Jesse Davila v. Pay & Save Corporation d/b/a Lowe's Market Place, Inc.--Appeal from 106th District Court of Gaines County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JESSE DAVILA,

Appellant,

v.

PAY & SAVE CORPORATION D/B/A LOWE=S MARKET PLACE, INC.,

Appellee.

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No. 08-02-00452-CV

Appeal from the

106th District Court

of Gaines County, Texas

(TC#98-08-13663)

MEMORANDUM OPINION

Jesse Davila brings this appeal from a summary judgment rendered against him and in favor of his former employer, Pay & Save Corporation, doing business as Lowe=s Market Place, Inc. We affirm.

Factual and Procedural Background

Samantha Crider, another employee of Pay & Save, accused Davila of sexual harassment. Pay & Save fired Davila as a result of Crider=s accusation. Davila then brought this suit against Pay & Save, alleging that Crider=s accusation was false and that Pay & Save failed to conduct a proper investigation of the accusation. He asserted numerous causes of action, including defamation, negligence, invasion of privacy, fraud, and intentional infliction of emotional distress. Pay & Save filed a special exception to Davila=s negligence claim. The trial court sustained the special exception and struck the negligence claim from Davila=s petition. Thereafter, Pay & Save moved for both a traditional and a no-evidence summary judgment on the claims that had not been stricken. The trial court granted the summary judgment motion in its entirety. On appeal, Davila argues that the trial court erred by summarily disposing of his claims for defamation, negligence, invasion of privacy, fraud, and intentional infliction of emotional distress.

Standard of Review

We apply a de novo standard of review to summary judgments. Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 904 (Tex. App.--El Paso 2001, pet. denied). We will uphold a traditional summary judgment if the moving party establishes that no material fact issue exists and that it is entitled to judgment as a matter of law. Id. We will uphold a no-evidence summary judgment if there is no more than a scintilla of evidence to support the non-moving party=s claim. Steinkamp v. Caremark, 3 S.W.3d 191, 193-94 (Tex. App.--El Paso 1999, pet. denied). We view the evidence in the light most favorable to the non-moving party. Bowen, 49 S.W.3d at 904; Steinkamp, 3 S.W.3d at 194.

Defamation

To recover for defamation, a plaintiff who is not a public figure must prove: (1) the defendant published a factual statement; (2) that was defamatory; (3) concerning the plaintiff; (4) while acting with negligence regarding the truth of the statement. Provencio v. Paradigm Media, Inc., 44 S.W.3d 677, 680-81 (Tex. App.--El Paso 2001, no pet.). An employer is not liable for its employee=s defamatory statements unless the statements were made within the scope of employment. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577-78 (Tex. 2002). To establish that an employee was acting within the scope of her employment, the plaintiff must put forth evidence that Athe employee=s statements were made in furtherance of the employer=s business, and for the accomplishment of the objective for which the employee was employed.@ Id. at 578.

In its motion for summary judgment, Pay & Save argued, among other things, that there was no evidence that its employees, including Crider, made defamatory statements about Davila while acting within the scope of employment. To establish that the trial court erred by granting summary judgment on his defamation claim, Davila relies on the following statement from his affidavit, which was attached to his summary judgment response: AThere was never any attempt on the part of any individual, which would include Roger Lowe, Jr., to discuss this matter with me, and to hear my side. There was just a total belief of what Samantha Crider had said. It was one sided.@ Davila does not explain why he thinks this statement is evidence that Crider, or any other Pay & Save employee, made defamatory statements about him while acting within the scope of employment. The statement is simply not relevant to the scope-of-employment issue. Therefore, Davila has not established that the trial court erred by granting summary judgment on his defamation claim. Maranatha Temple Inc. v. Enterprise Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston [1st Dist.] 1994, writ denied) (AWhen the appellant does not provide us with argument that is sufficient to make an appellate complaint viable, we will not perform an independent review of the record and applicable law in order to determine whether the error complained of occurred.@).

Negligence

In its special exception to the negligence claim, Pay & Save argued that the claim was barred by the exclusive remedy provision of the Texas Workers= Compensation Act. See Tex. Lab. Code Ann. ' 408.001 (Vernon 1996). The court sustained the special exception and struck the negligence claim from Davila=s petition.

Davila argues on appeal that the trial court erred by dismissing his negligence claim, but he does not attack the basis for the court=s ruling. He makes no argument regarding the sustaining of the special exception or the applicability of the exclusive remedy provision. Instead, he argues that a fact question exists regarding whether Pay & Save acted negligently in investigating Crider=s complaint. This argument does not provide a basis for reversing the trial court=s decision to strike the negligence claim. If the trial court was correct in determining that the negligence claim is barred by the exclusive remedy provision, Davila cannot recover on his negligence claim even if Pay & Save was negligent. But we cannot address the court=s determination regarding the exclusive remedy provision because Davila has not attacked that determination. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (AWe have held repeatedly that the courts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error.@); Aluminum Chems. v. Bechtel Corp., 28 S.W.3d 64, 68 (Tex. App.--Texarkana 2000, no pet.) (AIt is not the proper function of this Court to create arguments for an appellant. We are restricted to addressing the arguments actually raised, not those that might have been raised.@).

Invasion of Privacy

In Texas, the term Ainvasion of privacy@ encompasses three distinct torts: (1) intrusion upon a person=s right to be left alone in his or her own affairs; (2) publicity given to private information about a person; and (3) appropriation of some element of the person=s personality for commercial use. See Cain v. Hearst Corp., 878 S.W.2d 577, 578-79 (Tex. 1994). In his fourth amended original petition, which was his live pleading at the time of the summary judgment, Davila phrased his cause of action for invasion of privacy as follows:

The tort of invasion of privacy encompasses unreasonable intrusion upon the seclusion or private affairs of another. In the case presently before this Court, the Plaintiff was held up to ridicule in such a way that it damaged him publicly. As a result, this cause of action was the proximate cause of damages set forth hereafter.

This language, fairly construed, asserts a cause of action for one or both of the first two invasion of privacy torts--intrusion and publicity. See Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993) (setting forth the elements of intrusion); Provencio, 44 S.W.3d at 682 n.23 (setting forth the elements of publicity).

In its motion for summary judgment, Pay & Save listed the elements of intrusion and publicity and argued that there was no evidence to support any of the elements. Davila did not suggest in his response to the summary judgment motion that Pay & Save had misinterpreted his petition. Nevertheless, Davila argues on appeal that there is a fact issue with respect to the elements of appropriation--the third type of invasion of privacy tort.

We will not consider a claim raised for the first time on appeal. See Renteria v. Housing Auth., 96 S.W.3d 454, 459 (Tex. App.--El Paso 2002, pet. denied) (AWe can find no error in the dismissal of a claim which was never pled.@). Therefore, we will not consider Davila=s argument that there was a fact issue with respect to the elements of appropriation. Because Davila has not made any argument with respect to intrusion or publicity, he has not established that the trial court erred by granting summary judgment on his invasion of privacy claim.

Fraud

To recover for fraud, a plaintiff must prove that: (1) a material representation was made; (2) it was false; (3) the speaker made the representation with knowledge of its falseness or made it recklessly without any knowledge of the truth; (4) the speaker made the representation with the intent that it would be relied upon by the plaintiff; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff thereby suffered injury. Green Int=l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Pay & Save argued below that it was entitled to summary judgment on Davila=s fraud claim because, among other things, there was no evidence that Davila relied on any false representation.

In his response to the summary judgment motion, Davila argued that there was evidence that Pay & Save made a false representation to the community at large and to the Texas Workforce Commission that Davila had committed sexual harassment. He further argued that he was injured because the Texas Workforce Commission denied his claim for unemployment compensation based on Pay & Save=s false representation. Davila did not point to any evidence that he relied on the representation. On appeal, he argues that Pay & Save falsely represented to him that he had committed sexual harassment, but again he does not cite any evidence that he relied on this representation. Accordingly, Davila has not established that the trial court erred by granting summary judgment on his fraud claim.

Intentional Infliction of Emotional Distress

To recover for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the defendant=s conduct was extreme and outrageous; (3) the defendant=s actions caused the plaintiff emotional distress; and (4) the emotional distress was severe. Texas Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 610 (Tex. 2002). In its motion for summary judgment, Pay & Save argued that there was no evidence that its conduct was extreme and outrageous. To be extreme and outrageous, a defendant=s conduct must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. Id. An ordinary employment dispute does not rise to the level of extreme and outrageous conduct. Id. at 611. Only in the most unusual of circumstances is conduct so extreme and outrageous that it is removed from the realm of an ordinary employment dispute. Wal-Mart Stores, Inc. v. Canchola, ___ S.W.3d ___, ___, 2003 WL 22053417, at *4 (Tex. Sept. 4, 2003); Sears, 84 S.W.3d at 611. The wrongful termination of an employee does not, standing alone, constitute intentional infliction of emotional distress. Canchola, ___ S.W.3d at ___, 2003 WL 22053417, at *4. Moreover, an employer must be given some leeway in investigating serious accusations made against its employees. Id. at *5. It is not extreme and outrageous for an employer to conduct an imperfect investigation or to fail to pursue exculpatory evidence. Id. at *4.

To establish that the trial court erred in granting summary judgment on his intentional infliction of emotional distress claim, Davila argues that Pay & Save acted recklessly in terminating him because it did not perform a reasonable investigation of the sexual harassment allegations. But, as we have just discussed, terminating an employee and conducting an imperfect investigation do not amount to extreme and outrageous conduct. Davila does not point to any evidence to show that this case presents more than an ordinary employment dispute. Therefore, Davila has not established that the trial court erred by granting summary judgment on his intentional infliction of emotional distress claim.

Motion for Damages

Pay & Save has filed a motion for damages, arguing that this is a frivolous appeal. To support its argument, Pay & Save points to numerous deficiencies in Davila=s brief. Pay & Save seeks damages of $16,775, claiming that it has incurred reasonable and necessary attorney=s fees and expenses in at least this amount while defending this appeal. This claim is not supported by an affidavit.

If we determine that an appeal is frivolous, we may award the prevailing party just damages. Tex. R. App. P. 45. We must exercise caution in awarding appellate sanctions. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). Although the imposition of sanctions is within our discretion, we may do so only in circumstances that are truly egregious. Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.--Houston [14th Dist.] 2000, no pet.).

We have previously listed several factors that tend to indicate that an appeal is frivolous: (1) the unexplained absence of a reporter=s record; (2) the unexplained failure to file a motion for new trial when it is required to preserve error on appeal; (3) a poorly written brief raising no arguable points of error; (4) the unexplained failure to appear at oral argument; and (5) the failure to respond to a request for sanctions. American Paging v. El Paso Paging, 9 S.W.3d 237, 241-42 (Tex. App.--El Paso 1999, pet. denied). Of these factors, only the third one is present here. Moreover, since Davila is appealing from a take-nothing judgment, we have no indication that the appeal was brought as a delaying tactic. Although Davila=s brief is hardly a model of effective appellate advocacy, we conclude that sanctions are not warranted in this case.

Conclusion

For the reasons stated herein, we overrule Davila=s issues on appeal and we deny Pay & Save=s motion for damages. The judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

October 23, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.