Sewell v. City of Odessa
| Decision Date | 30 April 2021 |
| Docket Number | No. 11-19-00121-CV,11-19-00121-CV |
| Parties | BOBBY SEWELL, Appellant v. CITY OF ODESSA, DC ORIS, JESSE DUARTE, DARYL SMITH, LESLIE GOODSON, JOE BARRERA, AND BILL CARPENTER, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 161st District Court Ector County, Texas
Appellant, Bobby Sewell, filed suit against the City of Odessa and six individuals employed by the City. Appellant was employed by the City in its animal control division. DC Oris, Jesse Duarte, Daryl Smith, and Leslie Goodson were police officers. Joe Barrera and Bill Carpenter were animal control officers. The trial court ultimately entered a final judgment that Appellant take nothing on his claims, and Appellant filed this appeal. Appellant challenges the trial court's judgment in nine issues. We affirm.
In his live pleading, Appellant alleged in his statement of facts that he was passed over for promotions in the animal control division. He also asserted that he previously had to serve a three-day suspension based upon Smith's actions. Appellant apparently also sought a job with the police department, but he alleged that Oris and others conspired with Appellant's ex-girlfriend to keep him from being admitted into the police academy. Appellant appears to have alleged these pre-discharge events in support of his claim for intentional infliction of emotional distress.
Appellant's statement of facts concluded with the matter that led to his resignation from the animal control division. He alleged that Goodson investigated him about his purchase of a house in 2015. Appellant alleged that Goodson violated his constitutional rights by not giving him Miranda rights prior to interviewing him about the purchase of the house. Appellant initially was suspended with pay after the interview with Goodson, and then later Appellant was arrested and indicted for the offense of forgery. Appellant alleged that Duarte persuaded him to resign after Appellant was released from jail.
Appellant pleaded seven causes of action that he referred to as "counts" against Appellees. In Count One, Appellant asserted a claim under 42 U.S.C. § 1983 against Oris, Smith, Goodson, and Duarte for "constructive discharge." He asserted that they constructively terminated him by forcing him to resign. In Count Two, Appellant asserted another Section 1983 claim against Oris, Smith, Goodson, and Duarte for "violations of constitutional rights." He alleged that all four of these individuals violated his due process rights. Appellant also alleged that Goodson violated his 5th Amendment rights against self-incrimination.
In Count Three, Appellant asserted a claim against all Appellees for intentional infliction of emotional distress. In Count Four, Appellant asserted a claim against the City for negligent hiring, training, supervision, and retention with respect to Oris, Smith, Goodson, and Duarte. In Count Five, Appellant alleged a claim of "respondeat superior" against the City with respect to the actions of Oris, Smith, Goodson, and Duarte. In Count Six, Appellant alleged a claim for slander against Barrera and Carpenter. Finally, in Count Seven, Appellant sought a declaratory judgment against all defendants seeking a declaration that their actions violated Appellant's rights.1
Appellees filed a motion for summary judgment that included grounds for a traditional summary judgment, a no-evidence motion for summary judgment, and a plea to the jurisdiction. Appellant filed a response to the motion for summary judgment that included objections to Appellees' summary judgment evidence. Appellant filed his own affidavit as his only item of summary judgment evidence. Appellees filed a motion to strike Appellant's affidavit.
In addition to filing a motion for summary judgment, the City also filed a motion to dismiss the individual claims against the city employees under Section 101.106(e) of the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) (West 2019). Appellees referenced their pending motion to dismiss in their motion for summary judgment. The trial court entered an order granting the City's motion to dismiss the claims against the city employees. However, Appellant does not challenge the trial court's order granting the motion to dismiss the claims against the individual defendants. On the same day that the trial court entered the order of dismissal, it also entered orders granting Appellees'motion to strike Appellant's affidavit and Appellees' motion for summary judgment. The trial court also entered a final judgment in favor of Appellees.
We review the trial court's grant of summary judgment de novo. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). However, a trial court's decision to exclude or admit summary judgment evidence is reviewed for an abuse of discretion. Id. (citing Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017)). In his first and second issues, Appellant challenges the trial court's rulings on objections to summary judgment evidence. Accordingly, we must determine if the trial court abused its discretion it its rulings on the summary judgment evidence. See id.; Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016) (). An abuse of discretion exists only when the court's decision is made without reference to any guiding rules and principles. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). "An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling." Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
When the trial court's order does not specify the grounds for its summary judgment, we will affirm it if any of the theories are meritorious. Knott, 128 S.W.3d at 216. Generally, if a party moves for summary judgment on both traditional and no-evidence grounds, we first consider the no-evidence motion. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).
After an adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). We review a no-evidence motion for summaryjudgment under the same legal sufficiency standard as a directed verdict. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Under this standard, the nonmovant has the burden to produce more than a scintilla of evidence to support each challenged element of its claims. Id. Evidence is less than a scintilla if it is "so weak as to do no more than create a mere surmise or suspicion" of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
A party moving for traditional summary judgment bears the burden of proving that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). To be entitled to a traditional summary judgment, a defendant must conclusively negate at least one essential element of the cause of action being asserted or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the movant initially establishes a right to summary judgment on the issues expressly presented in the motion, then the burden shifts to the nonmovant to present to the trial court any issues or evidence that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). In reviewing both traditional and no-evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the movant. Merriman, 407 S.W.3d at 248; City of Keller, 168 S.W.3d at 824.
Appellant's first issue concerns his objections to Appellees' summary judgment evidence. The rules of error preservation applicable during trial also apply in summary judgment proceedings. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161,164 (Tex. 2018) (per curiam) (). When a summary judgment affidavit suffers from a defect in form, a party must object to the formal defect and secure a ruling from the trial court to preserve error. Id. at 166; see TEX. R. APP. P. 33.1; TEX. R. CIV. P. 166a(f). With one exception, Appellant objected to Appellees' summary judgment affidavits on the ground that they contained hearsay. An objection that an affidavit contains hearsay is an objection to a defect in the form of the affidavit. S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 855 (Tex. App.—Dallas 2011, no pet.). Appellant's hearsay objections were not preserved for our review because the record does not reflect that the trial court ruled on the objections.
Appellant also objected that Goodson's affidavit was conclusory. Objections that statements in an affidavit are conclusory assert defects of substance, which may be raised for the first time on appeal. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. denied). A statement is conclusory if it does not provide the underlying facts to support the conclusion. Id. Goodson was the detective that interviewed Appellant about his actions in regard to the purchase of the house. This interview was the event...
To continue reading
Request your trial