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On August 31, 2016, Foremost filed a motion for partial summary judgment—on traditional and no-evidence grounds—on Du Bois' claims for (1) breach of fiduciary duty, (2) intentional infliction of emotional distress, (3) breach of contract, money had and received and unjust enrichment based on Du Bois' claim she was owed bonuses, (4) breach of contract, money had and received and unjust enrichment based on Du Bois' claim she was entitled to receive the Electronic Health Record (EHR) Attestation incentives. A no-evidence challenge will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. In response to Foremost's second motion for summary judgment, Du Bois presented nine documents.
On the morning of the hearing on Foremost's motion, Du Bois filed a response and an amended petition asserting the following causes of action: (1) breach of contract, (2) wrongful termination for allegedly reporting ethical and legal violations to governing authorities, (3) violations of the Texas Whistleblower Statute, (4) violation of Chapter 61 of the Texas Labor Code/ Texas Pay Day Act, (5) unjust enrichment, (6) conversion, (7) money had and received, (8) intentional infliction of emotional distress, (9) breach of fiduciary duty, (10) fraud in the inducement, (11) defamation, and (12) conspiracy to commit the aforementioned offenses. Du Bois does not direct this Court to a place in the record where she filed an affidavit or verified motion for continuance of the summary judgment hearing, nor did we locate either when reviewing the record. The rule does not reintroduce evidentiary demurrer practice, but requires the motion to be “specific in challenging the evidentiary support for an element of a claim or defense,” and the rule “does not authorize conclusory motions or general no-evidence challenges to an opponent's case.” See id. Foremost's motion for no-evidence summary judgment addresses Du Bois' claims for wrongful termination, violation of the Texas Whistleblower Act, defamation, conspiracy, breach of fiduciary duty, breach of contract, conversion, and fraudulent inducement, and request for exemplary damages. They are: two versions of Exhibit A to her Employment Agreement for Services, which sets forth compensation, the only difference in which appears to be the calculation of base compensation due to Foremost moving from 24 to 26 pay periods; Du Bois' notice of intention to take the oral deposition of David Hobson, M. (a doctor affiliated with Foremost) and request for production of documents; letter from Curt Baggett, a purported handwriting expert, stating someone forged Du Bois' signature on documents Q1 and Q2, which are not attached to his letter or otherwise identified; Texas Department of Public Safety registration; controlled substance registration certificate from the Drug Enforcement Administration; email from Du Bois to Foremost employees concerning her certifications; email from Foremost employee Brittnee Berry to various personnel concerning their failure to clock in and out for lunch and work; Texas Board of Nursing letter to Du Bois concerning her complaint about Brittnee Berry; and a document that appears to have been created by Du Bois concerning employment verification. We are aware that this holding has come under criticism recently.
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Du Bois, nevertheless, allowed her certification to prescribe controlled substances to expire.
While not required to do so, Foremost reminded Du Bois on April 27, 2015 that her controlled substance registration would expire on May 31, 2015.
This Court is limited to considering only the evidence before the trial court at the time of the summary judgment proceedings. The Employment Agreement specified that Foremost could terminate Du Bois if her controlled substances registration expires.
Du Bois' Employment Agreement required Du Bois to have a controlled substances registration. Putting aside any question surrounding the rule set forth in Brooks, we conclude that the trial court did not abuse its discretion in excluding Baggett's letter and the DEA and DPS certificates.