Rios v. Texas Commerce Bancshares, Inc.

• Decision Date: 29 August 1996
• Docket Number: No. 13-94-532-CV,13-94-532-CV
• Citation: 930 S.W.2d 809
• Parties: David RIOS, Appellant, v. TEXAS COMMERCE BANCSHARES, INC., a Texas Corporation, d/b/a Texas Commerce Bank, McAllen--N.A. and Robert Tuttle, Appellees.
• Court: Texas Court of Appeals

Page 809

930 S.W.2d 809

David RIOS, Appellant, v. TEXAS COMMERCE BANCSHARES, INC., a Texas Corporation, d/b/a Texas Commerce Bank, McAllen--N.A. and Robert Tuttle, Appellees.

No. 13-94-532-CV.

Court of Appeals of Texas Corpus Christi.

Aug. 29, 1996.

Rehearing Overruled Oct. 3, 1996.

Jay M. Wright, Corpus Christi, for appellant.

Charles Willette, Jr., Hugh P. Touchy, Willette & Aguilar, Brownsville, for appellees.

Before DORSEY, FEDERICO G. HINOJOSA, Jr. and RODRIGUEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Appellant, David Rios, sued appellees, Texas Commerce Bancshares Inc., a Texas Corporation d/b/a Texas Commerce Bank, McAllen-N.A. ("TCB") and Robert Tuttle for wrongful termination. Appellees filed a motion for summary judgment and the trial court granted the motion. By four points of error, appellant contends that the trial court erred in granting the motion for summary judgment. We affirm.

On March 25, 1985, TCB employed appellant as an Assistant Vice President/ Commercial Loan Officer at an annual salary of $28,000 per year. Appellant received evaluations in November 1985 from Eleazar Lucio and in November 1986 from John Welch, reflecting that his performance in the commercial loan department was less than satisfactory and needed improvement. This was the lowest rating appellant could receive without his performance being totally unacceptable. Subsequently, appellant was transferred to the loan workout department. TCB established the loan workout department because of the financial downturn in the Rio Grande Valley. The loan workout department handled millions of dollars in delinquent loans and assets. The bank considered this a lateral move because appellant did not move from the credit department, lose his title, or take a pay cut. According to Robert Tuttle, supervisor of the loan workout department, appellant's work was often late and poorly researched. Appellant was tardy on a regular basis, disrupted bank business by receiving excessive personal phone calls, and failed to follow directions that he felt were wrong.

In December 1988, appellant met with a TCB client, Hermelinda Perez, to discuss her denied loan application. Prior to this meeting, appellant was reminded of the bank's policy not to disclose information contained in credit bureau reports, other than TCB information. During the meeting, appellant read the report to Perez who took notes and then wrote a letter explaining all the negative remarks contained in the report. When Perez's letter was given to Deborah Benson, chief credit officer, she noticed that the items discussed in the letter were listed in the exact order as shown on the credit bureau report. Benson then discussed the matter with Tuttle, and they asked appellant for an explanation.

Appellant denied showing the report to Perez, but he did admit that he had read the report to her. Appellant explained that he talked to a customer representative at a credit bureau, possibly the one used by the bank, and was told he could discuss the report with Perez. Tuttle and Benson then reprimanded appellant. Appellant tossed or slammed Perez's file on Tuttle's desk and said, "Well, if you do not like the way I handle it, then why do you give me the assignment, why don't you do it?" Appellant then left Tuttle's office.

Appellant heard nothing more about the credit report or the confrontation in Tuttle's office until he was called into the office of TCB President Randall McLelland on February 14, 1989. Approximately one week before the meeting, Tuttle submitted appellant's evaluation to McLelland for approval. Tuttle rated appellant's performance as "does not meet acceptable standards," the lowest possible rating. McLelland then learned of the credit report incident. McLelland questioned Tuttle and Benson separately about their encounter with appellant, and their reports of the incident were similar.

On February 14, 1989, McLelland questioned appellant about the incident and then fired him for insubordination to his supervisor, poor job performance as reflected in evaluations, and failure to comply with bank policy. On June 26, 1989, appellant filed a charge of discrimination with the Texas Commission on Human Rights ("Commission") alleging that TCB had discriminated against him because he is Hispanic. The Commission issued appellant a right to sue letter and this lawsuit commenced. In addition to discrimination claims, appellant alleged wrongful termination, negligent failure to investigate, breach of the duty of good faith and fair dealing in an employment context, defamation, intentional and negligent infliction of emotional distress, and tortious interference with business relations. Appellees responded to all allegations by general denials, special exceptions, and affirmative defenses.

Appellees then filed a motion for summary judgment and alleged the following grounds:

1) there was no express or implied contract between appellant and TCB;

2) appellant was an at will employee and subject to discharge with or without cause;

3) appellant's admission that he read the credit report information to a client even though he knew the bank policy against such disclosure establishes as a matter of law that TCB was not negligent in failing to investigate the incident;

4) Texas does not recognize a claim for breach of the duty of good faith and fair dealing in the at will employment context;

5) the defamation claim is barred by the one year statute of limitations pursuant to TEX. CIV. PRAC. & REM.CODE ANN. 16.002;

6) no defamatory statements were published because appellant admitted to violating a bank policy;

7) appellant has no cause of action for invasion of privacy because TCB does not disclose to prospective employers that an employee was terminated, and the only way this information becomes public is if employment records are subpoenaed or if the employee discloses the information;

8) appellant has no cause of action for intentional infliction of emotional distress because his discharge was not extreme and outrageous;

9) although Texas does not recognize a claim for negligent infliction of emotional distress, mental anguish damages are recoverable when a legal duty has been breached, and TCB has breached no legal duty;

10) appellant has no cause of action for tortious interference with his business relations because he had no contract for employment with the bank, and he has failed to identify other ongoing business relations that were damaged by TCB or Robert Tuttle; and

11) appellant has no cause of action under the Texas Commission on Human Rights Act because he was discharged for poor job performance, insubordination, and breach of bank policy, rather than on the basis of his race.

The trial court granted appellees' motion for summary judgment.

A motion for summary judgment must expressly state the grounds upon which it is made. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex.1993); TEX.R. CIV. P. 166a(c). Summary judgments may not be affirmed or reversed on grounds not expressly set forth in the motions presented to the trial court. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979); Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 518 (Tex.App.--Austin 1991, writ denied); Dhillon v. General Accident Ins. Co., 789 S.W.2d 293, 295 (Tex.App.--Houston [1st Dist.] 1990, no writ). See City of Mission v. Ramirez, 865 S.W.2d 579, 581 (Tex.App.--Corpus Christi 1993, no writ). A motion for summary judgment must stand or fall on the grounds expressly presented in the motion, and a court may not rely on briefs or summary judgment evidence in determining whether grounds are expressly presented. McConnell, 858 S.W.2d at 339.

The proper inquiry on appeal is whether the defendant, in seeking summary judgment, fulfilled his initial burden 1) to establish as a matter of law that there remained no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action or 2) to establish his affirmative defense to the plaintiff's cause of action as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true. Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. Once the movant establishes an affirmative defense which would bar the suit as a matter of law, the non-movant must then produce summary judgment proof raising a fact issue in avoidance of the affirmative defense. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex.App.--Corpus Christi 1991, writ denied). When the summary judgment does not state the specific grounds upon which it is granted, it must be affirmed if any one of the grounds asserted in the motion is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

By his second point of error, appellant complains that genuine issues of material fact exist concerning a breach of an express or implied employment contract. Appellant contends that these issues include his claims of negligent investigation, breach of the duties of good faith and fair dealing, and negligent and intentional infliction of emotional distress. Appellant contends that some of the terms and conditions of his employment agreement are set forth in the policy statements and written guarantees found in TCB's performance evaluation forms. Appellant also claims that a letter, dated March 19, 1985, is a contract of employment. The letter states, in relevant part, as follows:

On behalf of Texas Commerce Bancshares and Jim Bexley, I would like to confirm the offer of the position of Assistant Vice President, Commercial Loan Officer at Texas Commerce...