Watson v. Dallas Independent School Dist.
| Decision Date | 24 March 2004 |
| Docket Number | No. 10-00-00044-CV.,10-00-00044-CV. |
| Citation | 135 S.W.3d 208 |
| Parties | Douglas WATSON and Larry Joe Perry, Appellants, v. DALLAS INDEPENDENT SCHOOL DISTRICT, et al., Appellees. |
| Court | Texas Court of Appeals |
Steven Eugene Clark, Clark & Associates, Hance W. Burrow, Goins, Underkofler, Crawford & Langdon, Dallas, for appellants.
Mark A. Hendrix, Stuart P. Kasiske, Vial, Hamilton, Koch & Knox, L.L.P., Dallas, Dennis Eichelbaum, Schwartz & Eichelbaum, P.C., Plano, for appellees.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.*
Douglas Watson and Larry Joe Perry filed suit against the Dallas Independent School District ("DISD") and others alleging causes of action for intentional pollution, intentional nuisance, fraud, intentional infliction of emotional distress, conspiracy, aggravation of work-related injury, breach of duty of good faith and fair dealing, intentional violation of statutes requiring an employer to maintain a safe workplace, and violation of the whistleblower statutes.
The court granted Appellees' motions for summary judgment. Appellants claim in four points that the court erred by: (1) granting Appellees' summary judgment motions premised on immunity and the exclusivity of remedies provided by the workers' compensation statutes; (2) granting DISD's no-evidence summary judgment motion because Appellants presented sufficient controverting evidence to raise a genuine issue of material fact on each element challenged by DISD's motion; (3) setting aside deemed admissions attributable to Appellees; and (4) denying Appellants' motion for partial summary judgment based on Appellees' deemed admissions.1
Appellants both worked for DISD as plumbers during the pertinent time period. DISD purchased a manufacturing facility located in Dallas from Proctor & Gamble Manufacturing Company ("P & G") in August 1994. P & G had previously used this facility to manufacture various household products. After acquiring the property, DISD undertook renovation efforts to convert the property to use as a maintenance facility.
Appellee Jack Lowrey was the General Maintenance Supervisor for DISD's Environmental Services Division. In February 1995, he assigned Appellants to the P & G site to lay a sprinkler line adjacent to the building. Appellants cut through several existing underground pipelines and tanks while digging the trench for the sprinkler line. As a result, they "began to encounter large amounts of chemicals and industrial waste which got on their clothes and which fumes they inhaled while working in the ditch." They allege that, when they approached their supervisors about the situation, the "supervisors told them to shut up and to keep working."
After Appellants "began to experience respiratory symptoms and other distress," they contacted the Texas Natural Resource Conservation Commission ("TNRCC"). As a result, a TNRCC investigator came to the site on February 10. Appellants contend that, after this investigator left, Appellees Lowrey and Jeffrey Brogden "insinuated" that they had called TNRCC.2 Lowrey instructed them to let him handle any further concerns they had about toxic substances at the P & G site because DISD could not afford to halt work "every time they dug something up." Lowrey and Brogden told Appellants to resume their work.
TNRCC advised Appellee David Strobel3 on February 17 that the investigator's inspection and a review of soil samples removed from the site in November 1994 indicated the presence of various contaminants at the site.4 Appellants encountered other unknown substances as they continued their work. Their supervisors instructed them to finish the job.
On April 5, Appellants contacted a Texas Workers' Compensation Commission ("TWCC") hotline. In response, TWCC asked DISD to provide a written report on the matter. Appellants encountered an underground tank containing an unknown substance on April 13. They contacted Basso who had previously inspected the site on several occasions and asked her to take a sample of this unknown substance for testing. Lowrey advised Appellants through their immediate supervisor that he had instructed Basso not to go to the site. Later on that date, workers cut through a pipeline, causing a liquid to fill the trench which made their eyes water. Lowrey then asked Basso to come to the site and collect specimens.
TNRCC received a letter from Strobel on April 24 advising that DISD would conduct a more-detailed study of possible contaminants at the P & G site. On May 25, Basso advised TNRCC that testing had disclosed the presence of several contaminants at the site.
Lowrey summoned Watson to his office on June 1. Perry accompanied Watson to Lowrey's office. A heated discussion ensued in which Lowrey threatened to fire Watson for insubordination. At some point, Brogden joined the meeting. Lowrey would not allow Watson to leave Lowrey's office until they could "get some things straight" about the TNRCC matter. He threatened to fire Watson if he did leave. Watson refused to discuss the matter without representation. He testified in his deposition that Lowrey fired him at "[a]pproximately 10:00" that morning but reinstated him "at quitting time." Lowrey and Brogden threatened to fire Perry as well that morning.
On July 21, Lowrey placed Appellants on probation for insubordination. Appellee Ellis Hunter reassigned Appellants to a different plumbing division on August 11 because of a "conflict of personalities" with Lowrey.5 However, Appellants objected to their new assignment because it required them to report at least initially to the P & G site. Hunter testified that they only had to report at the site but would work at other sites.6
Appellants instituted a grievance proceeding in accordance with DISD policy in early June 1995. The level one grievance hearing was held on June 7. The level two hearing was held in late August/early September. Appellants filed suit on August 31, 1995. A level three grievance hearing was conducted in January 1996. A DISD attorney informed Appellants at the level three hearing that the grievance proceeding would be held "in abeyance" until their lawsuit was resolved.
Appellants name the following as defendants in their petition: DISD, P & G, Strobel, Lowrey, Brogden, Hunter, Strobel's supervisor Michael Henderson,7 and DISD Risk Management Specialist Bernard Cousin.8 Appellants served requests for admissions on all defendants save Strobel on January 10, 1997.9 Appellants served requests for admissions on Strobel on January 30. Appellants' counsel agreed to extend the due date for Appellees' responses. However, the parties dispute the length of time they agreed to extend the deadline.
A paralegal employed by Appellees' counsel sent a letter to Appellants' counsel on February 20 confirming that Appellants' counsel had agreed to extend the deadline to March 7. Appellants' counsel signed the letter indicating his agreement to the extension. The individual defendants filed their responses on March 14. DISD filed its response on November 13, 1998 as an attachment to Appellees' joint motion to withdraw deemed admissions.
The individual defendants filed summary judgment motions on April 27, 1999.10 Appellants countered with a motion for partial summary judgment on May 12 premised on Appellees' deemed admissions of liability. Appellants filed a response to the defendants' summary judgment motions on May 28 and requested a continuance in the event the court granted the motion to strike the deemed admissions.
The court heard Appellees' motion to strike the deemed admissions and the summary judgment motions on June 3. At the conclusion of the hearing, the court orally granted Appellees' motion to strike the deemed admissions, denied both sides' summary judgment motions, and denied Appellants' request for a continuance. The court advised the parties that a pretrial hearing would be conducted on July 29.
The individual defendants filed motions for summary judgment against Appellants on June 7 which are substantially similar to their original motions. They contend that they are entitled to judgment as a matter of law because: (1) they are immune from the majority of Appellants' claims: (2) there is no evidence to support the conspiracy and intentional failure to provide a safe workplace claims; (3) Appellants failed to exhaust their administrative remedies before filing their whistleblower claim; (4) individuals cannot be sued for whistleblower violations; and (5) the workers' compensation statutes provide the exclusive remedy for Appellants' work-related injuries.
DISD filed a motion for summary judgment one month later. DISD claims that it is entitled to judgment as a matter of law because: (1) it is immune from Appellants' tort claims (all but the whistleblower claim); (2) because the workers' compensation statutes provide the exclusive remedy for Appellants' work-related injuries; and (3) because there is no evidence to support any of Appellants' claims.
The individual defendants filed a supplemental summary judgment motion thereafter asking the court to grant them summary judgment under section 101.106 of the Texas Tort Claims Act if the court granted DISD's summary judgment motion on Appellants' tort claims.
The court signed an order on August 6 granting DISD's summary judgment motion without specifying the basis for its decision. The court signed an order on August 10 granting the individual defendants' summary judgment motions without specifying the basis for its decision.
Appellants contend in their third point that the court abused its discretion by allowing Appellees to withdraw their deemed admissions. Rule of Civil Procedure 198.3 governs the court's decision to permit the withdrawal of deemed admissions.11 Rule 198.3 provides:
Any admission made by a party under this rule may be used solely in the pending action and not...
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