*3 judgment to Adams. Hinkle first contends CORNELIUS, C.J., Before GRANT and summary in granting the trial court erred ROSS, JJ. summary judgment to Adams because judgment evidence established material OPINION whether factual issues as to Opinion by Justice ROSS. imple- negligent failing Adams was Hinkle, any procedure ment would policy Ronnie Hinkle and Alice on be- which guardians Bagwell’s Elizabeth death. Bag- prevented half of and as for Brianna have nurse, and a Whittington, Paula Second, vocational contends the trial court assistant, Cox. certified medical motion for sum- erred in Adams’ there is sufficient mary judgment because 4, 1997, Bagwell visited November On survive evidence to her pain Adams treated back Med Tex and employee Cox was an to whether Naprelan. On Ultram by prescribing Adams, liable for thereby making Adams 5, 1997, Bagwell November morning actions. Hinkle next contends Cox’s and told Cox her heart Med Tex called summary in granting trial court erred night, rapid during rate had become for Adams because morning. feeling better but she was established material judgment evidence day, and the gone *4 factual issues as to whether genuine ar- yet had not рhysician locum tenens joint engaged enterprise in a Adams was to take anoth- Bagwell advised rived. Cox Finally, Hinkle Physicians. Interim then, symptoms if her Naprelan, and er improperly grant- trial court contends the recur, at lunch. to take the Ultram did not summary judgment ed Adams’ motion for Hance, M.D., thereafter, Shortly Joseph summary judgment evidence cre- arrived and physician, tenens the locum of fact as genuine ated material and issues Bag- gave him the advice she told alter Adams and Med Tex were to whether well. egos of one another. afternoon, Bagwell Around three that Cox, regard to Hinkle contends With complaining rapid of a into the office came for erred in her motion trial court other ailments. She was heart rate and summary summary judgment because given an EKG by Hance and was seen evidence created material and judgment Hance about to medications. As was some fact as to whether Cox’s genuine issues of nurse, leave, reminded Whittington, Bag- cause of proximate actions were the facility. still at Bagwell him was well’s death. Whittington Bagwell that Hance told her home. Tex, and to send right Hinkle con- would be all regard to Med
With car Bagwell to the Whittington created escorted summary judgment evidence tends straight to the go she of fact suffi- and recommended genuine material and issues Early morning in the emergency room. summary judgment as to cient to survive 6, 1997, was taken to Bagwell November employee, Med Tex’s whether Cox was in the died emergency room. She Med Tex hable for Cox’s thereby making actions, hospital on November summary judgment evi- genuine material and issues dence created no-evidence mo Appellees all filed Med Tex and Interim of fact as to whether under summary judgment tions for Tex.R. in enter- Physicians engaged were a 166a(i). no-evidence Because a P. Civ. prise. pretrial essentially verdict, legal apply the same directed we medical clin- incorporated Med Tex is an officers, reviewing a no-evi sufficiency standard and two ic with two shareholders apply as we pa- Adams treats dence and his wife. verdict. Jackson reviewing a directed agree- at the clinic under a service tients (Tex. Inc., Mart, unavailable, 979 S.W.2d Fiesta Med Adams is ment. When Therefore, our pet.). App.-Austin clinic with locum tenens Tex staffs the court is to ascertain appellate task as an Physicians. Interim provided by physicians any evi produced death, the nonmovant Med Tex whether Bagwell’s At the time of a fact force to raise staff, probative a licensed dence including employed small questions issue on the presented. raising genuine material issue of material fact. 166a(i). Id. We consider all the in the evidence Adams moved Tex.R. Civ. light against summary judgment, alleging most favorable to the there was no party summary whom the each judgment negligence: no-еvidence evidence as to element of rendered, breach, causation, disregarding contrary duty, damages. was all evidence and Summary judgment properly granted inferences. Merrell Dow Phams., Havner, Inc. v. if produce as to Adams Hinkle failed to (Tex.1997). A no-evidence evidence as to one of these elements. if improperly grantеd the non- Adams, Hinkle contends rather movant presents more than a scintilla of Tex, implement than Med had a probative evidence to raise a issue policies these because Med Tex had lost its Jackson, of material fact. 979 S.W.2d at corporate being operated status and was 70-71. More than a scintilla evidence proрrietorship. as a sole we exists when the evidence “rises to a level corporate first consider the status of Med that would enable reasonable and fair- Tex. people minded to differ in their conclusions.” pay Med Tex failed to ner, Hav at 711. *5 tax, corporate its resulting franchise in the We first address whether the trial corporate privileges by forfeiture of its the court properly granted summary judgment and, 24, 1995, comptroller August the as to Adams. Hinkle first contends sum corporate forfeiture of its charter the by mary judgment was not proper because secretary of state. See Tex Tax Ann. Code granted the court ground it on a not as (Vernon 2002); § 171.251 Tex. Tax Code by serted A Adams. no-evidence sum (Vernon 2002). But, § 171.309 a cor Ann. mary judgment may granted not be on poration whose charter is forfeited under grounds expressly not presented to the provisions these is entitled to have its trial court. v. McConnell Southside In corporate charter and if privileges revived Dist., dep. 337, Sch. 858 S.W.2d 339-42 tax, corporation pays the penalty, the and (Tex.1993). Hinkle contеnds Adams failed interest imposed by chapter this and due request to summary judgment on the claim request at the time the made set is to he was negligent by failing implement to aside the forfeiture under 171.313. Section policies procedures. A review of the (Vernon § 171.312 Tex. Tax Code Ann. record shows Adams moved for 2002); § see Tex Tax Code Ann. 171.313 ground. on this (Vernon 2002). 26, 2000, On October Hinkle сlaims negligent by Adams was secretary of state reinstated Med Tex’s failing provide to proper policies and pro- corporate charter. Neither the forfeiture cedures regarding telephone triage and corporate privileges by the comptroller proper policies procedures allowing corporation’s nor the forfeiture of a char question the staff to physician secretary extinguishes ter of state and/or emergency call for assistance. Hinkle con- corporation entity. Lighthouse as an tends finding Bank, the trial court erred in that Church v. Tex. 889 of Cloverleaf 595, Adams owed no poli- to create such (Tex.App.-Houston S.W.2d 601 [14th 166a(i), proсedures. denied); cies and Under Rule writ ABZ Dist.] see re (2000). Servs., the movant must state the elements as to Ins. 245 B.R. 258 Fur ther, which there is no corporation evidence. The court if a its delinquent files grant must the motion unless the nonmov- reports pays delinquent its franchise taxes, produces summary judgment ant evidence corporate privileges its and charter retroactively are v. reinstated. Mello Hinkle contends the evidence suffi Inc., (1) (Tex.App.- ways: A.M.F. ciently proves ego in alter four denied). 1999, pet. Beaumont Because comply corporate to failure with formali charter, it Med Tex reinstated its is (2) ties; routinely failure use “Inc.” to though the forfeiture never existed. The (3) name; corporate failure tо after at corporation Bag- existed time of tax, corporate resulting pay the franchise well’s visit. was an offi- charter; corporate in forfeiture of the cer corporation, propri- of the not a sole (4) employee thought Adams was her etor. of these four is employer. second routinely in the included first. Failure
We nоw turn Hinkle’s contention “Inc.” after is corporate use name egos. and Med that Adams Tex are alter comply corporate failure to with a formali any Hinkle’s brief cite Although failed to ty. Castleberry, Under this was factor authority this under issue and the issue determining considered in alter ego. to be briefed, improperly therefore see Tex. A(3) Howеver, 2.21, § Article of the Texas R.App. 38.1(h), we will nevertheless ad- Corporation specifically Business Act re justice. in the dress the issue interest it as a moves factor for consideration ego Alter a basis for disre ego. alter of the proving Neither other corporate a cor garding the fiction where remaining ways .on which relies poratiоn organized operated as a ego. Although alter Med Tex proves did mere tool or business conduit of another pay fail to its tax and lost its franchise Branscum, individual. Castleberry See charter, corporate by properly complying (Tex.1986). It applies Code, corporate the Tax its charter *6 corpo “when there is such unity between retroactively was reinstated and revived separateness ration and individual that the corporation. the This is not evidence of corporation holding of the has ceased and ego. contrary to Finally, alter Hinkle’s in only corporation the liable would result contention, Whittington, the fact that who Id., injustice.” citing Bank in First Nat’l suit, party not а to she is this believed was Gamble, 112, Canyon v. 134 Tex. 132 Tex, Adams, employee an of not Med nois (1939). 100, ego 103 “is S.W.2d Alter Further, of alter there ego. evidence is no corpo from the total the dealings shown of mixing self-dealing evidence or funds individual, including ration and the the de part the and Med Tex. In on Adams gree corporate to which ... individual fact, receipts all of Cox’s that are payroll have been the property kept separately, in record are Tex. Hinkle from Med interest, ownership amount of financial produce ego, of alter failed to evidence the individual over the control maintains affirm trial court’s judg we therefore corporation corporation, and whether the ment on this issue. personal purposes.” has used for been 272; v. Castleberry, 721 at Hall S.W.2d rule, general Under the unless
Timmons, 248, (Tex.App. 250 established, ego corporate alter officers pet.). no Failure to com Beaumont .agents subject personal liability are to ply longer no corporate formalities is employment actions for their within the considering ego a factor in whether alter 2.21, only an they indepen context when breach Corp. Ann. art. exists. Tex. Bus. Act (Vernon A(3) Hornsby, of care. § dent Leitch 935 Supp.2002); Aluminum (Tex.1996). 114, 117 As an Corp., v. Bechtel 28 67 officer Chems. S.W.3d S.W.2d is immune from (Tex.App.-Texarkana pet.). corporation, no liability granting summary judgment due to the in as to Cox negligent acts of the he corрoration independent unless owed an there was sufficient evidence to duty. There is no evidence to show genuine raise a issue of fact as to Cox’s independent duty Adams owed an to cre- Hinkle’s sole contention is negligence. ate policies procedures regarding or tele- is sufficient evidence to show that there phone triage, allowing question to staff cause of proximate Cox’s actions were physicians, the actions of the or to call However, the lack of Bagwell’s death. emergency assistance. We find the was not the proximate evidence on cause properly adjudged court that Adams owed granted basis on which the trial court sum duty. mary judgment as to The trial court Cox. specifically stated
We address the issue below under our granted provided discussion of as to there as to Cox because Hinkle whether accepted sufficient evidence to no evidence Cox breached the question employer. specific raise a as to Cox’s care. standard of This basis granted summary judg which Cox was Finally, Hinkle there contends challenged by ment was not Hinkle in their was sufficient evidence to raise a brief before argue, this Court. did question as to whether there awas during argument, oral there is some evi enterprise between Adams and Interim dence the accepted Cox breached standard Physicians. There is no evidence thаt care, argu but we will not consider this Adams, acting separately from his duties ment it in since was not included Hinkle’s as an officer of the corporation, entered All original appellate brief. waivable er any agreement Physi into with Interim original appellate rors not included cians. Four required elements are present nothing brief are waived and (1) joint enterprise: show agreement, Tex.R.App. 38.1(e); review. see Pat express implied, among the members of Wilson, Baker Co. v. (2) group; purpose common to be (Tex.1998); Pearson, Allright, Inc. v. (3) carried out the group; community (Tex.1987). affirm tri S.W.2d 240 We of pecuniary purpose interest al court’s of Cox’s motion for members; (4) among the an equal *7 summary judgment. right to voice in the direction of the enter prise, gives equal right which an to control. Because we affirm the trial court’s Able, Tex. Dep’t Transp. v. 35 S.W.3d of Cox, summary judgment of as to 608, (Tex.2000); 613 Dep’t Transp. Tex. of genuine we need not determine if a issue City Light Floresville Elec. Power & of employer. of fact exists as to Cox’s Sys., (Tex.App.-San pet.). Antonio no There is no еvi Tex, regard With to Med Hinkle agreement dence of an between Adams summary judg contends there is sufficient Physicians. pro and Interim The contract ment evidence to establish issues viding a physician locum tenens was joint enterprise of fact as to whether a signed by Rebecca Adams in capacity her existed between Med Tex and Interim secretary of Med Tex. treasurer Physicians. do not have to consider We trial properly granted summary The court properly whether was joint for Adams on the claim of granted regarding any for Med Tex it enterprise. may implement triage have had to against emergency policies procedures, We now turn to the claims be appeal. Cox. Hinkle contends the court erred cause that issue was not raised on benefit, joint enterprise sharing If a exists -or of sharing between Med financial or Physicians, pooling Tex and Interim then Tex or efforts Med of resources between negligence can be liable for the of Hance Physicians. Med Tex and Interim See Physicians. and Interim contends Blaсkburn v. Med. Ctr. Ar Columbia of L.P., in the trial court erred was finding lington Hance Subsidiary, S.W.3d an independent contractor with exclusive 272-73 (Tex.App.-Fort Worth authority to medical judgments make re- pet.). Hinkle’s contentions are overruled. garding Bagwell’s treatment. As stated judgment. We affirm the above, required there are four elements (1) joint enterprise: show an agreement, Conсurring Opinion by Justice GRANT. express implied, among the members of GRANT, Justice, concurring. (2) a common group; purpose to be a nurse’s Roxanna Cox wore uniform (3) by group; community carried out identifying and had her tag a name as a of pecuniary interest purpose “C.M.A.” she was a This meant that certi- members; (4) among equal an and, assistant, fied according mеdical right to voice the direction of the enter- job her of a certified testimony, the medi- prise, gives equal right which to control. cal assistant was to assist the office doc- 613; Able, City at Floresville in any tors She was li- procedure. not Light Sys., Elec. Power & 53 S.W.3d at Texas, censed but had a State certification the American from Medical In order to еstablish a enterprise a test upon Association based she had thereby vicariously find Med Tex lia- studying tapes taken after the books and Hance, ble for the actions Hinkle must provided by American Medical Associ- set forth sufficient evidence of a communi- ation. that she had no She testified train- ty pecuniary interest. Hinkle contends ing pharmacology, or education in which Physicians Interim received explained she “dispensing meant medi- day for Hance’s services and $600.00 cation.” treatment, Bagwell’s Med Tex billed for rendered in this this is sufficient to show a community of case cites that of the bases for grant- one pecuniary interest. We find disagree and ing provide failure to the Hinkles’ community there is no evidence of a proof of of care for the standard Roxanna pecuniary interest. Cox. The contract between Med Tex and In- testimony exceptions, With some is re- terim Physicians provided for the services quired to the standard of care for establish two-day of a to Med Tex doctor *8 professional persons and those who under- rate, period with the acting at a set doctor any calling special take work skills. independent contractor. Interim Torts, See PROSSER & Keeton on The Law of by the Physicians paid day, and there (5th ed.1984). § p. 185 resources pooling pooling was no of of case, simply present Med Tex Interim admits efforts. hired that she perform work had no оf Physicians indepen- training as an or education field no is difficult to pharmacology. dent contractor. there was It determine a community pecuniary giving person of interest a standard of care for undertak- joint enterprise. City ing give taking rise to a medical advice on the See medications, Sys., Floresville Elec. Power & a in which she no Light field has training requirement There was S.W.3d at 457. no evidence of or license. Such testimony would entail to the effect ordinary
she did not use applying care
learning and skill which not pos- she did most, ap-
sess. At the standard of care
plied to her per- would have been what a
son of prudence reasonable would have
done under the same or circum- similar reasonably
stances. The prudent person require testimony by
rule does not ex-
perts, but is rather a matter for the fact-
finder at trial.
Although argument counsel at oral con- strongly
tended that the trial court erred
in rendering judgment based
upon being showing there no proper
standard of care for Cox and the violation
thereof, point argument error or
this matter presented by Hinkles’ brief.
Therefore, I must concur with the ma-
jority opinion. RAUSCHER,
Michael Appellant, Adam Texas, Appellee.
The STATE of
No. 01-01-01134-CR. Texas, of Appeals
Court (1st Dist.).
Houston
April