Bryan Black v. Smith Protective Services, Inc.

Opinion issued September 23, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00969-CV
———————————
BRYAN BLACK, Appellant/Cross-Appellee
V.
SMITH PROTECTIVE SERVICES, INC., Appellee/Cross-Appellant
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2012-56941
MEMORANDUM OPINION
Appellant/Cross-Appellee, Bryan Black, challenges the trial court’s
rendition of summary judgment in favor of Appellee/Cross-Appellant, Smith
Protective Services, Inc. (“Smith”), in Black’s suit against Smith for negligent
hiring, training, supervision, and retention. In his sole issue, Black contends that
the trial court erred in granting Smith summary judgment. In its sole cross-point,
Smith contends that the trial court erred in denying its request for attorney’s fees.1
We affirm in part and reverse and remand in part.
Background
In his sixth amended petition, Black, a resident of The Oaks of Woodlake
Townhomes (“The Oaks”), alleged that on March 6, 2012, Muhammad Zaffar, a
Smith security guard attending the front entry gate of The Oaks, refused entry to
one of Black’s guests. Black noted that “[g]uests are routinely permitted entry
once they are identified.” When Black and a friend went to the security gate to ask
Zaffar to allow the guest to enter, Zaffar “refused the request in a very rude fashion
and called [Black’s] friend an offensive name.” Black and Zaffar then engaged in
an argument, but had no physical contact. The “verbal confrontation ended while
both [Black and Zaffar] were outside the guardhouse in plain sight of others [who]
were coming and going.” However, when Zaffar left work that day, he drove to a
Houston Police Department (“HPD”) substation and filed a criminal complaint,
alleging that Black had “physically assaulted” him, threatened him, and “swung a
baseball bat” at him.
Two days later, on March 8, 2012, when Black arrived home from work, law
enforcement officers, in plain view of other residents, surrounded him in the
1
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 42.001–.005 (Vernon 2015); TEX. R.
CIV. P. 167.
2
parking lot of The Oaks and pointed a shotgun at his head. After the officers
unsuccessfully searched Black’s apartment for a bat, they arrested him for the
felony offense of aggravated assault with a deadly weapon. Black complained that
although a grand jury later declined to indict him, there still stands a public record
of an arrest and charges made against him.
Black later learned that Zaffar had previously made similarly false
accusations against other individuals at The Oaks. Specifically, a company,
Forward Air, contacted Smith on February 11, 2012 to complain that after Zaffar
had refused its employee entry to The Oaks, he reported to a Smith dispatcher that
the employee had threatened to shoot him and he “might have to call police.” Two
weeks later, a resident of The Oaks filed with The Oaks’s management a written
complaint, asserting that Zaffar had falsely reported to a law enforcement officer
that her son had threatened to shoot him. Black asserted that these incidents,
because they had occurred so close together in time, put Smith on notice that
Zaffar had exhibited “episodes of paranoia” and “resorted to calling police”
whenever he was confronted or became angry.
Black further alleged that Smith had negligently hired, trained, supervised,
and retained Zaffar. In regard to hiring Zaffar, Black asserted that Smith had failed
to adhere to its own standards by not obtaining from Zaffar information about his
five years of prior experience or seven years of job experience that Smith had
3
requested on its employment application. And Smith failed to check Zaffar’s
employment references and discover that his application contained inaccurate dates
of employment according to Texas Department of Public Safety records.
In regard to training Zaffar, Black alleged that Smith did not instruct him
“about the illegality of making false [police] reports” and its protocol for reporting
assaults on guards to supervisors immediately. And Smith owed a duty to Black to
have a written plan in force about the instigation of any criminal actions against a
resident of The Oaks and to adequately supervise Zaffar after knowing that he had
claimed that two other guests had allegedly threatened to shoot him.
In regard to retaining Zaffar, “two other companies had asked [Smith] to
remove him from their locations” before it placed him at The Oaks and this “alone
should have alerted [Smith] that there was something going on with Zaffar.” And
after Smith learned that Zaffar had previously had two separate confrontations with
others at The Oaks and had claimed that the others had threatened to shoot him,
Smith should have transferred him to another post or discharged him.
Black further alleged that “any employer should have reasonably foreseen
that Zaffar had a problem dealing with people he encountered” and was “making
false claims against them.” And Smith, by failing to take any action, had
encouraged and assisted Zaffar “in the furtherance of his false criminal complaints
4
of assault” and was responsible under the theory of respondeat superior for
proximately causing Black’s damages.
Smith filed a no-evidence summary-judgment motion, asserting that there is
“no evidence that any alleged negligence on [its part] during the hiring of Zaffar
proximately caused the harm alleged to have been suffered by [Black].” In regard
to Black’s claims for negligent training, supervision, and retention, Smith asserted
that there is no evidence that it “owed any such duties to [Black].” Rather, it solely
owed a duty to the “party that hired it: The Oaks of Woodlake.” In a separate
summary-judgment motion, Smith asserted that, as a matter of law, it was not
vicariously liable for Zaffar’s acts of malicious prosecution or wrongful
imprisonment.
In his response to Smith’s summary-judgment motion on his negligence
claims, Black reiterated the arguments that he had presented in his petition. And
he attached to his response, as his summary-judgment evidence, Smith’s dispatch
records; a letter from a resident of The Oaks to The Oaks’s management about
Zaffar’s February 2012 accusation that a guest had threatened to shoot him; an
excerpt of the deposition testimony of Ruben Amaya, a Smith representative, about
the hiring of Zaffar and Smith’s response to the February 2012 incidents; the
affidavit testimony of Black and his attorney; and the affidavit testimony and
5
expert report of J. Patrick Murphy, a Forensic Expert Witness and Security
Management Consultant.
The trial court, without specifying the grounds, granted Smith’s no-evidence
summary-judgment motion on all of Black’s negligence claims against it. The trial
court also granted Smith’s matter-of-law summary-judgment motion on Black’s
claims that Smith was vicariously liable for Zaffar’s acts of malicious prosecution
and wrongful imprisonment. After a trial to the court, at which Zaffar did not
appear, the trial court found in favor of Black on his claims against Zaffar for
malicious prosecution and wrongful imprisonment, awarding him damages against
Zaffar in the amount of $49,500. Smith then filed a post-judgment motion for
attorney’s fees, which the trial court denied.
Standard of Review
We review a trial court’s summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take
as true all evidence favorable to the non-movant, and we indulge every reasonable
inference and resolve any doubts in the non-movant’s favor. Valence Operating,
164 S.W.3d at 661; Knott, 128 S.W.3d at 215. If a trial court grants summary
judgment without specifying the grounds for granting the motion, we must uphold
the trial court’s judgment if any of the asserted grounds are meritorious. Beverick
6
v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied). A party seeking summary judgment may combine in a single motion
a request for summary judgment under the no-evidence standard with a request for
summary judgment as a matter of law. Binur v. Jacobo, 135 S.W.3d 646, 650–51
(Tex. 2004). When a party has sought summary judgment on both grounds and the
trial court’s order does not specify its reasons for granting summary judgment, we
first review the propriety of the summary judgment under the no-evidence
standard. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see
also TEX. R. CIV. P. 166a(i). If we conclude that the trial court did not err in
granting summary judgment under the no-evidence standard, we need not reach the
issue of whether the trial court erred in granting summary judgment as a matter of
law. See Ford Motor Co., 135 S.W.3d at 600.
To prevail on a no-evidence summary-judgment motion, the movant must
establish that there is no evidence to support an essential element of the
non-movant’s claim on which the non-movant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-
movant to present evidence raising a genuine issue of material fact as to each of the
elements challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
582 (Tex. 2006); Hahn, 321 S.W.3d at 524. A no-evidence summary-judgment
7
motion may not be granted if the non-movant brings forth more than a scintilla of
evidence to raise a genuine issue of material fact on each of the challenged
elements. See Ford Motor Co., 135 S.W.3d at 600. 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.” Merrell Dow Pharms., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
In a matter-of-law summary-judgment motion, the movant has the burden to
show that no genuine issue of material fact exists and the trial court should grant
judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.
Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a
defendant moves for a matter-of-law summary judgment, it must either:
(1) disprove at least one essential element of the plaintiff’s cause of action, or
(2) plead and conclusively establish each essential element of an affirmative
defense, thereby defeating the plaintiff’s cause of action. See Cathey v. Booth, 900
S.W.2d 339, 341 (Tex. 1995); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995); Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—
Houston [1st Dist.] 2014, no pet.). Once the movant meets its burden, the burden
shifts to the non-movant to raise a genuine issue of material fact precluding
summary judgment. See Siegler, 899 S.W.2d at 197; Transcon. Ins. Co. v. Briggs
Equip. Trust, 321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no
8
pet.). The evidence raises a genuine issue of fact if reasonable and fair-minded
jurors could differ in their conclusions in light of all of the summary-judgment
evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.
2007).
Summary Judgment
In his sole issue, Black argues that the trial court erred in granting Smith’s
no-evidence summary-judgment motion on his negligence claims,2 because he
presented more than a scintilla of evidence on each of the challenged elements of
each of his claims, and in granting Smith’s matter-of-law summary-judgment
motion on his respondeat-superior claims, because Zaffar was acting within the
course and scope of his employment as a security guard for Smith when he filed a
criminal complaint against Black.
Negligence
Negligent hiring, training, supervision, and retention claims are “all simple
negligence causes of action based on an employer’s direct negligence rather than
on vicarious liability.” See Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex.
App.—Fort Worth 2008, no pet.). As with any negligence case, the plaintiff must
prove the existence of a legal duty, a breach of that duty, and damages proximately
2
Although Black states in his brief that he appeals the trial court’s summary
judgment, “both traditional and no-evidence, on the issue of negligence,” the
record shows that Smith moved only for a no-evidence summary judgment on
Black’s negligence claims.
9
caused as a result of the breach. Id.; Greater Hous. Transp. Co. v. Phillips, 801
S.W.2d 523, 525 (Tex. 1990).
Hiring
In regard to Black’s negligent-hiring claim, Smith, in its summary-judgment
motion, asserted that there is “no evidence that any alleged negligence on [its part]
during the hiring of Zaffar proximately caused the harm alleged to have been
suffered by [Black].”
Although “the supreme court has yet to set out what duty an employer has in
negligent hiring . . . claims, it has indicated that to recover on these theories, a
plaintiff must show more than just negligent hiring practices.” Davis-Lynch, Inc.
v. Asgard Techs., LLC, 472 S.W.3d 50, 64 (Tex. App.—Houston [14th Dist.] 2015,
no pet.); see also Wansey v. Hole, 379 S.W.3d 246, 247 (Tex. 2012). “Negligence
in hiring requires that the employer’s ‘failure to investigate, screen, or supervise its
[hirees] proximately caused the injuries the plaintiffs allege.’” Fifth Club, Inc. v.
Ramirez, 196 S.W.3d 788, 796 (Tex. 2006) (quoting Doe v. Boys Clubs of Greater
Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995)). The components of proximate
cause are cause-in-fact and foreseeability, and these elements may not be
established by mere conjecture, guess, or speculation. See Doe, 907 S.W.2d at
477. The test for cause-in-fact is whether the negligent act or omission constituted
a substantial factor in bringing about injury, without which the harm would not
10
have occurred. Thomas v. CNC Invs., L.L.P., 234 S.W.3d 111, 124 (Tex. App.—
Houston [1st Dist.] 2007, no pet.). Cause-in-fact is not shown if the defendant’s
negligence did no more than furnish a condition that made the injury possible. Id.
And a negligent-hiring claim “requires that the plaintiff suffer some damages from
the foreseeable misconduct of an employee hired pursuant to the defendant’s
negligent practices.” Wansey, 379 S.W.3d at 247.
Here, Ruben Amaya, Smith’s representative, testified that Smith, in hiring
Zaffar, relied solely on Zaffar’s application, in which he stated that he had been
“working in the profession” for two to three years. In his expert report, J. Patrick
Murphy, Smith’s security-management consultant, notes that his review of Zaffar’s
personnel file and Smith’s records revealed that Zaffar’s employment application
contains insufficient and inaccurate dates of employment and “there is no evidence
of Smith’s checking of Zaffar’s prior employment/references.” Murphy did not
opine as to how such inadequacies relate to any foreseeability of Black’s injury.
For instance, Murphy does not state what Zaffar’s references would have revealed.
See Read v. Scott Fetzer Co., 990 S.W.2d 732, 736–37 (Tex. 1998) (employer’s
background check of employee who committed sexual assault would have revealed
prior inappropriate sexual conduct in workplace and conviction for indecency).
Black does not direct us to any summary-judgment evidence establishing
that Smith’s failure to investigate Zaffar prior to hiring him proximately caused
11
Black’s injury. Cf. Read, 990 S.W.2d at 737 (causation element of negligent-
hiring claim regarding employee who sexually assaulted third party satisfied by
evidence that investigation would have revealed employee’s prior sexual
misconduct); Estate of Arrington v. Fields, 578 S.W.2d 173, 175 (Tex. Civ.
App.—Tyler 1979, writ ref’d n.r.e.) (holding employer negligently hired applicant
with “long criminal record” for position of armed security guard).
We conclude that Black did not present any evidence that Zaffar’s conduct
against him was a foreseeable consequence of Smith’s hiring or that Smith’s hiring
of Zaffar did anything more than furnish a condition that made an injury possible.
See Thomas, 234 S.W.3d at 124. Accordingly, we hold that the trial court did not
err in granting Smith summary judgment on Black’s negligent-hiring claim. See
Houser v. Smith, 968 S.W.2d 542, 545 (Tex. App.—Austin 1998, no pet.)
(affirming judgment on negligent-hiring claim where complained-of conduct not
foreseeable).
Training, Supervision, and Retention
In regard to Black’s claims against Smith for negligent training, supervision,
and retention,3 Smith asserted that there is no evidence that it owed any duties to
3
Although they tend to overlap, claims of negligent training, supervision, and
retention are distinct causes of action. See Tex. Dep’t of Pub. Safety v. Petta, 44
S.W.3d 575, 581 (Tex. 2001); Norrell v. Gardendale Volunteer Fire Dep’t, 115
S.W.3d 114, 118 (Tex. App.—San Antonio 2003, no pet.); see also Najera v.
12
Black. Smith further asserts that it solely owed a duty to the “party that hired it:
The Oaks of Woodlake.”
An employer has a duty to adequately train and supervise its employees.
Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex. App.—Houston [1st Dist.] 1999,
pet. denied). “The basis of responsibility under the doctrine of negligent retention
is the master’s negligence in retaining in his employ an incompetent servant whom
the master knows, or by the exercise of reasonable care should have known, was
incompetent or unfit, thereby creating an unreasonable risk of harm to others.”
CoTemp, Inc. v. Hous. W. Corp., 222 S.W.3d 487, 492 (Tex. App.—Houston [14th
Dist.] 2007, no pet.).
Duty is the threshold inquiry of all three claims and is a question of law for
the court to decide based upon facts surrounding the occurrence in question.
Phillips, 801 S.W.2d at 525; see Dangerfield, 264 S.W.3d at 912–13 (negligent
training); Knight v. City Streets, L.L.C., 167 S.W.3d 580, 584 (Tex. App.—
Houston [14th Dist.] 2005, no pet.) (negligent supervision); CoTemp, 222 S.W.3d
at 492 (negligent retention). In determining whether to impose a duty on a
particular defendant, courts weigh: (1) the risk involved; (2) foreseeability of the
risk; (3) likelihood of injury; and (4) the social utility of the actor’s conduct and the
magnitude of the burden on the defendant. See Phillips, 801 S.W.2d at 525.
Recana Sols., LLC, No. 14-14-00332-CV, 2015 WL 4985085, at *7 (Tex. App.—
Houston [14th Dist.] Aug. 20, 2015, no pet.) (mem. op.).
13
Foreseeability means that a person of ordinary intelligence should have anticipated
the dangers that his negligent act created for others. Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 549–50 (Tex. 1985). “In the absence of foreseeability, there
is no duty.” NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 954 (Tex. 1996).
In CoTemp, a customer sued an air conditioning company, CoTemp, for
negligent retention after its employee had contracted with the customer to install an
air conditioner “on the side” and, after accepting payment from the customer,
never completed the work. 222 S.W.3d at 490–91. The evidence showed that the
employee had twice previously agreed to perform air-conditioning installation
“side jobs.” Id. at 492. And, in each instance, the employee promised to install
equipment and accepted payment, but never completed the work. Id. When
CoTemp learned of the employee’s previous conduct, it reprimanded him and
required him to make restitution to the customers. Id. However, it retained the
employee in the same position, which involved contacting potential and existing
customers and obtaining sales. Id. at 492–93. The court concluded that this
evidence demonstrated that CoTemp, based on the employee’s previous dishonest
conduct, knew that he was “incompetent or unfit.” Id. at 493. Thus, its retention
of him created a foreseeable risk to other customers, and CoTemp owed its
customers a legal duty to protect it from the employee’s conduct. Id.
14
Here, Smith’s dispatch log from February 11, 2012 reveals that Zaffar had
accused a Forward Air employee of threatening him, namely, by stating that he
“ha[d] a gun and w[ould] shoot” Zaffar. Zaffar also indicated that he “m[ight]
have to call police at shift change.” And a February 28, 2012 letter from a resident
of The Oaks to The Oaks’s management states that Zaffar had falsely reported to
law enforcement that her son had threatened to shoot him. Amaya testified that
although Zaffar’s conduct did suggest a pattern of conduct, he counseled Zaffar
after only one of the incidents and did not consider reassigning him or terminating
his employment. Murphy opined that Smith should have removed Zaffar from The
Oaks “immediately” upon learning of Zaffar’s claims that two visitors in a
two-week period had threatened to shoot him. He further opined that Smith had
failed to adopt proper policies and procedures regarding his conduct.
Thus, the record reveals that prior to filing a police report against Black,
Zaffar had twice within the preceding weeks accused guests of having threatened
to shoot him. On the second occasion, Zaffar had actually called for law
enforcement officers to come to The Oaks to investigate, and the matter was either
resolved or dropped without further action by law enforcement. Once Smith
learned of these incidents, it counseled Zaffar on one of them, but did not consider
reassigning him or terminating his employment. Rather, it retained Zaffar in his
position at The Oaks.
15
Taking all evidence favorable to Black as true and indulging every
reasonable inference and resolving all doubts in his favor, we conclude that Black
presented more than a scintilla of evidence that Smith’s retention of Zaffar created
a foreseeable risk to other residents and visitors of The Oaks. See id.; Spradlin,
100 S.W.3d at 377. Thus, Smith owed Black a legal duty to protect him from
Zaffar’s conduct. See CoTemp, 222 S.W.3d at 493; cf. Ramirez, 196 S.W.3d at
797 (certified peace officer fit for security guard position where no conflicting
evidence of unfitness prior to incident). Further, because Zaffar’s conduct was
foreseeable, Smith had a legal duty to train and supervise him. See Dangerfield,
264 S.W.3d at 912; Knight, 167 S.W.3d at 584.
Accordingly, we hold that the trial court erred in granting Smith summary
judgment on Black’s claims for negligent training, supervision, and retention.
Respondeat Superior
In regard to Black’s claims that Smith is vicariously liable for Zaffar’s acts
of malicious prosecution and wrongful imprisonment,4 Smith, in its summary-
judgment motion, argued that Zaffar was not acting within the course and scope of
his employment when he filed a criminal complaint against Black because
reporting alleged crimes occurring at The Oaks was not a part of the security
4
As discussed above, the trial court rendered a default judgment in favor of Black
on his claims against Zaffar for malicious prosecution and wrongful
imprisonment. A default judgment conclusively establishes the defendant’s
liability. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984).
16
officers’ normal duties; Zaffar did not file his complaint until after he had left work
on the day of his altercation with Black; and “Smith did not authorize, benefit from
or ratify such conduct.”
Under the doctrine of respondeat superior, an employer may be vicariously
liable for an employee’s tortious act if the “act falls within the scope of the
employee’s general authority in furtherance of the employer’s business and for the
accomplishment of the object for which the employee was hired.” Minyard Food
Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002); see also Wilson v.
Davis, 305 S.W.3d 57, 67 (Tex. App.—Houston [1st Dist.] 2009, no pet.). For an
employee’s act to be within the scope of his employment, “the conduct must be of
the same general nature as that authorized or incidental to the conduct authorized.”
Goodman, 80 S.W.3d at 577; Wilson, 305 S.W.3d at 67. Generally, “if an
employee deviates from the performance of his duties for his own purposes, the
employer is not responsible for what occurs during that deviation.” Goodman, 80
S.W.3d at 577; Wilson, 305 S.W.3d at 67.
Smith’s summary-judgment evidence includes the affidavit of Ruben
Amaya, Smith’s Operations Manager; Smith’s “Security Officer Post Orders”
(“Post Orders”) governing The Oaks; the HPD incident report and affidavit of
Zaffar; and excerpts from the deposition of HPD Officer Jonathan Liu.
17
Amaya testified that on March 6, 2012, he spoke with Zaffar about his claim
that, while he was at his guard post at The Oaks, Black threatened him with a
baseball bat. Amaya neither instructed Zaffar to file, nor prohibited him from
filing, a criminal complaint against Black. Amaya explained that Smith could not
“interfere with an employee’s exercise of [his] legal rights in this regard.” And
Zaffar did not file his complaint until after he had completed his work shift.
Amaya noted that even if Zaffar had filed his complaint during his shift, he would
have been “pursuing his personal interests, not those of Smith.” And Smith “did
not authorize, participate in, or ratify such action.”
Smith’s Post Orders provide that a security officer’s purpose at The Oaks is
to control gate access and to deter criminal activity. In regard to visitors, the
“Security Checks and Procedures” section directs:
Residents are supposed to inform the management office and courtesy
patrol officers of any planned visitors they want to include on the call
or no call list maintained in the Gate house. Some residents do not
ever want to be called; some residents want to be called always; some
residents want to be called always except for the few names they put
on the call list. If resident doesn’t answer a call ask driver to exit the
property.
And Smith generally instructs its security officers, in the event of a “security
matter,” to note an “Irregularity Report,” inform a “Rover,” and maintain
communications with Smith and The Oaks management. In regard to expressly
directing Smith’s officers to contact HPD, the Post Orders provide:
18
If suspicious characters are observed walking around the property, ask
them what unit they live in and to identify themselves. If they are not
residents or guests of a resident, inform them they must leave the
property and escort them out. If they run, observe where they are
going, call HPD.
However, Smith, on the first page of its Post Orders, lists an order of operations
with regard to contacting emergency personnel and management. In subsection A
of the “Emergency Telephone Numbers and Instructions,” Smith provides a
telephone number for HPD. It then, in subsection B, directs that The Oaks
management personnel be contacted “in the following order: [list].” Then, in
subsection C, Smith directs that routine issues pertaining to security matters be
directed to the Smith supervisor on duty.
The HPD report states that Zaffar, at 8:00 p.m. on March 6, 2012, came into
the HPD substation and filed a complaint. In his complaint, Zaffar stated that at
5:00 p.m. that day, while he was “working the guard shack” for Smith, a person
drove her car up to the guard shack and requested access to unit number 619,
which Zaffar’s list showed to be vacant. A few minutes later, a person telephoned
Zaffar, claiming that she lived in unit 619 and directing that the driver be allowed
to enter. Zaffar alleged that, during the telephone call, he heard someone in the
background say that he was going to “put him down.” A few minutes later, Black
appeared at the guard shack with a baseball bat and attempted to strike Zaffar.
Zaffar closed the door and called HPD for law-enforcement assistance. Black then
19
yelled through the door that he was “going to kill him” because he was tired of his
guests not being allowed to enter the property. After Black left, Zaffar waited for
another security officer to relieve him at his post and then drove to an HPD
substation to file a report. The HPD report further states that at the time its officers
arrived at The Oaks, in response to Zaffar’s call for assistance, Zaffar had already
left. The excerpt of Officer Lui’s deposition adds only that the district attorney
made the decision to pursue criminal charges against Black.
In regard to Smith’s argument that Zaffar was not acting within the course
and scope of his employment in filing a criminal complaint against Black because
“[r]eporting alleged crimes occurring at The Oaks was not . . . part of the security
officers’ normal duties,” Smith, in its Post Orders, provides that a security officer’s
purpose at The Oaks is to control gate access and to deter criminal activity. Smith
provides a telephone number for HPD and directs its security officers, under
certain circumstances, to contact HPD. Thus, Smith’s summary-judgment
evidence does not conclusively establish that Zaffar, by reporting criminal activity
occurring on The Oaks property to HPD, was acting outside the scope of the
authority granted to him by Smith. See Hopkins v. Strickland, No.
01-12-00315-CV, 2013 WL 1183302, at *3 (Tex. App.–Houston [1st Dist.] Mar.
21, 2013, no pet.) (mem. op.) (even if defendant wrongly or negligently performed,
he acted within general scope of his duties); Tex. Dep’t. of Pub. Safety v. Tanner,
20
928 S.W.2d 731, 735 (Tex. App.—San Antonio 1996, no writ) (“Even if a specific
action is wrong or negligent, an officer acts within the scope of his authority when
performing the general duties assigned.”).
In regard to Smith’s argument that Zaffar was not acting within the course
and scope of his employment in filing a criminal complaint against Black because
he did so only after he had left work on the day of the incident, the summary-
judgment evidence shows that Zaffar, during his work shift, called for
law-enforcement assistance in response to the alleged conduct of Black. After, as
Zaffar asserts, law-enforcement officers did not respond and Black left, he waited
for another security officer to relieve him at his post and then drove to an HPD
substation to file a report. The HPD report states that officers did go to The Oaks
in response to Zaffar’s call for assistance, however, he had already left. The
evidence does not conclusively establish that Zaffar, by continuing his attempt to
make a police report, whether to preserve his own safety or that of the other
security officers as well, and driving to an HPD substation after his shift had ended
and another officer had relieved him, was no longer acting in furtherance of
Smith’s business and was acting outside the scope of his employment.
In regard to Smith’s assertion that it “did not authorize, benefit from[,] or
ratify” Zaffar’s filing of a criminal complaint, an employer may be vicariously
liable for an employee’s tortious act if the “act falls within the scope of the
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employee’s general authority.” Goodman, 80 S.W.3d at 577. “It is not essential
that the negligent act or omission should have been expressly authorized by the
employer so long as it is in furtherance of the employer’s business and for the
accomplishment of the object for which the employee is employed.” Leadon v.
Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972). Smith asserted
that it “had nothing to do with the institution of the criminal proceedings against”
Black. However, an employer may be vicariously liable for the tortious acts of an
employee acting within the scope of his employment, even though the principal or
employer did not itself commit a wrong. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513,
541–42 (Tex. 2002).
Although Smith raises additional arguments in its appellate brief, a summary
judgment “must stand or fall on the grounds expressly presented in the motion.”
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). “In
determining whether grounds are expressly presented, reliance may not be placed
on briefs or summary judgment evidence.” Id.
Taking as true all evidence favorable to Black and indulging every
reasonable inference in his favor, we conclude that Smith has not conclusively
established, as a matter of law, that Zaffar acted outside the course and scope of his
employment as a security guard for Smith. See Goodman, 80 S.W.3d at 577; see
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also Wilson, 305 S.W.3d at 67. Accordingly, we hold that the trial court erred in
granting Smith summary judgment on Black’s respondeat-superior claims.
We sustain Black’s sole issue in part and we overrule it in part.
Attorney’s Fees
In its sole cross-point, Smith argues that the trial court erred in denying its
request for attorney’s fees because it is entitled to recover litigation costs. See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 42.001–.005 (Vernon 2015); TEX. R. CIV.
P. 167. When a settlement offer is made and rejected, and the judgment rendered
is “significantly less favorable” to the rejecting party than was the settlement offer,
the offering party is entitled to recover litigation costs, including attorney’s fees,
from the rejecting party. TEX. CIV. PRAC. & REM. CODE ANN. § 42.004(a); TEX. R.
CIV. P. 167.4(a). A judgment award is “significantly less favorable” than a
settlement offer if the judgment awarded is less than 80 percent of the settlement
offer. See TEX. R. CIV. P. 167.4(b).
Having concluded that Smith was not entitled to summary judgment on
certain of Black’s claims, the case must be remanded to the trial court for further
proceedings. Thus, we do not reach the issue of whether the trial court erred in
denying Smith attorney’s fees.
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Conclusion
We reverse the judgment of the trial court on Black’s negligent-supervision,
training, and retention claims and on his respondeat-superior claims. We affirm
the judgment of the trial court on Black’s negligent-hiring claim. And we remand
the case to the trial court for further proceedings consistent with this opinion.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Brown.
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