Lead Opinion
A staffing company placed a worker, later discovered to have a criminal history of theft, in a receptionist position at Davis-Lynch, Inc. (DLI). DLI later promoted the worker to head of accounting, and she embezzled millions of dollars. In two issues, DLI challenges the trial court’s grant of summary judgment in favor of appellees Asgard Technologies, LLC; Mangrove, Inc.; Talent Force, Inc.; Phoenix Offshore Services, L.L.C.; Talent Force Technical, L.L.C.; Asgard Resources, LLC; Asgard Resources of Texas, L.L.C.; and Arthur P. Grider (collectively, Asgard). Concluding that DLI raised a genuine issue of material fact regarding whether Asgard knew or should have known that, because of its acts of retaining the employee from year to year without disclosing her criminal record to DLI, the crime (or one like it) might occur, we reverse the trial court’s judgment as to DLI’s negligent retention claim and remand that issue to the trial court for proceedings consistent with our opinion. We affirm the trial court’s judgment in all other respects.
Background
DLI is an oilfield manufacturing company. Pendragon Holding, Inc., Asgard’s predecessor, was a staffing company. In 1986, DLI and Pendragon entered into a “Technical and Manufacturing Services Agreement.” The term of the agreement was for one year, but could be extended by mutual consent. Subsequent agreements were entered into between Asgard and DLI under substantially similar terms, with Asgard assuming the responsibilities of Pendragon. We refer to all relevant versions of these agreements" as “the Agreement.”
DLI outsourced its staffing and certain aspects of its management needs. Asgard or its predecessors provided personnel to DLI “to cover management, liaison, administrative, technical, maintenance, housekeeping, and clerical requirements.” As set forth in the Agreement, Asgard had continuing responsibilities to supervise personnel it placed at DLI and to supervise and operate certain departments, at DLL The personnel placed at DLI by Asgard continued to be Asgard employees even though they, worked at (and under the direction of) DLL In addition, Asgard provided a program manager “responsible for ensuring that operational, technical, and administrative ... requirements are satisfactorily performed.” The ' program manager supervised all personnel placed by Asgard at DLI “in the performance of [Agreement] requirements!” ’ Although DLI directly employed its upper management, Asgard was also to provide certain human resources functions.
Pendragon placed Nancy Moreno at DLI ,as a receptionist.
Approximately eight years after Moreno’s promotion to head- of accounting, DLI discovered that Moreno had arranged for a DLI copy machine to be delivered to her son’s place of business. DLI terminated Moreno’s employment and then discovered that Moreno had embezzled over $15 million from DLI while she was working in the accounting department. DLI also learned that Moreno had been placed on deferred adjudication in 1995 for misdemeanor theft and convicted of another misdemeanor theft in 1999.
DLI sued Asgard, bringing claims for negligence, breach of fiduciary duty, and breach of contract and seeking damages of $15 million. Additional theories of liability included respondeat superior and the individual liability of appellee Arthur P. Gri-der.
Asgard filed separate traditional and no-evidence motions for summary judgment on similar grounds, contending that Asgard was not negligent in hiring or retaining Moreno because it had no duty to perform criminal background checks under the Agreement or Texas common law, Moreno’s actions were not foreseeable, Asgard was not negligent in supervising Moreno, Asgard’s actions were not the proximate cause of DLI’s damages, there was no breach of contract, Asgard did not breach any fiduciary duty to DLI, and Grider was not individually liable for any alleged wrongdoing of the staffing companies.
DLI responded and moved to strike Gri-der’s affidavit, which was part of Asgard’s summary judgment evidence.
Discussion
In two issues, DLI contends that the trial court erred in granting Asgard’s motions for summary judgment. In its first issue, DLI complains that the trial court erred in granting Asgard’s traditional motion and denying DLI’s motion for reconsideration of the traditional motion because (1) Asgard owed it a fiduciary duty to discover and disclose material facts concerning the criminal backgrounds of Asgard employees placed at DLI; (2) Asgard breached the Agreement by failing to perform background checks; (3) Asgard was negligent in-hiring and retaining Moreno; and (4) Grider is an alter ego of Asgard and thus personally liable. In its second issue, DLI argues the trial court erred in granting Asgard’s no-evidence motion-on the respondeat superior claim because Asgard, as Moreno’s employer, was liable for her actions.
We review de novo the trial court’s grant of summary judgment. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes,
When a trial court grants a summary judgment on both no-evidence and traditional grounds, we usually address the no-evidence grounds first. See Ford Motor Co. v. Ridgway,
I. No Fiduciary Duty
DLI argues Asgard owed fiduciary duties to conduct criminal background checks on Asgard employees placed at DLI, report the results to DLI, supervise those Asgard employees, “assure trustworthy personnel were assigned to” DLI, and indemnify DLI for its losses resulting from Moreno’s embezzlement. According to DLI, these duties arose out of (1) an agency relationship between Asgard and DLI created by the Agreement, and (2) Asgard’s employer-employee relationship with Moreno.
No Agency-Principal Relationship Giving Rise to Formal Fiduciary Duties. DLI argues the Agreement created an agency-principal relationship between DLI and Asgard. The Agreement reads as follows:
[Asgard] is hired as an independent contractor, and ... nothing herein is intended to nor shall create the relationship of employee, partner, joint venture or associate, or any other relationship between DLI and [Asgard], except that of principal and independent contractor.
(Emphasis added). Despite the plain language of the Agreement, in which the parties described their relationship as that of “principal and independent contractor,” DLI asserts that the use of the word “principal” indicates a principal-agent relationship exists between the two, which in turn created a fiduciary relationship between them.
An agency relationship arises when the principal consents to the agent acting on the principal’s behalf. See Walker Ins. Servs. v. Bottle Rock Power Corp.,
Here, the Agreement required Asgard, an independent contractor, to place Asgard employees' in DLI facilities. We look to the substance of the Agreement in determining the -exact nature of the relationship. See Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co.,
No Informal Fiduciary Relationship Created. DLI also argues that Asgard owed DLI a fiduciary duty to provide it' with trustworthy employees', presumably because DLI and Asgard had a relationship of trust and confidence.
Informal fiduciary duties are not owed in business transactions unless the special relationship of trust and confidence existed prior to, and apart from, the transaction at issue in the case. Id. at 33Í. As the supreme court has held, “[M]ere subjective trust does not ... transform arm’s-length dealing into a fiduciary relationship.” Ins. Co. of N. Am. v. Morris,
We conclude that no special relationship giving rise to a fiduciary duty was created under the circumstances of this case. We reached the same conclusion in Dodson v. Kung,
Here; DLI had .contracted with Asgard and its predecessors to obtain staffing for more than a decade. As in Dodson, there is no evidence that these parties were operating on. any basis other than an arm’s length relationship and on equal terms. See id. There are, therefore, no genuine issues of material fact as to the creation of an informal fiduciary relationship or, as a result, breach of fiduciary duty.
We conclude that Asgard conclusively established it owed no fiduciary duties to DLI, either formal or informal.
As an initial matter, we must decide whether — as DLI contends — Asgard’s traditional motion for summary judgment was too narrow to encompass DLLs' breach of contract claim, as amended. DLI amended its petition after Asgard filed its motion. The amendment includéd DLI’s claims that Asgard (1) failed to investigate employees; (2) placed employees at DLI with criminal backgrounds; (3) failed to disclose such oversights; and (4) failed to indemnify DLI for the losses Moreno caused.
Wé conclude that these amendments were encompassed by Asgard’s motion. DLLs “failure to investigate” allegation is a restatement of its “failure to perform background check” claim, which was addressed fully in Asgard’s motion. The same is true with respect to DLLs contention regarding indemnity. As expressly set forth in the indemnity agreement, Asgard’s indemnity obligation arises only to the extent of Asgard’s negligence, which argument was raised and developed.
DLI argues that the Agreement required Asgard to perform background checks and that Asgard breached that contractual duty. The construction of an unambiguous contract presents a question of law that we review de novo.
The plain language .of the Agreement does not require Asgard to perform background checks. The Agreement was negotiated at arm’s length between sophisticated parties. See FPL Energy, LLC v. TXU Portfolio Mgmt. Co.,
III. Negligence
DLI argues that Asgard had duties to “hire, supervise, and retain competent employees who [were] fit for the work they perform[ed]” and use ordinary care in retaining Moreno and ensuring that the individuals Asgard placed at DLI were “not thieves.” A negligence claim requires proof of circumstances giving rise to a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach. Lee Lewis Constr., Inc. v. Harrison,
Duty is a question of law for the court to decide based upon facts surrounding the occurrence in question. Greater Houston Transp. Co. v. Phillips,
As a general rule, “a person has no legal duty to protect another from the criminal acts of a third person.” Timberwalk Apartments, Partners, Inc. v. Cain,
Thus, for a legal duty to prevent the criminal conduct of another to arise, the crime must have been reasonably foreseeable at the time the defendant engaged in negligent conduct. Foreseeability exists if the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act creates for others. D. Houston, Inc. v. Love,
Determining whether a legal duty exists, including the foreseeability element, is typically a legal question. Union Pac. R.R. Co. v. Williams,
DLI cited a laundry list of allegedly negligent acts in its live petition. Certain of these revolve around the failure of Asgard to perform a background check on Moreno: negligent hiring, retention, investigation and screening, failure to discover criminal background, failure to run background checks, failure to disclose “suspicions,” and failure to disclose criminal background. Other allegedly negligent acts include failure “to implement proper policies, procedures, and protocols to ... manage ... and evaluate the Program Manager and other employees put in positions of control and importance at [DLI]” and “failure to properly manage and supervise.”
In its traditional motion for summary judgment, Asgard argued generally that it was not foreseeable that Moreno, a receptionist, would become head of DLI’s accounting department and engage in a high-dollar embezzlement scheme. Asgard also argued that the Agreement did not require background checks and none of the named defendants hired Moreno (rather, Moreno was hired by Pendragon, a Grider company but not a named defendant). As to negligent supervision, Asgard argued that the Agreement specified certain departments that Asgard was to supervise and that the accounting department, where Moreno worked when the embezzlement occurred, was not listed. With regard to negligent hiring and retention, Asgard contended that (1) it did not hire Moreno or have a duty to perform a background check on her; (2) DLI’s promotion of Moreno to head of accounting and her embezzlement were not reasonably foreseeable to Asgard; and (3) DLI did not perform background checks on its employees. Further, Asgard asserted Moreno was not subject to Asgard’s control and DLI prevented Asgard from supervising Morenb.
In its response, DLI argued that Asgard was required to conduct background checks by custom and by common law and because of the special relationship-between the companies. DLI also argued that Asgard admitted that, after 2002, it undertook to run background checks on all employees staffed at DLI and it learned of Moreno’s theft conviction while she was employed by Asgard but did not notify DLL
No Duty to Manage and Supervise. Asgard' was required under the Agreement to supervise its employees and has conceded that it did not supervise Moreno in her position as head of accounting. However, Asgard presented uncontróverted evidence that it had no duty to supervise Moreno in the accounting department because (1) the list of departments specified in the Agreement which Asgard was required to supervise did not include the accounting department; (2) accounting personnel were not under Asgard’s control; and (3) DLI prohibited Asgard from supervising accounting personnel.
Asgard submitted DLI president Carl Davis’s deposition in support' of the motion. Davis testified that Frank Cole, DLI’s vice president, transferred -Moreno to the accounting department. At that time, Moreno reported to Thurman Nort-ham. When Northam left DLI, Davis and Cole promoted Moreno to Northam’s-position.
We conclude Asgard conclusively established it had no duty to manage and supervise Moreno after she was transferred to the accounting department.
Negligent Hiring and Retention. As to the duty to perform a criminal background check, both parties cite Wise v. Complete Staffing Servs., Inc.,
The Wise court analyzed whether the temporary worker was placed in a situation that foreseeably created a risk of harm to others because of his employment duties. Id. at 903. The court noted that the case was unlike Arrington’s Estate v. Fields,
Applying the Wise court’s analysis here, the embezzlement scheme was clearly an intervening criminal act; however, it cannot lightly be said that Moreno’s criminal history was not directly related to the duties of the job “at hand,” which was head of accounting, when the “bad acts” occurred. What is remarkable in this case is Moreno’s promotion from receptionist to head of accounting. Had she remained in the position where she was placed by Asgard, she would riot have been in a situation that foreseeably created a risk of harm to others because of her employment duties. See id.
We conclude that, considering the facts surrounding Asgard’s hiring and placement of Moreno, Asgard had no duty to perform a background check. The facts do not show that Asgard knew or should have known that, because of its acts of hiring and placing Moreno without performing a background check, the crime (or one like it) might occur.
Asgard, however, did not conclusively establish that, the circumstances foreclosed any duty to DLI regarding the retention of Moreno after Asgard became aware of her criminal history of theft.
IV. Affirmative Defenses
As set forth above, we must affirm the trial court’s'judgment if any of the independent suirimary-judgment grounds is méritorious, notwithstanding our conclusion as to DLI’s negligent retention clairri. See $90,235,
Quasi-estoppel and Waiver. Asgard argued in its traditional motion that DLI is estopped from complaining and waived its right to complain that Asgard was negligent in failing to perform background checks because DLI failed to independently verify whether Asgard had been performing background checks.
Quasi-estoppel precludes a party from. asserting, to another’s disadvantage, a right inconsistent with a position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S,W.3d 857, 864 (Tex.2000). The doctrine applies only when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced or from which he accepted a benefit. Id.
DLI’s reliance on Asgard’s purported reassurance that it was conducting background checks is not the assertion of a right inconsistent with a position DLI previously had taken. Davis’s -uncontradicted testimony was that he believed Asgard kept its “word.” Asgard presented no evidence of any inconsistencies in DLI’s position.
Even if DLI were somehow asserting a right inconsistent with a position previously taken, its reliance on Asgard’s representations would not have been unconscionable. See Comiskey v. FH Partners, LLC,
Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Tenneco,
' Asgard argued that DLI took no action to ensure that Asgard performed background checks “[f]or more than [10] years.” Asgard did not present evidence to support this statement. It only presented evidence that Davis believed Asgard was conducting background checks for an unspecified period of time. Moreover, actual knowledge is required to establish waiver. Garden Ridge,
Asgard argued alternatively that it was entitled to summary judgment on its laches defense because DLI unreasonably delayed in bringing its negligent retention claim. To prevail on a laches defense, Asgard was required to prove DLI unreasonably delayed in asserting its rights and Asgard made a good-faith change in position to its detriment because of the delay. See Caldwell v. Barnes,
We conclude that Asgard was not entitled to summary judgment on any of its affirmative defenses..
Y. Personal Liability Claims Against Arthur Grider
Asgard’s traditional motion also chállenged DLI’s claims against Grider in his personal capacity. DLI argues for the first time on appeal that Grider is personally liable under an alter ego theory.- Because DLI did not'pléad án alter ego theory in the trial court, we do not reach this issue. DLI does not otherwise challenge the trial court’s order granting summary
We sustain DLI’s first issue as to the trial court’s grant of summary judgment in favor of Asgard on DLI’s negligent retention claim. We overrule that issue as to all of DLI’s other challenges to the trial court’s grant of traditional summary judgment.
VI. Respondeat Superior
In its second issue, DLI challenges the trial court’s summary judgment in favor of Asgard on DLI’s respondeat superior claim. As set forth above, Asgard filed a combined no-evidence and traditional summary judgment motion on DLI’s respondeat superior claim, and the trial court granted -that motion without specifying the grounds. Because we conclude we are required to affirm the summary judgment ruling on traditional grounds, we need not address the no-evidence grounds for summary judgment. See Wilkinson,
Respondeat superior is the theory by which the employer is vicariously liable for the torts of an employee acting within the scope of employment. Baptist Mem’l Hosp. Sys. v. Sampson,
In its summary judgment motion, Asgard asserted that the borrowed-servant doctrine barred DLI’s respondeat superior claim because DLI had the exclusive right to control Moreno’s work and Asgard did not control Moreno’s work. DLI responded that -the language of the contracts and facts relating to the right of 'control over Moreno precluded summary judgment in Asgard’s favor.
Evidence in support of Asgard’s motion for summary judgment consisted of the deposition testimony of Davis, Cole, and Bill Kelley, DLI’s manager of operations. Asgard also offered the deposition testimony, of Arthur and Tom Grider. Regarding Moreno’s placement at DLI- and Asgard’s involvement, Davis testified:
• The receptionist position for which Moreno was placed had no written job description, and in that position, she was not expected to handle financial records, prepare or process checks, handle petty cash, or issue credit cards.
• Approximately two years after Moreno began working as a receptionist, Cole moved her to the accounting clerk position. Cole obtained Davis’s approval to make this change.
• DLI promoted Moreno to the head of accounts payable and accounts receivable, and Moreno reported primarily to Cole.
• DLI did not have the ability to fire an Asgard employee, but it could notify Asgard that the employee was no longer needed.
• The Asgard on-site program manager — Tom Grider — did not have the ability to make job assignments within DLI facilities. Although Moreno was required to “report her performance” to the Asgard supervisor on premises, Davis did not know “exactly” how she did so.
• Davis instructed Moreno to transfer funds from the yarious DLI bank accounts, and he designated her as the “System Manager” of the Chase ■ bank account. Moreno did not seek or obtain approval from Asgard to move funds from DLI’s operating account to the savings account.
• Asgard was not responsible for approving DLI’s vendor’s invoices for payment. Davis never asked Tom Grider to review Moreno’s accounts payable or accounts receivables reports, nor did he see him do so.
• DLI issued credit cards to Moreno, and if anyone approved the charges, it would have been Cole.
Cole testified that Davis was Moreno’s boss for accounting purposes and that she reported to Cole for personnel issues. He was unequivocal in his testimony that Moreno did not report to Asgard. Kelley also testified that Moreno reported to Cole when she became head of accounting, and after 2008, Moreno reported to Davis and Kelley. Moreno was trained for her accounting work by Northam, Davis, and Cole. Kelley did hot rely on Asgard to supervise the day-to-day work of the accounting department. DLI maintained operational control over all of its departments.
Tom Grider testified that Moreno reported to Cole, and Moreno did not report to either Tom or Arthur Grider. DLI never complained about how and to whom Moreno reported. Further, Tom Grider did not direct Moreno in her job assignments, did not train Moreno for her duties in the DLI accounting department, and was not involved in the decision to move Moreno from her receptionist position to accounting. No one with Asgard had any involvement in Cole’s decision to transfer Moreno to accounting.
Finally, Arthur Grider testified that Tom Grider did not provide technical supervision to personnel staffed at DLL Arthur confirmed that either Cole or DLI’s plant manager supervised Moreno when she worked, as a receptionist and that personnel provided by Asgard in the accounting department at DLI did not report to Asgard.
In response, DLI contends that in the Agreement, Asgard agreed to supervise Moreno. As discussed above, however, Asgard had no involvement in Moreno’s promotion to head of accounting, Moreno answered only to DLI employees after her promotion, and Asgard had no authority to direct her job assignments. Asgard thus demonstrated that DLI had the exclusive right to control Moreno’s work in the accounting department, and Asgard did not do so.
DLI argues that emails between Tom Grider and Moreno show that Tom supervised Moreno’s work. Even construed in the light most favorable to DLI, the emails show only that Moreno was in the accounting department and that the two exchanged emails regarding Asgard’s administrative matter's.
The uncontradicted evidence is that Asgard did not know of and was not consulted about DLI’s decision to transfer Moreno to the accounting department and then promote her to head of that department; Moreno did not answer to Asgard after she was transferred; and Asgard did not direct or oversee her job assignments. We conclude that Asgard conclusively established it had no right to control Moreno’s day-to-day duties in the accounting department. See St. Joseph Hosp.,
We overrule DLI’s second issue.
Conclusion
We reverse the tidal courts summary judgment as to DLI’s negligent retention claim and remand that issue to the trial court for proceedings consistent with our opinion. We affirm the trial court’s judgment in all other respects.
(Justice Donovan dissenting)
Notes
. Bill Kelley, DLI’s manager of operations, testified that Moreno was originally placed .in DLI’s international department as an administrative assistant but then transferred to reception. It is unclear from the record whether Asgard on DLI transferred her. Because both parties refer to Moreno’s initial placement as a receptionist and because it does not alter our analysis, we also refer to her job as receptionist.
. DLI argues that other employees also were involved in the embezzlement scheme. All alleged embezzlers who were employees of Asgard sometimes are referred to herein as "Moreno.”
. On appeal, DLI argues, without citing any authority, that the trial court erred in denying DLLs motion to strike Grider's affidavit because the affidavit was not based on personal knowledge, was based on hearsay, and contained legal conclusions. DLI reurges on appeal its motion to strike, but neither objected below nor objects on appeal to Grider’s authentication of documents attached to his affidavit. To the extent that DLI has properly raised an appellate issue complaining of the trial court’s denial of the motion to strike, we do not rely on the portions of the Grider affidavit to which' DLI objected in analyzing whether the trial court erred in granting the motion for summary judgment. Thus, we need not reach the issue.
.DLI filed a motion for reconsideration and request to enlarge the summary judgment record. Nothing in the record indicates that the trial judge considered the supplemental evidence (Exhibit 12), so we do not consider it on appeal. See Auten v. DJ Clark, Inc.,
. In its traditional motion for summary judgment, Asgard generally argued that it did not breach any fiduciary duty and no fiduciary relationship existed between Asgard and DLI or between Grider and DLI. In its response, DLI generally argued that (1) the relationship between DLI and Asgard was one of trust and confidence, (2) a relationship of trust and confidence was created between the parties based on contractual duties that would expose placed Asgard employees to certain of DLLs confidential information, and (3) the Agreement’s use of the word "principal” created a principal/agent fiduciary relationship. In its motion for. reconsideration, DLI reiterated that a material fact exists as to whether the parties had a special relationship that rose to the level of a fiduciary relationship.
. DLI also argues that Asgard’s access to confidential information belonging to DLI created a principal-agent relationship. DLI does not elaborate on how. access. to confidential information, ■ standing alone, could create such a relationship. Asgard contractually agreed to keep such information confidential. We decline to impose an additional fiduciary duty on Asgard based on its access-to DLLs information.
. DLI argued below that it' and Asgard had a relationship of trust and confidence.
. The indemnity provision reads as follows:
[Asgard] agrees to indemnify, hold harmless and defend DLI ... from all claims ... arising out of or relating from [sic] employees of [Asgard] or [Asgard's] fraud, negligence or malfeasance and which occur during [Asgard's] performance under this contract. [Asgard] will only indemnify DLI to the extent of [Asgard’s] negligence.
. Neither party argues that the Agreement is ambiguous. However, they have conflicting views regarding whether the Agreement required Asgard to perform background checks on the employees it placed at DLI.
. As set forth above, we construe indemnity agreements under normal rules of contract construction. Gulf Ins. Co. v. Burns Motors, Inc.,
. "We have not ruled definitively on the existence, elements, and scope of such torts and related torts such as negligent training and hiring.” Waffle House, Inc. v. Williams,
. Before Northam left DLI, he and 'Moreno had been the only employees in the accounting department. Northam did not have a job title. The department eventually grew, and Moreno’s title became accounting department supervisor.
. Davis was asked in his deposition, “When Ms. Moreno became the Accounting Supervisor, who did she report to?” Davis responded, "Well, she was an Asgard employee, but she probably answered a little bit more to Mr. Cole.”
. Moreno was hired initially in 1997. Her alleged co-conspirators were hired initially between 1998 and 2002.
. Asgard also' asserted these affirmative defenses to DLI’s negligent supervision claim. We need not address the negligent supervision claim because we hold that Asgard con
. Asgard moved on these defenses as to all DLI’s claims. Our discussion is directed only to the negligent retention claim, as we conclude Asgard conclusively established it was entitled to summary judgment on DLI’s other claims.
. We note that Cox also represented Asgard.
. In cases governed by the discovery rule, a cause of action for negligence accrues when the plaintiff discovers, or should have discovered through reasonable diligence, the'injury and that it was likely, caused by the wrongful acts of another. J.M.K, 6, Inc. v. Gregg & Gregg, P.C., 192 S.W.3d 189, 196 (Tex.App.Houston [14th Dist.] 2006, no pet.).
, Cox denied writing: the letter in his deposition and in an affidavit presented in response to Asgard’s traditional motion.
. We thus need not address whether Cox’s knowledge could be imputed to DLL
. The emails involved weekly payroll deductions that needed to be corrected on an Asgard invoice, healthcare provider forms to be
. DLI cites Lara v. Lile,
[I]n the absence of evidence to the contrary, there is an inference that the actor remains in [her] general employment so long as, by the service rendered another, [she] is performing the business entrusted to [her] by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.
Id. (quoting Restatement (Second) of Agency § 227 cmt. b. (1958) (first emphasis added.)). The Lara court further analyzed the case "[b]eginning with the inference that the general employer retains control” to determine "what control [it] surrendered to the special employer.” Id. Here, Asgard presented conclusive evidence that it did not control Moreno's work in the accounting department.
Dissenting Opinion
dissenting.
I agree with the majority’s determinations that (1) Asgard-owed no fiduciary duty to DLI; (2) there was no agency-principal relationship giving rise to formal fiduciary duties and no informal fiduciary relationship between DLI and Asgard; and (3) Asgard conclusively established it had no contractual duty to perform a background check. I further join in the majority’s conclusion that Asgard conclusively established it owed no duty to DLI to manage or supervise Moreno because her activities were under the control of DLI. I also agree with the majority’s conclusion that Asgard had no duty to perform a background check, and without doing- so, Asgard neither could have nor should have known the embezzlement would occur. Finally, I agree with the majority that Asgard conclusively established it had no right to control Moreno’s day-to-day activities in the accounting department; therefore, the trial court’s order granting summary judgment on DLI’s respondeat superior claim is proper.
However, I respectfully dissent from the majority’s conclusion that there is a fact issue on DLI’s negligent retention claim. I would hold that Asgard conclusively established it owed no duty to DLI in support of its negligent retention claim — a tort does not exist in the absence of duty. See Porter v. Nemir,
Under the tort of negligent hiring, supervision, 'or retention, an employer .who negligently hires an incompetent or unfit individual may be directly liable to a third party whose injury was proximately caused by the employee’s negligent, or intentional act. (citation omitted) Both of the elements of duty and proximate cause required to establish a claim of negligent retention are premised on foreseeability.
See CoTemp, Inc. v. Houston West Corp.,
As noted above, the majority correctly determines that Asgard owed no duty to DLI on its negligent hiring, supervision and management claims because there was no contractual or other special relationship imposing a duty. Yet, after holding Asgard owed no duty to perform a background check, the majority then concludes the summary judgment was improper as to negligent retention because there is a fact issue that Moreno’s embezzlement was foreseeable.
I would hold that negligent retention also fails as a matter of law because the undisputed evidence shows that DLI unilaterally transferred Moreno from her receptionist position to the position of accounting clerk. DLI then promoted her to the head of the accounting department and retained her in that position until it terminated her employment. DLI never requested that Asgard perform a background check, nor did DLI do so. The evidence reflects that at all times when Moreno was in DLI’s employ in the accounting department, DLI supervised her day-to-day activities. I also question how any negligent retention claim can be pursued in the absence of a negligent hiring claim, which the majority holds does not survive summary judgment.
Therefore, I conclude Asgard conclusivély established it was not foreseeable that Moreno would embezzle funds from DLI. Asgard initially placed Moreno at DLI as a receptionist whose responsibilities included answering phones and performing clerical duties. At DLI’s sole discretion, and without Asgard’s prior input, DLI transferred Moreno to the accounting department as a clerk and promoted her to the head of its aceountirig department where Moreno was granted .nearly unlimited access to DLI’s financial systems.. Under these facts, Asgard conclusively established it was not foreseeable that a receptionist would be promoted to the head of accounting and ¿mbezzle $15 million during her eight years of employment in the accounting department under DLI’s supervision. See Guidry v. Nat’l Freight Inc.,
I would also note that there is no evidence that any third' party was harmed by Moreno’s actions — a key consideration in negligent retention cases. See CoTemp, 222 S.W.3d at 493-94 (concluding harm to third party was foreseeable because it could have been’ reasonably anticipated that harm would result by retention'- of the employee). Rather, Moreno’s embezzlement was unforeseeable' and it affected only DLI, the entity which promoted 'her and retained her in its accounting department. ''
Thus, I believe the majority is incorrect in its determination that there is a genuine issue of material fact on the negligent retention claim. Under this scenario, I disagree with the majority that the trial court erred in granting Asgard’s motion for summary .judgment on DLI’s negligent retention claim. Accordingly, I would affirm