Souder v. Cannon

• Decision Date: 06 September 2007
• Docket Number: No. 2-06-378-CV.,2-06-378-CV.
• Citation: 235 S.W.3d 841
• Parties: Bill SOUDER, Immediate Past Mayor of the City of Hurst, Texas, Richard Ward, Mayor of the City of Hurst, Texas, Charles Swearengen, Mayor Pro Tem of the City of Hurst, Texas, Larry Kitchens, City Council Member, of the City of Hurst, Texas, Henry Wilson, City Council Member of the City of Hurst, Texas, Bill McLendon, City Council Member of the City of Hurst, Texas, Anna Holzer, City Council Member of the City of Hurst, Texas, Allan Weegar, City Manager of the City Of Hurst, Texas, Allan Heindel, Deputy City Manager of the City of Hurst, Texas, and Eric Johnson, Project and Facilities Manager for the City of Hurst, Texas, Appellants, v. Charlie CANNON, pro se, d/b/a Charlie Cannon Contracting and Ted Doolan, Appellees.
• Court: Texas Court of Appeals

235 S.W.3d 841

Bill SOUDER, Immediate Past Mayor of the City of Hurst, Texas, Richard Ward, Mayor of the City of Hurst, Texas, Charles Swearengen, Mayor Pro Tem of the City of Hurst, Texas, Larry Kitchens, City Council Member, of the City of Hurst, Texas, Henry Wilson, City Council Member of the City of Hurst, Texas, Bill McLendon, City Council Member of the City of Hurst, Texas, Anna Holzer, City Council Member of the City of Hurst, Texas, Allan Weegar, City Manager of the City Of Hurst, Texas, Allan Heindel, Deputy City Manager of the City of Hurst, Texas, and Eric Johnson, Project and Facilities Manager for the City of Hurst, Texas, Appellants, v. Charlie CANNON, pro se, d/b/a Charlie Cannon Contracting and Ted Doolan, Appellees.

No. 2-06-378-CV.

Court of Appeals of Texas, Fort Worth.

September 6, 2007.

Rehearing Overruled October 4, 2007.

Harrison & Steck, P.C., Henry E. Steck and Stephen D. Harrison, Fort Worth, for Appellants.

Lin Morrisett, Fort Worth, for Appellees.

PANEL B: LIVINGSTON, WALKER, and McCOY, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellants Allan Weegar, Richard Ward, Allan Heindel, Eric Johnson, Charles Swearengen, Larry Kitchens, Henry Wilson, Bill McLendon, Anna Holzer, and Bill Souder, all of whom are city officials¹ in Hurst, Texas, filed this interlocutory appeal from the trial court's denial of their motion for summary judgment based on the affirmative defense of official immunity. In three issues, appellants argue that the trial court erred by denying their motion for traditional summary judgment and by overruling several of their objections to the summary judgment evidence of appellees Charlie Cannon² and Ted Doolan. We reverse and render in part and affirm and remand in part.

II. Background Facts and Procedural History

In December 2001 and April 2002, respectively, the City of Hurst ("City") contracted with Owen Commercial Construction, Inc. ("Owen CC") to perform construction work on two projects, the Hurst Athletic Center ("HAC") and the Hurst Main Fire Station addition ("Fire Station"). Owen CC, as principal, and Commercial Indemnity Insurance Company, as surety, executed a payment bond for the projects.³

The City did not enter into a contract with either appellee. Appellee Ted Doolan is a subcontractor who contracted with Owen CC in December 2001 and in May 2002 to complete electrical work on the HAC and at the Fire Station, respectively. Appellee Charlie Cannon is a subcontractor who contracted with Owen CC in July 2002 to complete masonry work on the HAC. Owen CC failed to pay appellees for the work they did in relation to the Hurst projects. According to appellees, they and the other subcontractors told Johnson, the project manager for the City, that Owen CC was not paying its subcontractors, and in response, Johnson directed them to contact the bonding company regarding any and all payment issues. Further, Jeff Young, Owen CC's project manager for the Hurst projects, testified in his affidavit that he told appellants Johnson, Weegar, and Heindel that Owen CC was not paying its subcontractors, but the City continued to pay Owen CC for six months.

Owen CC ultimately failed to complete the construction of the projects, and in April 2003, the City terminated its contracts with Owen CC. City officials held a meeting with Owen CC's subcontractors in which they informed the subcontractors of the contract termination and told them "not to set foot" on any of the job sites. As a result, the subcontractors could not access their supplies, which were located on the job sites in locked storage containers. Appellees assert that the City used these supplies to finish the projects without compensating the original subcontractors.

After the City terminated its contract with Owen CC, Owen CC went out of business, and Commercial Indemnity Insurance Company, the surety executing the bond payment, went into receivership.⁴ After terminating the Owen CC contracts, the City retained another general contractor to complete the construction of the projects.⁵ Appellee Cannon filed suit against both Owen CC and the City in December 2003, alleging fraud, negligence, and breach of fiduciary duty; Cannon later added appellants to the suit. The City filed a plea to the jurisdiction, which the trial court granted, ultimately disposing of Cannon's claims against the City itself.

On January 10, 2006, appellants filed a motion for summary judgment claiming that they were protected from Cannon's claims by official immunity. Doolan joined the suit shortly thereafter as a plaintiff. Then, after receiving a barrage of motions and responses, and after holding a hearing on appellants' motion for summary judgment, the trial court denied appellants' motion, concluding that appellees presented more than a scintilla of evidence that raised a fact issue as to the existence of good faith. Appellants filed this interlocutory appeal, claiming that appellees' causes of action against them are barred by official immunity and that the trial court therefore erred by denying their motion for summary judgment.⁶

III. Standard of Review

A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); see TEX.R. CIV. P. 166a(b), (c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. IHS Cedars Treatment Ctr., 143 S.W.3d at 798.

A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); see TEX.R. CIV. P. 166a(b), (c). To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. IHS Cedars Treatment Ctr., 143 S.W.3d at 798. We discuss these standards in the context of official immunity later in our opinion.

IV. Admission of Summary Judgment Evidence

In their third issue, appellants argue that the trial court erred by overruling several of their objections to appellees' summary judgment evidence. Because the trial court's admission of appellees' evidence affected its decision to deny appellants' summary judgment motion, we address the third issue first.

At the June 9, 2006 hearing on appellants' motion for summary judgment, appellees offered numerous affidavits and documents in support of their argument that summary judgment based on official immunity was not proper. In response, appellants submitted twenty-four written objections; the trial court sustained thirteen and overruled eleven objections. Appellants argue that the trial court erred by overruling their remaining eleven objections to appellees' evidence.

A. Objection to Exhibit B-6

Appellees offered, and the trial court admitted, Exhibit B-6, a four-page exhibit composed of copies of original petitions that Cannon obtained from the Tarrant County District Clerk's office. Exhibit B-6 contains two pages of an original petition filed by Arlington Brick & Supply, Inc. against Owen CC on December 12, 2002; the petition alleges that Owen CC breached its fiduciary duty by failing to pay Arlington Brick & Supply, Inc. for "projects." The exhibit also contains two pages of a petition filed by North Texas Concrete Structures, Inc. against Owen CC and the City on August 1, 2005; the petition alleges that the City failed to obtain and maintain a payment bond for the protection of subcontractors and that Owen CC failed to pay its subcontractors.

Appellants objected to the admission of this exhibit, arguing that the two petition excerpts were hearsay documents and may not even have been related to the HAC and Fire Station projects. Appellees did not respond to the hearsay portion of appellants' objection, but the trial court overruled the objection and considered this evidence in evaluating the motion for summary judgment.

At least two appellate courts have held that pleadings from other lawsuits are proper summary judgment evidence. See Murillo v. Valley Coca-Cola Bottling Co., 895 S.W.2d 758, 761 (Tex.App.-Corpus Christi 1995, no writ); Kazmir v. Suburban Homes Realty, 824 S.W.2d 239, 244 (Tex.App.-Texarkana 1992, writ denied); see also Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276-77 (1961) (court records from other cases are acceptable summary judgment evidence). Kazmir involved a defendant who had participated in previous lawsuits. 824 S.W.2d at 244. In a separate suit brought by a new party, the plaintiff sought to introduce the pleadings from the defendant's previous litigation as summary judgment evidence. Id. The Kazmir court stated that "court records from other cases are acceptable summary judgment evidence," and the court considered the pleadings as proper evidence. Id.

For court records to be admissible as evidence in support of a motion for summary judgment, however, copies of the records must be certified and attached to the motion. See Gardner, 345 S.W.2d at 276-77; see also Spencer v. City of Dallas, 819 S.W.2d 612, 615-18 (Tex.App.-Dallas 1991, no writ) (requiring nonmovant to meet same evidentiary principles as movant when submitting response to summary judgment). Here, neither of the petitions from the other lawsuits that appellees attached to their summary judgment response appear to be certified. Therefore, the trial court should not have considered them as summary judgment evidence. See Gardner, 345 S.W.2d at 276-77. In any event, both...