Court of Appeals of Texas,
Darlene C. AMRHEIN, Appellant
LA MADELEINE, INC., Appellee.
June 30, 2009.
Rehearing Overruled July 28, 2009.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-96-10277-C, Benson, Judge.
Attorneys & Firms
Darlene C. Amrhein, McKinney, TX, for Appellant.
Jerry Fazio, Owen & Fazio, P.C., Dallas, TX, for Appellee.
Before Justices MURPHY.
Opinion by Justice MURPHY.
*1 Pro se appellant Darlene C. Amrhein presents seventeen issues in her appeal of the trial court’s sanctions order and order granting appellee La Madeleine’s no-evidence motion for summary judgment. We vacate the sanction order. We affirm in part the summary judgment on Amrhein’s negligence claim, reverse the summary judgment in all other respects, and remand this case to the trial court for further proceedings.
In December 1996, Amrhein sued La Madeleine asserting she suffered an on-the-job injury because La Madeleine failed to provide a safe workplace. In 1997, La Madeleine filed a motion to dismiss, alleging the trial court lacked jurisdiction because Amrhein filed for bankruptcy protection after filing the lawsuit against La Madeleine. The trial court denied La Madeleine’s motion to dismiss but abated and stayed the lawsuit on July 31, 1997. An order vacating all stay orders and reinstating the case was signed ten years later, on August 2, 2007.
During the abatement period in 2002, two separate sanctions orders totaling $5,000 were signed in favor of La Madeleine. Both orders awarded sanctions against Amrhein for violations of Rule 13 and TEX. CIV. PRAC. & REM.CODE § 10.000 et seq.,” and dismissing the case with prejudice as an additional sanction. On the same date, the trial court also signed the order granting La Madeleine’s no-evidence motion for summary judgment, dismissing all of Amrhein’s claims with prejudice. The reporter’s record confirms the trial judge granted the summary judgment prior to the imposition of sanctions.
Amrhein appeals the November 30, 2007 orders sanctioning Amrhein and granting La Madeleine’s no-evidence motion for summary judgment.
NOVEMBER 30, 2007 SANCTIONS ORDER
Reaffirming the 2002 Sanctions Orders
One part of the trial court’s November 30, 2007 sanctions order “affirmed” the 2002 sanctions orders signed during the abatement. An abatement is a present suspension of all proceedings in a suit. Amrhein v. La Madeleine, Inc., No. 05-00-00790-CV, 2001 WL 818286, at *1-2 (Tex.App.-Dallas July 20, 2001, pet. denied) (not designated for publication) (summary judgment in favor of La Madeleine).
*2 The record here does not show La Madeleine filed or attempted to revive pleadings or submitted any evidence in support of the motion to affirm the 2002 sanctions. See Lumbermens, 777 S.W.2d at 199. As a result, the responding party was under no obligation to respond. Id.
Applying the holding in Lumbermens to the proceedings here, La Madeleine has failed to take any affirmative action to revive or refile the motions for sanctions and has offered no evidence in support of the sanctions. Without reviving those proceedings, the record is devoid of a basis for the sanctions. The 2002 sanctions proceedings remain legal nullities and the trial court therefore committed reversible error when it reaffirmed the 2002 sanctions orders.
The trial court also ordered Amrhein “sanctioned the additional amount of $10,000 for filing frivolous pleadings in violation of Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985).
rule 13 renders order unenforceable and warrants reversal).
*3 In this case, the trial court’s order does not state any facts or particulars warranting good cause for the imposition of sanctions. While the order states Amrhein is sanctioned $10,000 for filing frivolous pleadings, the order fails to specify what pleadings are frivolous and makes no finding that any pleadings upon which the sanctions are based were groundless and brought in bad faith or for the purposes of harassment, as required by the rule. See TEX.R. CIV. P. 13. The order does strike “Plaintiff’s Motion for Judge Sally Montgomery and or the County Court at Law No. 3 Voluntary Recusal and/or the Involuntary Motion for Recusal of Judge Montgomery and the Court [sic] Court-at-law No. 3 for Various Reasons and Plaintiff’s Supplements and Amendments to All Petitions/Pleadings as Filed in this Lawsuit.” The record, however, does not establish that the documents struck were the pleadings for which sanctions were awarded. Moreover, Amrhein’s motion for recusal of Judge Montgomery was filed June 1, 2007, during the abatement period, and therefore is a legal nullity.
The trial court’s failure to reveal its reasoning in the order precludes meaningful appellate review because Amrhein, as the sanctioned party, cannot overcome the presumption that the trial court found necessary facts in support of its judgment. See rule 13.
The trial court also failed to comply with chapter 10 of the civil practice and remedies code, the other basis for sanctions cited in the order. Section 10.001(1) provides:
The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry:
(1) the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation....
section 10.001, sanctions may be imposed on the signer, a party represented by a signer, or both. Id. at § 10.004(a).
Under chapter 10, the trial court must describe in its order the sanctionable conduct and explain the basis for the sanction imposed. Id. at § 10.005. Here, the trial court’s order fails to meet either requirement. Except for the statement Amrhein is “sanctioned the additional amount of $10,000 for filing frivolous pleadings,” the order does not particularize the offensive conduct. See Barkhausen v. Craycom, Inc., 178 S.W.3d 413, 419 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (requirement for particularity in sanction order is mandatory). We conclude the trial court abused its discretion by failing to describe the conduct justifying the $10,000 award of sanctions to La Madeleine.
*4 We next address the trial court’s dismissal of Amrhein’s lawsuit with prejudice as an additional sanction. At the hearing on La Madeleine’s motion for sanctions, the trial court stated the dismissal with prejudice was an additional Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex.2003) (requiring trial court to consider less stringent measures before settling on severe sanctions).
As discussed above, the trial court in its Luxenberg v. Marshall, 835 S.W.2d 136, 141 (Tex.App.-Dallas 1992, orig. proceeding).
Even if the trial court’s order cited an essential element required under McCain, 856 S.W.2d at 758.
Accordingly, for the reasons discussed above, we sustain Amrhein’s issues complaining of the trial court’s November 30, 2007 sanctions order. We vacate the November 30, 2007 “Order Granting Defendant La Madeleine, Inc.’s Motion for Sanctions and to Affirm Previous Sanctions Issued Against the Plaintiff Pursuant to Tex.R. Civ. P. 13 and Tex. Civ. Prac. & Rem.Code § 10.000 Et Seq.”
No-Evidence Summary Judgment
*5 After the case was reinstated, La Madeleine filed its second supplemental no-evidence motion for summary judgment, claiming Amrhein has no evidence to support three elements of her negligence claim. Amrhein alleges La Madeleine was negligent in failing to provide “a safe properly supervised workplace.” She asserts as a result of that failure, she developed carpal tunnel syndrome from the repetitive motion of tossing or mixing salads with tongs and rotating bowls as part of that process. Amrhein had been intermittently assigned to mix salads during the several months she was employed. The trial judge granted La Madeleine’s no-evidence motion for summary judgment and dismissed all of Amrhein’s claims with prejudice. Amrhein appealed that order.
When a defendant files a motion for summary judgment asserting there is no evidence of one or more essential elements of a plaintiff’s claims, the burden shifts to the plaintiff to present summary judgment evidence raising a genuine issue of material fact on the challenged elements. Weiner v. Wasson, 900 S.W.2d 316, 317 n. 2 (Tex.1995).
La Madeleine is a nonsubscriber to the Texas Workers’ Compensation Act. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). In its no-evidence motion for summary judgment, La Madeline asserted Amrhein failed to present any evidence supporting the essential elements of duty, breach of duty, and proximate cause. We focus our analysis on breach of duty.
An employer has a duty “to adequately hire, train, and supervise employees.” Allen, 79 S.W.3d at 70.
The duty to warn or caution an employee of a danger arises when: (a) the employment is of a dangerous character requiring skill and caution for its safe and proper discharge, and (b) the employer is aware of the danger and has reason to know the employee is unaware of the danger. Great Atl. & Pac. Tea Co. v. Evans, 142 Tex. 1, 5, 175 S.W.2d 249, 251 (1943)) (when there is no evidence lifting involved is unusual or poses threat of injury, plaintiff has failed to establish prima facie case).
Amrhein did not produce any competent summary judgment evidence that La Madeleine failed to provide a safe workplace.1 Amrhein presented no evidence that her job required specialized training or that she received inadequate training or supervision in mixing or tossing salads with salad tongs. Amrhein also offered no evidence that would suggest La Madeleine failed to instruct her in the safe use and handling of the equipment used in tossing salads or that training and supervision beyond that given by La Madeleine would be necessary or proper by a reasonably prudent employer. See Elwood, 197 S.W.3d at 795.
*7 We conclude Amrhein produced no evidence that La Madeleine breached the duty to provide “a safe properly supervised workplace” and therefore failed to meet her summary judgment burden. See TEX.R. CIV. P. 166a(i). Having concluded that Amrhein failed to meet her burden as to the challenged element of breach of duty, we overrule Amrhein’s issues complaining of the summary judgment on her negligence cause of action. We do not reach the other bases for summary judgment asserted by La Madeleine on the negligence claim.
To dispose of the plaintiff’s entire case, a defendant’s motion for summary judgment must identify or address each of the plaintiff’s claims and the essential elements of those claims on which it contends no genuine issue of fact exists. See Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476, 487 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).
In its no-evidence motion for summary judgment, La Madeleine incorrectly stated that Amrhein’s negligence claims are the only cause of action made the basis of this lawsuit. In her “Supplements and Amendments to All Petitions/Pleadings Filed in This Lawsuit,” filed after the case was reinstated and before La Madeleine’s second supplemental no-evidence motion for summary judgment, Amrhein asserts additional claims, including gross negligence, breach of implied contract, bad faith and breach of the duty of good faith and fair dealing, conspiracy, fraudulent conduct, misrepresentations, and intentional infliction of emotional distress. La Madeleine’s no-evidence motion for summary judgment fails to address claims other than Amrhein’s negligence claim. As a result, we conclude the trial court erred by granting summary judgment in favor of La Madeleine on all of Amrhein’s claims and dismissing Amrhein’s case with prejudice.
We vacate the trial court’s November 30, 2007 “Order Granting Defendant La Madeleine, Inc.’s Motion for Sanctions and to Affirm Previous Sanctions Issued Against the Plaintiff Pursuant to Tex.R. Civ. P. 13 and Tex. Civ. Prac. & Rem.Code § 10.000 Et Seq.” We affirm the summary judgment as to Amrhein’s negligence claim in favor of La Madeleine. In all other respects we reverse the summary judgment in favor of La Madeleine. We remand this case to the trial for further proceedings consistent with this opinion.
Amrhein argues her supplement to motion for new trial contains documents that should be considered. A trial court may accept summary judgment evidence filed late, even after summary judgment, as long as the court affirmatively indicates in the record that it accepted or considered the evidence. TEX.R. CIV. P. 166a(c).