Duran v. Furr's Supermarkets, Inc.

• Decision Date: 04 April 1996
• Docket Number: No. 939,No. 08-95-00169-CV,939,08-95-00169-CV
• Parties: Graciela B. DURAN, Appellant, v. FURR'S SUPERMARKETS, INC., d/b/a Furr's Supermarket, and Steve Romero, Appellees.
• Court: Texas Court of Appeals

Page 778

921 S.W.2d 778

Graciela B. DURAN, Appellant, v. FURR'S SUPERMARKETS, INC., d/b/a Furr's Supermarket No. 939, and Steve Romero, Appellees.

No. 08-95-00169-CV.

Court of Appeals of Texas,

El Paso.

April 4, 1996.

Rehearing Overruled May 1, 1996.

Evelina Ortega, Caballero & Ortega, L.L.P., El Paso, for appellant.

Mark C. Walker, Mounce & Galatzan, El Paso, E.K. Peticolas, Peticolas and Shapleigh, El Paso, for appellees.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

McCLURE, Justice.

Graciela B. Duran (Duran), appeals from a summary judgment entered in favor of Appellees, Furr's Supermarkets, Inc. d/b/a Furr's Supermarket No. 939 (Furr's) and Steve Romero (Romero). We reverse and remand for trial.

FACTUAL SUMMARY

Duran's causes of action against Furr's and Romero arose out of an incident which occurred in the parking lot of a Furr's supermarket. Duran alleges that Romero, an off-duty police officer working as a security guard for Furr's, became verbally abusive towards her when he asked her to move a vehicle in which she was a passenger from the fire lane located in front of the store. After moving the vehicle, Duran returned to where Romero was standing and asked Romero for his name. Romero walked over to the vehicle, opened the door, and while repeatedly threatening to arrest Duran, pulled and twisted on her left arm in an apparent effort to forcibly remove her from the vehicle. Duran suffered injuries to her arm which required surgery. She further alleges that the Furr's store manager watched the assault and did nothing to stop it. Romero, on the other hand, asserts that Duran became extremely upset and directed vulgar language at him because he asked her to move the car out of the fire lane. Romero admits opening the door to the vehicle and placing his hand on Duran's arm, but said that he did so only in an effort to calm her.

Alleging that Romero is an employee or agent of Furr's, Duran filed suit against Furr's for negligent hiring and supervision of Romero. She also made claims against Furr's and Romero for assault and battery, false imprisonment, and defamation of character. The trial court granted Furr's and Romero's motions for summary judgment.

STANDARD OF REVIEW

In Point of Error No. One, Duran contends that the trial court erred in granting summary judgment in favor of Furr's. The standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex.1985); Victory v. Bills, 897 S.W.2d 506, 508 (Tex.App.--El Paso 1995, no writ); Hernandez v. Kasco Ventures, Inc., 832 S.W.2d 629, 631 (Tex.App.--El Paso 1992, no writ). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Victory, 897 S.W.2d at 508.

In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; Victory, 897 S.W.2d at 508; Stoker v. Furr's, Inc., 813 S.W.2d 719, 721 (Tex.App.--El Paso 1991, writ denied). When the defendant is the movant and submits summary evidence disproving at least one essential element of each of the plaintiff's causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Victory, 897 S.W.2d at 508; Hernandez, 832 S.W.2d at 633. Where the summary judgment order does not state the specific grounds on which it was granted, the non-movant on appeal must show that each ground alleged in the motion is insufficient to support the granting of summary judgment. Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889, 891 (Tex.App.--El Paso 1983, no writ).

GENERAL GROUNDS FOR SUMMARY JUDGMENT

Romero's Status as a Police Officer

Furr's moved for summary judgment on the ground that it cannot be held liable because the alleged acts of Romero were committed in his sole capacity as a police officer of the El Paso Police Department. Citing City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 377 (Tex.App.--Dallas 1994, no writ) (Half Price I ), Leake v. Half Price Books, Records, Magazines, Inc., 918 S.W.2d 559 (Tex.App.--Dallas 1996) (Half Price II ), and City of Phoenix v. Industrial Commission of Arizona, 154 Ariz. 324, 742 P.2d 825 (App.1987), Furr's argues that when Romero observed the vehicle illegally parked in the fire lane or saw Duran committing disorderly conduct by using vulgar language in a public place, Romero ceased being an independent contractor or employee of Furr's and acted solely in his capacity as a police officer. The summary judgment evidence does not support Furr's contention that a violation of law occurred, and Furr's authorities are thus distinguishable. ¹

Furr's first argues that parking in a fire lane is a violation of El Paso Municipal Ordinance 9.76.050. According to Furr's, Ordinance 9.76.050 states that "[i]t is unlawful to park any vehicle other than an authorized emergency vehicle in any fire lane established pursuant to this chapter." Furr's offered no summary judgment evidence to show that the fire lane in question is established pursuant to the Municipal Code. Thus, it failed to establish that a violation of the Municipal Code occurred. ² Further, in approaching Duran and asking her to move the vehicle, Romero was carrying out one of the functions for which he was hired, that is, handling parking violations in the store's parking lot. Since Romero did not issue a citation for the violation and admitted he had no intention to do so, whether Romero had ceased functioning in his capacity as an independent contractor or employee of Furr's at the time he asked Duran to move the vehicle is a question of fact.

Furr's also argues that Romero ceased being an independent contractor when he observed Duran commit the offense of disorderly conduct. If Furr's is to succeed on this specific ground, it must establish that Romero had probable cause ³ to believe that Duran had committed or was committing a violation of Section 42.01(a)(1) of the Texas Penal Code ⁴ in his presence. See De La Paz v. State, 901 S.W.2d 571, 575 (Tex.App.--El Paso 1995, pet. ref'd)(an arrest, whether made with or without a warrant, must be based upon probable cause). Section 42.01(a)(1) applies only to "fighting words" which by their very utterance tend to incite an immediate breach of the peace as required by Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). See Jimmerson v. State, 561 S.W.2d 5, 7 (Tex.Crim.App.1978)(Section 42.01(a)(4) by implication applies only to fighting words); Ross v. State, 802 S.W.2d 308, 314-15 (Tex.App.--Dallas 1990, no pet.) (Section 42.01(a)(1) applies only to "fighting words" and is not unconstitutionally vague); Estes v. State, 660 S.W.2d 873, 875 (Tex.App.--Fort Worth 1983, pet. ref'd)(Section 42.01(a)(1) and (a)(2) proscribe fighting words or acts in public places); OP. TEX. ATT'Y GEN. No. JM-900 (1988)(Section 42.01(a)(1) applies only to speech which as a matter of fact constitutes fighting words).

Whether particular words are fighting words is a question of fact. Chaplinsky, 315 U.S. at 573, 62 S.Ct. at 770; OP. TEX. ATT'Y GEN. JM-900 (1988). The test is what a person of common intelligence would understand to be words likely to cause an average addressee to fight. Gooding v. Wilson, 405 U.S. 518, 523, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 (1972); OP. TEX. ATT'Y GEN. JM-900. Speech punishable under Section 42.01 does not include language that is merely harsh and insulting. OP. TEX. ATT'Y GEN. No. JM-900, see Gooding, 405 U.S. at 525, 92 S.Ct. at 1107. Derisive and annoying words can be taken as coming within the purview of the statute only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. OP. TEX. ATT'Y GEN. No. JM-900, quoting Gooding, 405 U.S. at 522, 92 S.Ct. at 1106.

Romero stated in his deposition that Duran called him "estupido" or "idiot" several times during this incident. Duran admitted that she told Romero as he twisted and pulled on her arm, "Let me go, estupido." The word "vulgar" as used in Section 42.01(a)(1) is not defined. Therefore, we apply its ordinary meaning. TEX.GOV'T CODE ANN. § 312.002 (Vernon 1988); Geters v. Eagle Ins. Co., 834 S.W.2d 49, 50 (Tex.1992). "Vulgar" is defined in Webster's New Collegiate Dictionary as: "offensive in language, earthy; lewdly or profanely indecent." WEBSTER'S NEW COLLEGIATE DICTIONARY 1304 (1980). The language used by Duran does not appear to fall within the ordinary meaning of "vulgar." Moreover, Furr's did not offer any summary judgment evidence which tends to show that the words spoken by Duran would be words likely to cause an average addressee to fight. Therefore, Furr's failed to establish as a matter of law that the facts known to Romero are sufficient in themselves to warrant a person of reasonable caution in the belief that Duran had violated Section 42.01(a)(1).

Focusing on Romero's duty as a peace officer to "preserve the peace," see TEX.CODE CRIM.PROC.ANN. art. 2.13 (Vernon 1977), Furr's next argues that Romero was functioning solely as a police officer during his confrontation with Duran because he was attempting to quell a breach of the peace, and the matter did not expressly concern store security. When taken in the light favorable to the non-movant, the summary judgment...