Adrian Robinson v. Dwight Brannon And Lynetta Freeman A/K/A Lennetta Freeman

Affirmed in Part and Reversed and Remanded

in Part and Opinion filed May 20, 2010.

In

The

Fourteenth

Court of Appeals

NO. 14-09-00139-CV

Adrian Robinson , Appellant

v.

Dwight Brannon

and Lynetta Freeman a/k/a lenetta freeman, Appellees

On Appeal from

the 80th District Court

Harris County, Texas

Trial Court

Cause No. 2007-07420

O P I N I O N

In this employment dispute, appellant, Adrian

Robinson, appeals from a summary judgment in favor of appellees, Dwight Brannon

and Lynetta Freeman a/k/a Lenetta Freeman, on the grounds that: (1) appellees

were not immune from suit under the doctrine of professional immunity; (2)

Robinson was not required to exhaust administrative remedies; and (3) fact

issues were raised on Robinson’s tort claims. Brannon and Freeman have also

brought a cross-appeal, arguing that the trial court erred in denying their

request for attorney’s fees—specifically under the Texas Education Code—after

summary judgment had been granted in their favor. We affirm the trial court’s

order granting summary judgment in favor of Brannon and Freeman, reverse the

trial court’s order denying Brannon’s request for attorney’s fees, and remand

on the sole issue of Brannon’s reasonable and necessary attorney’s fees on his

professional immunity defense in accordance with this opinion.

I. BACKGROUND

Robinson was employed by Alief Independent School

District (“AISD”) as a teacher during the 2004-2005 school year. Robinson

contends that in the fall of 2004, he had a brief romantic relationship with

Freeman, a fellow AISD employee. Robinson claims that after he ended the

relationship, Freeman and Brannon, an employee with AISD’s human resources

department, began a campaign against Robinson to tarnish his reputation as an

educator. Specifically, Robinson contends that Freeman made harassing phone

calls and sent threatening text messages to him. According to Robinson,

Freeman also conspired with his former girlfriend to make harassing phone calls

to him at his workplace.

Robinson further claims that Brannon assisted in

carrying out the scheme of harassment by conducting an improper personnel

investigation and placing Robinson on administrative leave for allegedly

receiving “preferential treatment” from his supervisor. Robinson claims that while

he was on leave, an email was sent to other AISD employees indicating that

Robinson suffered from the AIDS virus and was maliciously attempting to spread

the disease. The email also allegedly detailed Robinson’s sexual preferences

and habits. Robinson claims that Brannon and Freeman’s campaign to harass and

embarrass him caused him to suffer a stress-related medical disorder and

ultimately forced him to resign from AISD. Both Brannon and Freeman

subsequently resigned from AISD as well.

In February 2007, Robinson filed a lawsuit against

AISD, AISD’s superintendent Louis Stoerner, in his official capacity, and

Brannon and Freeman in their individual capacities. Against AISD and Stoerner,

Robinson alleged denial of equal rights, freedom of speech, and due process

violations under article I, sections 3, 8, and 19 of the Texas Constitution.

Against Brannon and Freeman, Robinson asserted the following tort claims: (1)

civil conspiracy; (2) intentional infliction of emotional distress; (3)

tortious interference with prospective and existing business relationships; and

(4) invasion of privacy—public disclosure of private facts and intrusion upon

seclusion.

All the defendants filed dispositive motions: AISD

and Stoerner filed a plea to the jurisdiction, and Brannon and Freeman filed a

motion for summary judgment. AISD and Stoerner’s plea to the jurisdiction was

granted, and this Court affirmed the trial court’s grant of the plea. [1] In Brannon

and Freeman’s summary judgment motion, they claimed that (1) they had

professional immunity from suit, (2) the trial court lacked jurisdiction

because Robinson had failed to exhaust his administrative remedies, and (3)

Robinson failed to produce evidence on each element of his tort claims. The

trial court granted the summary judgment motion, concluding that Brannon and

Freeman had professional immunity and raised “other meritorious arguments” in

their motion for summary judgment. After the motion for summary judgment was

granted, Brannon and Freeman moved for attorney’s fees pursuant to section

22.0517 of the Education Code. [2]

The trial court denied the motion.

Robinson now appeals the trial court’s summary

judgment in favor of Brannon and Freeman. In three issues, Robinson contends

that: (1) Brannon and Freeman were not immune from suit under the doctrine of

professional immunity; (2) Robinson was not required to exhaust administrative

remedies; and (3) fact issues were raised on Robinson’s tort claims. Brannon

and Freeman have filed a cross-appeal on the trial court’s order denying their

request for attorney’s fees.

II. SUMMARY JUDGMENT STANDARDS OF REVIEW

Brannon and Freeman moved for summary judgment on

both traditional and no-evidence grounds. We review a trial court’s summary

judgment de novo . Valence Operating Co. v. Dorsett , 164 S.W.3d

656, 661 (Tex. 2005). A defendant who seeks a traditional summary judgment

under rule 166a(c) must demonstrate that the plaintiff has no cause of action

as a matter of law . Provident Life & Accident Ins. Co. v. Knott ,

128 S.W.3d 211 , 215–16 (Tex. 2003); Cullins v. Foster , 171 S.W.3d 521,

530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). A traditional summary

judgment is proper when the defendant either negates at least one element of

each of the plaintiff’s theories of recovery or pleads and conclusively

establishes each element of an affirmative defense. Sci. Spectrum,

Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997); Cullins , 171 S.W.3d

at 530 . When the defendant has carried its summary judgment burden, the burden

shifts to the nonmovant to raise a material fact issue precluding summary

judgment. Virginia Indonesia Co. v. Harris County Appraisal Dist. , 910

S.W.2d 905, 907 (Tex. 1995). In reviewing a summary judgment, we take as true

all evidence favorable to the nonmovant, indulging every reasonable inference,

and we resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Property

Management Co. , 690 S.W.2d 546, 549 (Tex. 1985).

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. King Ranch, Inc. v. Chapman , 118 S.W.3d 742 , 750–51 (Tex.

2003); Mathis v. Restoration Builders, Inc. , 231 S.W.3d 47, 50 (Tex.

App.—Houston [14th Dist.] 2007, no pet.). We sustain a no-evidence summary

judgment when (1) there is a complete absence of proof of a vital fact; (2)

rules of law or evidence bar the court 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 scintilla; or (4) the evidence conclusively establishes the

opposite of a vital fact. Chapman , 118 S.W.3d at 751 ; Walker v.

Thomasson Lumber Co. , 203 S.W.3d 470, 474 (Tex. App.—Houston [14th Dist.]

2006, no pet.). Less than a scintilla of evidence exists when the evidence

offered to prove a vital fact is so weak as to do no more than create a mere surmise

or suspicion of its existence, and in legal effect is no evidence. Ford

Motor Co. v. Ridgway , 135 S.W.3d 598, 601 (Tex. 2004). More than a

scintilla of evidence exists when the evidence rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions as to

the existence of the vital fact. Id.

III. PROFESSIONAL IMMUNITY

In Robinson’s first issue, he contends that the trial

court erroneously granted summary judgment in favor of Brannon and Freeman on

the ground of professional immunity. Section 22.0511 of the Education Code

provides in relevant part:

(a) A professional employee of a school district is not

personally liable for any act that is incident to or within the scope of the

duties of the employee’s position of employment and that involves the exercise

of judgment or discretion on the part of the employee, except in circumstances

in which a professional employee uses excessive force in the discipline of

students or negligence resulting in bodily injury to students.

Tex. Educ. Code Ann. §

22.0511 (a) (Vernon 2006). Accordingly, immunity afforded by this statute

requires that the person asserting immunity establish that (1) he or she is a

professional employee of a school district, (2) he or she is acting incident to

or within the scope of duties, (3) the act involves the exercise of judgment or

discretion, and (4) the act does not fall within the stated statutory

exceptions. See LeLeaux v. Hamshire-Fannett Indep. Sch. Dist. , 835

S.W.2d 49 , 52–53 (Tex. 1992); Kobza v. Kutac , 109 S.W.3d 89, 93 (Tex.

App.—Austin 2003, pet. denied); Enriquez v. Khouri , 13 S.W.3d 458, 461

(Tex. App.—El Paso 2000, no pet.); Williams v. Chatman , 17 S.W.3d 694,

697 (Tex. App.—Amarillo 1999, pet. denied). Here, Robinson bases his challenge

on the second element: Brannon and Freeman’s acts were outside the scope of

their employment and were done in bad faith.

Whether one is

acting within the scope of his or her employment depends upon whether the

general act from which the injury arose was in furtherance of the employer’s

business and for the accomplishment of the object for which the employee was

employed. Leadon v. Kimbrough Bros. Lumber Co. , 484 S.W.2d 567, 569

(Tex. 1972); Chesshir v. Sharp , 19 S.W.3d 502 , 504–05 (Tex.

App.—Amarillo 2000, no pet.). Should this test be satisfied, then neither (1)

the failure of the employer to expressly authorize the act, nor (2) the fact

that it was performed negligently, strip the act of its protective shield. Kobza ,

109 S.W.3d at 93 ; Chesshir , 19 S.W.3d at 505 . In other words, whether

an act occurs within the scope of employment is not conditioned upon whether

the employer expressly approved it. Thus, the lack of prior approval does not

alone remove the act from the scope of employment.

With respect to

Brannon, Robinson contends that Brannon engaged in three acts outside the scope

of his employment: conducting the personnel investigation, placing Robinson on

administrative leave, and participating in the harassing email and phone

calls. Robinson claims that the investigation and suspension were outside of

Brannon’s duties because: (1) Brannon’s human resources duties were limited to

overseeing insurance benefits; (2) Brannon had never conducted an investigation

involving an allegation of preferential treatment; (3) there was no evidence

that Brannon was instructed to investigate Robinson; and (4) the administrative

suspension was against AISD policy. Contrary to Robinson’s contentions, the

summary judgment evidence conclusively establishes that Brannon’s acts of

investigating and placing Robinson on administrative leave was incident to or

within the scope of his duties as director of human resources and risk

management.

The summary

judgment evidence reflects that Brannon was the director of human resources and

risk management at AISD when he investigated an allegation that Robinson was

receiving preferential treatment from his supervisor. Brannon testified at his

deposition that his human resources duties included conducting personnel

investigations involving various employee issues. Brannon also participated in

pre-termination hearings and testified that he had investigated Robinson and

placed him on administrative leave in the capacity of director of human

resources. We conclude that the summary judgment evidence conclusively

establishes that the acts of investigating and administratively suspending

Robinson were incident to or within the scope of Brannon’s duties as the

director of human resources. Furthermore, because these acts were incident to

Brannon duties, the fact that he may not have followed AISD policy does not

affect the protective shield of professional immunity under the Education Code. [3] See

Kobza , 109 S.W.3d at 93 ; Chesshir , 19 S.W.3d at 505 . Accordingly,

Brannon established that he was entitled to professional immunity with respect

to the acts of investigating Robinson for an allegation of employee

preferential treatment and placing Robinson on leave.

Robinson also

claims that Brannon and Freeman actively participated in the harassing phone

calls, text messages, and defamatory email—acts not within the scope of their

employment. While these particular acts of harassment were not within the

scope of Brannon’s employment as the director of human resources and risk

management and Freeman’s employment as a teacher, there is no evidence, as

discussed below, that either Brannon or Freeman was the source of or conspired

to send the email or make the harassing phone calls. We sustain Robinson’s

first issue to the extent that Brannon and Freeman did not have professional

immunity from the alleged acts of electronic harassment—harassing phone calls,

threatening text messages, and defamatory email—but we overrule Robinson’s

first issue to the extent that Brannon had professional immunity regarding the

acts of investigating and suspending Robinson.

IV. NO SUMMARY JUDGMENT EVIDENCE TO SUPPORT TORT CLAIMS

In Robinson’s

third issue, he contends that there were genuine issues of material fact on

each of his tort claims—public disclosure of private facts, intrusion upon

seclusion, civil conspiracy, and tortious interference with a contract. A

plaintiff alleging public disclosure of private facts must show: that (1)

publicity was given to matters concerning his private life; (2) the publication

of such matter would be highly offensive to a reasonable person of ordinary

sensibilities; and (3) the matter publicized is not of legitimate public concern.

Indus. Found. of the S. v. Tex. Indus. Acc. Bd. , 540 S.W.2d

668 , 682–83 (Tex. 1976). An unwarranted intrusion upon seclusion is proved by

showing that (1) an intentional intrusion, physical or otherwise, upon

another’s solitude, seclusion, or private affairs or concerns, (2) the

intrusion would be highly offensive to a reasonable person, and (3) the person

suffered an injury as a result of the intrusion. Valenzuela v. Aquino ,

853 S.W.2d 512, 513 (Tex. 1993).

The elements of

civil conspiracy are that (1) two or more persons, (2) with an object to be

accomplished, (3) with the meeting of minds on the object or course of action,

(4) commit one or more unlawful or overt acts, (5) and causes damage or

injury. Operation Rescue-Nat’l v. Planned Parenthood , 975 S.W.2d 546,

553 (Tex. 1998). The elements of tortious interference with a contract are (1)

existence of a contract subject to interference, (2) willful and intentional

interference, (3) interference that proximately caused damage, and (4) actual

damage or loss. Powell Indus., Inc. v. Allen , 985 S.W.2d 455, 456 (Tex.

1998).

Robinson claims

that summary judgment was not proper on his tort claims because he produced

evidence that Brannon and Freeman made or participated in the harassing phone

calls, threatening text messages, and defamatory email, all of which support

his tort causes of action. However, contrary to Robinson’s claims, there is

less than a scintilla of evidence showing Brannon and Freeman had participated

in the alleged tortious acts of harassment purporting to support Robinson’s

tort claims. Robinson testified during his deposition that he had no evidence

identifying the source of the defamatory email and believed that his former

girlfriend had made the harassing phone calls. Robinson further testified that

he had no evidence that Brannon had been involved in the dissemination of the

email or making the harassing phone calls. Rather, Robinson testified he speculated

that Brannon had participated. Moreover, Robinson testified that he believed

Freeman had participated in making the harassing phone calls because he saw her

making a phone call on the same day he received one of the harassing calls at

his workplace.

There is no evidence—or less than a scintilla of

evidence—that Brannon or Freeman made the harassing communications about which

Robinson complains. Robinson’s pleadings merely make an unsupported allegation

that Brannon and Freeman participated in the harassing email, phone calls, and

text messages. Accordingly, the trial court properly granted summary judgment

in favor of Brannon and Robinson on Robinson’s tort claims. [4] We

overrule Robinson’s third issue.

V. CROSS-APPEAL: ATTORNEY’S FEES

In Brannon and Freeman’s sole issue on cross-appeal,

they challenge the trial court’s denial of their request for attorney’s fees

under civil procedure rules 131 and 141 and section 22.0517 of the Education

Code. See Tex. R. Civ. P. 131, 141; Tex. Educ. Code Ann. § 22.0517 .

Brannon and Freeman contend that once summary judgment was granted in their

favor, they were entitled to attorney’s fees under these three particular

provisions. In part, we agree.

Because Brannon and Freeman did not seek attorney’s

fees under civil procedure rules 131 and 141 in the trial court, they have waived

recovery on these bases. See Tex. R. App. P. 33.1(a). They did,

however, seek attorney’s fees under section 22.0517 of the Education Code. The

trial court denied their request for section 22.0517 attorney’s fees,

indicating that they had “no pleadings.” Robinson’s argument on appeal replicates

the trial court’s notation; he contends that Brannon and Freeman had no

pleadings on file affirmatively requesting attorney’s fees under section

22.0517.

Attorney’s fees are recoverable only when provided

for by statute or by the parties’ agreement. Dallas Cent. Appraisal Dist.

v. Seven Inv. Co. , 835 S.W.2d 75, 77 (Tex. 1992); Jackson v.

Biotechtronics, Inc. , 937 S.W.2d 38, 44 (Tex. App.—Houston [14th Dist.]

1996, no writ). We generally review a trial court’s decision to award

attorney’s fees for an abuse of discretion. Bocquet v. Herring , 972

S.W.2d 19, 20 (Tex. 1998). A trial court abuses its discretion if its decision

is arbitrary, unreasonable, and without reference to guiding principles. Goode

v. Shoukfeh , 943 S.W.2d 441, 446 (Tex. 1997). However, some statutes

remove the discretion from the trial court. See Bocquet , 972

S.W.2d at 20–21. Statutes providing that a “court may award” attorney’s fees

grant courts a measure of discretion in awarding attorney’s fees, but statutes

providing that a “party may recover,” “a party shall be awarded,” or “party is

entitled to” attorney’s fees mandate an award of reasonable and necessary

fees. Id. ; Aaron Rents, Inc. v. Travis Cent. Appraisal Dist. ,

212 S.W.3d 665, 672 (Tex. App.—Austin 2006, no pet.). The relevant attorney’s

fee statute in this case provides:

In an action against a professional employee of a school

district involving an act that is incidental to or within the scope of duties

of the employee’s position of employment and brought against the employee in

the employee’s individual capacity, the employee is entitled to

recover attorney’s fees and court costs from the

plaintiff if the employee is found immune from liability under this

subchapter .

Tex. Educ. Code Ann. §

22.0517 (emphasis added). Section 22.0517 clearly provides that “the employee

(party) is entitled to recover” if he or she is found to be immune from

liability. See id. Accordingly, section 22.0517 mandates the

issuance of attorney’s fees after a party has proven that it is immune under

chapter 22. See Bocquet , 972 S.W.2d at 20 (indicating that statutes

providing a party “is entitled to” recover attorney’s fees are not

discretionary). Because the trial court found, and we agree, that Brannon was

immune from liability under section 22.0511, it had no discretion in awarding

attorney’s fees. Furthermore, assuming that the trial court denied the request

for attorney’s fees, as noted in the record, because Brannon had no previous

pleadings on file, such “pleading” was not necessary. See Alan Reuber

Chevrolet, Inc. v. Grady Chevrolet, Ltd. , 287 S.W.3d 877, 884 (Tex.

App.—Dallas 2009, no pet.) (“Absent a mandatory statute, a trial court’s

jurisdiction to render judgment for attorney’s fees must be invoked by

pleadings.”); see also Campbell v. Stucki , 220 S.W.3d 562 , 567–68 (Tex.

App.—Tyler 2007, no pet.) (concluding that pleadings were required where there

was no mandatory statute providing for recovery of attorney’s fees). Because

the award of attorneys’ fees was mandatory under section 22.0517, Brannon

properly requested the fees following the trial court’s finding of professional

immunity.

It is important

to note that only Brannon invoked section 22.0517. As discussed above, Brannon

showed that he was entitled to professional immunity on the individual acts of

investigating and suspending Robinson. However, because Freeman was not

protected by professional immunity on the alleged acts of harassment, she is

not entitled to section 22.0517 attorney’s fees. Furthermore, Brannon’s

entitlement to section 22.0517 attorney’s fees is limited to only those fees

specific to his professional immunity defense. Any attorney’s fees associated

with defending against Robinson’s suit outside Brannon’s professional

immunity—his defenses of exhaustion of administrative remedies and no evidence

on the acts of electronic harassment—are not recoverable under section

22.0517. Accordingly, we sustain Brannon’s sole issue on cross-appeal with

respect to those particular fees reasonable and necessary to defend on his

professional immunity defense and reverse the trial court’s order denying

attorney’s fees accordingly. We overrule Brannon’s issue on cross-appeal as to

attorneys’ fees related to his defenses other than professional immunity. We

overrule Freeman’s sole issue on cross-appeal.

V. CONCLUSION

We affirm the trial court’s order granting summary

judgment in favor of Brannon and Freeman, reverse the trial court’s order

denying Brannon’s request for attorney’s fees, and remand on the sole issue of

Brannon’s reasonable and necessary attorney’s fees on his professional immunity

defense in accordance with this opinion.

/s/ Adele

Hedges

Chief

Justice

Panel consists of Chief Justice Hedges

and Justices Anderson and Christopher.

[1]

See Robinson v. Alief Indep. Sch. Dist. , 298 S.W.3d 321, 323 (Tex.

App.—Houston [14th Dist.] 2009, pet. denied).

[2]

See Tex. Educ. Code Ann. § 22.0517 (Vernon 2006).

[3]

Because there is no “good faith” element to section 22.0511, we also reject

Robinson’s argument that Brannon and Freeman acted in bad faith, thereby

stripping them of professional immunity. See Kobza , 109 S.W.3d

at 93 ; Enriquez , 13 S.W.3d at 464 .

[4]

Having concluded that Brannon was entitled to summary judgment on the basis of

professional immunity on the acts of investigating and suspending Robinson and

both Brannon and Freeman were entitled to summary judgment on the other alleged

acts of harassment for lack of summary judgment evidence, we need not address

the alternate summary judgment grounds raised by Robinson in his second issue.

See Tex. R. App. P. 47.1; see also Seureau v. ExxonMobil Corp. ,

274 S.W.3d 206, 231 (Tex. App.—Houston [14th Dist.] 2008, no pet.).