Shawn D. Green v. Quality Dialysis One LP, d/b/a Quality Dialysis, QDI Management, LLC--Appeal from 240th District Court of Fort Bend County

Affirmed and Memorandum Opinion Filed August 7, 2007

Affirmed and Memorandum Opinion Filed August 7, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01247-CV

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SHAWN D. GREEN, Appellant

V.

QUALITY DIALYSIS ONE, LP d/b/a QUALITY DIALYSIS,

QDI MANAGEMENT, LLC, Appellees

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 05CV141503

M E M O R A N D U M O P I N I O N

Appellant Shawn D. Green (AGreen@), plaintiff below, appeals from a summary judgment entered in favor of appellees Quality Dialysis One, LP d/b/a Quality Dialysis and QDI Management, LLC (collectively AQDI@). In two issues, Green contends he did not have adequate time for discovery before the summary judgment hearing, and the trial court erred in ruling that Green was not an at-will employee of QDI. We affirm.

Factual and Procedural Background

On June 7, 2004, Green entered into a written contract for employment (Athe Contract@) with Quality Dialysis One, LP. Pursuant to the Contract, Quality Dialysis One, LP agreed to employ Green for a term of five years with an annual salary of $100,000. Section 16 of the Contract provides that Green=s employment shall be terminated without compensation upon the occurrence of any of the following: A(a) the Employee=s death, (b) resignation or termination of employment with or without notice by Employee to Company, [or] (c) the termination of this Agreement by the Chairman for Cause with the approval of the Board of Directors.@ Section 19.(b) of the Contract defines ACause@ as follows:

Cause shall include without limitation (i) the inability of the Employee to perform his duties due to a legal impediment, including without limitation the entry against the Employee of an injunction, restraining order or other type of judicial judgment, decree or order which would prevent or hinder the Employee from performing his duties; (ii) a breach of any of the restrictions or covenants set forth in Sections 3, 9, 10, 11 or 13 hereof; (iii) the failure to follow reasonable instructions of the Chairman acting in good faith with respect to the performance of the Employee=s duties; and/or (iv) excessive absenteeism, flagrant neglect of work, serious misconduct, conviction of a felony, fraud, intentional disclosure of any material proprietary information of the Company without the consent of the Company or aiding a competitor of the Company to the detriment of the Company.

Section 17 of the Contract governs the termination of Green=s employment with compensation and states that if Green Ais terminated for any reason other than as listed in Section 16 . . . [Green] shall be entitled to receive the equivalent of two months salary as severance . . . .@

Green=s employment was terminated six weeks after he started work for Quality Dialysis One, LP. On March 8, 2005, Green filed suit against QDI alleging breach of contract, tortious interference with contract, wrongful termination for refusal to perform an illegal act, and intentional infliction of mental distress. QDI answered and asserted a counterclaim against Green for breach of contract. On September 26, 2005, QDI filed a no-evidence motion for partial summary judgment challenging at least one essential element of each of Green=s causes of action. On October 12, Green filed a response to QDI=s motion for summary judgment. On October 13, Green filed a motion for continuance of the hearing on QDI=s motion for summary judgment, arguing additional time was needed for discovery.

On October 19, 2005, the trial court conducted a hearing on QDI=s motion and granted summary judgment in favor of QDI on all four of Green=s causes of action. On November 23, 2005, the trial court granted QDI=s motion to nonsuit its counterclaim against Green. This appeal followed.

Discussion

I. Adequate Time For Discovery

In his first issue, Green contends the trial court erred in granting QDI=s no-evidence motion for summary judgment because Green was not allowed adequate time for discovery. QDI responds that Green waived his complaint that he was denied adequate time for discovery because Green failed to file a verified motion for continuance or an affidavit explaining the need for further discovery. Assuming without deciding that Green preserved this complaint for appellate review, we find that the trial court did not abuse its discretion in hearing and ruling on QDI=s no-evidence motion for summary judgment.

A party may move for a no-evidence summary judgment only after adequate time for discovery. Tex. R. Civ. P. 166a(i). In determining whether a trial court has permitted adequate time for discovery, we consider factors such as (1) the nature of the case, (2) the nature of the evidence necessary to controvert the no-evidence motion, (3) the length of time the case was active, (4) the amount of time the no-evidence motion was on file, (5) whether the movant requested stricter deadlines for discovery, (6) the amount of discovery that had already taken place, and (7) whether the discovery deadlines in place were specific or vague. Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 467 (Tex. App.CHouston [14th Dist.] 2005 pet. denied). We review a trial court=s determination that there has been adequate time for discovery on a case-by-case basis, under an abuse of discretion standard. Id. A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. BMC Software Belg. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002).

A. Nature of the Case and Evidence Necessary to Defeat the Motion

Green alleges he was hired by Cynthia Barclay, the founder and Chief Executive Officer of QDI, after being Awooed away@ from his long-term employment with Exxon. Green contends that, pursuant to the terms of the Contract, Quality Dialysis One, LP agreed to employ him for a term of five years as General Manager and Chief Operations Officer. In his petition, Green claims his employment was terminated by QDI after only six weeks because of his numerous complaints about alleged violations of Asafety regulations and other laws@ occurring in the course of QDI=s business.

In his breach of contract claim, Green alleges QDI breached the Contract by terminating his employment after six weeks, and by failing to pay Green the equivalent of two months salary as severance upon his termination. In his cause of action for wrongful termination for refusal to perform an illegal act, Green alleges his employment was terminated by QDI because Green Arefused to participate by remaining silent regarding the illegal acts.@ The evidence necessary to controvert QDI=s motion regarding these two causes of action includes evidence of: the terms of the Contract, Green=s performance of his job duties, the circumstances surrounding Green=s termination, and the payment or non-payment of severance upon termination.

In his tortious interference with contract claim, Green alleges QDI intentionally interfered with an employment contract existing between Green and Exxon when Barclay recruited Green to work for QDI. To controvert QDI=s motion, Green would need some evidence of actual damages proximately caused by QDI=s interference with an employment contract between Green and Exxon. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002). Finally, Green alleges QDI, by and through Barclay, intentionally engaged in extreme and outrageous conduct which caused him severe emotional distress. To overcome QDI=s motion, Green would need evidence of extreme and outrageous conduct, beyond that arising from an ordinary employment dispute. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612B13 (Tex. 1999).

Assuming Green=s claims are meritorious, some evidence of most of the challenged elements of Green=s causes of action could be provided by evidence of the terms of the Contract (which is part of the summary judgment record) and Green=s affidavit testimony.

B. Length of Time the Case and Motion were on File

Green filed suit on March 8, 2005, and QDI filed its no-evidence motion for partial summary judgment on September 26, 2005. The trial court conducted a hearing and granted QDI=s motion on October 19, 2005. Therefore, Green=s lawsuit had been on file for more than seven months at the time of the summary judgment hearing.

 C. The Status of Discovery

The trial court did not enter a docket control order. However, Green=s petition alleged discovery in this case was governed by Level 2, and QDI served Green with requests for written discovery on April 11, 2005. Therefore, pursuant to a Level 2 Discovery Control Plan, the end of the discovery period was February 11, 2006. See Tex. R. Civ. P. 190.3(b)(1); Rest. Teams Int=l, Inc. v. MG Securities Corp., 95 S.W.3d 336, 339 (Tex. App.CDallas 2002, no pet.) (observing A[n]either rule 166a(i) nor the comment thereto states that the discovery period applicable to a case by virtue of rule 190 must have ended before a no-evidence summary judgment can be granted@).

QDI served Green with requests for disclosure, requests for production, requests for admissions, and interrogatories on April 11, 2005. We are unable to determine, based on the appellate record, exactly what efforts were made by Green to obtain discovery from QDI. The clerk=s record contains no discovery requests or certificates of written discovery filed by Green.[1] A letter from Green=s trial counsel to QDI, dated June 21, 2005, is attached to Green=s summary judgment response. In her letter, Green=s trial counsel complains about QDI=s allegedly inadequate responses to interrogatories and requests for production. However, the record contains no indication that Green filed a motion to compel or made any additional effort to obtain discovery until after QDI filed its motion for summary judgment.

On October 13, 2005, six days before QDI=s summary judgment motion was set for hearing, Green filed a motion to compel discovery responses and a motion for continuance. In his motion to compel, Green argued that QDI Aadded a level of interference@ to its production of documents by making them available for inspection and copying, rather than sending them to Green=s counsel. Affidavits of Green=s trial counsel are attached to Green=s response to QDI=s motion for summary judgment and Green=s motion for continuance. In her affidavits, Green=s trial counsel described various reasons why discovery was not pursued more diligently during the seven months this case was on file, prior to the date of the summary judgment hearing.[2]

No depositions were taken in this case. Although Green contends on appeal that the testimony of Cynthia Barclay was essential to his case, the record shows Green made no effort to schedule Barclay=s deposition. A document titled ANotice of Videotaped Deposition of Cynthia Barclay,@ dated June 21, 2005, is attached to Green=s summary judgment response. The purported notice of deposition states that AGreen intends to take the oral and videotaped deposition of Cynthia Barclay after July 25, 2005, at a date and time convenient to the parties.@ (emphasis added) The attached certificate of service is unsigned. Green has not established that he exercised due diligence in obtaining Barclay=s deposition. See Community Initiatives, Inc. v. Chase Bank of Texas, 153 S.W.3d 270, 278 (Tex. App.CEl Paso 2004, no pet.) (considering the absence of diligence in obtaining discovery depositions in determining whether there had been adequate time for discovery).

Green set his motion to compel and motion for continuance for hearing on the morning of October 19, 2005, the same date and time as the hearing on QDI=s motion for summary judgment.[3] At the hearing, Green=s trial counsel argued the merits of QDI=s motion for summary judgment prior to addressing Green=s motion for continuance. The trial court did not make an express ruling on Green=s motion for continuance. However, the trial court granted QDI=s motion for summary judgment and implicitly denied Green=s motion for continuance. See Tex. R. App. P. 33.1(a)(2)(A); Carter, 93 S.W.3d at 310 n.2. We find no indication in the record that Green argued or attempted to obtain a ruling on his motion to compel discovery.

D. Conclusion

Rule 166a(i) does not require completion of discovery, only that there was adequate time. In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.CTexarkana 1998, orig. proceeding). In addition, Green is presumed to have duly investigated his claims before filing suit. See Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex. App.CSan Antonio 2001, pet. denied). Considering the factors discussed above, we conclude it was not an abuse of the trial court=s discretion to find that Green had adequate time for discovery. Green=s first issue is overruled.

 II. Did the Trial Court Err in Granting Summary Judgment as to Green=s Cause of Action for Wrongful Termination for Refusal to Perform an Illegal Act?

In his second issue, Green contends the trial court erroneously ruled that Green was not an at-will employee of QDI and, therefore, was not entitled to the protections of the Sabine Pilot doctrine. See Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). Green=s arguments constitute an attack on the trial court=s order granting ODI=s summary judgment as to Green=s cause of action for wrongful termination for refusal to perform an illegal act.[4]

A. Standard of Review

In reviewing a no-evidence motion for summary judgment, we ascertain whether the nonmovant pointed out summary judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206B07 (Tex. 2002). We take as true all evidence favorable to the nonmovant, and we make all reasonable inferences therefrom in the nonmovant=s favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary judgment evidence that raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Dolcefino, 19 S.W.3d at 917. When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm summary judgment if any of the independent summary judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

B. Wrongful Termination for Refusal to Perform an Illegal Act

In its motion for summary judgment, QDI asserted Green has no evidence of the following elements of a cause of action for wrongful termination for refusal to perform an illegal act: (1) Green was an at-will employee of QDI, (2) Green refused to perform an illegal act, and (3) Green was terminated solely because he refused to perform an illegal act. See Sabine Pilot Service, 687 S.W.2d at 735. Under the no-evidence summary judgment standard, Green was required to point out some evidence as to each of the challenged elements. See Tex. R. Civ. P. 166a(i); Johnson, 73 S.W.3d at 206B07.

In Texas, an employment relationship is at-will unless an employment contract limits Ain a meaningful and special way@ the employer=s right to terminate the employee without cause. Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 577B78 (Tex. App.CHouston [1st Dist.] 1992, no pet.). The employer must unequivocally indicate its intent to be bound not to terminate the employment except under specified circumstances. Midland Judicial Dist. Cmty. Supervision & Corr. Dept. v. Jones, 92 S.W.3d 486, 488 (Tex. 2002). In Lee-Wright, the First Court of Appeals held that a written contract specifying the employee=s monthly salary, the dates of employment, and a term of employment of five years, limited the employer=s right to terminate the employee in a meaningful and special way. Lee-Wright, 840 S.W.2d at 578. Therefore, the employment at-will doctrine did not apply. Id.

Like the contract at issue in Lee-Wright, Green=s contract limits, in a meaningful and special way, QDI=s ability to terminate Green. The Contract provides Green shall be employed for a term of five years beginning on June 7, 2004, with an annual salary of $100,000. The Contract provides that Green=s employment Ashall commence on the effective date and shall continue for a term of five years thereafter@ unless terminated earlier pursuant to the circumstances specified in Section 16 of the Contract. Section 19 of the Contract defines the circumstances under which Green=s employment may be terminated for cause. By the terms of the Contract, QDI unequivocally indicates its intent to be bound not to terminate Green=s employment except under specified circumstances. See Midland Judicial Dist. Cmty. Supervision & Corr. Dept., 92 S.W.3d at 488.

Green argues that by including a limitation of liability provision in the Contract, AQDI maintained the essence of an at-will relationship.@ Section 17 of the Contract limits QDI=s liability for termination of Green=s employment for any reason not identified in Section 16 to an amount equal to two months salary. See Arthur=s Garage, Inc. v. Racal-Chubb Sec. Sys. Inc., 997 S.W.2d 803, 810 (Tex. App.CDallas 1999, no pet.) (A[A] contractual provision setting an upper limit on the amount recoverable is considered a limitation of liability provision.@). We are not aware of any authority, and Green cites none, holding that a limitation of liability provision in an employment contract causes the employment relationship to be at-will.

Because we find that the Contract limits, in a special and meaningful way, QDI=s ability to terminate Green, and therefore provides no evidence of an at-will employment relationship between Green and QDI, we conclude the trial court did not err in granting summary judgment as to Green=s cause of action for wrongful termination for refusal to perform an illegal act. Green=s second issue is overruled.

 III. Green=s Reply Brief

We note Green has also challenged the propriety of summary judgment as to his causes of action for breach of contract, tortious interference with contract, and intentional infliction of mental distress; however, it was only after QDI raised these issues in a responsive brief that Green belatedly addressed them in his reply brief. Texas Rule of Appellate Procedure 38.3 permits an appellant to file a reply brief Aaddressing any matter in the appellee=s brief.@ Tex. R. App. P. 38.3. However, the rules of appellate procedure do not allow an appellant to include in a reply brief a new issue in response to some matter pointed out in the appellees brief but not raised by the appellant=s original brief. See id; Dallas Co. v. Gonzalez, 183 S.W.3d 94, 104 (Tex. App.CDallas 2006, pet. denied) (AA reply brief is not intended to allow an appellant to raise new issues.@); Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex. App.CSan Antonio 2003, pet. denied) (holding arguments raised for the first time in appellant=s reply brief were not properly before the court). To allow an appellant to raise new issues in a reply brief would vitiate the briefing requirements of Texas Rule of Appellate Procedure 38.1. See Tex. R. App. P. 38.1(e) (An appellant=s brief Amust state concisely all issues or points presented for review.@).

Because Green=s original brief did not challenge the trial court=s summary judgment as to his causes of action for breach of contract, tortious interference with contract, and intentional infliction of mental distress, and because Green could not raise new issues in his reply brief, we conclude Green waived any issues regarding the propriety of summary judgment as to those causes of action. See Tex. R. App. P. 38.1(e); Dallas Co., 183 S.W.3d at 104; Lopez, 131 S.W.3d at 61.

Conclusion

Having considered and overruled both of Green=s proper issues on appeal, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed August 7, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

[1] Rule 191.4 provides that Aa person may file discovery materials in support of or in opposition to a motion or for other use in a court proceeding; and . . . a person may file discovery materials necessary for a proceeding in an appellate court.@ Tex. R. Civ. P. 191.4(c)(2)B(3).

[2] In her affidavits, Green=s trial counsel testified she traveled to Canada on two occasions to visit sick relatives, suffered from a flu-like illness which rendered her incapable of appearing in court, took three weeks vacation, lost the services of an experienced paralegal, and experienced problems with her law office=s computer and communication systems as a result of hurricane Rita. However, Green=s trial counsel did not take the critical next step of describing the evidence sought or the diligence used to obtain the evidence. See Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.CHouston [14th Dist.] 2002, pet. denied) (holding an affidavit explaining the need for further discovery must describe the evidence sought, the materiality of the evidence, and the due diligence used to obtain the evidence).

[3] Green also filed a motion for a protective order seeking to prevent QDI from obtaining third-party discovery from Exxon, which was denied by the trial court on October 19, 2005. QDI filed a motion for a temporary restraining order to prevent Green from disclosing information obtained by Green during his employment with QDI. QDI=s motion was denied on June 23, 2005. Neither Green=s motion for a protective order nor QDI=s motion for a temporary restraining order prevented Green from obtaining discovery from QDI.

[4] Green=s status as an at-will employee of QDI does not necessarily affect the trial court=s summary judgment as to Green=s causes of action for breach of contract, tortious interference with contract, or intentional infliction of mental distress.