Cole v. Hall
| Citation | 864 S.W.2d 563 |
| Decision Date | 27 July 1993 |
| Docket Number | No. 05-92-01098-CV,05-92-01098-CV |
| Parties | Pepper L. COLE, Appellant, v. Ronald HALL and Patricia Hall, Individually, and d/b/a Dickey's Hardware and Hall's Landscape & Irrigation, and HHH Enterprises, Inc. d/b/a Dickey's Hardware, Appellees. |
| Court | Texas Court of Appeals |
Dale B. Tillery, Dallas, for appellant.
Gary Allmon Grimes, Dallas, for appellees.
Before the court en banc.
Pepper Cole appeals the trial court's dismissal of her suit against the Halls and Dickey's Hardware for failure to state a cause of action. Appellant brings two points of error contending that the trial court erred in dismissing her claims because her allegations of tortious interference with statutory rights and appellees' breach of the duty of good faith and fair dealing stated viable causes of action. We overrule the points and affirm the trial court's judgment.
Appellant alleged that on December 23, 1988, she sustained an injury in the course and scope of her employment. She filed a workers' compensation claim. While off work due to the injury, appellees understated to the workers' compensation carrier the amount of appellant's salary by $148.50 per week. This understatement of her wage rate resulted in appellant receiving $112.85 per week less than she would have received if appellees had reported the correct amount of her wages. Appellant asserted that appellees' understatement of her wage rate tortiously interfered with her statutory rights accorded her under the Texas Workers' Compensation Act and was a breach of appellees' duty of good faith and fair dealing towards her, resulting in her suffering damages of $85,000. Appellant asserts that her damages consist of economic hardship, lost wages, reduced compensation benefits, mental anguish, and emotional trauma.
Appellees filed three special exceptions to appellant's first amended original petition, as supplemented by appellant's supplemental petition, challenging both of appellant's causes of action. Each of the three special exceptions asserts in identical language the following defects in the petition: (1) by accepting workers' compensation benefits, appellant waived any statutory or common-law cause of action for personal injury or death sustained in the course and scope of her employment with appellees; (2) by seeking benefits under the workers' compensation statute, appellant is precluded from bringing suit against appellees for alleged intentional injury; (3) appellant elected her remedy by accepting workers' compensation benefits; and (4) Texas does not recognize a duty of good faith and fair dealing between employer and employee. 1 The trial court sustained appellees' special exceptions and gave appellant three days to amend her pleadings. The trial court specifically stated that the failure to amend would result in the cause being dismissed with prejudice. When appellant failed to amend her pleadings, the trial court dismissed her causes of action.
Review of a trial court's dismissal of a cause of action following the sustaining of special exceptions and the plaintiff's failure to amend requires an examination of two distinct rulings by the trial court. We first review the propriety of the trial court's decision to sustain the special exceptions. If the trial court's decision to sustain the special exceptions was proper, we then review the propriety of the trial court's decision to dismiss the cause of action. See McCamey v. Kinnear, 484 S.W.2d 150, 152 (Tex.Civ.App.--Beaumont 1972, writ ref'd n.r.e.).
An appellant complaining of the dismissal of a cause of action following the sustaining of special exceptions must attack the trial court's decision to sustain the special exceptions. The appellant should then attack the trial court's decision to dismiss. Cf. Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 288 (Tex.App.--Houston [1st Dist.] 1992, no writ); 2 Villareal v. Martinez, 834 S.W.2d 450, 452 (Tex.App.--Corpus Christi 1992, no writ). 3 If the trial court properly sustained the special exceptions and the plaintiff refuses or fails to amend, the trial court does not err in dismissing the cause of action. See Davis v. Quality Pest Control, 641 S.W.2d 324, 328, 330 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.); Townsend v. Memorial Medical Ctr., 529 S.W.2d 264, 267 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.). If the remainder of the pleading does not state a cause of action, the trial court does not err in dismissing the entire case. Jackson v. City of Galveston, 837 S.W.2d 868, 869 (Tex.App.--Houston [14th Dist.] 1992, writ granted); Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.).
The controlling issue in a case where the trial court sustained special exceptions and dismissed the cause of action following the appellant's failure to amend is the propriety of the trial court's ruling sustaining the special exceptions. McCamey, 484 S.W.2d at 152. If the appellant does not challenge this ruling on appeal, then any error in the sustaining of the special exceptions is waived. 4
When the appellant does properly attack the trial court's sustaining of the special exceptions and dismissal of the cause of action, we review the pleading to determine whether the trial court abused its discretion in sustaining the special exceptions. Bader v. Cox, 701 S.W.2d 677, 686 (Tex.App.--Dallas 1985, writ ref'd n.r.e.). We construe the petition liberally accepting as true all of the factual allegations set forth. Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 213 (Tex.1988); Bader, 701 S.W.2d at 686. The trial court's ruling will not be disturbed absent a showing of abuse of discretion. Bader, 701 S.W.2d at 686.
The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles, whether the act was arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1986). The trial court does not necessarily abuse its discretion if under the same facts an appellate judge would decide the matter differently or if the court commits a mere error in judgment. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex.1989).
In her first point of error, appellant contends that the trial court erred in dismissing her cause of action for tortious interference with statutory rights because her petition stated a cause of action. Appellant does not challenge the propriety of the trial court's ruling on appellees' special exceptions. 5
In the argument under her first point, appellant discusses only the elements of tortious interference and why her pleading contained each element. 6 Nowhere does appellant discuss the merits of the special exceptions, which we construe to be assertions that appellant's cause of action for tortious interference is barred by application of the exclusive remedy provision of article 8306, section 3. See TEX.REV.CIV.STAT.ANN. art. 8306, § 3 (). Indeed, appellant's brief never mentions the exclusivity provision of the statute.
When the trial court dismisses a cause of action following the sustaining of special exceptions and the appellant's failure to replead, the controlling issue is whether the trial court erred in sustaining appellees' special exceptions. McCamey, 484 S.W.2d at 152. By not attacking on appeal the propriety of the trial court's ruling, appellant has waived any error by the trial court in sustaining the special exceptions. See Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex.1990) (per curiam). Accordingly, we do not reach the merits of the special exceptions.
When a trial court properly sustains special exceptions and the plaintiff refuses to amend, the trial court does not err in dismissing the cause of action. See Davis, 641 S.W.2d at 328, 330; Townsend, 529 S.W.2d at 267. Because appellant waived any error of the trial court in sustaining the special exceptions, we hold that the trial court did not abuse its discretion in dismissing appellant's claim of tortious interference with statutory rights. We overrule appellant's first point of error.
In her second point of error, appellant contends that the trial court erred in dismissing her cause of action against appellees for breach of the duty of good faith and fair dealing. Appellant's complaint attacks the ground of the special exception applicable to this cause of action, which was that Texas does not recognize a duty of good faith and fair dealing on the employer to the employee. Because appellant's argument on appeal attacks the propriety of the trial court's sustaining the special exception, we must determine whether the trial court erred in sustaining the special exception.
A claim for breach of duty of good faith and fair dealing is a tort action that arises from an underlying contract. Whether a duty exists between the parties is initially a question of law. H.W. Mitchell v. Missouri-Kansas-Texas R.R., 786 S.W.2d 659, 661 (Tex.1990). Texas law does not recognize an implied duty of good faith and fair dealing in every contract or business transaction. See English v. Fischer, 660 S.W.2d 521, 522 (Tex.1983). Texas courts have carved out exceptions for certain "special relationships," such as those between insurers and insureds, principal and agent, joint venturers, and partners. Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987), modified on other grounds by Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex.1991); Victoria Bank & Trust Co. v. Brady, 779 S.W.2d 893, 902 (...
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