Date: 04-28-2011

Case Style: Danielle Prince v. National Smart Healthcare Services, Inc. and Richard Denegall

Case Number: 01-09-00916-CV

Judge: Michael Massengale

Court: Texas Court of Appeals, First District on appeal from the 125th District Court of Harris County

Plaintiff's Attorney: Craig R. Keener for Danielle Prince

Defendant's Attorney: James R. Spradlin and Michele B. Chimene for National Smart Healthcare Services, Inc. and Richard Denegall

Description: Appellant Danielle Prince sued appellees National Smart Healthcare Services and Richard Denegall for tortious interference with a contract, invasion of privacy, and slander. NSHS and Denegall filed a joint motion for summary judgment. Prince filed a response, arguing that the appellees had not established their entitlement to summary judgment. She also filed a motion for continuance, requesting more time to conduct discovery and to adequately respond to the summary-judgment motion. The trial court denied the motion for continuance and granted summary judgment in favor of NSHS and Denegall. On appeal, Prince challenges the trial court’s denial of its motion for continuance and the order granting summary judgment in favor of the appellees. We affirm.

Background

Danielle Prince worked full-time for Denegall, the president of NSHS, and part-time under the supervision of Dr. Paul Bettega at Harmony House. While Prince was employed at NSHS, Denegall required her to sign a confidentiality agreement in which she agreed not to disclose any confidential information related to NSHS. Prince alleged that Denegall withheld her paycheck until she agreed to sign the form and that the agreement implied that she was not to associate with two of her friends outside of work. Prince claims that Denegall told her it was inappropriate for her to associate with the two friends and that she “better not” attend a baby shower hosted by one of them. Denegall contends, however, that he required Prince to sign the form because her two friends were claiming unemployment benefits against NSHS and he did not want Prince to discuss confidential information with them.

After signing the agreement, Prince resigned from NSHS. Prince alleged that, “[a]s soon as [she] left NSHS,” she received a call from Christine Burns, a co-worker at Harmony House. Burnes told her Denegall had called Bettega, and as a result of their conversation, Bettega “was no longer comfortable with me working at Harmony House.” Denegall claims that Prince was never fired from Harmony House, and that, even if she had been, he, as a co-manager of Harmony House, had the authority to fire her.

Prince sued NSHS and Denegall for invasion of privacy, tortious interference with a contract, and slander. The trial court entered a docket control order that provided for an initial trial date, as well as a dispositive motion deadline and discovery deadline. After the dispositive motion deadline and discovery deadlines passed, NSHS and Denegall filed a traditional motion for summary judgment. Prince filed a joint response and motion for continuance requesting time to depose Denegall, Bettega, and Burns. The trial court granted summary judgment in favor of NSHS and Denegall, thereby denying Prince’s motion for continuance. On appeal, Prince argues that the trial court erred in considering the motion for summary judgment without also allowing additional time for discovery and in denying her motion for continuance. She also contends that summary judgment was improper because she raised questions of material fact as to her claims for tortious interference with a contract and invasion of privacy.

Analysis

I. Motion for continuance

In two issues, Prince complains that the trial court erred in considering the NSHS and Denegall’s motion for summary judgment without reopening the discovery period and in refusing to grant her motion for continuance. Prince argues that the trial court should have granted her motion for continuance so that she could properly respond to the summary-judgment motion, and she contends that the trial court should have reopened the discovery period because NSHS and Denegall filed for summary judgment after the deadline on the court’s docket control order.

We review a denial of a motion for continuance under an abuse of discretion standard. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). There are three relevant factors used in deciding whether the trial court abused its discretion in denying a motion for continuance. Laughlin v. Bergman, 962 S.W.2d 64, 65–66 (Tex. App.—Houston [1st Dist.] 1997, no pet.). These factors include: (1) the length of time the case had been on file; (2) the materiality of the discovery sought; and (3) due diligence of counsel. Id.; Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 510 (Tex. App.—Houston [1st Dist.] 1994, no writ). In determining whether there has been an abuse of discretion, we view the evidence in the light most favorable to the trial court and indulge every presumption in favor of the judgment. Hatteberg v. Hatteberg, 933 S.W.2d 522, 526 (Tex. App.—Houston [1st Dist.] 1994, no writ) (citing Parks v. U.S. Home, 652 S.W.2d 479, 485 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d)).

Prince’s counsel stated that he could not properly respond to the summary-judgment motion without deposing Denegall, Bettega, and Burns because they each had personal knowledge of facts that would support Prince’s claims. The affidavit further stated that Prince’s counsel could not obtain the deposition testimony between the time he was served with the motion and the date of the hearing because he was busy responding to a motion for summary judgment for another client and preparing for and attending a trial. He did not, however, explain why he was unable to depose the witnesses during the discovery period set by the docket control order.

Prince’s suit had been pending for over two years when the trial court granted summary judgment. When a party does not diligently utilize the procedures for discovery, the trial court does not abuse its discretion by refusing to grant a continuance. See State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988). On appeal, Prince’s counsel states that he chose not to depose the witnesses during the discovery period because the trial court’s docket control order “protected” the plaintiff from the filing of dispositive motions. He argues:

The Docket Control Order protected [the] Plaintiff from having to respond to a summary judgment without necessary deposition testimony. If a dispositive motion was not filed [before the deadline], Plaintiff could be spared the expense of depositions and could have presented necessary evidence through live witnesses at trial. Plaintiff’s counsel did not lack diligence by not taking these depositions prior to the discovery cutoff, because he knew that no dispositive motion had been or could be timely filed.



This argument fails to recognize that a trial court has the inherent right to change or modify a docket control order. Ocean Transp., Inc. v. Greycas, Inc., 878 S.W.2d 256, 262 (Tex. App.—Corpus Christi 1994, writ denied). Rule 166 of the Texas Rules of Civil Procedure provides for an order to be made at the pre-trial conference hearing, and that “such order when issued shall control the subsequent course of the action, unless modified . . . to prevent manifest injustice.” Tex. R. Civ. P. 166. In this case, the trial court entered a docket control order, which provided that it would control “unless modified by the court.” While Prince argues that the trial court abused its discretion in “re-opening” the dispositive motion deadline without also allowing further discovery, her counsel’s affidavit failed to explain why he was prevented from obtaining the necessary evidence during the discovery period. Accordingly, the trial court did not abuse its discretion by denying Prince’s motion for continuance. See Wood Oil, 751 S.W.2d at 865. Prince’s first and second issues are overruled.

II. Summary judgment

In her third issue, Prince argues that summary judgment was improperly granted because she raised questions of material fact as to her claims for tortious interference with a contract and invasion of privacy. With respect to the tortious interference claim, NSHS and Denegall argue that summary judgment was proper because the summary-judgment evidence conclusively established that Denegall’s actions were privileged and that they did not interfere with Prince’s at-will employment contract with Harmony House. NSHS and Denegall also argue that Prince’s claim for invasion of privacy was properly dismissed because they disproved each element of her cause of action.

We review a trial court’s decision to grant a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under the traditional summary-judgment standard, the movant has the burden to show that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary judgment must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). In determining whether there are disputed issues of material fact, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant’s favor. Nixon, 690 S.W.2d at 548–49.

A. Tortious interference with a contract

To recover for tortious interference with a contract, a plaintiff must prove: (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) that proximately caused the plaintiff's injury, and (4) actual damage or loss. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002); ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). Even if the plaintiff is able to establish each of the above elements, a defendant may negate liability by pleading and proving that its conduct was privileged. See ACS Investors, 943 S.W.2d at 431. A person is privileged to interfere with another’s contract if it is done in a bona fide exercise of his own rights or if he has an equal or superior right in the subject matter to that of the other party. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 211 (Tex. 1996). When a privilege based on a financial interest or principal-agent relationship exists, there can be no tortious interference with a contract as a matter of law. Cent. Sav. & Loan Ass’n v. Stemmons Nw. Bank, N.A, 848 S.W.2d 232, 241–42 (Tex. App.—Dallas 1992, no writ) (citing Schoellkopf v. Pledger, 778 S.W.2d 897, 903 (Tex. App.—Dallas 1989 writ denied)).

In this case, Prince argues that she raised an issue of material fact as to each element of her claim for tortious interference. In her sworn affidavit, to which NSHS and Denegall raised no objections, Prince averred that she was an employee of both NSHS and Harmony House. After resigning from NSHS, Prince stated that she received a phone call from Burns. Burns “informed [Prince] that Richard Denegal [her boss at NSHS] had contacted Dr. Paul Bettega [her boss at Harmony House], and as a result of that conversation, Dr. Betegga was no longer comfortable with [Prince] working at Harmony House.” In her response, Prince argued that these facts raised a question of material fact as to the existence of an at-will employment contract, Denegall’s interference with that contract, and harm to her employment relationship.

NSHS and Denegall argue that Denegall did not interfere with Prince’s contract with Harmony House, that Denegall’s conduct was privileged, and that Prince did not raise a fact issue. NSHS and Denegall attached Denegall’s sworn affidavit to their summary-judgment motion. Denegall averred that neither he nor NSHS interfered with Prince’s contract with Harmony House. Denegall also swore that he was a partner with Bettega in the management of Harmony House and that he had the right to hire and fire employees. Although Prince’s affidavit stated that Bettega was her boss, it did not controvert these facts. As a matter of law, privilege is established if the defendant demonstrates that the alleged interference was a bona fide exercise of his own rights. Tex. Beef Cattle, 921 S.W.2d at 211. Here, the uncontroverted evidence is that Denegall had the right to hire and fire employees at Harmony House, including Prince. Because Prince’s response and supporting affidavits failed to raise a question of material fact as to Denegall’s claim of privilege, the trial court did not err in granting summary judgment on her tortious interference claim.

B. Invasion of privacy

Texas law recognizes a common-law right to privacy. Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973); Farrington v. Sysco Food Srvs., Inc., 865 S.W.2d 247, 253 (Tex. App.—Houston [1st Dist.] 1993, writ denied). To prove invasion of privacy, Prince must establish: (1) that NSHS and Denegall intentionally intruded, physically or otherwise, upon her solitude, seclusion, or private affairs or concerns; (2) that such intrusion would be highly offensive to a reasonable person; and (3) that she suffered injury as a result of the appellee’s intrusion. See Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993). The plaintiff must also establish that she suffered injury as a result of the defendant’s intrusion. Clayton v. Wisener, 190 S.W.3d 685, 696 (Tex. App.—Tyler 2005, no pet.).

On appeal, NSHS and Denegall argue that the summary-judgment evidence disproved each element of Prince’s cause of action and that there was no evidence that Prince suffered an injury as a result of the alleged intrusion. Denegall averred that he asked Prince to refrain from discussing confidential information with two of her friends who were involved in a benefits dispute with NSHS. He stated that he “never told [Prince] she could not associate with them during her personal time.”

Prince argues that the trial court improperly granted summary judgment on her invasion of privacy claim because the summary-judgment evidence raised a fact issue as to each of the elements of her claim. She averred that Denegall told her it was inappropriate for her to associate with her two fiends and that she “better not” attend a baby shower hosted by one of them. Prince stated that Denegall withheld her paycheck until she signed an agreement, “which inferred that I would no longer associate with [my friends].”

Taking all of Prince’s allegations as true, as we must, we conclude that she has failed to raise a question of material fact as to each element of a claim for invasion of privacy. Intrusion upon seclusion is “typically associated with either a physical invasion of a person’s property or eavesdropping on another’s conversation with the aid of wiretaps, microphones, or spying.” Id.; GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 618 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Although the right to privacy includes the right to be free from willful intrusions into one’s personal life at home and at work, Prince has not alleged a legally cognizable claim for invasion of privacy. See Valenzuela v. Aquino, 763 S.W.2d 43, 45 (Tex. App.—Corpus Christi 1988, no writ). It is not enough that Denegall told her that she should not associate with certain people, nor is it sufficient that he required her to sign a confidentiality agreement, which she believed implied that she would no longer associate with two of her friends. See Clayton, 190 S.W.3d at 696–97 (holding that plaintiff could not recover for invasion of privacy when she did not allege physical invasion or eavesdropping); GTE Mobilnet, 61 S.W.3d at 618; see also Cornhill Ins. PLC v. Valsamis, Inc., 106 F.3d 80, 85 (5th Cir. 1997) (holding that Texas law does not recognize a cause of action for invasion of privacy based on allegation of offensive comments and inappropriate advances). The facts, as alleged by Prince, are simply not cognizable as a cause of action for invasion of privacy. We conclude the trial court did not err in granting summary judgment because Prince failed to raise a question of material fact as to each element of her invasion of privacy claim. Prince’s third issue is overruled.

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See: http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=89074

Outcome: We affirm the judgment of the trial court.

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