Alejandro v. Bell
| Decision Date | 22 August 2002 |
| Docket Number | No. 13-01-00266-CV.,13-01-00266-CV. |
| Citation | 84 S.W.3d 383 |
| Parties | Jesus ALEJANDRO, Appellant, v. John D. BELL, Appellee. |
| Court | Texas Court of Appeals |
Victor C. Hernandez, Robstown, William J. Kolb, Alice, for Appellant.
Annette L. Smith Chepey, Frederick J. McCutchon, Robert C. Wolter, Wood, Boykin & Wolter, Corpus Christi, for Appellee.
Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.
This is an appeal from the trial court's order granting the motion for partial summary judgment of appellee, John D. Bell. By five points of error, appellant, Jesus Alejandro, contends the trial court erred in: (1) granting the motion for summary judgment and dismissing his lawsuit; (2) assessing sanctions against him because there is no evidence to support the sanctions; (3) refusing to rule on his objections to the summary judgment evidence; (4) refusing to rule on his special exceptions; and (5) granting the motion for summary judgment because it failed to specify the grounds. We affirm the trial court's summary judgment. We reverse the trial court's sanctions order and render judgment that appellee's motion for Texas Rule of Civil Procedure 13 sanctions is denied.
Appellant was employed by the Robstown Independent School District ("School District") as the Assistant Superintendent for Business and Finance. The School District terminated appellant's employment contract for the following reasons: (1) the issues raised in a Texas Education Agency Investigative Report; (2) the use of School District property for personal business; (3) the use of a School District computer to visit inappropriate Internet sites; and (4) the use of unauthorized telephone recording equipment. Appellant appealed his termination to the School District Board of Trustees ("Board"). The Board heard the appeal during a contested hearing held on October 29, 1999. Appellee was the School District's attorney at the hearing. The Board voted to uphold appellant's termination. After the termination was upheld by the Commissioner of Education, appellant sued the School District, the Superintendent, and certain Board members under the Texas Whistleblower Act, for wrongful termination. Appellant also sued appellee for misrepresentation.
Appellee filed a motion for partial summary judgment, asserting absolute privilege. As summary judgment evidence, appellee attached his own affidavit and relevant portions of the administrative record. On December 15, 2000, the trial court granted the motion for summary judgment, without stating its reasons. The court severed the case, making the summary judgment final for appeal purposes. Further, the trial court assessed Texas Rule of Civil Procedure 13 sanctions against appellant and his attorney in the amount of $1,500.00.
By his third point of error, appellant contends the trial court erred by refusing to rule on his objections to appellee's summary judgment evidence.
As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion, and (2) the trial court either expressly or implicitly ruled on the objection or refused to rule with the complaining party objecting to the refusal. Columbia Rio Grande Reg'l Hosp. v. Stover, 17 S.W.3d 387, 395 (Tex.App.-Corpus Christi 2000, no pet.). No written order overruling the objection is necessary if the record reflects that the trial court ruled on the party's objections, either explicitly or implicitly. Id. at 395-96.
The record shows the trial court refused to rule on appellant's objections to appellee's summary judgment evidence. Appellant complained in his motion for new trial of the trial court's refusal to rule. We hold appellant has preserved this complaint for our review. Id. at 395.
The admission or exclusion of summary judgment evidence rests in the sound discretion of the trial court. Creative Thinking Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 514 (). The test for determining if the trial court abused its discretion is whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). If the trial court acts in an arbitrary or unreasonable manner, it abuses its discretion. Id. That a trial court may decide a matter within its discretionary authority in a different manner than the appellate court does not demonstrate an abuse of discretion. Id.
To constitute competent summary judgment evidence, affidavits must be made on personal knowledge, setting forth such facts as would be admissible in evidence, and must affirmatively show that the affiant is competent to testify to matters stated therein. TEX.R. CIV. P. 166a(f); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). A summary judgment may be based on uncontroverted evidence if that evidence is clear, positive, direct, free from contradictions and could have been readily controverted. TEX.R. CIV. P. 166a(c); Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989); Montemayor v. Chapa, 61 S.W.3d 758, 762 (Tex.App.-Corpus Christi 2001, no pet.). Affidavits supporting a motion for summary judgment must set forth facts, not legal conclusions. Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex., 64 S.W.3d 506, 514 n. 6 (Tex.App.-Corpus Christi 2001, pet. denied). Statements based on subjective beliefs are no more than conclusions and are not competent summary judgment evidence. Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994).
Appellant specifically objected to the following two paragraphs in appellee's affidavit as being global and conclusory:
At all times since the commencement of the termination proceedings against Jesus Alejandro on or about August 26, 1999, I have been acting as attorney for Robstown Independent School District. All acts I have taken regarding the termination of Jesus Alejandro, and any statements I have made on that topic, have been in furtherance of my representation of Robstown Independent School District, either in a judicial or quasi-judicial proceeding, or in contemplation of such a proceeding.
* * * * * *
At all relevant times, any statements of fact that I have made on the topic of the Plaintiff's termination have been truthful and have been made in good faith and without ill will or malice of any kind. Any arguments I presented were made in the same way based on the applicable law and administrative regulations. This includes specifically all of my statements and conduct in the above-mentioned evidentiary hearing on October 25, 1999. As an attorney, it was my duty to advocate the position of Robstown Independent School District regarding the Jesus Alejandro termination.
After reviewing these two paragraphs, we conclude the first three sentences of the second paragraph are based on appellee's subjective belief and are not competent summary judgment evidence. See id. However, the remaining portions of these two paragraphs and the remaining portions of appellee's affidavit are competent summary judgment evidence.
Appellee's statements that he represents the School District as their attorney, and has represented the School District at all times since the commencement of the termination proceedings against appellant, establishes his competence to testify regarding the events prior to and during the proceeding at issue. Further, his personal knowledge as an attorney for the School District establishes his competence to testify regarding his representation of the School District. See Hood, 924 S.W.2d at 122. Finally, the facts set forth in the affidavit are admissible evidence. See Larson, 64 S.W.3d at 512.
We may not reverse for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment. See TEX.R.APP. P. 44.1; Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). The admission of incompetent evidence does not require reversal of a judgment if there is competent evidence to authorize its rendition. See Gillespie v. Gillespie, 644 S.W.2d 449, 450 (Tex.1982). After reviewing the competent summary judgment evidence in appellee's affidavit, we conclude that any error by the trial court in refusing to rule on appellant's objections to the affidavit was harmless. TEX.R.APP. P. 44.1; see Gillespie, 644 S.W.2d at 450. We overrule appellant's third point of error.
By his fourth point of error, appellant contends the trial court erred by refusing to rule on his special exceptions to appellee's pleadings.
The effect of the trial court not ruling specifically on the special exceptions, and granting the motion for partial summary judgment, was to overrule them. See Barnard v. Mecom, 650 S.W.2d 123, 125 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.). The trial court has broad discretion in ruling on special exceptions, and its ruling will not be disturbed in the absence of a showing of abuse of that discretion. See Kutch v. Del Mar Coll., 831 S.W.2d 506, 508 (Tex.App.-Corpus Christi 1992, no writ); Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820 (Tex. Civ.App.-Corpus Christi 1978, writ ref'd n.r.e.).
We have reviewed the special exceptions and conclude they are without merit. In his original answer and motion for partial summary judgment, appellee clearly identifies his affirmative defense of absolute privilege. Further, appellant has failed to show an abuse of discretion by the trial court. Thus, any error by the trial court in failing to rule on the special exceptions was harmless. TEX.R.APP. P. 44.1(a); see Barnard, 650 S.W.2d at 125. Appellant's fourth point of error is overruled.
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