American Medical Intern., Inc. v. Giurintano

• Decision Date: 27 November 1991
• Docket Number: No. A14-89-00379-CV,A14-89-00379-CV
• Citation: American Medical Intern., Inc. v. Giurintano, 821 S.W.2d 331 (Tex. App. 1991)
• Parties: AMERICAN MEDICAL INTERNATIONAL, INC. et al., Appellants, v. Benito GIURINTANO, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 331

821 S.W.2d 331

AMERICAN MEDICAL INTERNATIONAL, INC. et al., Appellants, v. Benito GIURINTANO, Appellee.

No. A14-89-00379-CV.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 27, 1991.

Roger D. Townsend, Houston, for appellants.

Michael M. Essmyer, Clinard J. Hanby, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and MURPHY, JJ.

OPINION ON MOTION FOR REHEARING

JUNELL, Justice.

In our opinion of July 3, 1991, a majority of this panel rendered judgment that appellee take nothing. Upon motion for rehearing, we withdraw our original opinion and substitute the following opinion.

This is an appeal from a judgment in favor of appellee Benito Giurintano following a jury verdict favorable to him on his claims of tortious interference with business relationships, fraud, and intentional infliction of emotional distress. Appellee also pled libel, slander, breach of contract, wrongful termination, and breach of the duty of good faith. However, the trial court granted summary judgment as to these latter allegations. ¹

Appellee was an assistant administrator at Huey P. Long Hospital in Pineville, Louisiana. In 1985, appellee began negotiations with American Medical International, Inc. (AMI) through its local vice-president John Sielert (Sielert) for a position as executive administrator at Doctors' Hospital in Laredo, Texas. The hospital had gone through twenty-six (26) administrators in thirteen years. The hospital was having operational problems that in fact resulted in a loss of accreditation. AMI, the owner of Doctors' Hospital, wished to remedy the situation by hiring a new administrator. AMI pursued Mr. Giurintano aggressively as a candidate for the administrator position. Sielert informed Giurintano of the problems at Doctors' Hospital and also stated that doctors at the facility had pressured past administrators to leave. Giurintano was concerned by the number of directors over a short period of time and the information related to him by Sielert; however, Giurintano was assured by Sielert that he would have the complete backing of the two and a half billion dollar corporation should he become the executive administrator for Doctors' Hospital. This same assurance was repeated to Giurintano at least a dozen times. Terms were discussed and agreed upon without written documentation. Giurintano subsequently traveled to San Antonio, Texas to meet with other AMI executives and the Chief of Staff of Doctors' Hospital, Dr. Roger Keene. Then, Giurintano went to Doctors' Hospital to meet and interview with the Board of Directors and a number of individual doctors. After these meetings, the board of Doctors' Hospital unanimously approved of appellee's placement in the vacant administrator's position.

While still in Louisiana, Giurintano received a telephone call from Pat McCoy who had been recently hired to act as a consultant to the nursing director. Ms. McCoy told Giurintano that Mr. Mata, the assistant administrator, was spreading rumors that when he was hired Giurintano would fire all the department heads. Ms. McCoy also told Giurintano that there were also rumors of a physician boycott and employee unrest. Giurintano called Sielert and reported the information. Sielert told Giurintano not to worry about the rumors, but that Giurintano should get to Laredo as quickly as possible and any problems could be handled from there. Again, Giurintano was assured that he had the backing of a two and a half billion dollar corporation.

In early March of 1985, Giurintano went to Laredo and met with all the department heads and supervisors. Giurintano discussed his management philosophy and responded to questions. Communications by staff members to Giurintano after the meeting were positive. However, opposition to Giurintano's appointment was present; and the seeds of this opposition were planted by assistant administrator, Homero Mata. Mata and a small group of doctors, defendants in this action, organized themselves against Giurintano. Later, a cocktail party was held in Giurintano's honor. At this party, Giurintano was cornered by certain doctors, Godines, Vasquez, Molina, and L.O. Mendoza, and drawn into argumentative situations, harassed and insulted. The next evening at a dinner party this behavior was continued by Dr. L.F. Mendoza, a cousin of L.O. Mendoza. Giurintano reported this to AMI but was again told not to worry. On March 22, 1985, Giurintano resigned from Huey P. Long Hospital and left for Laredo, Texas and his new job. When he arrived at his hotel in Laredo there was a message for him to call Sielert. When Giurintano called Sielert, he was told not to report to work on March 25 because of opposition at Doctors' Hospital.

On March 25, 1985, appellee found he had no job in Laredo and then discovered he could not regain his job in Louisiana because of a hiring freeze. Appellee was unable to secure employment elsewhere. Appellee brought suit against AMI, Sielert, Doctors' Hospital, and individuals Mata, Godines, Molina, Vasquez, L.O. Mendoza and L.F. Mendoza.

After the jury returned its verdict, appellee amended his pleadings to increase the amount of damages sought in the pleadings to that found by the jury; and the court ultimately rendered judgment for more than seven million dollars ($7,000,000). In this appeal, all the appellants have attacked the post-verdict amendment. This challenge fails, however, because of the Texas Supreme Court's decision in Greenhalgh v. Service Lloyd's Ins. Co., 787 S.W.2d 938 (Tex.1990). In that case the court held that under TEX.R.CIV.P. 63 and 66 a trial court has no discretion to refuse an amendment unless: (1) the opposing party presents evidence of surprise or prejudice, TEX.R.CIV.P. 63 and 66; Hardin v Hardin, 597 S.W.2d 347, 350-351 (Tex.1980) (Campbell, J., concurring); or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment. Greenhalgh, 787 S.W.2d at 939. The burden of showing prejudice or surprise rests on the party resisting the amendment. Id. citing Patino v. Texas Employers Ins. Ass'n, 491 S.W.2d 754, 756 (Tex.Civ.App.--Austin 1973, writ ref'd n.r.e.). Because appellee Giurintano's amendment raised no new substantive matters and because appellants failed to show surprise or prejudice, the trial court properly granted the leave to file the amendment. Appellants offered no evidence of how they were surprised by the trial amendment. Appellants merely argued the evidence was insufficient to support the large amount of punitive damages awarded. They wholly failed to show that an increase in punitive damages would have caused them to change their trial posture. Appellants argue that they should be given a remand because the law changed in the area of trial amendments. This is unnecessary because appellants have not shown, even now, that their trial strategy would have been any different. Therefore, appellants AMI and Sielert's seventh point of error is overruled and Doctors' Hospital and the individual appellants' eighth point of error is overruled.

Because this suit involves multiple claims against multiple defendants, it will be necessary to break our opinion down into the separate causes of action and then discuss the appellants' points of error within each cause of action. Appellants AMI and Sielert constitute one group of appellants. The other group of appellants consists of Doctors' Hospital and the individuals named above.

I. TORTIOUS INTERFERENCE

Appellee alleged, and the jury found, that each named defendant had committed some kind of tortious interference. Appellee first alleged that AMI and Sielert had interfered with his business relations with the hospital. Conversely, appellee alleged that Doctors' Hospital and the named individuals disrupted his business relationship with AMI and Sielert. In his final tortious interference theory, appellee claimed that AMI interfered with his prospective business relations by hampering his search for work after the job in Laredo vanished.

Interference with a business relationship is similar to the tort of contract interference. However, it is unnecessary to prove the existence of a valid contract in proving interference with a business relationship. CF & I Steel v. Pete Sublett and Co., 623 S.W.2d 709, 715 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). ² The jury was charged that in order to recover under the theory of tortious interference Giurintano had to prove: (1) unlawful actions undertaken by appellants without a legal right or justifiable excuse; (2) with the intent to harm Giurintano; and (3) resulting actual harm or damage. Appellants contend that as a matter of law no appellant could be found liable for tortious interference because of the close alignment existing among the appellants. We agree.

A party to a business relationship cannot tortiously interfere with himself. Baker v. Welch, 735 S.W.2d 548, 549 (Tex.App.--Houston [1st Dist.] 1987, writ dism'd). Liability must be founded upon the acts of an interfering third party. Id. Agents, such as Sielert, Doctors' Hospital, and the named individuals, are generally not regarded as third parties. Rather, an agent's legal identity is that of the principal. Therefore, agents are generally not personally liable for interfering with the principal's business relations. Id. The agent and the principal are treated as one because the agent is the principal's alter ego; their financial interest is the same. Id. The agent does not interfere with his principal's business relationships so long as he acts within the agency's scope, rather than pursues purely personal objectives. Gonzalez v. Gutierrez, 694 S.W.2d 384, 388 (Tex.App.--San Antonio 1985, no writ).

Appellee Giurintano's pleadings establish that the individual doctors "are agents and/or employees of Defendant corporations, and at all material times were acting in that...