In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00158-CV ______________________________
OLIVER OKOLI, Appellant
V.
TEXAS DEPARTMENT OF HUMAN SERVICES, Appellee
On Appeal from the 61st Judicial District Court Harris County, Texas Trial Court No. 2001-31783
Before Morriss, C.J., Ross and Carter, JJ. Opinion by Justice Ross
O P I N I O N
Oliver Okoli appeals from a summary judgment rendered against him on his claim he was terminated from employment as a caseworker with the Texas Department of Human Services (TDHS) because he was a whistleblower. TDHS took the position he was actually terminated for falsifying documents, being abusive to a fellow employee, and failing to meet job performance standards.
Okoli has brought five points of error in which he contends the trial court erred by granting TDHS' motion for summary judgment
- on a motion filed outside the time provided by the court's docket control order;
- without considering his response, because he had a good excuse for the delay in filing his response: he was out of the country due to the death of his mother;
- without first ruling on TDHS' special exception to his petition; and
- the court erred by granting a no-evidence judgment based on TDHS' allegation that Okoli could not provide evidence of the "but for" causation requirement.
Okoli was a caseworker employed by TDHS for seven years. He was terminated May 6, 1998. There is summary judgment evidence that, before his termination, he had been the subject of an unfavorable job performance review and that he was placed on "corrective action." There is evidence that, when that occurred, he went to the office of his immediate supervisor, Brendell Carroll, and confronted her about perceived unfairness in the way she treated him, and argued about her descriptions of some of his cases as being improperly handled. He behaved in such a manner as to make her feel physically threatened. The next day, another meeting took place between Okoli and Carroll, along with her supervisor, John Robinson. Robinson then pulled twenty-five of Okoli's files at random, and the evidence shows that many of those cases had problems, in some instances of a type of document "falsification" about which Okoli had been previously warned. (1)
Okoli originally filed a Title VII lawsuit against the agency in federal court, claiming sexual harassment and national origin discrimination. The federal court entered a summary judgment in favor of the agency, disposing of the claims over which it had jurisdiction. This suit was filed June 22, 2001, in state court under the Texas Whistleblower Act. (2) Mediation was attempted and failed.
On June 7, 2002, TDHS filed a motion for summary judgment, along with a document entitled "Notice of Submission." On June 21, Okoli filed a motion pursuant to Tex. R. Civ. P. 166a(g) to continue the ruling on the motion for summary judgment, alleging that all witnesses had not been deposed and that some would be called live at trial who possessed information that would rebut TDHS' basis for summary judgment. On June 27, TDHS filed a response to Okoli's motion for continuance. On July 12, the court denied Okoli's motion for continuance and granted TDHS' motion for summary judgment. Okoli filed a response to the motion for summary judgment three days later, on July 15.
In his first point of error, Okoli generally complains he did not have effective notice of the date on which TDHS' motion for summary judgment would be heard by the trial court. The "Notice of Submission" that TDHS filed with its motion for summary judgment June 7 reads as follows:
PLEASE BE ADVISED that on the 1st day of July, 2002, at 9:00 a.m. the following matter will be presented to the Court for consideration without argument of counsel [sic]
Defendant's Motion for Summary Judgment which was filed on June 7, 2002 [sic]
The Texas Supreme Court has held that a trial court must give notice of the submission date for a motion for summary judgment, because this date determines the date the nonmovant's response is due. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). Failure to give notice of the submission date for a motion for summary judgment constitutes error. Id. However, the trial court renders such error harmless when the court considers the nonmovant's response and reconfirms its ruling. Id.
Neither circumstance exists in this case. Okoli contends that, if any date was ever set by the trial court for hearing on the motion, he was never informed of that date. The record confirms his contention. It contains no date set for a hearing, as is expressly required by Tex. R. Civ. P. 166a(c), or for "submission." TDHS' notice of submission only says that its motion would be presented to the court for consideration. The document neither implies nor states the court has set the case for submission on that date. In the absence of that critical information, the document does not provide the notice necessary.
We do recognize there are cases holding a "notice of hearing" is sufficient even though a proposed order referencing a time and date for hearing does not include the judge's signature. See West v. Maint. Tool & Supply Co., 89 S.W.3d 96, 102 (Tex. App.-Corpus Christi 2002, no pet.); Goode v. Avis Rent-A-Car, Inc., 832 S.W.2d 202, 204 (Tex. App.-Houston [1st Dist.] 1992, writ denied). The Corpus Christi court in West also extended into a summary judgment context language in which the Texas Supreme Court held (in the context of a trial setting) that a letter requesting a specific date for a trial or hearing, when a copy of that letter is sent to the opposing parties, is itself sufficient notice of the setting on that date, because it is generally reasonable to assume that, if a particular setting is requested, the litigants are put on notice that trial or hearing may be had on that requested date. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
The instant case does not fit within that mold. There is a notice filed by TDHS stating the motion would be presented to the trial court. There is nothing to suggest the court had agreed to set the motion for hearing, and we are reluctant to adopt a position that a motion may be set for hearing by the unilateral decision of a party to a lawsuit without an acknowledgment of the date of setting by the trial court before which the motion would be heard.
Further, although we recognize that the docketing sheet is not typically probative, we also note that it contains no reference to any setting of the motion for submission and hearing, but merely reflects that the motion was eventually granted.
Because we sustain Okoli's contention he did not receive effective notice of the date on which TDHS' motion for summary judgment would be heard, we find it unnecessary to address his other contentions.
We reverse the summary judgment and remand to the trial court for further proceedings.
Donald R. Ross
Justice
Date Submitted: August 29, 2003
Date Decided: September 9, 2003
1. The "falsification" involves the use by Okoli of a generic denial code in situations where specific coding was available under the facts of that request for benefits. The evidence shows that caseworkers are to use that code only in situations where no other informational denial code applies and that misuse of the generic code is considered a falsification of official documents.
2. Tex. Gov't Code Ann. § 554.001, et seq. (Vernon 1994 & Supp. 2003).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00068-CR
______________________________
HOMER C. SWARN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 241st Judicial District Court
Smith County, Texas
Trial Court No. 241-1260-10
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Homer C. Swarn appeals from his conviction in a Smith County[1] jury trial for aggravated assault with a deadly weapon. Swarn pled guilty, and he also pled true to an enhancement. Punishment was assessed by a jury at seventy-five years imprisonment and a $10,000.00 fine.
Swarns attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
Counsel mailed a copy of the brief and a letter to Swarn on July 15, 2011, informing Swarn of his right to file a pro se response and of his right to review the record. No response has been filed. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal.
We have determined that this appeal is wholly frivolous. We have independently reviewed the clerks record and the reporters record, and find no genuinely arguable issue. See Halbert v. Michigan, 545 U.S. 605, 623 (2005). We therefore agree with counsels assessment that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 82627 (Tex. Crim. App. 2005).
We affirm the judgment of the trial court.[2]
Jack Carter
Justice
Date Submitted: September 29, 2011
Date Decided: September 30, 2011
Do Not Publish
[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Govt Code Ann. § 73.001 (West 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsels request to withdraw from further representation of appellant in this case. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or for en banc reconsideration was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See Tex. R. App. P. 68.3. (amended by the Texas Court of Criminal Appeals Misc. Docket No. 11-104, effective Sept. 1, 2011). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.