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Maher v. Herrman2/14/2002
Introduction
The Maher Law Firm and Constance Maher sued Regina Elkins, a former employee, to collect on an alleged loan and for slander, intentional infliction of emotional distress, and civil conspiracy. In the same action, Maher lodged slander, intentional infliction of emotional distress, and civil conspiracy claims against David E. Herrman and Herrman & Herrman, L.L.P., Elkins's present employers. The trial court entered an order granting defendants' summary judgment on the slander, intentional infliction of emotional distress, and civil conspiracy claims. Maher appeals that order in seven issues, alleging that the trial court erred in granting the summary judgment because: (1) there is some evidence that suit was brought under an assumed name and therefore not barred by the statute of limitations; (2) there is some evidence of misidentification of the plaintiff that worked to toll the statute of limitations; (3) there is a fact issue as to either the applicability of the discovery rule or the date on which the statutes of limitations were triggered for the various claims; (4) there is a fact issue as to fraudulent concealment; (5) the summary judgment motion did not address the later-added conspiracy claim; (6) there is a fact issue as to the date of the last act in furtherance of the alleged conspiracy; and (7) there is a fact issue as to when the slander and intentional infliction of emotional distress occurred. We affirm in part and reverse and remand in part.
Background Facts
Maher employed Elkins as a paralegal in her Arlington law firm. In November 1995, Maher gave Elkins $5500. Within a month of receiving the money, Elkins left Maher and began working for Herrman & Herrman. While Maher classified the check as a loan, Elkins contended that it was a bonus. In its findings in conjunction with Elkin's claim for unpaid wages, the Texas Employment Commission determined that the $5500 Elkins received was an annual bonus.
While with Herrman & Herrman, Elkins called at least one of Maher's clients for the purpose of recruiting the client for her new employer. David Herrman, a partner of Herrman & Herrman, subsequently spoke with the client about the matter for which Maher represented the client. According to the client, both Elkins and Herrman claimed that Maher lies to her clients, had ten malpractice suits pending against her, was facing disbarrment, and would be unable to properly handle the client's case.
In June 1996, Maher hired Stacey Alfonso as a legal assistant. Maher fired Alfonso after one month of work, citing client complaints about Alfonso. The day that she was fired, August 20, 1996, Alfonso accepted an offer to work for Herrman & Herrman. Three days after she was fired, Alfonso filed a grievance against Maher with the State Bar of Texas. The State Bar's investigation pursuant to that grievance found no violations. Maher claims that she had no idea that Alfonso was employed by Herrman & Herrman until Alfonso was deposed for an unrelated lawsuit on February 26, 1999.
Procedural History
Through the course of litigation, the parties and allegations changed significantly. The Maher Law Firm, a Texas Corporation filed the original petition on June 7, 1996. Elkins and the Texas Employment Commission were named defendants and the only legal claims pertained to Elkins's failure to repay alleged loans. On August 8, 1996, the Maher Law Firm amended its original petition to include David Herrman and Herrman & Herrman as defendants and to include a claim of slander per se with malice. The trial court entered an order of non-suit as to the Texas Employment Commission on November 5,
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