Mary Collins v. Sunrise Senior Living Management, Inc. and Nick Roccoforte--Appeal from 125th District Court of Harris County (Majority)

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State: Texas

Court: Texas Northern District Court

Docket No: 01-10-01000-CV

Case Date: 03/29/2012

Plaintiff: Mary Collins

Defendant: Sunrise Senior Living Management, Inc. and Nick Roccoforte--Appeal from 125th District Court of Har

Preview:Mary Collins v. Sunrise Senior Living Management, Inc. and Nick Roccoforte--Appeal from 125th District Court of Harris County (Majority)
Opinion issued March 29, 2012 In The Court of Appeals For The First District of Texas NO. 01-10-01000-CV Mary Collins, Appellant V. Sunrise Senior Living Management, Inc. and Nick Roccaforte, Appellees

On Appeal from the 125th District Court Harris County, Texas Trial Court Case No. 2008-49128

MEMORANDUM OPINION Plaintiff-appellant Mary Collins appeals here from a take-nothing judgment on a jury verdict in favor of the defendants-appellees Sunrise Senior Living Management, Inc. (SSLM) and Nick Roccaforte. We affirm. BACKGROUND Collins d/b/a Collins Home Healthcare provides personal care services for the elderly at independent and assisted living facilities in Houston. Beginning in 2004, she contracted with several families at Eden Terrace, an independent living facility in Kingwood, Texas that is managed by SSLM. In 2008, a family receiving services from Collins at Eden TerraceMr. and Mrs. Stivercomplained to the executive director Roccaforte that Collins was overcharging for services. This incident, in conjunction with other documented complaints about Collins's services, led to Roccaforte's banning Collins from the facilities and terminating her contracts with several residents.
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Collins sued SSLM and Roccaforte under tortious interference and defamation theories. The trial court entered judgment on the jury's verdict in the defendants' favor, and Collins appealed here on numerous legal and evidentiary theories. We begin with a summary of the trial evidence about the parties and the events that led to their dispute. A. Eden Terrace, Roccaforte, and Collins Eden Terrace has three campusesindependent living, assisted living, and dementia care. To be a resident in their independent living facility, each resident must sign a Residency Agreement that governs the terms of their leasing arrangement.[1] The typical Residency Agreement also directly addresses the issue of private duty aides: V. Private Duty Policy. You may, at your own expense, employ a private duty aide (e.g., private nurses, sitters, etc.), only with prior notice to the Community. Any private duty aide engaged by you will not become or be considered [SSLM]'s employee. You and the private duty aide will be required to follow the Community's policies and procedures concerning private duty aides and the aide maybe removed or excluded from the community for violation thereof. Roccoaforte testified that as executive director of Eden Terrace, he is "entrusted with an obligation and a responsibility to ensure the safety and welfare of all the residents and employees under [his] direction." He believes his "first priority to that community is the residents," and has been trained "that every resident should be treated with dignity and with respect, with compassion and with attention to detail." Those duties include being responsive and helpful when "a resident has a complaint or concern," and taking action "if there is an issue relating to a resident or a family member that . . . may be detrimental to their health or their care or may create some kind of a serious situation that we could avoid." Several family members of Eden Terrace residents testified that Roccaforte's understanding of his obligations was consistent with their expectations that Eden Terrace's management would act when necessary to ensure the welfare of residents and prevent their harm or exploitation. Collins's ability to contract to work on the premises of Eden Terrace was contingent upon her executing two agreements: "Private Duty Aide Acknowledgement & Indemnifications" and "Private Duty Aide Guidelines and Expectations." By executing the Acknowledgement and Indemnification form, Collins agreed that she would "follow the Private Duty Aide Guidelines and Expectations, and any other rules, regulations, policies, or procedures that [SSLM] or the community develops, now or in the future, about the conduct of Private Duty Aides and visitors on the community's premises." The Guidelines and Expectations set forth several behaviors required while providing services in a SSLM community, including (1) sign in and out at the desk every time she provided services at the community, (2) always wear a name badge, (3) remain in designated work areas at all times, and (4) not solicit business on the property. The Guidelines and Expectations further provide "that failure to follow the above guidelines may result in immediate loss of privileges to provide services to residents in th[e] community." B. Evidence of a History of Complaints and Concerns Related to Collins Although several residents' family members testified to having a good working relationship with Collins, there was evidence that Collins often refused to follow required procedures on the premises. Specifically, she refused on many occasions to sign in or out, and she did not always wear a name badge. Roccaforte also personally witnessed, and received reports from residents about, her soliciting clients at Eden Terrace. While Roccaforte testified to his belief that he could have banned Collins from the premises based on these infractions, they were not the determining factor in the later decision to do so. Rather, "[t]hose were factors that led up to an accumulation of issues relative to the reports that [he] had been receiving from families, residents, and other staff members." More significant in Roccaforte's mind were "other items relative to her potential mistreatment or potential, you know, rudeness and the way she presented herself to the residents." Eden Terrace kept "daily logs," which contained handwritten notes by various staff members about different types of "occurrences that happened on a daily basis," with sections for the date, subject matter, what happened, and what action was taken. Numerous daily logs entries from 2007 and 2008 memorializing complaints regarding Collins's treatment, lack of responsiveness, and strained interaction with both residents and employees of Eden Terrace were admitted into evidence. These included complaints about Collins's (1) failing to bring residents down for meals, (2)

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calling 911 and having a resident transported to the hospital without notifying Eden Terrace, (3) abandoning residents that were in her care at the front desk, (4) failing to contact a resident's family members after that resident suffered a fall, despite representing that she would, (5) exhibiting rudeness and hostility towards Eden Terrace staff, particularly when they tried to contact her on behalf of her clients, and (6) taking employee meals without asking. Carol Gross, an Eden Terrace employee, testified to being asked frequently by residents for assistance in locating or contacting Collins, and that Collins would become angry when Gross called her on behalf of residents. Gross also recited an incident in which Collins pushed on the back of a resident who was using a walker to get her to stand up straight, which Gross considered a "safety issue" because it could cause a fall. She considered Collins's treatment of the resident in that incident as unprofessional. C. Evidence About Complaints that Collins was Overcharging and Threatened the Stivers In April 2008, Mr. Stiver, an Eden Terrace resident, came to Roccaforte and Eden Terrace's business manager, Giannina, several times over a three-week period, expressing concern about the treatment he and his wife received from Collins. Mr. Stiver was "concerned about his finances" and relayed that he "had been spoken to in tones that were not the most appropriate; he had been afraid to work with her, and he also said that she had been demanding to be paid for services." Because one of Mr. Stiver's complaints was that he had been paying Collins weekly, but thought he was only supposed to be paying her monthly, Roccaforte offered to sit down with Mr. Stiver and Giannina to look over Mr. Stiver's checkbook. They did so, and confirmed that Mr. Stivers had been writing weekly checks to Collins in various amounts: $250, $300, $270, etc. When Mr. Stiver's told Roccaforte that he believed he had been overpaying, Roccaforte suggested that Mr. Stiver not immediately pay Collins, and let Roccaforte either talk to Mr. Stiver's family or look at the agreement with Collins to try to understand what the relationship and compensation was supposed to be. Roccaforte called the Housers, Mr. Stiver's daughter and son-in-law, to inquire about specifics of the agreement with Collins. Mrs. Houser explained to him that "her agreement with Ms. Collins was to care for her mom, maybe some bathing and also some medication management and that was an agreed upon price of $300 per month." The Housers then came to the Eden Terrace in person, reviewed Mr. Stiver's checks, confirmed to Roccaforte again that the amounts were inconsistent with their agreement and indicated that they planned to terminate the relationship with Collins. Roccaforte and Giannina investigated and prepared a note to their files documenting their meeting with the Housers and the evidence they reviewed indicating that Collins was being overpaid. That same note recommended that Eden Terrace have a nurse assess Mrs. Stiver to understand what kind of care she required and help transition the Stivers from Collins's care, since Mr. Stiver "is basically afraid of her and intimidated by her presence and style." Trianna Rickman, another Eden Terrace employee, testified that in the late-April 2008 timeframe, Mr. Stiver came to her upset because Collins had called that morning demanding to be paid. She then witnessed a confrontation between Collins and Mr. Stiver in the hallway during which Collins was asking for payment and then "raised her voice at him; and she said, if you don't pay me you are not going to get your medications back." Rickman later overheard Mr. Houser speaking on a cell phone to Collins, saying "if you don't bring those medications back now I am calling the police." The Housers' deposition testimony played at trial was consistent with Rickman's and Roccaforte's testimony. They both testified that they negotiated an agreement with Collins in February 2008 to provide monthly services to Mr. and Mrs. Stiver for $300.[2] Mr. Houser had a power of attorney over Mr. Stiver's financial affairs, and Collins was instructed to contact the Housers "in regards to any problems or issues that might develop with the Stivers." He testified that Collins never contacted the Housers about the Stivers needing increased care or notified them that Collins would be charging the Stivers additional money for her services. When Mr. Stiver initially began complaining to Mr. Houser about issues with Collins, Mr. Houser did not jump to conclusions; he believed that Mr. Stiver might be confused because they "knew of no other complaints" about Collins and knew that Mr. Stiver "had lost a certain capacity . . . [and] sometimes he misinterpreted things." Mrs. Houser similarly testified that she discounted early complaints from Mr. Stiver about Collins because she assumed they were
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related to his developing dementia. Mr. Houser immediately became concerned, however, when he witnessed an altercation between Mr. Stiver and Collins in which she threatened him with transfer from independent living to assisted living, which would have restricted his freedom. Mr. Houser testified that Mr. Stiver was scared and "visibly upset by the statements made by Collins" and he opined that her behavior was inappropriate and amounted to "mistreatment," especially given Mr. Stiver's "mental functional incapacity." Mrs. Houser likewise witnessed an argument between Collins and Mr. Stiver that she did not think was appropriate, but she did not view it as rising to the level of mistreatment. After the Housers met with Eden Terrace management and reviewed Mr. Stiver's checkbook, Mr. Houser called Collins, told her that her services were no longer needed, and requested the return of Mr. Stiver's medication. Collins responded that she would not return the medication until she was paid the money she was due for the Stivers' care. When Collins finally returned the medication, Mr. Houser wrote her a last check for $300. Both Housers testified that they believe Collins took advantage of Mr. Stiver's incapacity by overcharging him. D. The Revocation of Collins's Eden Terrace Privileges and the Dispute Giving Rise to this Lawsuit On April 30, 2008, Roccaforte informed Collins, in a meeting and with a letter, that her privileges at Eden Terrace were being revoked. Collins's tortious interference and defamation claims are based upon two letters Roccaforte wrote in conjunction with this decision: the letter informing Collins that her privileges were revoked ("Collins Letter"), and another letter given to three Eden Terrace residents who contracted with Collins ("Residents Letter"). The Collins Letter stated, in its entirety: Dear Ms. Collins: Over the last year the staff at Eden Terrace of Kingwood has had concerns with your responsiveness to our residents with whom you have provided services. It has also been reported to me on a number of occasions your rude and arrogant attitude toward our staff and their efforts to contact you when one of your clients is looking for you. This is not the type of relationship we seek with any service provider who has the privilege of working with our residents. I have personally discussed these and other issues with you over the last year. Recently I have been approached by employees, residents and family members regarding the way you and your employees provide service to and treat our residents. These complaints involve misconduct regarding not providing the services your have promised, not being available when called and/or providing and charging for services that were not requested. Of more concern is the reports I have received regarding your mistreatment, disrespect and threatening posture towards our residents regarding telling them who they can and cannot speak to, what they can say regarding your services and threatening to turn them in if they do not do as your [sic] say or pay your bill. Operating a business in this manner is not accepted here at Eden Terrace of Kingwood. The privilege you have enjoyed by being able to offer services to any resident at Eden Terrace is no longer available. Effective 05/01/08, Eden Terrace will no longer recommend your services and you are hereby given notice to vacate and not return to these premises, nor solicit any further business from our residents. You may have your mother, who is one of your employees, finish providing services to any and all residents you have an agreement with until 05/15/08. Between now and then, family members and residents will have 2 weeks to transition whatever services your company is providing to another company. We will notify residents here at Eden Terrace of the situation and assist them in finding another company. It is unfortunate this action must be taken, but necessary to protect our residents. Roccaforte gave this letter only to Collins, although two other Eden Terrace employees were witnesses to Roccaforte reading the letter to Collins. The Residents Letter, prepared to give notice to Collins's clients that she was no longer permitted to provide services on the premises, provided in its entirety:

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Mary Collins of "Collins Home Health" is an independent contractor who has had the privilege of offering a variety of services to our residents here at Eden Terrace of Kingwood. Unfortunately that privilege is being revoked as of 05/01/08 for serious allegations relating to misconduct and resident mistreatment. If you have an agreement or arrangement with this company for service please be advised that they will no longer be allowed to enter Eden Terrace of Kingwood to service any of our residents after 05/15/08. We will be happy to assist you in finding another service to address your needs. You can contact our Health Care Coordinator, Jackie Lorenz, RN, who can guide you to the appropriate service. We have a list of preferred providers that can be shared with you given your specific needs. Please make arrangements to transition from Collins Home Health as soon as possible and no later than 05/15/08. If you have any questions

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