Schauer v. Memorial Care Systems

• Decision Date: 18 March 1993
• Docket Number: No. 01-91-01019-CV,01-91-01019-CV
• Citation: 856 S.W.2d 437
• Parties: , 8 IER Cases 592 Helen M. SCHAUER, Appellant, v. MEMORIAL CARE SYSTEMS d/b/a Memorial Hospital Southwest and Martha Koperwhats, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 437

856 S.W.2d 437

61 USLW 2676, 8 IER Cases 592

Helen M. SCHAUER, Appellant, v. MEMORIAL CARE SYSTEMS d/b/a Memorial Hospital Southwest and Martha Koperwhats, Appellees.

No. 01-91-01019-CV.

Court of Appeals of Texas Houston (1st Dist.).

March 18, 1993.

Rehearing Denied June 9, 1993.

Allan A. Cease, Houston, for appellant.

Nancy L. Patterson, Lawrence H. Clore, William J. Boyce, Houston, for appellees.

Before OLIVER-PARROTT, C.J., and O'CONNOR and WILSON, JJ.

OPINION

O'CONNOR, Justice.

This case arises from a suit brought by an employee against her present employer for defamation and other damages resulting from an employment appraisal. In this appeal, we are asked to decide whether the trial court properly granted summary judgment for the employer. We affirm the summary judgment.

Jurisdiction

Upon review of the record, we found the plaintiff had added a cause of action, a suit for false light, in an amended pleading filed eight days before the hearing on the defendants' motion for summary judgment. The Texas Supreme Court has held a party may amend its pleadings at the last minute, and a summary judgment that does not address those new grounds cannot be affirmed. Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490-91 (Tex.1988) (amended pleading filed four days before hearing).

The defendants did not address the cause of action for false light in their motion for summary judgment, and the trial court did not dispose of it in the summary judgment; therefore, the judgment was not final and appealable unless that cause of action was severed. Hood v. Amarillo Nat'l Bank, 815 S.W.2d 545, 547 (Tex.1991); Denny's Inc. v. Rainbo Baking Co., 764 S.W.2d 933, 933 (Tex.App.--Houston [1st Dist.] 1989, no writ). The cause of action for false light was not severed. Thus, the summary judgment is not a final judgment.

This Court has no jurisdiction over a judgment that is not final and appealable, unless it is an interlocutory appealable order. See, e.g., TEX.CIV.PRAC. & REM.CODE ANN. § 51.014 (Vernon Supp.1993). This summary judgment is not one that is made appealable by section 51.014 of the Civil Practice and Remedies Code or any other statute. Thus, the parties can only appeal this judgment if it is a final judgment. See, e.g., Tesoro Petroleum v. Smith, 796 S.W.2d 705, 705 (Tex.1990).

Under TEX.R.APP.P. 85(b), we can treat a case that is appealed before the judgment is final as a prematurely filed appeal and permit the defect to be cured. Under TEX.R.APP.P. 60(a)(2), we gave the parties notice of the defect and informed them we would dismiss the appeal unless they filed a response showing grounds for continuing the appeal. The parties filed an agreed motion in the trial court to sever the cause of action for false light, and the trial court signed the motion. Thus, now that the jurisdictional defect has been cured, we treat this appeal as a prematurely filed appeal and continue with its resolution.

Fact summary

The appellant, Helen Schauer, is employed as a registered nurse for Memorial Care Systems. In 1987, she was promoted to Senior Angiography Nurse in Memorial Hospital Southwest's Cardiac Catheterization Laboratory (cath lab). Schauer reported directly to the cath lab manager, Manuel Vasquez, and was responsible for helping with the supervision of cath lab personnel, coordinating departmental activities, and directing patient care. There were problems in the cath lab, many of them caused by Vasquez's absence from the department. In his absence, Schauer ran the cath lab.

In June 1988, Martha Koperwhats became Assistant Vice President for Clinical Services at Memorial Hospital Southwest (Southwest). Koperwhats assumed overall administrative responsibility for the personnel and operation of the cath lab, as well as a number of other departments. She evaluated the overall condition of these departments in areas such as patient care, personnel, financial management, physician relations, and inventory.

In August 1988, Schauer complained to Koperwhats of the stressful working conditions in the cath lab caused by Vasquez. Schauer complained that Vasquez favored Mexican-Americans. That same month, Southwest commissioned Jo Altenbern, a registered nurse, to evaluate the cath lab. Her conclusion was there was no leadership in the department. The report blamed Vasquez for the conditions of the department. The conditions in the department were so critical some doctors suggested the entire staff, not just Vasquez, be replaced. In Altenbern's opinion, the department had been compromised by politics and personalities.

On September 6, 1988, Vasquez gave Schauer an evaluation with an overall rating of "commendable," which meant she met all the requirements and expectations of the job. On September 9, Vasquez told Schauer he was going to resign, and he recommended someone outside the department for manager. On September 13, Vasquez filed an addendum to his evaluation of Schauer to "clarify" his expectations of Schauer. The addendum was very critical of Schauer and seemed to imply she was the cause of all the problems in the department. In his report, Vasquez said Schauer was not following his orders; she played favorites; and she was not an effective supervisor or coordinator of the cath lab. Vasquez noted Schauer's shortcomings had all been brought to his attention "during the recent past." Three days after writing Schauer's report, Vasquez resigned.

Schauer met with Koperwhats and told her how distressed she was with Vasquez's evaluation. Koperwhats told her to write a rebuttal letter. On September 19, 1988, Schauer wrote a letter to Koperwhats objecting to the Vasquez's evaluation dated September 13. Schauer asked Koperwhats to remove Vasquez's evaluation from her file. Although Koperwhats told Schauer they would meet and discuss her letter, they did not, and the letter was never removed.

Schauer wanted to be considered for the vacant position of manager of the cath lab. Before anyone working at the hospital had a chance to apply, Koperwhats told hospital employees she was looking for a replacement from outside the hospital. Schauer applied for the position and was interviewed. Schauer felt humiliated by Koperwhats' announcement to the entire department, because everyone knew she wanted the job.

Sometime earlier, Schauer had discussed with the management at Memorial's Northwest facility (Northwest), the possibility of transferring to Northwest to manage its new cath lab. Schauer accepted the position at Northwest before the Southwest position was filled, and on January 9, 1989, Schauer officially transferred and began supervising the Northwest cath lab.

In March 1989, Schauer received an annual performance appraisal prepared by Koperwhats and Altenbern. The appraisal covered the period from June 1988 through December 1988, while Schauer was still working at Southwest. The appraisal rated Schauer's overall performance as "fair." Schauer continues to be employed at Northwest as supervisor of the cath lab.

Procedural history of the case

This appeal is from the second suit filed by Schauer against Memorial. Schauer filed her first suit against Memorial in federal district court for race and sex discrimination, constructive discharge, retaliation, and negligent and intentional infliction of emotional distress. ¹ Schauer is white. The federal court rendered a summary judgment for the defendant on employment discrimination based on race (the person given the position Schauer wanted was also white), constructive discharge (Schauer is still employed by Memorial), retaliation for filing an EEOC claim (no evidence was produced to prove retaliation), and entered a dismissal on the claims for sex discrimination and emotional distress because Schauer was no longer pursuing those claims.

Schauer then filed this action, her second suit, in state court against Memorial and Koperwhats, alleging state law claims for libel and emotional distress. Shortly after filing the suit, Schauer amended it to include claims under the federal and state constitutions. This suit was removed to federal court. ² The federal court granted the defendants another summary judgment. This time, the summary judgment was based on res judicata on Schauer's constitutional claims, which included discrimination, retaliation, and constructive discharge. The court noted that neither res judicata nor collateral estoppel applied to the defamation claim or the emotional distress allegation that resulted from the defamation. The court remanded those two issues to the state court.

Once this case was back in state court, Memorial moved for summary judgment on the following grounds:

1. Res judicata barred Schauer's claims of defamation and emotional distress.

2. The employment appraisal, on which Schauer based her suit, was not defamatory:

a. Memorial was qualifiedly privileged to write the employment appraisal;

b. Schauer did not plead or prove malice.

3. The claim for emotional distress did not reach the level of severity required for a claim for intentional infliction of emotional distress; and

4. The claim for negligent infliction of emotional distress was precluded by the Texas Worker's Compensation Act.

Schauer filed a lengthy response to the motion for summary judgment and attached deposition excerpts and affidavits as summary judgment proof. As part of her response, she filed the following objections to the motion:

1. Memorial did not file a statement of intent to use the deposition as required by TEX.R.CIV.P. 166a(d).

2. The pleadings and orders filed in the two suits removed to federal court were hearsay in state court under TEX.R.CIV.EVID. 801, because they were not certified or properly authenticated and thus were not admissible.

3. Memorial did not properly state the procedural history of the case in federal court; and

4. The affidavit of Koperwhats is of an interested witness whose testimony is not clear, direct, positive,...