Snyder v. HELENA LABORATORIES, INC.

OPINION

BURGESS, Justice.

This is a summary judgment case involving the torts of negligent interference with familial relationships and alienation of affections.

Allison N. Golias [Allison] was married to Joseph Hilton Golias [Joe], a vice-president of Helena Laboratories Corporation [Helena]. Robert Edward Snyder [Robert] was married to Pamela McKinley, then Pamela Snyder [Pam], an executive secretary for Helena. Joe and Pam had an affair. Both marriages ended in divorce. Allison and Robert sued Helena for negligent interference with familial relations. Allison also sued Joe, alleging various theories of intentional tort and negligence; this part of the suit has been severed from the suit against Helena.

Helena submitted the following grounds in support of its summary judgment motion:

(1) The acts of Joe and Pam were not in the course and scope of their employment nor authorized or ratified by Helena. Helena derived no benefit from the conduct of Joe and Pam.
(2) Helena breached no duty owed to Allison and Robert because Helena obtained no information from which it knew or should have known of the relationship between Joe and Pam.
(3) Under various alleged theories, Plaintiffs are basically bringing a cause of action for alienation of affection, and, therefore, said cause is barred by Family Code § 4.06 (Vernon 1976) [sic].

Since the order of the trial court does not state the specific grounds on which it was granted, appellants must show that each independent argument alleged in Helena’s motion for summary judgment is insufficient to support the trial court’s order. McCrea v. Cubilla, Condominium Corp., 685 S.W.2d 755, 757 (Tex.App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.); Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889, 891 (Tex.App.—El Paso 1983, no writ).

Appellants’ points of error are as follows: Point of error one:

“The trial court erred in granting the summary judgment.”

Point of error two:

The movant was not entitled to summary judgment because:
(1) The claims of Robert and Allison are not barred as a matter of law by Tex. Fam.Code § 4.06;
(2) The following fact issues, which must be submitted to the jury, remain in the case:
(a) whether Helena ratified the illicit conduct of Joe and Pam;
(b) Helena’s negligent performance of its duties to Robert and Allison imposed by Kelsey-Seybold Clinic v. Maclay1 by its vice principals;
(c) Helena’s conduct as intentional, extreme and outrageous;
*37(d) Helena’s breach of duty resulting in negligent infliction of emotional distress;
(e) Helena’s special relationship with Robert and Allison’s putting it in a fiduciary capacity;
(3) The motion for summary judgment was used to circumvent the special exception practice. Helena challenged the sufficiency of the pleadings by summary judgment instead of by special exceptions, as required by the rules;
(4) Helena did not provide evidence in its summary judgment evidence by Tipton that all officers and directors of Helena did not know of the conduct between its vice-president, Joe, and its executive secretary, Pam;
(5) Helena did not raise an affirmative defense in its answer that Helena did not • ratify the conduct of its vice-president, Joe, or its executive secretary, Pam.

Helena alleges that Allison’s and Robert’s positions are merely an attempt to skirt the Texas statutory prohibition against suits for alienation of affection.2 Effective September 1, 1987, the Texas Legislature abolished the cause of action once known as alienation of affection. Tex.FaM.Code Ann. § 4.06 (Vernon 1993). It is appellants’ position that section 4.06 only bars a right of action for the “intentional” tort of alienation of affection by one spouse against a third party. Appellants contend that they have not sued Helena for alienation, saying that their suit is distinguishable in that appellants seek to hold Helena responsible for “negligent interference with family relations.” Appellants contend that a cause of action for alienation of affection is an intentional tort, arising out of the impairment of consortium between the spouses of a marriage, whereas the cause of action for interference with family relations alleged against Helena is a tort for negligence and that Helena had a duty to use reasonable means at its disposal to prevent any partner, vice principal or employee from improperly using his position with Helena to work a tortious invasion of legally protected family interests. In support of their position appellants cite Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716, 720 (Tex.1971), and Turner v. PV International Corp., 765 S.W.2d 455, 467 (Tex.App.-Dallas 1988), writ denied per curiam, 778 S.W.2d 865 (Tex.1989).

Apparently Kelsey-Seybold Clinic does recognize a distinction between the two causes of action, when the supreme court declares: “... the Clinic owed a duty to the families of its patients to exercise ordinary care to prevent a tortious interference with family relations.” Id. at 720. Consequently, there is such a cause of action. Appellees argue that Kelsey-Seybold is limited (1) to the doctor/patient context or (2) to the partnership organization. We do not find such a limitation. See also Transportation Ins. Co. v. Archer, 832 S.W.2d 403, 405 (Tex.App.—Fort Worth 1992, writ denied) (no right of recovery for damages for interference with familial relationships as between husband and wife that does not rise to the level of loss of consortium).

As in Kelsey-Seybold, there are numerous fact questions in this case. Some of those are:

a. What acts were Joe Golias and Pam Snyder committing on corporate property and corporate time?
b. What did Tipton or Ann Golias3 know about the relationship and when did they know it?
e. What did Tipton or Ann Golias do about the relationship, if anything?
*38d. What should have Tipton or Ann Goli-as done about the relationship, if anything?

Since there are issues of material fact to be determined, summary judgment was improper. The case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

. 466 S.W.2d 716 (Tex.1971).

. Appellees question the role of government (the courts) in intruding into the workplace. However, the workplace should be just that, a place where employees perform the usual duties of their jobs. Spouses should be secure in the knowledge that employers will not condone the type activity involved in this case between its employees. Spouses should be secure in the knowledge that when employers discover those type of activities are happening on their premises or during working hours, those employers will take reasonable steps, within their means, to prevent a tortious invasion of the family interest. Spouses should be secure in the knowledge that when employers breach this duty, courts will provide a remedy.

. Tipton and Ann Golias are Joe’s parents. They are both vice principals of Helena. Tipton is the corporation's president and chairman of the board.