Fojtik v. Charter Medical Corp.

• Decision Date: 21 January 1999
• Docket Number: No. 13-97-469-CV,13-97-469-CV
• Citation: 985 S.W.2d 625
• Parties: Felix FOJTIK, Appellant, v. CHARTER MEDICAL CORPORATION, d/b/a Charter Hospital of Corpus Christi, and Valerie Bullock, Appellees.
• Court: Texas Court of Appeals

Page 625

985 S.W.2d 625

Felix FOJTIK, Appellant, v. CHARTER MEDICAL CORPORATION, d/b/a Charter Hospital of Corpus Christi, and Valerie Bullock, Appellees.

No. 13-97-469-CV.

Court of Appeals of Texas Corpus Christi.

Jan. 21, 1999.

Rehearing Overruled Feb. 18, 1999.

Charles Manning, Beeville, for Appellant.

Lauren Beck, Richard A. Sheehy, McFall, Sherwood & Sheehy P.C., Houston, for Appellees.

Before Justices DORSEY, CHAVEZ, and RODRIGUEZ.

OPINION

CHAVEZ, Justice.

Felix Fojtik appeals from a take-nothing summary judgment entered against him on his claim against Charter Medical Corporation. Fojtik had brought a false imprisonment cause of action ¹ against Charter arising from his stay at a Charter hospital where he was treated for alcoholism. Fojtik argues in a single point of error that the trial court erred in granting summary judgment to Charter because issues of material fact existed regarding whether Fojtik was falsely imprisoned. We affirm the judgment of the trial court.

Record on Appeal

The first matter that must be addressed is a dispute between the parties regarding the contents of the record on appeal. The summary judgment pleadings in this case include a motion for summary judgment and a supplemental motion for summary judgment filed by Charter, and a response to Charter's motions filed by Fojtik, all of which are included in the record. The trial court signed the summary judgment in favor of Charter on June 19, 1997. On August 14, 1997, Fojtik filed several more documents, including a complete transcript of a deposition of Felix Fojtik accompanied by sixty-five exhibits, and complete transcripts of depositions of Dorrill Nabours and Valerie Bullock. Charter contends that, because these documents were not attached to Fojtik's response to the motion for summary judgment and were not before the trial court at the time it granted the summary judgment, they may not be considered on appeal.

Fojtik contends that these depositions should be considered under rule 166a(d)'s provision for using unfiled discovery products as summary judgment evidence if notice is provided. Rule 166a(d) provides:

Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery products not on file with the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs: (i) at least twenty-one days before the hearing if such proofs are to be used to support the summary judgment; or (ii) at least seven days before the hearing if such proofs are to be used to oppose the summary judgment.

TEX.R. CIV. P. 166a(d).

The term "specific references" means that the party relying on unfiled discovery, by its notice and statement of intent, must show the court language from the unfiled discovery before the court rules on the summary judgment motion. Salmon v. Miller, 958 S.W.2d 424, 428 (Tex.App.--Texarkana 1998, pet. denied); E.B. Smith Co. v. United States Fidelity & Guar. Co., 850 S.W.2d 621, 624 (Tex.App.--Corpus Christi 1993, writ denied). It is incumbent on the party relying on unfiled summary judgment evidence to show that the substance of unfiled discovery was presented to the trial court before it ruled on a motion for summary judgment. E.B. Smith, 850 S.W.2d at 624.

Fojtik contends that sufficient notice of the unfiled discovery he wished to rely on was provided in his response to Charter's summary judgment pleadings, which contains an objection to the probative value of excerpts from the depositions of Fojtik and Bullock used by Charter. We do not agree. Fojtik's objection was an objection to Charter's use of the depositions, not notice of his own use, and does not indicate in any way that he wished the trial court to consider the depositions as summary judgment evidence in his favor. Furthermore, despite the rule's requirement of "specific references," Fojtik objected only to the excerpts used by Charter and made no reference to the complete depositions he wishes us to consider.

Fojtik relies on Grainger v. Western Cas. Life Ins. Co., 930 S.W.2d 609 (Tex.App.--Houston [1st Dist.] 1996, writ denied) for the proposition that notice under rule 166a(d) may simply refer to the unfiled discovery without taking any steps to ensure that the trial court has access to the unfiled material. In Grainger, the appellee had filed a notice of intent to rely on unfiled depositions and answers to interrogatories as well as a summary of the unfiled evidence, but did not provide the trial court with actual copies of the unfiled material relied on. The Grainger court did not address whether this procedure complied with the rules, but rather held that the appellant had waived any error by failing to object to this procedure before the trial court. Grainger, 930 S.W.2d at 613-14. In the case before us, Fojtik did not provide any indication that he wished to rely on the complete depositions until after the summary judgment had been granted. We conclude that Grainger provides no support for Fojtik's position.

We hold that, because Fojtik did not show the trial court the language from the unfiled discovery that he wished to rely on, and the substance of the unfiled discovery was not presented to the trial court before it ruled on the motion for summary judgment, the unfiled discovery documents are not part of the record which may be considered on appeal. E.B. Smith, 850 S.W.2d at 624. We will confine our review to the summary judgment pleadings and the evidence attached that were filed before summary judgment was rendered.

Background Facts

Fojtik's admission to Charter was preceded by an "intervention," where Dorrill Nabours and Valerie Bullock from Charter, along with a group of Fojtik's family and friends, confronted him and told him that he needed to go through an inpatient treatment at Charter for alcohol abuse. Fojtik's medical records indicate that he told Charter staff he had admitted himself to Charter because those conducting the "intervention" had told him that, if he did not voluntarily admit himself, they would have him committed to the hospital and have him brought in wearing handcuffs. ² When admitted, Fojtik was angry about being at Charter and refused to be photographed or to agree to permit Charter to contact him after he left the treatment program. While at the hospital Fojtik made several requests for a "pass" permitting him to leave the Charter facility. His initial requests were denied on the ground that he was not "eligible" for a pass until he was further into his stay. ³ Fojtik expressed his opinion that he was getting a "raw deal" because he was "locked up and couldn't get away." Later Fojtik was granted passes for a few hours at a time, and always returned to Charter voluntarily and on time. Fojtik explained that he had vowed to follow all of the rules at Charter. Although nothing in the record explains the reason Fojtik made this "vow," he argues on appeal that he had decided to follow all the rules only because he hoped that obedient behavior might speed his release.

Charter produced summary judgment evidence that Fojtik was free to leave at any time. Charter employees explained that, although they used a system of "passes" and preferred to follow certain procedures when patients left the hospital, if a patient insisted on leaving without following Charter procedures, Charter would permit the patient to leave. Charter also refers us to Fojtik's admission documents, which indicate that he consented to inpatient treatment.

Legal Standards

Summary judgment for a defendant is proper only when the defendant 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. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993) (defendant who conclusively negates one of the essential elements of the plaintiff's cause of action is therefore entitled to summary judgment). The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). However, once the movant establishes that it is entitled to summary judgment, the burden shifts to the non-movant to show why summary judgment should not be granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989). In reviewing a summary judgment, we accept all the non-movant's proof as true and indulge every reasonable inference in the non-movant's favor. Science Spectrum, 941 S.W.2d at 911. All doubts about the existence of a genuine issue of a material fact must be resolved against the movant. Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996).

The elements of a false imprisonment cause of action are: (1) willful detention by the defendant, (2) without consent of the detainee, and (3) without authority of law. Sears, Roebuck, & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex.1985). A detention may be accomplished by violence, by threats, or by any other means that restrain a person from moving from one place to another. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 645 (Tex.1995).

Where it is alleged that a detention is effected by a threat, the plaintiff must demonstrate that the threat was such as would inspire in the threatened person a just fear of injury to his person, reputation, or property. Id. Threats to call the police are not ordinarily sufficient in themselves to effect an unlawful imprisonment. Morales v. Lee, 668 S.W.2d 867, 869 (Tex.App.--San Antonio 1984, no writ)(citing W. PROSSER, TORTS § 11 (4th ed.1971)). In determining whether...