TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00186-CV
Linda Uballe, Appellant
v.
Ryan Trimble, Bob Bindseil, Richard Culpepper, Tommy Giambernardi,
and The City of Blanco, Appellees
&
NO. 03-98-00187-CV
Randall Stiles, Appellant
v.
Ryan Trimble, Bob Bindseil, Richard Culpepper, Bob Johnson,
and The City of Blanco, Appellees
NOS. 4119 & 4120, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING
FACTUAL AND PROCEDURAL BACKGROUND
Uballe was employed by the City of Blanco in March 1987 and held several positions before being appointed city clerk. Uballe's husband was an elected member of the city council. After Uballe and her husband had professional disagreements with appellee Trimble, Mayor of Blanco, concerning the dismissal of other City of Blanco employees, Uballe herself was terminated by the Blanco City Council on July 9, 1991. Stiles was employed as chief of police in February 1991. After some disputes with Trimble concerning overtime pay, Stiles's method of compensation was changed from hourly pay to an annual salary. Stiles was subsequently terminated by the City of Blanco on January 14, 1992. When the events on which appellants based their suits occurred, Trimble was mayor of the City of Blanco, and the other individual defendants were members of the city council. In March 1992, appellants sued the City in separate lawsuits, alleging six causes of action. The trial court granted summary judgment in favor of the City on each cause.
In unpublished opinions handed down in 1996, this Court affirmed the trial court's orders as to five of the causes, but reversed the judgment and remanded each appellant's cause of action alleging violation of the Texas Open Meetings Act, Tex. Gov't Code Ann. §§ 551.001-.146 (West 1994 & Supp. 1998). See Uballe v. Trimble, No. 3-95-260-CV (Tex. App.--Austin May 1, 1996, writ denied) (not designated for publication); Stiles v. Trimble, No. 3-95-259-CV (Tex. App.--Austin June 5, 1996, writ denied) (not designated for publication). This Court held that because the City merely alleged that it did not violate the Act but presented no summary judgment evidence in support of that contention, it had not shown that it was entitled to judgment as a matter of law.
On remand, the City filed second motions for summary judgment on both appellants' open meetings claims, this time attaching evidence in support of its motions. The trial court again granted the City's motions. The only issue in this appeal is whether the trial court erred in granting the City's second summary judgment motions on the ground that there was no genuine issue of material fact concerning whether council members met in numbers less than a quorum and discussed appellants' continued employment, thereby knowingly conspiring to circumvent the Act in violation of section 551.143. (2)
DISCUSSION
Appellants each raise two points of error in which they contend that summary judgment was improper because a fact issue existed and therefore the City failed to show that it was entitled to judgment as a matter of law. The standards for reviewing a motion for summary judgment are well established: (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). As movant, the City assumed the burden of negating, as a matter of law, at least one essential element of Appellants' Open Meetings Act claim. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex. 1976).
Section 551.143(a) of the Texas Government Code provides as follows:
(a) A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.
Tex. Gov't Code Ann. § 551.143 (West 1994).
To meet its burden and negate appellants' claims that the City knowingly conspired to circumvent the Act, the City presented the following summary judgment evidence: (1) affidavits of the mayor and council members who voted on appellants' respective terminations swearing that no secret deliberations took place with respect to appellants' terminations; (2) excerpts from appellants' deposition testimony stating that neither appellant has personal knowledge of secret deliberations as to their termination; and (3) excerpts from minutes of the city council meetings describing the council's deliberation of appellants' continued employment in open meetings. The City argues that this evidence conclusively proved that members of the governing body of the City of Blanco did not knowingly conspire to circumvent the Act, an essential element of appellants' claims, and that the City therefore was entitled to summary judgment.
Because the mayor and council members are interested parties, this Court cannot affirm summary judgment unless the City's affidavits are "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Tex. R. Civ. P. 166a(c); Acker v. Texas Water Comm'n, 790 S.W.2d 299, 302 (Tex. 1990). "the uncontradicted testimony of an interested witness that is clear, direct, positive, and otherwise credible may be treated as conclusive evidence when the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so." Belger v. Sweeney, 836 S.W.2d 752, 754 (Tex. App.--Houston [1st Dist.] 1992, writ denied) (citing Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965)). Here, the City's summary judgment evidence included affidavits of the mayor and council members who voted on appellants' terminations. Each affidavit states affirmatively and unequivocally that the affiant did not participate in any secret discussions or deliberations concerning appellants' terminations and was not aware of any such discussions or deliberations by others. We conclude that the City's affidavits meet the "clear, positive, and direct" standard of rule 166a(c). The City therefore successfully carried its burden of conclusively negating an essential element of appellants' claims.
Once the City produced sufficient evidence to establish its right to summary judgment, the burden shifted to appellants to present evidence sufficient to raise a fact issue. See Centeq Realty, 899 S.W.2d at 197. In an attempt to controvert the City's evidence and raise a fact issue, Uballe produced summary judgment evidence that the members of the city council had "at times" conducted telephone consultations regarding an issue pending before the council. Uballe argues that this evidence raises an inference that because the City occasionally violated the Act, such behavior occurred in these particular instances. See Tex. R. Civ. Evid. 406 ("The habit or custom of a person doing a particular act is relevant in determining his conduct on the occasion in question."); see also Acker, 790 S.W.2d at 302 (citing Tex. R. Civ. Evid. 406).
To be admissible as habit evidence, the testimony must be of an individual's "regular response to a repeated specific situation." Compton v. Jay, 389 S.W.2d 639, 642 (Tex. 1965); Pacesetter Corp. v. Barrickman, 885 S.W.2d 256, 263 (Tex. App.--Tyler 1994, no writ). Courts have refused to hold that evidence of only a few instances of a specific conduct is sufficient to raise a reasonable inference of a habit or pattern of conduct, especially where the specific incidences are not substantially similar. See Magro v. Ragsdale Bros. Inc., 721 S.W.2d 832, 834 (Tex. 1986) (single incident of inattentiveness unrelated to heeding safety information inadmissible to prove habit of ignoring warnings); McClure v. Landis, 959 S.W.2d 679, 681 (Tex. App.--Austin 1997, writ denied) (two instances of failing to respond to discovery requests insufficient to establish habit to contradict movant's affidavits); Johnson v. City of Houston, 928 S.W.2d 251, 254 (Tex. App.--Houston [14th Dist.] 1996, no writ) (testimony of former city worker about only one act of retaliation by city properly excluded as habit evidence); Pacesetter, 885 S.W.2d at 263 (proof of only two other incidents of handling workers' compensation claims does not meet test of frequency and regularity).
Uballe relies on Acker for her contention that her evidence of habit raises a fact issue making summary judgment improper; this reliance is misplaced. The Acker court's basis for overturning summary judgment was testimony that the commissioners stated that they had no recollection of the alleged private conversation and that "considering their past behavior and habit at the Texas Water Commission, the occurrence of such a conversation was unlikely." Acker, 790 S.W.2d at 302. The court held that this testimony was sufficient to controvert the movant's testimony that he overheard two Commissioners discussing his case in the restroom. In Acker, the movant actually overheard two commissioners discussing his case, but the commissioners testified that they recalled no such conversation--a direct contradiction of the movant's testimony. In the present case, on the other hand, Uballe admits that she has no knowledge that any "secret deliberations" occurred with respect to her termination. Instead, Uballe's evidence requires this Court to infer from a few isolated incidents that council members had a habit of violating the Act and to infer further that they violated it on this occasion. Even resolving every doubt in favor of appellants and assuming the situations are sufficiently similar, the evidence relied on by Uballe is simply inadequate to meet the test of frequency and regularity required to establish a habit or pattern. Uballe's evidence, therefore, has no probative force in contradicting the testimony and affidavits supplied by the City. See Tex. R. Civ. Evid. 406; McClure, 959 S.W.2d at 681 (citing 1 Steven Goode, et al., Texas Rules of Evidence: Civil and Criminal § 406.4, Texas Practice, at 227 (1993)).
CONCLUSION
The City produced summary judgment evidence conclusively negating an essential element of appellants' cause of action and was therefore entitled to judgment as a matter of law. We affirm the trial court's summary judgment. (3)
J. Woodfin Jones, Justice
Before Justices Jones, B. A. Smith and Yeakel*
Affirmed
Filed: November 30, 1998
Do Not Publish
* Before Lee Yeakel, former Justice, Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 75.003(a)(1) (West 1998).
1. Stiles's suit included Bob Johnson as a defendant and did not name Tommy Giambernardi.
2. The City raises a threshold issue that the individual parties are not properly in this lawsuit because section 551.143 does not create a private right of action for monetary damages. Rather, the City claims, section 551.143 merely provides criminal liability for individual members of a public entity. For purposes of this opinion, we will assume without deciding that section 551.143 creates a private right of action and that the individual parties are therefore properly in this lawsuit.
3. The trial court's order granting the City's second motion for summary judgment and the City's briefs seem to suggest that summary judgment was granted on grounds of no-evidence under Rule of Civil Procedure 166a(i). The City's motions themselves indicate otherwise. Since we conclude that the City as movant carried its burden under a 166a(c) motion, we need not decide whether its motions were or were not no-evidence motions under 166a(i).
tially similar. See Magro v. Ragsdale Bros. Inc., 721 S.W.2d 832, 834 (Tex. 1986) (single incident of inattentiveness unrelated to heeding safety information inadmissible to prove habit of ignoring warnings); McClure v. Landis, 959 S.W.2d 679, 681 (Tex. App.--Austin 1997, writ denied) (two instances of failing to respond to discovery requests insufficient to establish habit to contradict movant's affidavits); Johnson v. City of Houston, 928 S.W.2d 251, 254 (Tex. App.--Houston [14th Dist.] 1996, no writ) (testimony of former city worker about only one act of retaliation by city properly excluded as habit evidence); Pacesetter, 885 S.W.2d at 263 (proof of only two other incidents of handling workers' compensation claims does not meet test of frequency and regularity).
Uballe relies on Acker for her contention that her evidence of habit raises a fact issue making summary judgment improper; this reliance is misplaced. The Acker court's basis for overturning summary judgment was testimony that the commissioners stated that they had no recollection of the alleged private conversation and that "considering their past behavior and habit at the Texas Water Commission, the occurrence of such a conversation was unlikely." Acker, 790 S.W.2d at 302. The court held that this testimony was sufficient to controvert the movant's testimony that he overheard two Commissioners discussing his case in the restroom. In Acker, the movant actually overheard two commissioners discussing his case, but the commissioners testified that they recalled no such conversation--a direct contradiction of the movant's testimony. In the present case, on the other hand, Uballe admits that she has no knowledge that any "secret deliberations" occurred with respect to her termination. Instead, Uballe's evidence requires this Court to infer from a few isolated incidents that council members had a habit of violating the Act and to infer further that they violated it on this occasion. Even resolving every doubt in favor of appellants and assuming the situations are sufficiently similar, the evidence relied on by Uballe is simply inadequate to meet the test of frequency and regularity required to establish a habit or pattern. Uballe's evidence, therefore, has no probative force in contradicting the testimony and affidavits supplied by the City. See Tex. R. Civ. Evid. 406; McClure, 959 S.W.2d at 681 (citing 1 Steven Goode, et al., Texas Rules of Evidence: Civil and Criminal § 406.4, Texas Practice, at 227 (1993)).
CONCLUSION
The City produced summary judgment evidence conclusively negating an essential element of appellants' cause of action and was therefore entitled to judgment as a matter of law. We affirm the trial court's summary judgment. (3)
J. Woodfin Jones, Justice
Before Justices Jones, B. A. Smith and Yeakel*
Affirmed
Filed: November 30, 1998
Do Not Publish
* Before Lee Yeakel, former Justice, Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. §