Cedillo v. Ewlin Enterprises, Inc., 13-87-008-CV

• Decision Date: 30 November 1987
• Docket Number: No. 13-87-008-CV,13-87-008-CV
• Citation: 744 S.W.2d 217
• Parties: Maria Magdalena CEDILLO and Beatriz Virginia Garcia, Appellants, v. EWLIN ENTERPRISES, INC., Appellee.
• Court: Texas Court of Appeals

Page 217

744 S.W.2d 217

Maria Magdalena CEDILLO and Beatriz Virginia Garcia, Appellants, v. EWLIN ENTERPRISES, INC., Appellee.

No. 13-87-008-CV.

Court of Appeals of Texas,

Corpus Christi.

Nov. 30, 1987.

Rehearing Denied Feb. 11, 1988.

Brinkley K. Oxford, Joe P. Lopez, IV, Oxford & Oxford, Edinburg, for appellants.

Leo Salzman, Adams, Graham, Jenkins, Graham & Hamby, Harlingen, Neil Norquest, Ewers, Toothaker & Abbott, McAllen, for appellee.

Before NYE, C.J., and SEERDEN and UTTER, JJ.

OPINION

SEERDEN, Justice.

This is an appeal from a summary judgment granted to appellee Ewlin Enterprises, Inc. against appellants Maria Cedillo and Beatriz Garcia. We affirm.

Appellants brought suit against Ewlin Enterprises alleging causes of action for slander and sexual discrimination in violation of Tex.Rev.Civ.Stat.Ann. art. 5221k (Vernon 1987) (Commission on Human Rights Act), violations of Tex. Const. art. I, § 3a (Vernon 1984) and 42 U.S.C.A. § 2000e (1981), and denial of equal protection under the fifth and fourteenth amendments to the United States Constitution. Ewlin moved for summary judgment alleging that appellants' causes of action under article 5221k were barred by the statute of limitations. Ewlin's summary judgment evidence showed that appellants did not comply with the procedures set forth in article 5221k. Appellants do not complain on appeal that the trial court was incorrect in granting summary judgment on the limitations question.

The trial court's final judgment states that Ewlin was entitled to summary judgment on all liability issues raised. The Court also found that the Texas Constitution did not provide appellants with a legal remedy to address alleged human rights violations except through the Commission on Human Rights Act. The trial court also concluded that plaintiffs take nothing on their causes of action for libel and slander.

On appeal, appellants attack only the trial court's finding that appellants do not have a cause of action under Tex. Const. art. I, § 3a and that the Texas Equal Rights Amendment does not extend to the prohibition of sexual discrimination by a private employer. We first note that although the trial court's judgment finds that the Texas Constitution did not provide a remedy independent of Tex.Rev.Civ.Stat.Ann. art. 5221k, appellees did not specifically move for summary judgment on that ground.

It is a general rule that a movant in a summary judgment case must specifically set forth in its motion reasons that entitle it to summary judgment so that a nonmovant has an opportunity to respond and the reasons are called to the trial judge's attention. Vendig v. Traylor, 604 S.W.2d 424, 430 (Tex.Civ.App.--Dallas 1980, writ ref'd. n.r.e.). It is error to grant summary judgment where a motion fails to mention a theory of recovery. See id. at 430. However, appellants do not raise appellee's failure to move for summary judgment on its constitutional cause of action. We are unauthorized to reverse a trial court's judgment in the absence of properly assigned error. State Board of Insurance v. Westland Film Industries, 705 S.W.2d 695, 696 (Tex.1986). We will, therefore, review appellants' points of errors as they are presented.

By their first point, appellants challenge the trial court's holding that the Texas Equal Rights Amendment does not prohibit private acts of sexual discrimination. Tex. Const. art. 1, § 3a provides:

Equality under the law shall not be abridged because of sex, race, color, creed, or national origin. This amendment is self-operative. (Emphasis added).

This case turns on the question of whether the phrase "under the law" includes purely private conduct or whether governmental conduct needs to be present before the amendment is applicable. In Junior Football Association of Orange v. Gaudet, 546 S.W.2d 70, 71 (Tex.Civ.App.--Beaumont 1976, no writ), the court held that the phrase "under the law" required that the complained of discrimination included state action or private conduct that was encouraged or closely related in function with state action. The Gaudet court found that the State's chartering of the association as a non-profit corporation, the team's practicing on school grounds, and its playing in a city owned park were not state action or closely related in function to state action. Id. at 71.

In a more sophisticated analysis, the court in Lincoln v. Mid-Cities Pee Wee Football Association, 576 S.W.2d 922 (Tex.Civ.App.--Fort Worth 1979, no writ) reached the same result. The Lincoln court rejected the notion that the amendment should be applied only to those cases involving sexual discrimination via a statute, ordinance or public policy. Id. at 925. The court also rejected an interpretation which would encompass all forms of sexual discrimination, whether resulting from public or from purely private conduct. Id. There, the court held:

We do not believe "under the law" covers purely private conduct. We do not believe the Texas Era (sic) proscribes purely private sex discrimination. It is our opinion that the legislature and citizens of this state desired to distill the myriad of federal doctrines concerning discrimination into a single simplified guarantee of sexual equality in governmental and public affairs. We cannot believe that by enacting the amendment they intended to have their private conduct...