Opinion

kanetzky gps

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

ON MOTION FOR REHEARING

NO. 3-93-052-CV

BILLY WAYNE KANETZKY, INDIVIDUALLY AND BILLY WAYNE KANETZKY,

AS NEXT FRIEND FOR BILLY WAYNE KANETZKY, JR., AND TONI KANETZKY,

APPELLANTS

vs.

HYDE PARK BAPTIST CHURCH, TWIG HOBBY,

LOIS GAMBLE, GAIL KENDRICK AND CONNIE BENFIELD,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 91-16830, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING

We withdraw our opinion of August 11, 1993 and substitute the following therefor.

Billy Wayne Kanetzky sued Hyde Park Baptist Church ("Hyde Park") and two of

its employees, Twig Hobby and Lois Gamble, and psychologists, Gail Kendrick and Connie

Benfield, for interfering with his relationships with his two youngest children; for conspiring to

interfere with those relationships; and for causing Kanetzky serious emotional injury. Kanetzky's

new wife, Toni Kanetzky, and Kanetzky, as next friend for his son Billy Kanetzky, Jr., also sued

Hyde Park, Hobby, Gamble, Kendrick, and Benfield for causing each of them serious emotional

injury. The district court rendered a take-nothing summary judgment in favor of all of the defendants. We will reverse the summary judgment as to Kanetzky and affirm the

summary judgment as to Toni Kanetzky and Billy Kanetzky, Jr.

BACKGROUND

Kanetzky and Mary Murphy were divorced in February 1989. Mary Murphy was

named managing conservator of the couple's two young children. Kanetzky and the maternal

grandparents, Lois and Cole Murphy ("the grandparents"), were named possessory conservators. (1)

In March 1989, the children began attending the Hyde Park Baptist Child

Development Center, a day-care facility operated by Hyde Park. Lois Murphy, was employed

at the day-care center. In September, the younger child's teachers, Hobby and Gamble (the

"teachers"), noticed that the child, a female, was displaying unusual behavior.

The teachers began documenting the child's incidents of aberrant behavior, yet said

nothing to either parent. Kanetzky regularly dropped off and picked up the children at the day-care center. When he asked how the children were doing, he was told only that both were "doing

fine." The day-care employees neither told Kanetzky of the aberrant behavior nor showed him

any documentation of the behavioral incidents. (2)

Several months after the day-care employees first noted the unusual behavior, Mary

Murphy was contacted. She was advised by the younger child's teacher that the child should see

a psychologist. The child was examined by Drs. Kendrick and Benfield (the "psychologists"),

who concluded that there were strong indications of sexual abuse. On the advice of the

psychologists, the suspicions of sexual abuse were reported to the Texas Department of Human

Services ("DHS").

Almost immediately, the grandparents filed a motion to terminate Kanetzky's access

to the children and obtained a temporary restraining order limiting Kanetzky's access to the

children. At the hearing on the temporary order, the court appointed a clinical psychologist to

perform comprehensive psychological testing upon Kanetzky, Toni Kanetzky, and Billy Kanetzky,

Jr. (3) Therapy sessions with the youngest child and the psychological testing upon Billy Kanetzky,

Jr. indicated some likelihood that Billy Kanetzky, Jr. had sexually abused the youngest child.

The district court referred the matter to a Master for investigation. The

psychologists testified as to their diagnoses. The Master ultimately concluded that the child had

been sexually abused. Kanetzky, Mary Murphy, and the grandparents agreed to a series of

temporary orders that gave Kanetzky conditional access to the children. In October 1991, the

court rendered a final order modifying the divorce decree's custody provisions. (4)

Shortly thereafter, Kanetzky filed suit against the grandparents, Hyde Park and its

day-care facility, the teachers, and the psychologists. Kanetzky alleged that all named defendants

interfered with his relationships with his two children, conspired to interfere with his relationships

with his children, and caused him serious emotional injury. Toni Kanetzky and Kanetzky, as next

friend for Billy Kanetzky, Jr., alleged that they also suffered serious emotional injuries.

All named defendants filed motions for summary judgment. The district court

severed the claims against the grandparents from the claims against Hyde Park, the teachers, and

the psychologists. (5) A take-nothing summary judgment was rendered in favor of all defendants.

The Kanetzkys appeal from the summary judgment in favor of Hyde Park, the

teachers, and the psychologists. We will reverse the summary judgment as to Kanetzky and

affirm the summary judgment against Toni Kanetzky and Billy Kanetzky, Jr.

DISCUSSION

We are presented here with a complex set of disputed facts involving multiple

defendants, yet the district court chose to dispose of this case on summary judgment. Summary

judgment is a harsh remedy, proper only when the summary-judgment proof establishes as a

matter of law that there is no genuine fact issue 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 standards for reviewing a motion for summary judgment are well established: (1) The

movants for summary judgment have the burden of showing that no genuine issue of material fact

exists and that they are entitled to judgment as a matter of law; (2) in deciding whether there is

a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant

will be taken as true; and (3) every reasonable inference must be indulged in favor of the

nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co. , 690

S.W.2d 546, 548-49 (Tex. 1985). Hyde Park, the teachers, and the psychologists filed separate

motions for summary judgment. Because the relevant legal duties and fact issues differ for the

various appellees and appellants, we consider the claims on appeal separately.

1. Kanetzky's Claims

a. Hyde Park Baptist Church and the Teachers

In his first point of error, Kanetzky asserts that summary judgment was improper

because he pled viable causes of action and disputed fact issues as to those causes of action

precluded summary judgment in favor of Hyde Park and the teachers. We agree. The actions of

the teachers created an affirmative duty to Kanetzky; genuine issues of material fact as to whether

that duty was breached and whether their actions proximately caused Kanetzky's claimed injuries

preclude summary judgment in favor of Hyde Park and the teachers.

We are not faced with the general question of what duty day-care centers owe to

the parents of the children for whom they care; rather, the issue presented here is whether a day-care center assumes an affirmative duty to a parent when an employee of the day-care center, upon

inquiry by the parent, conceals important information about the child from the parent. "One who

voluntarily enters an affirmative course of action affecting the interests of another is regarded as

assuming a duty to act and must do so with reasonable care." Otis Eng'g Corp. v. Clark , 668

S.W.2d 307, 309 (Tex. 1983). The teachers were responsible for the care of Kanetzky's youngest

child. Over a period of several months, upon dropping off or picking up his children, Kanetzky

regularly inquired as to how the children were doing. The teachers repeatedly told Kanetzky that

his youngest child was "doing fine." The written reports of the child's unusual behavior indicated

that the teachers thought that the child was far from "doing fine." (6) Once the teachers took it upon

themselves to decline to share their observations with Kanetzky, they began an affirmative course

of action affecting Kanetzky's interests, assumed a duty to act, and were required to do so with

reasonable care.

The disparity between the teachers' written notations regarding the youngest child's

behavior and the teachers' answers to Kanetzky's repeated inquiries raises material fact issues.

Viewed in the light most favorable to the summary-judgment nonmovant, the summary-judgment

evidence is capable of supporting Kanetzky's allegation that the teachers conspired with the

grandparents to interfere with Kanetzky's parent-child relationships. Accordingly, we sustain

Kanetzky's first point of error as to Hyde Park and the teachers.

Kanetzky's second point of error disputes the trial court's holding that the immunity

provisions of the Texas Family Code shield Hyde Park and the teachers from liability. Section

34.01 of the Family Code creates a statutory duty to report suspicions of child abuse; section

34.03 provides in part that "[a]ny person reporting pursuant to this chapter is immune from

liability, civil or criminal, that might otherwise be incurred or imposed." Tex. Fam. Code Ann.

§§ 34.01 , 34.03 (West Supp. 1993) (emphasis added). Immunity is an affirmative defense; a

summary-judgment movant bears the burden of proving all the essential elements of the

affirmative defense as a matter of law, leaving no issues of material fact. Montgomery v.

Kennedy , 669 S.W.2d 309, 310-11 (Tex. 1984). Hyde Park and the teachers here attempt to

invoke the protection of chapter 34 immunity without having proved (1) that they reported any

abuse and (2) that they did so pursuant to the Family Code's specific provisions.

Chapter 34 of the Family Code imposes a mandatory duty upon day-care employees

to report suspicions of child abuse to DHS within forty-eight hours :

An oral report shall be made immediately on learning of the abuse or neglect, or

likelihood of abuse or neglect. . . . If a professional has cause to believe that a

child has been or may be abused or neglected, the professional shall make an oral

report . . . not later than the 48th hour after the hour the professional first suspects

that the child has been or may be abused or neglected. . . . [A] written report shall

be made within five days to the same agency . . . "[P]rofessional" means an

individual who is licensed[ (7) ] or certified by the state, or who is an employee of a

facility licensed . . . by the state . . . includ[ing] day-care employees.

Tex. Fam. Code Ann. § 34.02 (West Supp. 1993) (emphasis added). A note included in the

younger child's behavior file indicates that Gamble reported to her supervisor at Hyde Park that

she suspected sexual abuse as early as November 13, 1989. Despite the mandatory duty to report,

the record indicates no report made to DHS before Mary Murphy made one, upon advice of the

psychologists, in March 1990. In that this failure to report supports Kanetzky's contention that

Hyde Park's day-care facility and the teachers were conspiring to interfere with his parent-child

relationships, the failure to report creates a fact issue rather than a cloak of immunity. (8)

Accordingly, Kanetzky's second point of error is sustained.

b. The Psychologists

Kanetzky's fifth point of error relates to the viability of his cause of action against

the psychologists; Kanetzky contends that the district court erroneously rendered summary

judgment for the psychologists based upon its conclusion that the psychologists owed Kanetzky

no duty.

We recognize that a psychologist generally owes a duty to the patient when there

is a doctor-patient relationship. (9) However, a psychologist's duty also may extend to third persons.

See e.g. , W.C.W. v. Bird , 840 S.W.2d 50, 55-56 (Tex. App.--Houston [1st Dist.] 1992, writ

granted) (duty extended to parent of minor child). Mental-health professionals are governed by

the same rules of duty as are physicians. James v. Brown , 637 S.W.2d 914, 918 (Tex. 1982).

A physician owes a duty to third persons when the physician's negligence in diagnosis or

treatment of a patient contributes to a non-patient's injuries. Gooden v. Tips , 651 S.W.2d 364,

369 (Tex. App.--Tyler 1983, no writ) (cited with approval in El Chico v. Poole , 732 S.W.2d 306,

312 (Tex. 1987)).

The district court, in granting summary judgment for the psychologists, has too

narrowly framed the scope of the psychologists' duty within the confines of the physician-patient

relationship. This court has held that the law imposes upon all persons, physicians not excepted,

a duty to act as a reasonably prudent person would act under the same or similar circumstances,

considering any reasonably foreseeable risk or probability of injury to others. Pope v. St. John ,

No. 3-93-016-CV, slip op. at 3 (Tex. App.--Austin August 11, 1993, no writ h.). The Supreme

Court has recognized that "[o]ne who voluntarily enters an affirmative course of action affecting

the interests of another is regarded as assuming a duty to act and must do so with reasonable

care." Otis Eng'g Corp. v. Clark , 668 S.W.2d 307, 309 (Tex. 1983). Thus, it is clear that under

certain circumstances, irrespective of the existence of a physician-patient relationship, a doctor

may owe a duty to a person to exercise reasonable care. This is especially true in situations where

a physician takes an affirmative course of action.

Kanetzky argues that the psychologists owed him a duty to not misdiagnose his

child, citing as his strongest authority W.C.W. v. Bird , 840 S.W.2d 50 (Tex. App.--Houston [1st

Dist.] 1992, writ granted). We note that writ has been granted in this case. Without deciding

whether the facts of Kanetzky's case create a duty to exercise reasonable care, we hold that the

psychologists' summary judgment must be reversed because of the existence of factual

controversies under Kanetzky's conspiracy theory.

To be entitled to summary judgment, appellees had the burden to establish that

there existed no genuine issues of material fact thereby entitling them to judgment as a matter of

law. Lear Siegler, Inc. v. Perez , 819 S.W.2d 470, 471 (Tex. 1991) (citing City of Houston v.

Clear Creek Basin Authority , 589 S.W.2d 671, 678 (Tex. 1979)). The psychologists have failed

to carry this burden of proof and are not entitled to judgment as a matter of law.

Kanetzky's cause of action is grounded in his belief that the psychologists conspired

with the other defendants to interfere with his parent-child relationship. Suspicions of child abuse

or neglect must be reported within forty-eight hours after a professional first suspects that the

child has been or may be abused or neglected. Tex. Fam. Code Ann. § 34.02 (West Supp. 1993).

There is no evidence in the record which indicates the specific time and date that the psychologists

first suspected sexual abuse or the specific time and date that the suspicions were actually reported

to the Department of Human Services. Kanetzky alleges that the psychologists delayed making

their diagnoses and failed to timely notify the proper authorities of the suspected child sexual

abuse in order to facilitate the Murphys' attempts to terminate his possessory conservatorship.

Since there is no evidence that the psychologists complied with their statutory duty, there remains

a question of fact as to whether the psychologists delayed making their diagnosis or report to the

Department of Human Services so as to conspire with the other defendants to terminate

Kanetzky's parental rights.

Whether the psychologists colluded with any of the other defendants and acted in

bad faith or unreasonably are questions for a fact-finder that cannot be disposed of on summary

judgment. Accordingly, Kanetzky's fifth point of error is sustained.

c. Remaining Points of Error

In his third point of error, Kanetzky contends that the trial court erred in holding

that he failed to state a valid claim for emotional-distress damages. The determination of mental

anguish should be determined after the facts have been developed; the question of whether

emotional-distress damages are demonstrated is one for the fact-finder and should not be resolved

by summary judgment when disputed fact issues exist as to the other elements of a plaintiff's cause

of action. Minyard Food Stores v. Newman , 612 S.W.2d 198, 199 (Tex. 1980). As is true of the

other elements of Kanetzky's cause of action, we find that the existence of disputed fact issues

precludes summary judgment. Kanetzky's third point of error is sustained.

Kanetzky's fourth point of error urges that the trial court erred in holding that his

claims were barred by privilege or collateral estoppel. We resolved this issue when we addressed

Kanetzky's second point of error. As with Hyde Park and the teachers, Kanetzky's complaint

addresses the psychologists' actions in the months preceding the custody modification

proceedings, actions which created a claim that has not yet been adjudicated. Accordingly,

privilege and collateral estoppel do not apply and were improper grounds upon which to base a

summary judgment in this case. Kanetzky's fourth point of error is sustained.

The trial court also erred in holding that Kanetzky failed to give notice to Hyde

Park, the teachers, and the psychologists pursuant to section 36.07 of the Family Code. The plain

language of the statute makes clear that chapter 36 governs actions involving interference with

custody. Tex. Fam. Code Ann. §§ 36.01-36.08 (West Supp. 1993). This section of the Family

Code is intended to facilitate the return of a child to a person who has been denied his or her

possessory interest by requiring service of notice upon the person who has violated a custody

order. Smith v. Smith , 720 S.W.2d 586, 598 (Tex. App.--Houston [1st Dist.] 1986, no writ). The

chapter's provisions are appropriately invoked when a parent has been denied custody by reason

of a child's abduction. See, e.g. , Weirich v. Weirich , 833 S.W.2d 942 (Tex. 1992). As this is

not a suit affecting parental rights under chapter 36 of the Family Code, Kanetzky's sixth point

of error is sustained.

2. Remaining Appellants' Claims

Toni Kanetzky and Billy Kanetzky, Jr. each assert independent causes of action

against Hyde Park, the teachers, and the psychologists for negligent and intentional infliction of

emotional distress. Toni Kanetzky and Billy Kanetzky, Jr. allege that all of the defendants caused

each of them, individually, serious emotional injury.

Based upon the Texas Supreme Court's recent decision in Boyles v. Kerr , 855

S.W.2d 593 (Tex. 1993), we regard the trial court's summary judgment against Toni Kanetzky

and Billy Kanetzky, Jr. to be correct. First, Boyles v. Kerr abolished any cause of action for

negligent infliction of emotional distress. Id . at 594. Second, even for intentional infliction of

emotional distress, Toni Kanetzky and Billy Kanetzky, Jr. were still required to establish the

existence of an affirmative duty owed to them by the various defendants. "A claimant may

recover mental-anguish damages only in connection with defendant's breach of some other legal

duty ." Id . (emphasis added). Neither Toni Kanetzky nor Billy Kanetzky, Jr. have established any

affirmative duty owed them by the church, its employees, or the psychologists. Thus, all points

of error are overruled with regard to Toni Kanetzky and Billy Kanetzky, Jr.

CONCLUSION

Finding genuine issues of material fact, we hold that summary judgment as to

Kanetzky was erroneous. We therefore reverse that part of the trial court's summary judgment

ordering that Kanetzky take nothing and remand the portion the cause involving Kanetzky's claims

against Hyde Park, the teachers, and the psychologists. Having determined that the trial court was

correct in determining that the defendants owed no duty to Toni Kanetzky and Billy Kanetzky, Jr.,

we affirm the take-nothing summary judgment as to appellants Toni Kanetzky and Billy Kanetzky,

Jr.

Mack Kidd, Justice

Before Justices Powers, Kidd and B. A. Smith

Reversed and Remanded in Part and Affirmed in Part

Filed: October 20, 1993

Do Not Publish

1. Mary Murphy and the two children had been living with the grandparents for some time

prior to the divorce and continued to do so at the time of trial.

2. The teachers documented incidents of the child hitting dolls between the legs; hitting, biting,

and scratching herself and others; endangering herself and others by turning over heavy furniture;

sticking her fingers and other objects in her vagina and rectum; and frequently urinating in her

pants. Gamble documented her suspicion of sexual abuse as early as November 1989.

3. Billy Kanetzky, Jr. is Kanetzky's child from a marriage previous to his marriage to Mary

Murphy. Billy Kanetzky, Jr. was approximately sixteen years old when this litigation

commenced. He lived with Kanetzky and Toni Kanetzky when the first temporary restraining

order was filed and moved out of the household sometime soon thereafter.

4. Kanetzky's possessory conservatorship continued upon the conditions that Kanetzky take all

steps to protect and keep the children safe and supervised by an adult while in his care; that the

children never be left unsupervised with Billy Kanetzky, Jr.; and that if Billy Kanetzky, Jr. moved

back into Kanetzky's household, Mary Murphy would be notified in writing immediately.

5. This Court affirmed the trial court's summary judgment in favor of the grandparents in a

separate appeal. Kanetzky, et al. v. Murphy , No. 3-92-534-CV (Tex. App.--Austin Aug. 11, 1993,

no writ h.) (not designated for publication).

6. The behavior documented by the teachers is described in note 2, supra .

7. DHS licensed Hyde Park to operate a day-care center in 1987.

8. Similarly, the psychologists failed to carry their burden of proof by showing that they

reported the child sexual abuse within forty-eight hours of their first suspicions as required by

statute for immunity.

9. 9 The psychologists contend that they owed no duty to any of the appellants - Kanetzky, Toni

Kanetzky or Billy Kanetzky, Jr. - because none of them enjoyed a physician-patient relationship

with either of the psychologists. The psychologists assert that a physician is liable for negligence

only where the physician breaches his professional duty to a patient when there is a physician-patient relationship as a result of a contract, express or implied, that the doctor will treat the

patient with proper professional skill. See Salas v. Gamboa , 760 S.W.2d 838, 840 (Tex.

App.--San Antonio 1988, no writ). A physician may owe a duty of care to non-patient third parties

in some circumstances. See, e.g., Pope v. St. John , No. 3-93-016-CV, slip op. at 3 (Tex.

App.--Austin August 11, 1993, no writ h.); W.C.W. v. Bird , 840 S.W.2d 50, 55-56 (Tex.

App.--Houston [1st Dist.] 1992, writ granted); Gooden v. Tips , 651 S.W.2d 364, 369 (Tex.

App.--Tyler 1983, no writ). But see Dominguez v. Kelly , 786 S.W.2d 749, 751 (Tex. App.--El

Paso 1990, writ denied) (holding that doctor's well-substantiated probable cause to report abuse

negated appellant's malicious-prosecution claim; further holding that doctor established affirmative

defense of immunity; and, in dictum, holding that doctor who diagnosed child as victim of sexual

abuse owed no duty beyond doctor-patient relationship).