HEATHER TENINI KUENTZ, INDIVIDUALLY, AS PERSONALREPRESENTATIVE OF THE ESTATE OF ROBERT MICHAEL KUENTZ, DECEASED, AND AS NEXT FRIEND OF B.M.K., A MINOR, LARRYMICHAEL "ROBERT" KUENTZ AND SANDRA KUENTZ, Appellants
COLE SYSTEMS GROUP, INC. D/B/A THE COLE GROUP, Appellee
Opinion of July 20, 2017 Withdrawn
Appeal from the 269th District Court Harris County, Texas
Trial Court Cause No. 2013-45172
consists of Justices Boyce, Busby, and Wise.
overrule appellants' motion for rehearing, withdraw our
opinion of July 20, 2017, and issue this substitute opinion
in its place.
months after being rehired by a car dealership, a salesman
shot and killed his sales manager at work. The appellants,
the manager's family, sued the salesman, several
dealership-related entities, and the appellee, an employment
screening company that performed a pre-employment background
check on the salesman. The trial court granted the employment
screening company's traditional and no-evidence summary
judgment motion on the appellants' negligence claims. On
appeal, the appellants contend that under the circumstances
of this case, the company had a duty to exercise reasonable
care in performing its background screening and to disclose
what it actually knew about the salesman to the dealership.
The appellants also contend that that they presented legally
sufficient evidence that the company breached its duties and
that its negligence proximately caused the sales
manager's death. We affirm.
Factual and Procedural Background
2012, Robert Kuentz was working as a sales manager for Mac
Haik Chevrolet, Ltd. at its car dealership on the Katy
Freeway in Houston. Keith Grimmett worked there as a
salesman. On November 30, 2012, one day after a
confrontational sales meeting, Grimmett went to Kuentz's
office, pulled out a gun, and shot him in the neck. Kuentz
was taken to the hospital, where he died on December 3, 2012.
Grimmett was later indicted and pleaded guilty to first
degree murder. He is currently in prison serving a life
Systems Group, Inc., d/b/a The Cole Group (Cole), is a
pre-employment background screening company hired by Mac Haik
to screen individuals applying for employment at the
dealership. In exchange for an $85 fee, Cole would perform a
set of services consisting of an interview of the applicant,
a criminal records check of the counties in which the
applicant lived and worked, a drug test, and a social
security verification. Cole also provided a report
summarizing the results of the screening to Mac Haik, but did
not make hiring recommendations.
2006, Grimmett applied for a position as a car salesman at
Mac Haik. Cole screened Grimmett at Mac Haik's request.
Cole reported that Grimmett's drug test was negative and
that no criminal records on Grimmett were located. Cole also
reported an inconsistency in Grimmett's answers regarding
the reason he left his job at Don Brown Chevrolet in 2005.
Grimmett was hired, but he eventually left Mac Haik on good
terms and was considered eligible for rehire.
leaving Mac Haik, Grimmett moved to Missouri, where he worked
at other car dealerships. In early 2012, Grimmett returned to
Houston and applied for a sales job at Allen Samuels
Chevrolet. Allen Samuels also used Cole's services and
referred Grimmett to Cole for screening. Cole performed its
standard services and provided Allen Samuels with a report of
its findings. Allen Samuels hired Grimmett, but he quit after
a short time.
August 2012, Grimmett re-applied with Mac Haik for a sales
job. After completing Mac Haik's rehiring process,
Grimmett was again referred to Cole for screening. Cole
reported that Grimmett's social security number had been
verified, his drug test was negative, and there were no
criminal records found in Harris County or in the two
counties in Missouri where Grimmett had lived and worked.
Cole also reported that certain answers Grimmett provided
during his interview were inconsistent with information he
had provided previously. Specifically, Cole reported that
Grimmett: had been terminated from Mid Rivers Chrysler Jeep
after he told the used car manager not to yell at him; had
left his job at Don Brown Chevrolet under what he called a
"mutual agreement" after a customer complained that
he was unprofessional; and stated that his position at a
jewelry store extended through August 2011 when it actually
ended in June 2010.
contrary to the information Cole learned from Grimmett and
reported to Mac Haik, Grimmett represented to Mac Haik in his
employment application that he had never been fired from a
job or asked to resign. Grimmett also misstated the duration
of his employment with one employer, which masked an extended
gap in his employment history. Terry Shields, the president
of Mac Haik Automotive and the Mac Haik officer tasked with
ultimate hiring authority for rehires like Grimmett,
confirmed that providing false or misleading information in
the application process was a ground for Mac Haik to deny or
terminate employment. And, Susan Hensley, Mac Haik's
director of human resources, testified without contradiction
that it was Mac Haik's responsibility to verify the
details of a potential employee's previous employment.
Nevertheless, when questioned about the discrepancies
identified in Cole's report, Shields stated that he was
sure Mac Haik "didn't look quite as hard" at
Grimmett's application because Grimmett had worked for
Mac Haik before. Shields did not know if any managers or
human resources personnel ever followed up on the information
Cole provided, and there are no records showing that Mac Haik
investigated Grimmett further. Nor did Mac Haik request any
additional services from Cole.
employed as a car salesperson, Grimmett was required to be
licensed by the City of Houston. To obtain a license,
Grimmett was required to pass yet another criminal records
search-this one performed by the Houston Police Department
using the non-public Federal Bureau of Investigation database
to locate "[a]ny offense involving violence to any
person." Grimmett was issued a license.
largely on Grimmett's positive employment history with
the company, Mac Haik rehired Grimmett. Three months later,
Grimmett killed Kuentz.
Heather Tenini Kuentz, Kuentz's widow, sued several Mac
Haik entities and Cole for negligence and gross negligence on
behalf of herself, Kuentz's estate, and their minor
child. She also sued Grimmett for compensatory damages as a
result of his conduct. Robert Kuentz's parents intervened
in the lawsuit to assert their claims as wrongful death
discovery, Cole and the Mac Haik entities moved for summary
judgment. Cole filed a combined traditional and no-evidence
summary judgment motion challenging each element of the
appellants' negligence and gross negligence claims.
First, Cole asserted that it owed no duty to Kuentz as a
matter of law, whether generally or based on a negligent
undertaking theory; there was no evidence that Cole breached
any duty; and no evidence that Cole's actions proximately
caused Kuentz's death.
appellants filed a response in opposition, and both parties
submitted substantial evidence in support of their respective
positions. Cole also filed objections to several of
Kuentz's exhibits, including the affidavits of
Kuentz's experts. The trial court held a hearing and took
the motions under advisement.
November 4, 2015, the trial court signed a "Partial
Judgment" in Cole's favor. By separate orders, the
trial court partially granted and partially denied the motion
filed by the Mac Haik entities, leaving the primary Mac Haik
defendants in the case for trial.
and Mac Haik moved jointly to sever the claims against Cole
and to abate the trial to facilitate appellate review of the
summary judgment ruling. The trial court denied the joint
motion. The appellants then non-suited their claims against
Mac Haik and Grimmett without prejudice, making the order
granting summary judgment in favor of Cole final and
Issues on Appeal
sustain their negligence claims, the appellants were required
to present evidence that Cole violated a legal duty owed to
Kuentz, a breach of that duty, and damages proximately caused
by that breach. See, e.g., Nabors Drilling,
U.S.A. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). The
appellants challenge the trial court's ruling as to each
of these elements of their claims.
their first issue, the appellants argue that Cole owed a duty
to exercise reasonable care in its screening of potential
employees on behalf of Mac Haik based on two negligent
undertaking theories, and a theory that Cole owed a duty to
disclose what it actually knew about Grimmett. Because Cole
owed no legal duty to undertake additional duties beyond
those it affirmatively agreed to perform for Mac Haik, and
there is no evidence that Cole negligently performed the
duties it affirmatively agreed to undertake, we hold that the
trial court did not err by granting summary judgment on the
appellants' claim that Cole violated a legal duty owed to
Kuentz, and do not reach the appellants' remaining
Standard of Review
review the trial court's grant of summary judgment de
novo. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005). In reviewing either a traditional or a
no-evidence summary judgment motion, we take as true all
evidence favorable to the nonmovant and we indulge every
reasonable inference and resolve any doubts in the
nonmovant's favor. Navy v. Coll. of the
Mainland, 407 S.W.3d 893, 898 (Tex. App.-Houston [14th
Dist.] 2013, no pet.).
an adequate time for discovery, a party without the burden of
proof may, without presenting evidence, seek summary judgment
on the ground that there is no evidence to support one or
more essential elements of the nonmovant's claim or
defense. Tex.R.Civ.P. 166a(i). A no-evidence motion for
summary judgment must be granted if: (1) the moving party
asserts that there is no evidence of one or more specified
elements of a claim or defense on which the adverse party
would have the burden of proof on at trial and (2) the
respondent produces no summary judgment evidence raising a
genuine issue of material fact on those elements.
Navy, 407 S.W.3d at 898; see Tex. R. Civ.
P. 166a(i). The evidence raises a genuine issue of fact if