Closs v. Goose Creek Consol. Independent School Dist.

• Decision Date: 12 April 1994
• Docket Number: No. 06-93-00045-CV,06-93-00045-CV
• Citation: 874 S.W.2d 859
• Parties: 90 Ed. Law Rep. 1283 Matthew CLOSS, Appellant, v. GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, et al., Appellees.
• Court: Texas Court of Appeals

Page 859

874 S.W.2d 859

90 Ed. Law Rep. 1283

Matthew CLOSS, Appellant, v. GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, et

al., Appellees.

No. 06-93-00045-CV.

Court of Appeals of Texas,

Texarkana.

Argued March 14, 1994.

Decided April 12, 1994.

James A. Drexler, Ayre, Sims & Associates, Houston, for appellant.

James B. Ewbank, II, Ewbank & Harris, Austin, Karen D. Matlock, Asst. Atty. General Chief, Enforcement Division, Austin, John Roberson, Hill, Parker & Johnson, Houston, for appellees.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

BLEIL, Justice.

Matthew Closs appeals from a take-nothing summary judgment dismissing all of his claims against the appellees. The issues on appeal are whether the trial court erred by denying Closs an opportunity for discovery; whether the evidence establishes that the appellees were entitled to summary judgment based on their assertions of immunity; and whether the trial court's order striking the affidavit of one of Closs's witnesses is defective because it fails to state good cause for imposing the sanction. ¹ We resolve these issues in favor of the appellees and affirm.

In 1988, Matthew Closs worked as the director of maintenance for Goose Creek Consolidated Independent School District (Goose Creek). Closs's wife at that time, Kathy Closs, notified the Harris County Sheriff's Department that her husband was involved in criminal activities, including stealing school district property and accepting kickbacks from contractors hired by the school district. David Maxwell, a Texas Ranger working for the Texas Department of Public Safety, investigated the allegations. Maxwell contacted the Harris County District Attorney's office. Assistant District Attorney Terry Wilson was interested in pursuing criminal charges against Closs. A search of the Closs home, pursuant to a search warrant, led to the seizure of equipment and other items belonging to the school district, and a Harris County grand jury issued subpoenas for records from the school district and other businesses related to Closs's activities. The school district's attorney, Richard Peebles, responded to the subpoenas and worked with the district attorney's office. The grand jury indicted Closs on theft charges, but the indictments were dismissed after Kathy Closs became an uncooperative and reluctant witness.

In connection with the criminal allegations, the school district conducted its own investigation. Goose Creek hired the law firm of Andrews & Kurth to review the charges against Closs. Based on the law firm's review, the school district proposed that Closs be fired. The school board held a hearing on July 11 and July 12, 1989, with Peebles advising the school board on evidentiary and procedural matters during the hearing. After the hearing, the school board voted to fire Closs because of his misconduct. Closs appealed his termination to the Texas Education Agency (TEA). Finding good cause for the termination, the Commissioner of Education upheld the school board's decision.

In 1990, Goose Creek adopted a vendor exclusion policy. This policy prohibited firms that had contracts with the school district and that hired former Goose Creek employees who had been fired for theft or misuse of school district property from assigning those former employees to work on school district projects. ² Closs was fired from his new job with a construction company that did work for the school district.

Closs sued Goose Creek, the school district trustees, Peebles, other school district officials and employees, and Maxwell on August 26, 1991. Closs's petition includes allegations of malicious prosecution, invasion of privacy, tortious interference with contract, civil conspiracy, and violations of his civil rights under the United States Code. 42 U.S.C.A. § 1983 (West 1981).

All of the defendants filed motions for summary judgment based on immunity and the statute of limitations. The defendants also filed a motion for sanctions, asking the trial court to strike the affidavit of Kathy Closs dated October 15, 1991, that was included in Closs's controverting summary judgment evidence because that affidavit was obtained by coercion. The trial court granted the joint motion for sanctions, struck Kathy Closs's October 1991 affidavit, and granted summary judgment to all of the defendants.

The function of a summary judgment is the elimination of patently unmeritorious claims or untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). A party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). A defendant moving for summary judgment can prevail by conclusively establishing against the plaintiff at least one factual element of each theory pleaded by the plaintiff, or by conclusively establishing every factual element of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Gibbs, 450 S.W.2d at 828.

A summary judgment may be based on the uncontroverted testimony of an interested witness if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and easily controverted. TEX.R.CIV.P. 166a(c). As for the nonmovant's ability to controvert the statements, this does not require

that the movant's summary judgment proof could have been easily and conveniently rebutted. Rather, it means that testimony at issue is of a nature which can be effectively countered by opposing evidence. If the credibility of the affiant or deponent is likely to be a dispositive factor in the resolution of the case, then summary judgment is inappropriate. On the other hand, if the non-movant must, in all likelihood, come forth with independent evidence to prevail, then summary judgment may well be proper in the absence of such controverting proof.

Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989). We view the evidence in the light most favorable to the nonmovant, and all doubts as to the existence of a genuine issue of material fact are resolved in the nonmovant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). The trial court did not specify the ground on which it relied in granting summary judgment; therefore, the summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

I. DISCOVERY

Closs contends that the trial court erred in granting the appellees' motions for summary judgment without first allowing him the opportunity to pursue discovery. Closs stated in his affidavit attached to his response to the motions for summary judgment that, if he could undertake discovery, he could disprove the defendants' denial of wrongdoing. ³

Rule 166a provides that

[s]hould it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

TEX.R.CIV.P. 166a(g). A request for a continuance pursuant to Rule 166a is a matter within the trial court's discretion, and the trial court's ruling will not be disturbed on appeal unless a clear abuse of discretion is shown. Kubinsky v. Van Zandt Realtors, 811 S.W.2d 711, 716 (Tex.App.--Fort Worth 1991, writ denied).

Closs filed his original petition in August 1991. The summary judgments were granted in early March 1993. Closs had an opportunity to develop the case through discovery. See Cedillo v. Jefferson, 802 S.W.2d 866, 868 (Tex.App.--Houston [1st Dist.] 1991, writ denied); Smith v. Christley, 684 S.W.2d 158, 161 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.). Closs complains that he was prevented from engaging in discovery. The trial court did not enter an order prohibiting discovery. The trial court entered a docket control order in November 1992; however, that order sets deadlines for discovery, but contains no prohibition against engaging in discovery.

Beyond a conclusory statement that he could procure controverting evidence, Closs did not specify what evidence he hoped to procure, did not detail its materiality, and did not provide the trial court with a compelling reason to grant a continuance so Closs could engage in discovery. See Wavell v. Roberts, 818 S.W.2d 462, 465-66 (Tex.App.--Corpus Christi 1991, writ denied); Draper v. Garcia, 793 S.W.2d 296, 301-02 (Tex.App.--Houston [14th Dist.] 1990, no writ). The trial court did not abuse its discretion by denying the motion for a continuance.

II. THE SUMMARY JUDGMENT EVIDENCE

Closs complains that the trial court erred in overruling his objections to the summary judgment evidence offered by the school district appellees and further erred in sustaining objections to Closs's controverting summary judgment evidence.

Closs objected to the affidavit of Harry Griffith, the superintendent of schools for Goose Creek, because the affidavit failed to state that it was based on personal knowledge. In Griffith's affidavit, he asserts that he is also the custodian of records for Goose Creek and authenticates various attached school district records as being true and correct copies of the original documents. See TEX.R.CIV.EVID. 902.

In a summary judgment, an affidavit does not need to specifically state that it is made on personal knowledge if, as here, statements in the affidavit clearly show that the affiant was speaking from personal knowledge. Krueger v. Gol, 787 S.W.2d 138, 141 (Tex.App.--Houston [14th Dist.] 1990, writ denied). Griffith's affidavit asserts that he is the superintendent and thus custodian of school district records. This...