 

the judge unless there is a showing that 

such filing will operate as a surprise to the 

opposite party.

TEX. R. CIV. P. 63. Texas Rule of Civil Procedure 166

expressly provides, in pertinent part:

 The court shall make an order which 

recites the action taken at the pretrial 

conference, [**45] the amendments 

allowed to the pleadings, the time within 

which same may be filed, and the agreements made by the parties as to any of the 

matters considered . . . and such order 

when issued shall control the subsequent 

course of the action, unless modified at 

the trial to prevent manifest injustice.

TEX. R. CIV. P. 166; see also Forscan Corp. v. Dresser 

Industries, Inc., 789 S.W.2d 389, 393 (Tex. App. - Houston [14th Dist.] 1990, writ denied).

Mackey argues that her third amended petition was 

filed well in advance of the seven-day rule provided for 

in TEX. R. CIV. P. 63. However, Mackey does not address the effect of TEX. R. CIV. P. 166, which provides 

that a scheduling order, when issued, shall control the 

subsequent course of action of the parties. Nevertheless, 

in the interest of justice, we will address the action of the 

trial court under the appropriate abuse of discretion 

standard. Forscan Corp., 789 S.W.2d at 393.

In her third amended petition, Mackey added in several places the allegation that TBC was the employer of 

Mackey, Smith, and Johnson. However, Mackey had 

already made these allegations in various other para-
Page 12

935 S.W.2d 446, *; 1996 Tex. App. LEXIS 4878, **

graphs in her second amended petition, [**46] and 

furthermore, the allegations against TBC would not be 

material in this case against UPE. Also, in her third 

amended petition, Mackey added allegations that Smith 

and Johnson were "managers." This allegation had been 

previously asserted by Mackey in her second amended 

petition. The only other change made in her third 

amended petition was the elimination of her claim of 

negligent infliction of emotional distress. As stated 

above, such cause of action would be without merit since 

there is no general duty in Texas not to negligently inflict 

emotional distress. Boyles, 855 S.W.2d at 597.

Based on our review of the record, it appears that 

Mackey did not attempt to add any new causes of action 

in her third amended petition or factual allegations necessary to support subsequent proof. Moreover, the record 

does not show that the trial court refused to consider 

Mackey's allegations that Smith and Johnson acted as 

managers.

Furthermore, even if the trial court erred in disallowing the filing of Mackey's third amended petition, the 

error was harmless. The third amended petition did not 

add any [*462] significant allegations to her case, nor 

would allowing the third amended petition [**47] to be 

filed afford Mackey any greater actual or theoretical basis for overcoming the summary judgment. Therefore, 

the error, if any, did not amount to such a denial of 

Mackey's rights that it would reasonably be calculated to 

cause or probably did cause, the rendition of an improper 

judgment. TEX. R. APP. P. 81(b)(1). We conclude that 

the trial court did not abuse its discretion in refusing to 

allow Mackey to file her third amended petition. 

Mackey's point of error ten is overruled.

The judgment of the trial court granting summary 

judgment in Mackey's causes of action based on sexual 

harassment and Mackey's cause of action based on 

wrongful discharge is reversed and remanded to the trial 

court for further proceedings in accordance with this 

opinion. In all other respects, the judgment of the trial 

court is affirmed.

ROBY HADDEN

Justice

Opinion delivered October 30, 1996.

Panel consisted of Ramey, Jr., C.J., Holcomb, J., and 

Hadden, J. 
APPENDIX – “B”
Page 1

REYNALDO C. PATINO, Appellant v. COMPLETE TIRE, INC., Appellee

No. 05-04-00561-CV 

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

158 S.W.3d 655; 2005 Tex. App. LEXIS 1841

March 10, 2005, Opinion Filed 

SUBSEQUENT HISTORY: [**1] Released for 

Publication April 8, 2005. 

Petition for review denied by Patino v. Complete Tire, 

Inc., 2005 Tex. LEXIS 454 (Tex., June 10, 2005)

PRIOR HISTORY: On Appeal from the County 

Court of Law No. 2. Dallas County, Texas. Trial Court 

Cause No. CC-03-6515-B. 

DISPOSITION: AFFIRMED. 

COUNSEL: For APPELLANT: Mr. Kent Wade Starr, 

STARR & ASSOCIATES, Dallas, TX.

For APPELLEE: John Walter Reeder, Plano, TX. 

JUDGES: Before Justices Bridges, Richter, and Lang. 

Opinion By Justice Lang. 

OPINION BY: DOUGLAS S. LANG

OPINION

[*658] Opinion By Justice Lang

In two issues, Reynaldo C. Patino challenges the 

summary judgment and discovery sanctions granted in 

favor of Complete Tire, Inc. For the reasons below, we 

resolve Patino's two issues against him and affirm the 

trial court's summary judgment.

I. BACKGROUND

Complete Tire, Inc. hired Patino in May 2002 to 

remove and repair flat truck tires. According to the allegations in Patino's original petition, on June 10, 2002, 

while removing a large flat tire from the rim, he was 

struck in the head by a piece of pipe and was injured. He 

received medical attention. Complete Tire, Inc. terminated Patino on July 3, 2002. Patino alleged that Complete Tire, Inc., was negligent in failing to provide training and supervision on the proper method and safety 

hazards of removing and repairing flat tires and that, as a 

result of these failures, he was injured.

Complete Tire, Inc. served discovery requests upon 

Patino, to which Patino served objections and responses. 

[**2] After Patino failed to supplement his answers, 

Complete Tire, Inc. filed a combined motion to compel 

and motion for sanctions, asserting that Patino's answers 

were deficient. Patino responded to the motion to compel 

and motion for sanctions and supplemented [*659] his 

discovery responses. After a hearing, the trial court 

granted the motion to compel. Subsequently, the trial 

court heard the motion for sanctions and ordered Patino 

to pay $ 1,500 in attorney's fees to Complete Tire, Inc.

Complete Tire, Inc.'s initial motion for no-evidence 

summary judgment was denied as premature. Subsequently, Complete Tire, Inc. filed a "reasserted" 

no-evidence motion for summary judgment. Patino responded and supported his response with evidence. The 

trial court granted the motion for summary judgment. 

The prior order on discovery sanctions was specifically 

made a part of the order granting summary judgment. 

This appeal timely followed.

II. PROPRIETY OF SUMMARY JUDGMENT

In his first issue, Patino contends the trial court erred 

in granting Complete Tire, Inc.'s no-evidence motion for 

summary judgment.

A. Standard of Review and Applicable Law

When a motion for summary judgment is presented 

[**3] under rule of civil procedure 166a(i) asserting 

there is no evidence of one or more essential elements of 
Page 2

158 S.W.3d 655, *; 2005 Tex. App. LEXIS 1841, **

the nonmovant's claims upon which the nonmovant 

would have the burden of proof at trial, the burden shifts 

to the nonmovant to present enough evidence to be entitled to a trial, that is, evidence that raises a genuine fact 

issue on the challenged elements. TEX. R. CIV. P. 

166a(i) & cmt.; S.W. Elec. Power Co. v. Grant, 73 

S.W.3d 211, 215, 45 Tex. Sup. Ct. J. 502 (Tex. 2002); 

Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 

827, 832 (Tex. App.-Dallas 2000, no pet.). If the nonmovant is unable to provide enough evidence, the trial 

judge must grant the motion. Gen. Mills Rests., Inc., 12 

S.W.3d at 832.

Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal 

sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Id. at 832-33. Thus, our task as an appellate court is 

to determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Id. at 833. [**4] We consider 

all the evidence in the light most favorable to the party 

against whom the no-evidence summary judgment was 

rendered, disregarding all contrary evidence and inferences. Id.

Because it is undisputed that Complete Tire, Inc. is a 

workers' compensation nonsubscriber, Patino must establish negligence by Complete Tire, Inc. in order to recover. See Werner v. Colwell, 909 S.W.2d 866, 868, 38 Tex. 

Sup. Ct. J. 1113 (Tex. 1995); TEX. LAB. CODE ANN. § 

406.033(d) (Vernon 2004-05) (providing that, in action 

against employer who lacks workers' compensation insurance coverage, "the plaintiff must prove negligence of 

the employer"). The elements of a negligence cause of 

action are: (1) the defendant owed a particular duty to the 

plaintiff; (2) the defendant breached that duty by failing 

to adhere to a recognized standard of care; and (3) the 

breach of duty proximately caused the plaintiff injury. 

See Van Horn v. Chambers, 970 S.W.2d 542, 544, 41 

Tex. Sup. Ct. J. 1168 (Tex. 1998).

B. Discussion

Initially, we address Patino's argument in his response and on appeal that Complete Tire, Inc.'s motion 

for summary judgment was conclusory and did not attack 

any of the essential [**5] elements of his negligence 

cause of action. If a no-evidence motion for summary 

judgment is not [*660] specific in challenging a particular element or is conclusory, the motion is legally insufficient as a matter of law. Callaghan Ranch, Ltd., v. 

Killam, 53 S.W.3d 1, 3 (Tex. App.-San Antonio 2000, pet. 

denied) (citing McConnell v. Southside Indep. Sch. Dist., 

858 S.W.2d 337, 342, 36 Tex. Sup. Ct. J. 792 (Tex. 

1993); see Cimarron Hydrocarbons Corp. v. Carpenter, 

143 S.W.3d 560, 563 (Tex. App.-Dallas 2004, pet. filed).

After stating the elements of a negligence cause of 

action and the no-evidence summary judgment standard, 

Complete Tire, Inc.'s "Reasserted No-Evidence Motion 

for Summary Judgment" states:

Therefore, Defendant is entitled to summary judgment because Plaintiff cannot demonstrate any evidence 

to support his negligence claims. Specifically, Plaintiff 

cannot prove the existence of a specific legal duty owned 

to him, the breach of that duty, that any such breach 

caused him injury, and that his alleged continuing medical problems are causally related to any alleged injury he 

suffered as a result of Defendant's negligence.

We conclude the motion states the [**6] elements 

of Patino's negligence claim as to which there is no evidence as required by rule 166a(i). See TEX. R. CIV. P. 

166a(i); cf. Killam, 53 S.W.3d at 3-4 (concluding that 

motion stating defendants "are entitled to summary 

judgment because the Plaintiffs cannot by pleading, deposition, answers to interrogatories or other admissible 

evidence demonstrate there is any evidence to support 

the declaratory judgment seeking to declare the road in 

question a public thoroughfare" and generally challenging plaintiff's factual allegations failed to state elements 

of causes of action as to which there was no evidence 

and was legally insufficient). Accordingly, we reject

Patino's argument that the motion for summary judgment 

was legally insufficient.

Next, we address Patino's argument that the trial 

court erred in granting the no-evidence motion for summary judgment because he brought forth more than a 

scintilla of evidence to prove his negligence claim.

1. Standard of Care

An employer has a duty to adequately hire, train, 

and supervise employees. Allen v. A & T Transp. Co., 79 

S.W.3d 65, 70 (Tex. App.-Texarkana 2002, [**7] pet. 

denied). The negligent performance of those duties may 

impose liability on an employer if the complainant's injuries result from the employer's failure to take reasonable precautions to protect the complainant from the misconduct of its employees. Id. Although an employer is 

not an insurer of its employees' safety at work, it has a 

duty to use ordinary care in providing a safe workplace. 

Id. This includes providing rules and regulations for the 

safety of employees, warning employees of the hazards 

of their employment, and supervising their activities. Id.

The age and experience of the employee should be considered in measuring the duty of the employer. Id.

As an offshoot of this duty, the employer is also required to instruct employees in the safe use and handling 

of products and equipment used in and around an employer's premises or facilities. Id. However, an employer 

has no duty to adopt safety rules where its business is 
Page 3

158 S.W.3d 655, *; 2005 Tex. App. LEXIS 1841, **

neither complex nor hazardous or where the dangers incident to the work are obvious or are of common 

knowledge and fully understood by the employee. Id.

The duty to warn or caution an employee of a danger 

arises when: (a) the employment [**8] is of a dangerous character requiring skill and caution for its safe and 

proper discharge, and (b) the employer is aware of the 

danger and has reason to [*661] know the employee is 

unaware of the danger. Id. However, an employer's duty 

to instruct applies to an inexperienced employee, but not 

to one who is experienced in the work he is assigned. Id.

In his response, Patino stated that he had "retained 

an expert with 33 years of experience in the tire industry 

who will be testifying regarding training necessary to 

prevent injuries and deaths of individuals charged with 

changing large diesel tires." Patino did not identify the 

alleged expert. Patino did not attach to his response an 

affidavit from any person setting forth the standard of 

care regarding training and supervision of a person with 

Patino's experience in tire changing. Patino did not produce any evidence as to his experience or knowledge, 

Complete Tire, Co.'s knowledge of his experience at the 

time of the incident, or the specific equipment or procedure for which he lacked training or supervision. Accordingly, we conclude that Patino failed to bring forth 

any evidence as to the challenged element of standard of 

care. [**9] See TEX. R. CIV. P. 166a(i).

2. Breach of Duty

Patino argues that a breach of an employer's duty to 

provide a safe work place for its employees can be established when evidence is provided that training beyond 

that given by the employer would be necessary or proper 

by a reasonably prudent employer. See Allsup's Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 437 (Tex. 

App.-Amarillo 1996,writ denied). Here, Patino points to 

the affidavits of two former co-workers, who stated that 

they never received any type of training. This is no evidence as to the absence of any training as to Patino.

Patino's summary judgment evidence included 

Complete Tire, Inc.'s interrogatory response, in which it 

stated that, for the first two days of employment, Patino 

was sent out on calls with an experienced tire technician 

and "at that time his tire changing technique would have 

been observed and any necessary comments made concerning adjustments that may have been necessary in his 

tire changing technique and examples of proper tire 

changing techniques would have been shown to him" and 

that "[a] few times after that initial two day period, 

[Patino] [**10] accompanied a more experienced tire 

technician on an assigned job." However, Patino presented no evidence showing that training and supervision 

beyond that given by Complete Tire, Inc. would be necessary or proper by a reasonably prudent employer, that 

is, the training and supervision Complete Tire, Inc. negligently failed to provide. See id. We conclude that Patino failed to bring forth any evidence showing a breach of 

any standard of care. See TEX. R. CIV. P. 166a(i).

3. Causation

Proximate cause comprises two elements: cause in 

fact and foreseeability. Excel Corp. v. Apodaca, 81 

S.W.3d 817, 820, 45 Tex. Sup. Ct. J. 962 (Tex. 2002). 

The test for cause in fact, or "but for cause," is whether 

the act or omission was a substantial factor in causing the 

injury "without which the harm would not have occurred." Id. (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477, 38 Tex. Sup. Ct. J. 732 

(Tex. 1995)). Although it appears that Complete Tire, 

Inc. acknowledges that Patino was injured while using a 

tire iron, Patino provided no evidence as to what actually 

happened and how he was injured. Thus, he provided no 

evidence linking his injuries to anything Complete 

[**11] Tire, Inc. did or failed to do. See id. at 822. 

Patino argues that he provided the injury reports of two 

former employees who were injured "in the exact same 

manner" as he was. But evidence of work-place injury is 

no evidence that, if [*662] Complete Tire, Inc. "had 

done something different," Patino would not have been 

injured or would not have received the specific injuries 

he claimed. See id. at 820. Accordingly, Patino failed to 

bring forth any evidence as to the element of causation. 

See TEX. R. CIV. P. 166a(i).

Having concluded that Patino failed to bring forth 

any evidence as to the challenged elements, we resolve 

his first issue against him.

III. PROPRIETY OF SANCTIONS

In his second issue, Patino contends the trial court 

erred in granting Complete Tire, Inc.'s, motion for discovery sanctions.

A. Standard of Review and Applicable Law

A trial court's ruling on a motion for sanctions is reviewed under an abuse of discretion standard. Cire v. 

Cummings, 134 S.W.3d 835, 838, 47 Tex. Sup. Ct. J. 465 

(Tex. 2004). The test for an abuse of discretion is not 

whether, in the opinion of the reviewing court, the facts 

present an appropriate case for the trial court's action, 

[**12] but "whether the court acted without reference 

to any guiding rules and principles." Id. at 838-39 (citation omitted). The trial court's ruling should be reversed 

only if it was arbitrary or unreasonable. Id. at 839. Sanctions are used to assure compliance with discovery and 

deter those who might be tempted to abuse discovery in 

the absence of a deterrent. Id. However, a trial court may 

not impose a sanction that is more severe than necessary 
Page 4

158 S.W.3d 655, *; 2005 Tex. App. LEXIS 1841, **

to satisfy its legitimate purpose. Id.; see TransAmerican 

Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917, 34 

Tex. Sup. Ct. J. 701 (Tex. 1991) (holding that rule of civil 

procedure 215 requires that any sanctions imposed be 

just, meaning that they must relate directly to the abuse 

found and not be excessive).

Texas Rule of Civil Procedure 215.2 allows a trial 

court to sanction a party for failure to comply with a 

discovery order or request. TEX. R. CIV. P. 215.2. Pursuant to rule 215.2(b), a trial court may order the disobedient party to pay reasonable expenses, including attorney's fees, caused by the failure to obey the order. TEX. 

R. CIV. P. 215.2(b)(8) [**13] .

B. Discussion

On June 27, 2003, Complete Tire, Inc. sent a request 

for disclosures, interrogatories, and requests for production to Patino. The parties entered a Rule 11 agreement 

allowing Patino until August 13, 2003 to respond to the 

discovery. On August 8, Complete Tire, Inc. received 

Patino's responses to discovery. On August 13, Complete 

Tire, Inc. notified Patino by letter that the discovery responses were "inadequate and incomplete" and required 

immediate supplementation within ten days. On August 

29, when no response was received, Complete Tire, Inc. 

filed a motion to compel Patino to respond more fully to 

discovery requests and motion for sanctions.

A hearing on the motion to compel was set for October 10. On October 3, Patino sent amended discovery 

responses to Complete Tire, Inc. In its order on the motion to compel, the trial court found that Patino's responses were "incomplete and evasive"; the motion to 

compel was filed after Patino failed to serve supplemental responses within the ten-day deadline; the discovery responses were not amended until October 6, four 

days before the hearing; and, the amended responses, 

"while an improvement in some areas," were incomplete 

[**14] and evasive in other areas. The trial court 

granted the motion to compel as to many of the responses.

After a hearing on the motion for sanctions, the trial 

court signed a supplemental [*663] order on the motion to compel discovery and motion for sanctions, in 

which it "referenced the findings it made in its prior order" on the motion to compel and found that an award of 

$ 1,500 in attorney's fees associated with compelling 

responses to discovery was appropriate.

Patino argues that the discovery requests were overly broad and were not limited as to a time period. However, as detailed above, the record shows that Patino 

asked for and was granted additional time to answer, 

provided insufficient answers, and developed his answers 

further only in response to a motion to compel. Even 

after providing supplemental answers, the trial court 

found those answers to be "incomplete and evasive." On 

this record, we conclude the trial court did not abuse its 

discretion in granting Complete Tire, Inc.'s motion for 

sanctions. See Cire, 134 S.W.3d at 838-39. We resolve 

Patino's second issue against him.

IV. CONCLUSION

Having resolved Patino's two issues against him, we 

affirm the [**15] trial court's summary judgment.

DOUGLAS S. LANG

JUSTICE 
APPENDIX – “C”
Page 1

ALLSUP'S CONVENIENCE STORES, INC., APPELLANT v. JACKIE WARREN, 

APPELLEE

NO. 07-96-0122-CV

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

934 S.W.2d 433; 1996 Tex. App. LEXIS 5160

November 21, 1996, Decided 

SUBSEQUENT HISTORY: [**1] Appellee's 

Motion for Rehearing Overruled December 20, 1996. 

PRIOR HISTORY: FROM THE 222ND JUDICIAL 

DISTRICT COURT OF DEAF SMITH COUNTY; NO. 

CI-94F-102; HONORABLE DAVID WESLEY GULLEY, JUDGE. 

DISPOSITION: Reversed and rendered 

COUNSEL: Ed McConnell, David Duncan, SMITH 

STORRS WILSON & MCCONNELL PC, Amarillo, 

Texas.

Jeffrey B. Jones, Bradley M. Pettiet, John D. Rosentreter, 

JONES FLYGARE GALEY BROWN & WHARTON, 

Lubbock, Texas. 

JUDGES: PANEL E, Before BOYD, C.J., REAVIS, J. 

and REYNOLDS, S.J. * Opinion by Senior Justice Reynolds.

* Charles L. Reynolds, Chief Justice (Ret.), 

Seventh Court of Appeals, sitting by assignment. 

Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon 

Supp. 1996).

OPINION BY: Charles L. Reynolds

OPINION

[*434] Allsup's Convenience Stores, Inc. (Allsup) 

challenges the judgment rendered against it on Jackie 

Warren's negligence cause of action for personal injuries, 

contending there was no evidence concerning (1) negligence, (2) proximate cause, and (3) causal connection. 

Agreeing there was a lack of evidence of negligence, we 

will reverse and render.

Warren, employed by Allsup as a store manager in 

Hereford, filed her action against Allsup and Affiliated 

Foods, [**2] Inc., alleging their negligence was the 

proximate cause of injuries she received on 8 June 1992 

and 13 July 1992 while lifting cardboard boxes, each 

containing six one gallon jugs of milk, out of an Affiliated Foods delivery truck while in the scope of her employment with Allsup. Because Allsup was not a subscriber under Texas Workers' Compensation laws, she 

grounded her action on Texas Labor Code section 

406.033(d), 1 and alleged Allsup's violation of Texas Revised Civil Statute article [*435] 5182a to show the 

requisite negligence. 2 Sears Roebuck & Company v. 

Robinson, 154 Tex. 336, 280 S.W.2d 238, 239 (1955).

1 The Labor Code provides that in an action 

against an employer for an injury received in the 

course and scope of employment, where the employer does not have workers' compensation insurance coverage, "plaintiff must prove negligence of the employer or of an agent or servant of 

the employer acting within the general scope of 

the agent's or servant's employment." Tex. Labor 

Code Ann. § 406.033(d) (Vernon Pamph. 1997).

2 Texas Revised Civil Statute article 5182a was 

repealed after Warren filed suit on 3 June 1994. 

Acts 1995, 74th Leg., ch. 76, § 954(c), eff. Sept. 

1, 1995. However, prior to its repeal, section 3 

provided that "Every employer shall furnish and 

maintain employment and a place of employment 

which shall be reasonably safe and healthful for 

employees. Every employer shall install, maintain, and use such methods, process, devices, and 

safeguards, . . . as are reasonably necessary to 
Page 2

934 S.W.2d 433, *; 1996 Tex. App. LEXIS 5160, **

protect the life, health, and safety of such employees, and shall do every other thing reasonably necessary to render safe such employment 

and place of employment." Id.

[**3] Specifically, Warren alleged that Allsup 

was negligent in its:

 1. Failure to provide a safe place 

of employment as required by Tex. Rev. 

Civ. Stat. Ann. art. 5182a, section 3;

 2. Failure to provide Plaintiff with assistance in unloading supplies from the 

rear of a tractor bed from a height of chest 

level or above;

 3. Failure to adequately or properly 

train the employees in any manner in lifting heavy or awkward items from the rear 

of a tractor trailer bed from a height of 

chest level or above;

 4. Failure to provide adequate equipment to lift items from the rear of a tractor 

trailer bed from a height of chest level or 

above;

 5. Failure to provide safety equipment 

to lift items from the rear of a tractor 

trailer bed from a height of chest level or 

above;

 6. Failure to adhere to safety requirement under the Occupational Safety and 

Health Act, by failing to provide safety 

equipment in order to unload by lifting 

items from the rear of a tractor trailer bed 

from a height of chest level or above; and

 7. Failure to provide assistance in the 

operation of the convenience store while 

unloading the Affiliated [**4] Foods, 

Inc. tractor trailer.

Allsup generally denied Warren's action and affirmatively asserted its right to offsets for payment of medical 

expenses and wages. Additionally, Allsup specially excepted to Warren's interpretation of and reliance upon 

article 5182a, supra, but no action on the special exception is recorded.

The record reveals that in April of 1992, Warren was 

hired by Dale McDonald, a supervisor for Allsup, as an 

assistant manager of Allsup's Store No. 111. Later, she 

became manager of the store after McDonald had fired 

all the other employees at the store. Although the store 

manager normally hires and fires the employees, and 

schedules their work hours, McDonald hired the employees for this store. Subsequently, on 4 July 1992, 

Warren was transferred as manager to Store No. 112, 

where the employees previously had been hired. The 

manager was responsible for, among other things, unloading the merchandise delivered to the store by trucks 

of Affiliated Foods, Allsup's supplier, and to see that the 

trucks were not delayed in any way. McDonald told 

Warren that she needed to schedule one of the men to 

unload the truck every time, the advice given each female store [**5] manager. 

Among other testimony, the jury heard Warren's description of the events surrounding the two incidents. At 

Store No. 111, she had scheduled a young boy to work 

on June 8, the day of the delivery, but he failed to show. 

She telephoned McDonald for help, but none arrived. 

Because the Affiliated Foods driver would not wait for 

her to get help, Warren unloaded the truck alone by carrying the boxes off the tailgate of the delivery truck and 

setting them down inside the store, hurting her back in 

the process. 3 Her depiction of the events at Store No. 

112 on July 13 was substantially the same. 

3 There was no testimony concerning how 

many boxes Warren actually carried off the delivery truck.

Ten members of the twelve person jury found that 

both Allsup and Warren were negligent, but Affiliated 

was not. 4 They attributed 25% of the negligence to Allsup and 75% to Warren. 5 And they found that $ 75,000 

[*436] was reasonable compensation for Warren's past 

and future pain, mental anguish, lost earning [**6] capacity, disfigurement, physical impairment, and medical 

care.

4 Affiliated is not a party to this appeal.

5 No allegation of error pursuant to Chapter 33 

of the Texas Civil Practice & Remedies Code 

Annotated (Vernon 1986 & Supp. 1997) is made, 

presumably since Texas Labor Code section 

406.033(a), supra, provides that contributory 

negligence by Warren is not a defense.
Page 3

934 S.W.2d 433, *; 1996 Tex. App. LEXIS 5160, **

Allsup filed a motion for judgment notwithstanding 

the verdict. The basis of the motion was a lack of any 

evidence concerning negligence or causation.

The trial court denied the motion and rendered 

judgment on the verdict. The judgment provides for 

Warren's recovery of $ 33,490, 6 together with pre- and 

post-judgment interest and costs of court against Allsup.

6 This figure represents the jury award less 

offsets for medical expenses previously paid by 

Allsup and stipulated to by Warren.

[**7] The genesis for this appeal is the denial of 

Allsup's motion for judgment notwithstanding the verdict. Allsup contends the motion should have been 

granted because there was no evidence presented concerning (1) negligence, (2) proximate cause, or (3) causal 

connection.

Warren responds that there was some evidence of 

negligence, proximate cause and causal connection. Specifically, she represents that in connection with her 

pleaded acts of negligence, 

 2 and 7, Allsup failed to provide her 

adequate assistance in unloading Affiliated's trucks;

 3, Allsup failed to properly train her in 

lifting the boxes from the trucks;

 4, Allsup failed to provide a loading 

dock for the unloading of the trucks; and

 5, Allsup failed to provide her with a 

back brace or safety belt. 7

7 With respect to her sixth allegation of negligence, Warren concedes that there was no evidence of the OSHA standards and, hence, no evidence of their violation.

Warren concludes that since it was medically [**8] 

evidenced that she received injuries on the dates alleged, 

it was within the province of the jury to sift through the 

evidence and arrive at its own conclusions, Texas Rule of 

Civil Procedure 226(a), which are not to be disturbed. 

Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).

Of course, the jury was entitled to draw its own conclusions from the evidence, provided there was evidence 

to support its findings. Id. In our own examination of the 

contentions of no evidence, we must review the entire 

record to determine whether there is more than a scintilla 

of evidence to support the findings, Garza v. Alviar, 395 

S.W.2d 821, 823 (Tex. 1965), and if there is, we must

uphold the findings. Stedman v. Georgetown S. & L. 

Ass'n, 595 S.W.2d 486, 488 (Tex. 1979). Evidence is 

merely a scintilla when it is so weak as to do nothing 

more than create a mere surmise or suspicion of a fact. 

Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 

755 (Tex. 1970). We must consider only the evidence 

and the reasonable inferences which can be drawn therefrom in their most favorable light to support the jury's 

findings while disregarding all contrary evidence and 

inferences. Browning-Ferris, [**9] Inc. v. Reyna, 

865 S.W.2d 925, 928 (Tex. 1993). If there is some evidence in the record to support the jury's findings, the 

challenge to the legal sufficiency will fail. Cameron v. 

Terrell & Garrett, Inc., 618 S.W.2d 535, 541 (Tex. 1981).

To be successful in her allegation of negligence, 

Warren must have marshalled some evidence to show (1) 

a legal duty owed her by Allsup, (2) that Allsup breached 

that duty, and (3) that the breach was the proximate 

cause of damages. El Chico Corp. v. Poole, 732 S.W.2d 

306, 311 (Tex. 1987). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence. Greater Houston Transp. Co. 

v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). The lack of 

evidence to show a breach of a legal duty owed Warren 

is the premise of Allsup's initial contention of error.

The mere occurrence of an event causing injury is not 

evidence of negligence. Farriell v. Davis, 606 S.W.2d 

344, 345 (Tex.Civ.App.--Eastland 1980, no writ). Thus, 

negligence or a failure to perform a duty required by law 

is never presumed as a fact, [*437] but must be proved 

by evidence. Wells v. Texas Pacific Pole and Oil Company, 140 Tex. [**10] 2, 164 S.W.2d 660, 662 (1942). 

The burden of proving it is on the party seeking a recovery of damages by reason of such negligence. Jones v. 

Nafco Oil and Gas, Inc., 380 S.W.2d 570, 574 (Tex. 

1964); Trio Transport, Inc. v. Henderson, 413 S.W.2d 

806, 812 (Tex.Civ.App.--Amarillo 1967, writ ref'd 

n.r.e.).

Given the premise that Allsup owed Warren a statutory duty to provide a safe work place pursuant to article 

5182a, supra, we review the recorded evidence to ascertain whether it was evinced that the duty was breached in 

the manner alleged by Warren. If not, then, as the Supreme Court has held, "it is the duty of the trial court to 

instruct a verdict, though there be slight testimony, if its 

probative force be so weak that it only raises a mere 
Page 4

934 S.W.2d 433, *; 1996 Tex. App. LEXIS 5160, **

surmise or suspicion of the existence of a fact sought to 

be established." Joske v. Irvine, 91 Tex. 574, 44 S.W. 

1059, 1063 (1898). 

With regard to Warren's claim that Allsup was negligent in failing to provide her with assistance in unloading the trucks, she argues that it was Allsup's standard 

operating procedure for male employees to unload the 

trucks, that she was instructed by McDonald to schedule 

one of the men to unload the truck [**11] every time, 

and that when the males she had scheduled to unload the 

trucks did not report for duty, her call for assistance was 

unanswered. However, because Warren does not suggest 

that Allsup failed to adequately staff the stores, the argument is refuted by the evidence that Allsup did not 

control the movements of the store employees, but that it 

was Warren's sole responsibility to schedule the workers 

for duty, and by her admission that the failure of the employees to report for duty was not Allsup's fault. Absent 

evidence of a special relationship between Allsup and 

Warren which imposed a duty upon Allsup apart from 

Warren's to insure that the scheduled employees reported 

for duty, Allsup had no duty to control the scheduled 

employees' conduct. Greater Houston Transp. Co. v. 

Phillips, 801 S.W.2d at 525. Thus, without proof of this 

necessary element for Allsup's liability, Warren cannot 

prevail under her theory that Allsup was negligent in 

failing to provide her assistance in unloading the trucks. 

Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 

720 (Tex. 1995).

Although Warren, in support of her allegation that 

Allsup was negligent in failing to properly train her, testified [**12] to the legal conclusion that she was not 

trained in lifting heavy items, the testimony was not validated by the evidence. Warren disclosed her familiarity 

with Allsup's Safety Manual, which directs that all personnel be instructed in proper lifting procedures as 

shown in its text and diagrams, but she could not recall 

following any of the lifting procedures outlined in the 

manual. Undisputed is the testimony of McDonald that 

he demonstrated to Warren how to unload a truck, including milk boxes, and unloaded her first truck with her, 

showing her how to unload it. Warren admitted that she 

was physically capable of unloading an Affiliated truck, 

that she had unloaded the trucks since she became manager, and that there was nothing unusual about what she 

had to do in unloading the trucks.

What is missing from the record to sustain Warren's 

claim is evidence of any training beyond that given 

Warren for lifting items from the truck which would be 

necessary or proper by a reasonably prudent employer. 

Warren's bald conclusion that she was not properly 

trained in lifting heavy items does not, without more, 

supply that evidence. It was her burden to provide factual 

proof of the training that [**13] Allsup negligently 

failed to provide, Jones v. Nafco Oil and Gas, Inc., 380 

S.W.2d at 574, but she did not provide that proof. 

Warren claimed, apparently in connection with Allsup's nondelegable duty to furnish her with reasonably 

safe instrumentalities with which to work, Fort Worth 

Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 

401 (1934), 8 that Allsup did not provide her with a back 

brace or belt for lifting the [*438] merchandise off the 

delivery trucks, or provide a loading dock. Her testimony, and that of McDonald, was consistent that neither 

was provided.

8 An unrelated portion of the opinion in this 

cause was disapproved in Wright v. Gifford-Hill 

& Co., Inc., 725 S.W.2d 712, 714 (Tex. 1987).

However, Warren admittedly never requested Allsup 

to provide a back brace or safety belt for the lifting, nor 

did she complain of the unloading as unsafe on any occasion. Rather, she testified she had unloaded delivery 

trucks on other occasions without injury. Neither was 

there any evidence that [**14] a back brace or safety

belt was commonly used in, or had been established by 

industry standards or customs as a safety measure for, 

unloading merchandise from trucks as was involved in 

this cause, or that a reasonably prudent employer would 

have provided such instrumentality. Nor was there any 

medical evidence that a back brace or safety belt would 

have prevented the injuries sustained by Warren.

In brief, because the evidence showed that the unloading of the trucks may be performed in the usual and 

proper way in safety without a protective back brace or 

safety belt, Warren did not evince that Allsup was under 

a duty to furnish the protective instrumentality. St. Louis 

Southwestern Ry. Co. v. Weatherly, 2 S.W.2d 555, 

558-58 (Tex.Civ.App.--Texarkana 1928, no writ). Absent a duty to furnish Warren a back brace or safety belt, 

Allsup could not be guilty of negligence for failing to do 

so. Triplex Communications, Inc. v. Riley, 900 S.W.2d 

at 720.

With respect to Warren's claim that Allsup was negligent 

in failing to provide a loading dock, it was undisputed 

that there was no room at either convenience store for a 

loading dock. The only evidence bearing on the comparison of a [**15] loading dock at another store with Allsup's stores was adduced by Warren's counsel's questioning of McDonald who, after testifying that he had 

worked at Buddies Food, a supermarket in Plainview, 

was asked and replied as follows:

 Q Did it have a dock?

 A Yeah, at the back.
Page 5

934 S.W.2d 433, *; 1996 Tex. App. LEXIS 5160, **

 Q Who was their grocery supplier?

 A Fleming.

* * * 

 Q They delivered by semi-truck?

 A Yes, sir.

 Q Just like Affiliated Foods?

 A That's right.

 Q Did they use unicarts or were they 

hand-stacked?

 A I don't really know . . . .

 Q Do you recall if at Buddies the 

goods off of a semi-truck would be unloaded onto the dock and then into the 

back of the store?

 A I don't recall. I believe I recall seeing 

unicarts, I think so.

 Q Okay. In your opinion do you think 

the use of unicarts is safer than the use of 

hand-stacked loads (like the unloading of 

Affiliated trucks at Allsup)?

 A No, I don't believe so. I have handled them both.

 Q Is it easier to get items off of a truck 

and into the store in unicarts?

 A I don't think it's any easier, I think 

its's --I just I don't [**16] like 

unicarts because I think unicarts are dangerous.

No other meaningful evidence concerning a loading dock 

was offered.

This evidence does not raise the issue whether Allsup failed to provide Warren a safe place to work because of the absence of a loading dock. The fact that a 

supermarket in another town had a loading dock does 

not, standing alone, establish that Allsup had a duty to 

provide a loading dock at its convenience stores, nor that 

Allsup was negligent for not providing a loading dock. 

That the convenience stores were an unsafe place to 

work may not be presumed from Warren's injuries; there 

must be proof that the absence of a loading dock was 

negligence, Jones v. Nafco Oil and Gas, Inc., 380 S.W.2d 

at 574, which is lacking in this record.

Because the evidence failed to show that Allsup was 

negligent in any manner alleged by Warren, Allsup was 

entitled to have its motion for an instructed verdict 

granted. We, therefore, sustain Allsup's first point of 

error, which pretermits an address of its other points. 

Tex. R. App. P. 90(a).

[*439] Accordingly, the judgment is reversed and 

judgment is hereby rendered that Warren take nothing by 

her action against [**17] Allsup.

Charles L. Reynolds

Senior Justice 
APPENDIX – “D”
Page 1

JAMES LERMON, Appellant/Cross-Appellee v. MINYARD FOOD STORES, INC., 

AND RODNEY LEE, Appellees

No. 05-13-00034-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2014 Tex. App. LEXIS 12498

November 19, 2014, Opinion Filed

SUBSEQUENT HISTORY: Rehearing denied by Lermon v. Minyard Food Stores, Inc., 2014 Tex. App. LEXIS 

13957 (Tex. App. Dallas, Dec. 29, 2014)

Petition for review denied by Lermon v. Minyard Food 

Stores, Inc., 2015 Tex. LEXIS 598 (Tex., June 19, 2015)

PRIOR HISTORY: [*1] On Appeal from the 

County Court at Law No. 1, Dallas County, Texas. Trial 

Court Cause No. CC-10-02955-A.

COUNSEL: For Appellants: Curtis L. Marsh, Bruce K. 

Thomas, Thomas D. Malone, Dallas, TX.

For Appellees: David E. Keltner, Matthew d. Stayton, 

Marianne Marsh Auld, Fort Worth, TX; David Hill 

Bradley, Houston, TX.

JUDGES: Before Justices O'Neill, Lang-Miers, and Evans. Opinion by Justice O'Neill.

OPINION BY: MICHAEL J. O'NEILL

OPINION

MEMORANDUM OPINION

Opinion by Justice O'Neill

James Lermon sued Minyard Food Stores and Rodney Lee (collectively Minyard) for malicious prosecution, negligence, and gross negligence. A jury found in 

Lermon's favor on all claims and awarded Lermon 

$830,000 in actual damages and $115,000 in punitive 

damages on his malicious prosecution claim and 

$175,000 in actual damages and $1 million in punitive 

damages on his negligence and gross negligence claims. 

The trial court rendered judgment on Lermon's malicious 

prosecution claim.

In his appeal, Lermon contends the trial court erred 

in failing to enter judgment on the jury findings affording 

him the greatest recovery. In its cross-appeal, Minyard 

contends the evidence is both legally and factually insufficient to support Lermon's claims for malicious prosecution, negligence, and gross negligence. It also challenges 

the jury's award of actual and punitive damages. We 

conclude the evidence is legally insufficient to support 

the jury's verdict on Lermon's [*2] claims. Accordingly, 

we reverse the trial court's judgment and render judgment that Lermon take nothing.

Background 

At 4:11 a.m. on September 4, 2006, $76,000 was 

stolen from the safe of a Carnival grocery store owned 

by Minyard. Surveillance videos taken at the store 

showed the thief entering and exiting the store as well as 

the actual theft. The thief, however, used an umbrella to 

shield his face from the camera's view. The thief had a 

key to the store and knew the store's alarm code and the 

combination of the safe. The thief was also able to 

quickly locate the alarm and the safe and then retrieve 

the cash deposit, suggesting the theft was an inside job. 

In the months prior to the theft, two similar thefts occurred at other stores owned by Minyard.

Minyard immediately reported the offense to Plano 

police. Detective Jeff Dalton investigated. Minyard also 

conducted its own internal investigation, led by its 

vice-president of loss prevention, Rodney Lee, who was 

assisted by loss prevention investigators Susan Caldwell 

and Bobby LaJuett. During the course of Minyard's investigation, Lee provided information to Detective Dalton and ultimately identified the thief as Lermon, who 
Page 2

2014 Tex. App. LEXIS 12498, *

had recently [*3] retired from Minyard. A grand jury 

later indicted Lermon for the offense and the Collin 

County District Attorney's Office tried him for the offense. Lermon's first trial ended in a mistrial. The DA 

tried Lermon a second time, resulting in his acquittal. 

Lermon then brought this suit for malicious prosecution, 

negligence, and gross negligence against Minyard and 

Lee asserting they were responsible for the damages he 

suffered from the criminal prosecution.

To show Minyard and Lee maliciously prosecuted 

him, Lermon relied on certain information Lee gave to 

Detective Dalton, which Lermon asserts Lee knew was 

false. In particular, Lermon relies on a September 12, 

2006 "Voluntary Statement" and a September 15, 2006 

memo addressed to Detective Dalton.

In the September 12, 2006, "Voluntary Statement," 

Lee stated:

 Following an investigation of a stolen 

cash deposit at our Carnival Foodstore 

#129 on 9/4/06 we determined the suspect 

to be an ex-employee James Lermon. After reviewing video and still shots and 

visiting with Mr. Lermon on 9/8/06 it is 

clear he is the person in the pictures. (Additionally, Mr. Lermon misrepresented 

several aspects of information pertaining 

to his returning store keys [*4] upon his 

retirement 8/3/06) Mr. Lermon worked at 

this location as a "fill-in" Asst. Mgr. in 

6/06 and had previously worked as an 

Asst. Mgr. prior as well. Mr. Lermon 

would have had the safe combination and 

alarm codes when he worked at this store 

in June. After reviewing all evidence/information I am convinced this is 

Mr. Lermon who committed this crime.

In the September 15, 2006 memo, Lee provided Detective Dalton a "Case Narrative" of the theft. In it, he 

included further details of his investigation. Lee stated 

that immediately after the theft, he and loss prevention 

investigators Caldwell and LaJuett were called to the 

store. He said after reviewing the surveillance video, the 

suspect immediately appeared "familiar" to them, but it 

was difficult to identify the suspect from the video. He 

said they compiled a list of all management that had access to the store's alarm code since it changed in April 

2006, and then excluded all non-white individuals because the suspect in the video was clearly an older white 

male. They then requested a Fort Worth police officer to 

"clean-up" the video and provide still shots of the thief. 

They were able to obtain clearer images, but Minyard 

sent the [*5] hard drive to a private company in an effort to obtain even clearer shots.1

1 The company was unable to obtain better 

images.

Lee further stated that on September 6, 2006 (two 

days after the theft), the Carnival store received a set of 

manager's keys for that store in an interoffice envelope. 

The handwriting on the envelope was identified as Lermon's. Lee stated Lermon had retired from Minyard on 

August 3, 2006, but would have had access to both the 

store's safe combination and the security alarm code because he had worked at the store since the alarm code 

changed.

Lee stated he went to Lermon's home and asked him 

about the keys. Lermon confirmed the handwriting on 

the interoffice envelope was his. Lermon told Lee he had 

returned the keys to a Sack 'N Save (a Minyard owned 

store) on September 2, 2006 (two days prior to the theft) 

when he went to that store to pick up a prescription. Lee 

said he confirmed Lermon had in fact returned the keys 

on September 2, giving them to a cashier. However, 

Lermon did not pick up a prescription on that date and 

the last time he had picked up a prescription from that 

location was August 19, 2006.

Lee also stated that after he spoke to Lermon, he 

"took note [*6] of his shaggy white beard" and "longer 

than normal" white hair, which "confirmed what we saw 

in the video."2 Lee concluded his memo by stating all 

known evidence, employee statements, photographs, and 

videos had been turned over to Detective Dalton.

2 Lee had previously told Caldwell that it 

looked like the thief might be wearing a hair net 

and beard net.

About a month after Lee's memo and voluntary 

statement, Detective Dalton prepared a probable cause 

affidavit requesting a warrant for Lermon's arrest. In his 

affidavit, Dalton states that he "has good reason to believe and does believe" that Lermon committed the theft. 

With respect to the thief's identity, Dalton stated James 

Luna, the manager that opened the store the morning 

after the theft, told him that he had watched the surveillance video with loss prevention investigators and that 

the thief "looked like" Lermon to him. Dalton also said 

Lee gave him a copy of the store's surveillance video. 

Detective Dalton watched the video and said it showed a 

white male that appeared to have white hair and a beard.

Detective Dalton said that although the man used an 

umbrella to shield his identity, still pictures obtained 

from the video captured [*7] the back and the side of 

the thief's head. Finally, Detective Dalton stated that Lee 

had told him that he had known Lermon for twenty 
Page 3

2014 Tex. App. LEXIS 12498, *

years, Lee reviewed the surveillance video and still photographs taken from the video, and the man on the video 

was Lermon.

A magistrate issued a warrant for Lermon's arrest 

based on Detective Dalton's affidavit, and Dalton filed 

the case with the DA's office. When he did so, Detective 

Dalton gave the DA's office his "summary" of the charges. In the summary, Dalton states, among other things, 

that Lee "believed" Lermon had used an "old key" that 

he had not returned upon retirement to unlock the door of 

the store.

William Coleman Sylvan, the lead prosecutor in 

Lermon's second trial, testified for Minyard. According 

to Sylvan, he had a "good" case against Lermon and it 

"was a case [he] believed in and believed needed to be 

prosecuted."Sylvan also testified that at no time during 

his prosecution of the case did he believe Minyard was 

acting maliciously toward Lermon, nor did he believe 

Minyard was trying to cause Lermon to be prosecuted. 

Further, Sylvan testified that before a prosecutor takes a 

case to trial, he has to evaluate it on his own to determine 

[*8] whether it has merit. He said if he had the sense 

that Minyard was trying to falsely prosecute Lermon, he 

would not have gone forward with the case.

On cross-examination, Sylvan said he knew a "significant portion" of information obtained by Detective 

Dalton about the theft came from Lee. Sylvan also 

acknowledged that the statement in Detective Dalton's 

summary -- that Lee believed Lermon used an old key to 

enter the store that he failed to return upon retirement --

would have been a "factor" in deciding whether to prosecute. However, Sylvan also testified that Lee had told 

him before Lermon's second trial that Lermon had returned the keys before the theft. Sylvan could not remember exactly what Lee said about the timing of the 

key's return, but he knew the keys had been returned. 

Sylvan also testified he personally reviewed the videotape of the crime. On re-direct, Sylvan testified he still 

would have felt he had a good case even if he was not 

presented information about the key.

Because the issues raised in Minyard's cross-appeal 

are dispositive, we address them at the outset. In its first 

issue, Minyard asserts there is no evidence to support 

Lermon's claim for malicious prosecution [*9] because 

the decision to prosecute Lermon was made by law enforcement officials and Lermon did not otherwise show 

Minyard or Lee initiated or procured the prosecution. We 

agree.

Malicious Prosecution 

The tort of malicious prosecution creates a unique 

tension between important competing societal concerns. 

See Browning-Ferris Indus. v. Lieck, 881 S.W.2d 288, 

290 (Tex. 1994). Specifically, a plaintiff's right to recover 

damages for being subjected to unjustified criminal proceedings must sometimes yield to society's greater interest in encouraging citizens to report crimes, real or perceived. Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 

788, 792 (Tex. 2006). Thus, a plaintiff must prove not 

only that the defendant commenced criminal proceedings 

against him and he is innocent of the crime charged, but 

also that the defendant lacked probable cause and harbored malice toward him. Id. These latter elements guard 

against a jury's natural inclination to punish those who, 

through error but not malevolence, commence criminal 

proceedings against a person who is ultimately exonerated. Id.

To prove causation, a plaintiff must specifically 

show the defendant "initiated or procured" the criminal 

prosecution. See Lieck, 881 S.W.2d at 292-93; Dangerfield v. Ormsby, 264 S.W.3d 904, 910 (Tex. App.--Fort 

Worth 2008, no pet.). A defendant "initiates" a prosecution when it files "formal charges" against the plaintiff. 

See Lieck, 881 S.W.2d at 293; Dangerfield, 264 S.W.3d

at 910. A person "procures" [*10] a criminal prosecution "if his actions are enough to cause the prosecution, 

and but for his actions the prosecution would not have 

occurred." Lieck, 881 S.W.2d at 292. Procurement generally requires that a person's actions be both a "necessary 

and a sufficient cause of the criminal prosecution." Id.

Generally, a person cannot be held liable for malicious prosecution if the decision whether to prosecute is 

left to the discretion of law enforcement officials. King v. 

Graham, 126 S.W.3d 75, 76 (Tex. 2003) (per curiam). An 

exception exists if the person provides information to 

those officials which he knows is false. Id. In such cases, 

the plaintiff must further prove the false information 

caused the criminal prosecution by proving the decision 

to prosecute would not have been made but for the false 

information supplied by the defendant. Id.

Actions for malicious prosecution are not favored in 

the law and therefore we strictly adhere to the tort's 

carefully defined elements. Luce v. Interstate Adjusters, 

Inc., 26 S.W.3d 561, 566 (Tex. App.--Dallas 2000, no 

pet.) Even a small departure from the exact prerequisites 

for liability may threaten the delicate balance between 

protecting against wrongful prosecution and encouraging 

reporting of criminal conduct. Lieck, 881 S.W.2d at 291.

Standard of Review 

An appellant attacking the legal sufficiency of an 

adverse finding on [*11] an issue on which it did not 

have the burden of proof must demonstrate there is no 

evidence to support the adverse finding. Croucher v. 

Croucher, 660 S.W.2d 55, 58 (Tex.1983); Affordable 

Power, L.P. v. Buckeye Ventures, Inc., 347 S.W.3d 825, 
Page 4

2014 Tex. App. LEXIS 12498, *

830 (Tex. App.--Dallas 2011, no pet.). A "no evidence" 

point must be sustained when the record discloses (1) a 

complete absence of evidence of a vital fact, (2) the court 

is barred by the rules of law or evidence from giving 

weight to the only evidence offered to prove a vital fact, 

(3) the evidence offered to prove a vital fact is no more 

than a mere scintilla, or (4) the evidence conclusively 

establishes the opposite of a vital fact. See City of Keller 

v. Wilson, 168 S.W.3d 802, 810 (Tex.2005).

When examining a legal sufficiency challenge, we 

review the evidence in the light most favorable to the 

challenged finding and indulge every reasonable inference that would support it. Id. at 822. Evidence is legally 

sufficient if it rises to a level that would enable a reasonable and fair-minded jury to make the finding. Id. at 

810. In making this determination, evidence cannot be 

taken out of context in a way that makes it seem to support a verdict when in fact it never did. Id. at 812. We do 

not consider the evidence "in isolated bits and pieces 

divorced from its surroundings; it must be viewed in its 

proper context with other evidence." AutoZone, Inc. v. 

Reyes, 272 S.W.3d 588, 592 (Tex.2008).

Evidence that is "so weak as to do no more [*12] 

than create a mere surmise or suspicion" of a fact is not 

legally sufficient evidence that the fact exists. Kroger 

Tex. Ltd. P'ship, 216 S.W.3d at 793(quoting Ford Motor 

Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)). If a 

claim is supported by only meager circumstantial evidence, the evidence does not rise above a scintilla if jurors would have to guess as to whether a vital fact exists. 

City of Keller,168 S.W.3d at 813. When circumstances 

are equally consistent with either of two facts, neither 

fact can be inferred. Id. Additionally, an inference 

stacked only on other inferences is not legally sufficient 

evidence. See Marathon Corp. v. Pitzner, 106 S.W.3d 

724, 728 (Tex.2003) (per curiam); Sears & Roebuck Co. 

v. AIG Annuity Ins. Co., 270 S.W.3d 632, 637 (Tex. 

App.--Dallas 2008, pet. denied).

Application 

In this issue, Minyard asserts Lermon failed to show 

either it or Lee initiated or procured the prosecution. 

Lermon responds the evidence is sufficient to show Lee 

both initiated and procured the prosecution. Lermon first 

asserts Lee "initiated" the prosecution when he gave Detective Dalton a "Voluntary Statement" identifying Lermon as the thief with the "hope" that Detective Dalton 

would move forward to have Lermon arrested and prosecuted. To show such a statement can constitute a "formal charge," Lermon relies on this Court's opinion in 

Kroger v. Suberu, 113 S.W.3d 588, 597 (Tex. 

App.--Dallas 2003), rev'd on other grounds, 216 S.W.3d 

788 (Tex. 2006).

In Kroger, a Kroger employee stopped the plaintiff 

for shoplifting. Id. at 594-95. The plaintiff was taken to 

an [*13] office and Kroger contacted police. Id. at 595. 

When police arrived, the plaintiff was told she had been 

accused of shoplifting and she was immediately arrested 

and taken to jail. Id. To show Kroger "initiated" the 

prosecution, the plaintiff relied on evidence that the 

Kroger store manager had told police on their arrival that 

Kroger "wanted to prosecute" and that the manager 

signed "the report or whatever they had [him] sign" on 

behalf of Kroger. Id. at 597. We concluded the jury 

could have determined from that evidence that Kroger 

had "filed a formal charge" against the plaintiff.3 Id.

3 We further concluded that, even if the plaintiff failed to show Kroger initiated the prosecution, there was sufficient evidence that it procured the prosecution. See Kroger, 113 S.W.3d at 

597.

In this case, the record before us contains the "Voluntary Statement" that Lermon asserts was used to initiate his prosecution. The witness statement is not a "formal charge" nor did it actually operate to initiate the 

criminal prosecution. Instead, the record shows Detective 

Dalton initiated the prosecution when he "formally 

charged" Lermon by presenting his own probable cause 

affidavit to a magistrate. See Restatement (Second) of 

Torts § 653 cmt. c (1977) ("Criminal proceedings are 

initiated by [*14] making a charge before a public official or body in such form as to require the official or 

body to determine whether process shall or shall not be 

issued against the accused."); see also Lieck, 881 S.W.2d 

at 292-93. In reviewing a sufficiency complaint, we 

cannot disregard undisputed evidence that supports only 

one conclusion. See City of Keller, 168 S.W.3d at 814.

Minyard next asserts there is no evidence that it or 

Lee "procured" Lermon's prosecution because the undisputed evidence shows the decisions to arrest and 

prosecute Lermon were made by law enforcement officials. King, 126 S.W.3d at 76. Here, unlike many malicious prosecution cases, it is undisputed Minyard was the 

victim of a felony theft. Detective Dalton investigated

that theft for Plano police, and ultimately filed an affidavit in which he swore that he believed and had good reason to believe that Lermon committed the crime. See

TEX. CODE CRIM. PRO.2.13(a)(b)(1) (West 2005) (peace 

officers have a duty to preserve the peace and to prevent 

and suppress crime). The DA's office also investigated 

the offense and twice made the decision to pursue criminal charges against Lermon. See TEX. CODE CRIM.

PRO.2.01 (West 2005) (the primary duty of prosecuting 

attorneys is not to convict, but to see that justice is done).

Lermon nevertheless [*15] asserts he presented 

sufficient evidence that Dalton and the prosecutors based 
Page 5

2014 Tex. App. LEXIS 12498, *

their decisions to prosecute on false information provided by Lee. First, he asserts their decisions were based on 

Lee's false identification of Lermon as the thief. An honest mistake in identifying a suspect is insufficient to hold 

the reporting party responsible in damages. Cf. Schnaufer 

v. Price, 124 S.W.2d 940, 942 (Tex. Civ. App.--Waco 

1939, writ ref'd) (false imprisonment case); see also 

McHenry v. Tom Thumb Page Drug Stores, 696 S.W.2d 

664, 665 (Tex. App.--Dallas 1985, writ dism'd); Yianitsas 

v. Mercantile Nat'l Bank, 410 S.W.2d 848, 851 (Tex. Civ. 

App.--Dallas 1967, no writ). But a person may be held 

liable if he willfully identifies the wrong person as the 

criminal for the purpose of having him arrested and 

prosecuted. See Schnaufer, 124 S.W.2d at 942. According to Lermon, Lee did just that, by identifying him as 

the thief, knowing he was innocent.4

4 He asserts Lee's motive for doing so was to 

"save his job" by solving the three thefts that occurred "on his watch" and to try to obtain restitution for Minyard from Lermon. The only evidence he directs us to support these motives is 

that the thefts occurred and that Lee made inquiries to prosecutors about the possibility of obtaining restitution for Minyard. This evidence is entirely, if not more, consistent with an honest belief that Lermon was the thief.

To show Lee identified Lermon knowing he was 

innocent, Lermon asserts the surveillance video [*16] 

showing the thief --when compared to photographs taken 

of him at the same location -- establishes Lee could not 

possibly have honestly believed Lermon was the thief. 

Specifically, he asserts the thief did not "look like" him 

because he wears glasses and is tall, but the thief was not 

wearing glasses and was "a full head shorter."

After reviewing the video and the photographs, we 

cannot agree they constitute any evidence that Lee knew

it was not Lermon on the video. First, evidence the thief 

was not wearing glasses does not establish the thief did 

not "look like" Lermon or otherwise constitute any evidence that Lee must have known the person on the tape 

was not Lermon.5 Second, the surveillance video and 

photographic evidence do not depict a height discrepancy 

so dramatic that would allow a jury to reasonably find 

(1) Lee would have been able to perceive the discrepancy 

from reviewing the video, (2) Lee did in fact perceive the 

discrepancy, and (3) cognizant of the discrepancy, Lee 

nevertheless identified Lermon to Detective Dalton anyway. Indeed, even Lermon's own brother-in-law, when 

asked to identify the differences in appearance between 

the thief and Lermon, responded "maybe some height, 

[*17] maybe some weight." Lermon himself -- knowing 

Lee had identified him -- testified that that he was not 

aware of any "false" information Lee gave authorities. 

Further, Detective Dalton and the prosecutors had the 

video before them and could determine for themselves 

whether Lermon's appearance was consistent with the 

thief's.

5 Not only can glasses be easily taken on and 

off, a person's need for glasses can change over 

time. Indeed, by the time of trial, Lermon himself 

no longer required glasses, having had cataract 

surgery.

Lermon also contends Lee's identification constituted "false information" because Lee claimed to be certain. 

Lermon asserts the jury could have inferred Lee was not 

merely mistaken, but was lying, because the tape showed 

any certainty would have been impossible. Even if we 

could agree that a witness's level of certainty in identifying a suspect could constitute false "information," the 

record shows Lee told Detective Dalton he could not 

make a positive identification on his initial review of the 

videotape. Lee's subsequent positive identification was 

based on what he had initially perceived about the thief's 

stature, walk, and gait, in addition to his later review of 

still [*18] shots and his discovery that Lermon had 

grown his hair and a beard since his retirement. Further, 

Detective Dalton and prosecutors could determine for 

themselves whether they believed a positive identification was possible from the video. We conclude evidence 

of Lee's positive identification is legally insufficient to 

show Dalton or prosecutors based their discretionary 

decisions to prosecute Lermon on information Lee provided and that Lee knew was false.

Lermon also asserts Lee gave Detective Dalton false 

information when he stated in his "Voluntary Statement" 

that Lermon misrepresented "several aspects" about his 

return of the keys to Minyard. To show this statement 

was both false and Lee knew it was false, Lermon relies 

on Lee's testimony at trial that the only misrepresentation 

Lee could remember was Lermon's claim that he had 

returned the keys to the store on the same date he picked 

up a prescription. According to Lermon, because Lee 

could remember only a single misrepresentation, his testimony shows his prior claim that there were "several" 

was knowingly false. We cannot agree Lee's testimony 

supports such an inference.6 Moreover, Lermon has 

wholly failed to show that but for Lee's [*19] vague 

allegation regarding Lermon's return of the keys, either 

Detective Dalton or the district attorney would not have 

made the decision to prosecute Lermon. King, 126 

S.W.3d at 78-79.

6 We note the record shows that Lee obtained 

his information regarding Lermon's return of the 

keys from Lermon himself and from the cashier, 

April Beard. Lermon also had failing memories 
Page 6

2014 Tex. App. LEXIS 12498, *

concerning his conversation with Lee about the 

keys and could not remember telling Lee he returned the keys on a specific date, but vaguely 

remembered saying something about returning 

the keys at the same time he picked up a prescription from the Sack 'N Save. Lermon's brother-in-law, who worked at the same Sack 'N Save, 

testified Beard told him she had mistakenly told 

Lee that Lermon returned the keys on September 

2, 2006 instead of August 19, 2006. Although 

both dates were prior to the theft, the focus on the 

date was apparently to show Lermon returned the 

keys at his first convenience after he retired and 

to show it was not suspicious that the keys arrived at the store two days after the theft.

Lermon also contends he presented evidence Lee 

gave Detective Dalton information he knew was false 

when Lee told Detective Dalton Lermon had a key [*20] 

to the store at the time of the theft, when Lee knew Lermon had returned the key. To show Lee gave Dalton this 

false information, Lermon relies on the summary Detective Dalton gave to the district attorney in which Dalton 

states that Lee believed Lermon used an "old key" to 

unlock the door of the business, which he did not return 

upon retiring. But in Lee's prior September 15, 2006 

memo to Detective Dalton, Lee clearly informed Dalton 

that Lermon returned his keys to the store before the 

theft. Further, Lermon has again failed to show that but 

for this information, either Detective Dalton or the district attorney would not have made the decision to prosecute Lermon. King, 126 S.W.3d at 78-79 (testimony 

from investigative officer that false information "could 

possibly" have influenced his investigation is insufficient 

to show the decision to prosecute would not have been 

made but for the false information). Indeed, Sylvan testified he knew before Lermon's second trial that Lermon 

had returned the keys before the theft. Yet, he proceeded 

with the prosecution anyway.

Finally, Lermon contends there is evidence Lee 

procured the prosecution by "failing to disclose" material 

facts. To support his contention that [*21] a failure to 

disclose information can support a malicious prosecution 

claim, Lermon relies on dicta in the Supreme Court's 

opinion in Richey v. Brookshire Grocery Co., 952 S.W.2d 

515, 519 (Tex. 1997). In that case, the Supreme Court 

stated "failing to fully and fairly disclose all material 

information and knowingly providing false information 

to the prosecutor are relevant to the malice and causation 

elements of a malicious prosecution claim but have no 

bearing on probable cause." Richey, 952 S.W.2d at 

519(emphasis added); but see Wal-Mart Stores, Inc. v. 

Rodriguez, 92 S.W.3d 502, 510 (Tex. 2002) (evidence of 

a failure to disclose cannot support claim for false imprisonment because a plaintiff must prove defendant 

knowingly provided false information).

Assuming a "knowing failure" to disclose could 

support a claim for malicious prosecution, the jury in this 

case was charged, without objection, that it was required 

to find Lee provided information that he knew was false, 

not that he failed to disclose information. We must 

therefore measure the sufficiency of the evidence by the 

charge as given. St. Joseph Hosp. v. Wolff, 94 S.W.3d 

513, 530 (Tex.2002); Noell v. City of Carrollton, 431 

S.W.3d 682, 709 (Tex. App.--Dallas 2014, pet. ref'd). As 

a consequence, evidence Lee failed to disclose information to Dalton cannot support the jury's verdict. See 

Wal-Mart Stores, Inc., 92 S.W.3d at 510 (failing to make 

a full and fair disclosure is not the equivalent of knowingly providing false information).

Moreover, Lermon failed [*22] to show Lee 

knowingly failed to disclose material information or that 

Dalton would not have made the decision to prosecute 

had he been aware of any information that was not actually disclosed. According to Lermon, Lee failed to disclose that: (1) Lermon was "much taller" than the perpetrator and wore glasses, (2) Lee had initially believed 

two other employees had provided the store keys and 

codes to the thief, (3) Lee did not question Lermon about 

the theft or determine whether he had an alibi, (4) the last 

time Lermon had worked at the store prior to June 2006 

was over ten years before the theft, (5) Minyard did not 

keep track of who had access to keys to the store, and (6) 

Lermon returned the keys to the store before the theft.

To show this information was not disclosed in the 

first instance, Lermon appears to rely on Lee's failure to 

include the information in his Voluntary Statement and 

the memo containing Lee's "Case Narrative" that followed. We first note that although Lermon's claim required him to show the reason Dalton decided to prosecute and Dalton investigated the offense for two months, 

Lermon did not call Dalton as a witness or otherwise 

attempt to show what information [*23] Dalton had 

acquired before he obtained the warrant. The record does 

show however that Dalton was given photographs of 

Lermon wearing glasses. The record also shows that Lee 

told Dalton two other employees were suspected in the 

theft. Lee also told Dalton that Lermon had returned the 

keys to the store before the theft. Even if we could conclude Lermon presented sufficient proof that Lee failed 

to disclose information, we cannot agree the evidence 

supports a reasonable inference that Dalton would not 

have prosecuted Lermon but for Lee's failure to disclose.

We conclude there is no evidence to show Minyard 

or Lee initiated or procured Lermon's criminal prosecution and therefore there is no evidence to support Lermon's malicious prosecution claim.
Page 7

2014 Tex. App. LEXIS 12498, *

Negligent Hiring, Retention, Training, and Supervision 

Minyard also asserts the evidence is legally insufficient to support Lermon's direct negligence claim against 

it. Lermon sued Minyard asserting it was negligent in 

hiring, retaining, training, and supervising Lee. To support these claims, Lermon relied on evidence that Minyard did not adequately train Lee to perform the duties 

he was performing when he investigated the theft and did 

not adequately [*24] supervise Lee during his investigation.7

7 The Supreme Court has yet to rule definitively on the "existence, elements, and scope of 

[causes of action for negligent retention and supervision] and related torts such as negligent 

training and hiring." See Waffle House, Inc. v. 

Williams, 313 S.W.3d 796, 804 (Tex. 2010). The 

Supreme Court has, however, indicated that to 

recover, a plaintiff must show "more than just 

negligent hiring practices;" he must also present 

evidence of harm caused by the employee's misconduct." Wansey v. Hole, 379 S.W.3d 246, 247 

(Tex. 2012). In doing so, it cited opinions from 

our sister courts holding a plaintiff must prove, in 

addition to the employer's negligence, an actionable tort by the employee. See id. (citing Brown 

v. Swett & Crawford of Tex., Inc., 178 S.W.3d 

373, 384 (Tex. App.--Houston [1st Dist.] 2005, 

no pet.); Gonzales v. Willis, 995 S.W.2d 729, 739 

(Tex. App.--San Antonio 1999, no pet.), overruled 

in part on other grounds by Hoffmann--La Roche 

Inc. v. Zeltwanger, 144 S.W.3d 438, 447-48 (Tex. 

2004); Mackey v. U.P. Enters., Inc., 935 S.W.2d 

446, 459 (Tex. App.--Tyler 1996, no writ). Here, 

the jury charge did not require the jury to first 

find Lee committed a tort before finding Minyard 

negligent. Although Minyard complains the trial 

court erred in submitting a separate "damages" 

question based on Minyard's negligence, it does 

not complain that the charge did not predicate the 

question regarding Minyard's negligence on a 

finding of Lee's tortious conduct. Because we 

conclude there is no evidence of negligence, we 

need not consider Minyard's complaint regarding 

the separate damages question. [*25] 

To sustain a cause of action for negligence it is necessary to produce evidence of a duty, a breach of that 

duty, proximate cause and damages. Colvin v. Red Steel 

Co., 682 S.W.2d 243, 245 (Tex. 1984). Here, the duty 

Minyard owed Lermon was to act as a reasonably prudent grocery store chain would act under the same or 

similar circumstances regarding any reasonably foreseeable risk. See id; see also Rosell v. Central W. Motor 

Stages, Inc., 89 S.W.3d 643, 652 (Tex. App.--Dallas 

2002, pet. denied); TXI Transp. Co. v. Hughes, 224 

S.W.3d 870, 902 (Tex. App.--Fort Worth 2007), rev'd on 

other grounds, 306 S.W.3d 230 (Tex. 2010).

Negligent hiring, retention, supervision, and training 

claims focus on the employer's own negligence, not the 

negligence of the employee. See Leake v. Half Price 

Books, Records, Magazines, Inc., 918 S.W.2d 559, 563 

(Tex. App.--Dallas 1996, no writ). An employer can be 

liable for negligence if its failure to use due care in hiring, retaining, training, or supervising an employee creates an unreasonable risk of harm to others. See Leake, 

918 S.W.2d at 563; Martinez v. Hays Const., Inc., 355 

S.W.3d 170, 180 (Tex. App.--Houston [1st Dist.] 2011, 

no pet.). To support a claim for negligent hiring or retention, a plaintiff must prove the employer hired or retained an incompetent or unfit employee whom it knows, 

or by the exercise of reasonable care should have known, 

was incompetent or unfit. Ogg v Dillard's, Inc., 239 

S.W.3d 409, 420 (Tex. App.--Dallas 2007, pet. denied). 

To support a claim for negligent training and supervision, a plaintiff must prove that a reasonably prudent 

employer would have provided training and supervision 

beyond that which was given and the failure to do so 

caused his injuries. See Patino v. Complete Tire, Inc., 

158 S.W.3d 655, 661 (Tex. App.--Dallas 2005, pet. denied); Dangerfield, 264 S.W.3d at 912; see Allsup's 

Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 437 

(Tex. App.--Amarillo 1996, writ denied).

On appeal, [*26] Minyard asserts Lermon failed to 

present any evidence of a standard of care or that it 

breached any such standard of care. Minyard specifically 

asserts Lermon failed to show it did not act as a reasonably prudent grocery store chain would have under the 

same or similar circumstances. Lermon responds he was 

not required to present any expert testimony or "other 

testimony" to establish a standard of care because the 

jury was charged on the "ordinary care" standard.

Regardless of whether Lermon had to present express testimony on the standard of care, Lermon had the 

burden to present sufficient evidence that Minyard did 

not use the degree of care a grocery store chain owner of 

"ordinary prudence" would use "under the same or similar circumstances." Cf. Jackson v. Axelrad, 221 S.W.3d 

650, 656 (Tex. 2007) (ordinary care standard requires 

jury to consider defendant's circumstances and superior 

skills); Townsel v. Dadash, Inc., No. 05-10-01482-CV, 

2012 Tex. App. LEXIS 3185, 2012 WL 1403246, at * 3 

(Tex. App.--Dallas April 24, 2012, no pet.); TXI Transp. 

Co., 224 S.W.3d at 902. We conclude he failed to do so.

The only evidence in the record concerning Lee's 

qualifications and training came from Lee. He testified 

that he started working for Minyard in 1975 packing 
Page 8

2014 Tex. App. LEXIS 12498, *

groceries and soon began doing other jobs inside the 

store. Later, he worked in the corporate offices in human 

[*27] resources. In 1987 or 1988, Lee was transferred 

to loss prevention. Lee had no "formal education" in law 

enforcement and was never given any "formal training" 

in investigation techniques. Lee said he was, however, 

given on-the-job training in loss prevention. Specifically, 

when Lee was first transferred to loss prevention, he began by sitting through investigations with a loss prevention manager. Lee later conducted his own investigations 

under the supervision of a manager. After four or five 

years, Lee became a loss prevention manager himself. 

Lee was ultimately promoted to vice-president of loss 

prevention, the position he held when he made the accusations against Lermon.

At that time, Lee's supervisor was Alan Vaughn, 

Minyard's senior vice-president of risk management. Lee 

said Vaughn did not conduct any interviews, take any 

photographs, or otherwise have any "hands-on" involvement in the investigation of the theft. Lee testified 

that Vaughn was, however, involved on a day-to-day 

basis overseeing what Lee was doing. Lee did not, however, provide any written reports to higher management 

during his investigation.

According to Lermon, the jury could have found 

Minyard did not exercise [*28] ordinary care in hiring, 

retaining, training, or supervising Lee because Lee had 

no "formal" training or education in "law enforcement" 

or "investigation techniques." Lermon's claim is premised on his contention that some specialized training or 

skill was necessary to give Lee the expertise necessary to 

perform his job duties. Lermon, however, has failed to 

show what kind of "formal" training a business exercising ordinary prudence would provide its loss prevention 

investigators. For example, there is no evidence showing 

what kind of "formal" training is available or commonly 

used in the industry or to show how any such "formal" 

training would have been superior to on-the-job training 

or would have reduced the risk of harm to third parties.

We also conclude Lermon has failed to present any 

evidence that Minyard failed to use ordinary care in supervising Lee. According to Lermon, the jury could have 

found Minyard was negligent because Lee's supervisor 

did not have any "hands on" involvement in the investigation, and Lee did not give written reports to management during the investigation. Lee, however, had nearly 

twenty years of experience in loss-prevention and was 

himself a vice-president [*29] and supervisor. Lermon 

has directed us to no evidence showing Minyard had any 

prior notice that Lee was unfit or incompetent to perform 

his job duties or should have been more closely supervised. We conclude Lermon failed to present any evidence a reasonably prudent employer would have provided training or supervision to Lee beyond that which 

Minyard provided. See Patino, 158 S.W.3d at 661; Dangerfield, 264 S.W.3d 910. We further conclude Lermon 

failed to present any evidence that a reasonably prudent 

employer would have been aware Lee was unfit or unqualified to perform his job duties. Thus, Lermon has 

failed to show Minyard was negligent. As a consequence, he has also failed to show gross negligence. See 

Seaway Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, 

659 (Tex. App.--Fort Worth 2004, no pet.); Ballesteros v. 

Jones, 985 S.W.2d 485, 500 (Tex. App.--San Antonio 

1998, pet. denied).

Having concluded there is no evidence to support 

Lermon's claims, we do not reach the issues presented in 

Lermon's appeal, all of which concern damages. Minyard 

has, however, presented an issue requesting this Court to 

assess sanctions against Lermon under Texas Rule of 

Appellate Procedure 45. It asserts the issues raised in 

Lermon's appeal were frivolous and that Lermon could 

not have believed those issues would result in a rendition 

of a greater award of punitive damages in his favor. It 

further complains that Lermon's purpose in bringing the 

appeal, which he filed [*30] before the trial court had 

ruled on Minyard's motion for new trial and well before 

the notice of appeal was due, was to obtain the strategic 

advantage of being designated as the "appellant."

Under rule 45, after considering the record, briefs, 

or other papers filed in this Court, we may award a prevailing party damages if we objectively determine that an 

appeal is frivolous. TEX. R. APP. P. 45; Smith v. Brown, 

51 S.W.3d 376, 381 (Tex.App.--Houston [1st Dist.] 2001, 

pet. denied). An appeal is frivolous when the record, 

viewed from the perspective of the advocate, does not 

provide reasonable grounds for the advocate to believe 

that the case could be reversed. Smith, 51 S.W.3d at 381. 

The decision to grant appellate sanctions is a matter of 

discretion that an appellate court exercises with prudence 

and caution and only after careful deliberation. Id. Because our disposition of this case makes it unnecessary to 

review the merits of Lermon's appeal or consider the trial 

court's award of punitive damages, we will not consider 

whether the appeal was frivolous solely for the purposes 

of assessing sanctions.

Because Lermon failed to present legally sufficient 

evidence to support his causes of action, we reverse the 

trial court's judgment and render judgment that he take 

nothing on his claims.

/Michael J. O'Neill/ [*31] 

MICHAEL J. O'NEILL

JUSTICE

JUDGMENT
Page 9

2014 Tex. App. LEXIS 12498, *

In accordance with this Court's opinion of this date, 

the judgment of the trial court is REVERSED and 

judgment is RENDERED that appellant/cross-appellee 

James Lermon take nothing.

It is ORDERED that appellees/cross-appellants 

Minyard Food Stores, Inc. and Rodney Lee recover their 

costs of this appeal from James Lermon.

Judgment entered this 19th day of November, 2014.