IN THE
TENTH COURT OF APPEALS
No. 10-04-00231-CV
David Park,
Appellant
v.
Montgomery County, Texas ,
Appellee
From the 9th District Court
Montgomery County, Texas
Trial Court No. 02-10-07222 CV
MEMORANDUM Opinion
David Park is a lieutenant in the Montgomery County Sheriff’s Office. He sued Montgomery County under the Texas Whistleblower Act, alleging that he had suffered an adverse employment action as a result of his report of complaints of sexual harassment by Montgomery County Commissioner Ed Rinehart. Montgomery County answered and filed a plea to the jurisdiction and a motion for summary judgment. The trial court granted Montgomery County’s summary judgment motion. Park appeals from that judgment. Finding that the court erred in granting the summary judgment motion, we will reverse and remand.
BACKGROUND
Lieutenant Park reported that he attended a meeting with six to eight male employees or agents of the county. The topic of the meeting was office renovations. Park reported that Commissioner Rinehart commented that “we need to put a divider in there because he may want to do [Park’s secretary] on her desk.” Park’s secretary was not present at the meeting. Park interviewed his secretary and another female employee, who reported having been sexually harassed by the Commissioner. Park reported what he believed to be unlawful conduct to the Sheriff and to the personnel department and county attorney.
Incident to his employment at the Sheriff’s Office, Park was appointed security coordinator for the Montgomery County Lone Star Convention Center. The facility required that all events be accompanied by uniformed law enforcement officers from the Sheriff’s Office. Park was responsible for arranging for off-duty officers to work security. Some time after Park’s report regarding Commissioner Rinehart’s alleged conduct, the director of the convention center sent a letter to the Sheriff’s Office, advising that the security coordination would be handled by the Constable’s Office instead of the Sheriff’s Department. Later, the director made another change, deciding to alternate the center’s security coordination on a monthly basis between the Sheriff’s Office and the Constable’s Office.
Standard of Review
We review the decision to grant or deny a summary-judgment motion de novo. See Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex. App.—Waco 2000, pet. denied). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex. App.—Waco 2001, pet. denied). If the movant for summary judgment is a defendant, then the movant must negate at least one of the elements of the non-movant’s cause of action or conclusively establish each element of an affirmative defense. Clifton v. Hopkins, 107 S.W.3d 755, 757 (Tex. App.—Waco 2003, pet. denied).
The reviewing court must accept all evidence favorable to the non-movant as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985); Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in his favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413.
The trial court’s order does not specify the grounds upon which summary judgment was granted. When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Adverse Personnel Action
The Texas Whistleblower Act prohibits a state or local government entity from suspending or terminating the employment of, or taking other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. Tex. Gov’t Code Ann. § 554.002(a) (Vernon 2004). Montgomery County argues that there is no evidence that Park suffered an adverse personnel action, an essential element of a claim under the Act. “Personnel action” means an action that affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation. Id. § 554.001(3) (Vernon 2004).
According to the affidavits of Park and the Sheriff, Park’s employment as the security coordinator was incidental to his employment at the Sheriff’s Office. He received no extra compensation for this “extra job,” except when he assigned himself to work events. Montgomery County argues that because Park received no extra compensation from the County, and because his security coordination tasks did not take up much of his time, he did not suffer an adverse employment action. However, Park alleges in pleadings and affidavits that the County’s action in transferring responsibility for coordinating security to the Constable’s Office deprived him of his position as security coordinator and deprived him of the opportunity to assign himself to security duty for which he received compensation. Accepting Park’s evidence as true, he raised a genuine issue of material fact whether the County’s actions adversely affected his work assignment and compensation.
Employing Governmental Entity
Montgomery County argues that the alleged violation of law was not committed by “the employing governmental entity or public employee,” and thus Park’s report of the violation is not protected by the Act. Specifically, the County argues that Commissioner Rinehart is not the employing governmental entity or a public employee. “Public employee” means an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity. Id. § 554.001(4) (Vernon 2004). The County argues that Rinehart is an independently elected official and the County is prohibited from interfering with or controlling his actions. However, the county as a whole constitutes the governmental entity, and an elected official may be part of the county’s government when he is acting in his official capacity. See Tarrant County v. Bivins, 936 S.W.2d 419, 422 (holding that the county can be held liable under the Whistleblower Act for the conduct of an elected sheriff acting in his official capacity); Wichita County v. Hart, 892 S.W.2d 912, 929 (Tex. App.—Austin 1994), rev’d on other grounds, 917 S.W.2d 779 (Tex. 1996). The County concedes that Commissioner Rinehart is paid for his service as a commissioner and does not argue that Rinehart’s alleged actions were outside of his official capacity. Park has pled and raised a genuine issue of fact whether a violation of law was committed by the employing governmental entity or another public employee.
Reporting the Violation of Law
Montgomery County argues that Park did not report “in good faith” a violation of law to an “appropriate law enforcement authority.” Park stated in his affidavit that he believed that Rinehart’s conduct could constitute the criminal offense of “Official Oppression” under section 39.03 of the Texas Penal Code. The County argues that we should disregard Park’s statement in his affidavit as a “sham fact issue” because it contradicts his deposition testimony. The County points to deposition testimony in which Park agrees that in reporting the Commissioner’s conduct he was not acting as an investigating law enforcement officer but as a supervisor and a county employee. The County also cites the following question and answer during the deposition:
Q: Now, are you saying that anything that Commissioner Rinehart did with respect to the two women would have, in your view as a peace officer, constituted official oppression?
A: I’m not saying anything to them, no, sir. Would official oppression—no, sir.
We do not agree with the County that Park’s deposition testimony demonstrates that he did not believe that his reporting of Rinehart’s alleged actions was a report of the crime of official oppression so as to render his affidavit statements a “sham.” Park has pled and raised a genuine issue of fact whether he reported in good faith a violation of law to an appropriate law enforcement agency.
CONCLUSION
Montgomery County is not entitled to summary judgment on any of the grounds advanced. The summary judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Special Note by Chief Justice Gray)
Reversed and remanded
Opinion delivered and filed October 19, 2005
[CV06]
> N. L. I. argues that the $56,000 was “purchase money” for the modular home, because it was used to pay the original seller of the home. Therefore, homestead status does not exempt the property from foreclosure. Its authority is article sixteen, section fifty of the Texas Constitution, and section 41.001(b)(1) of the Property Code. Tex. Const. art. XVI, § 50(a)(1) (Vernon Supp. 2002); Tex. Prop. Code Ann. § 41.001(b)(1) (Vernon Supp. 2002).
The Taylors rely on § 50(a)(5) of the Constitution, and also refer to section 53.254 of the Property Code. Tex. Const. art. XVI, § 50(a)(5) (Vernon Supp. 2002); see also Tex. Prop. Code Ann. § 41.001(b)(3) (Vernon Supp. 2002) (a lien can be created on a homestead pursuant to section 53.254). Section 50(a)(5) excludes from the homestead exemption “work and material used in constructing new improvements thereon, if contracted for in writing, or work and material used to repair or renovate existing improvements thereon . . . .” Tex. Const. art. XVI, § 50(a)(5). Section 53.254 of the Property Code applies to residential construction projects and is a companion to the constitutional provision. A person furnishing labor or material for a project cannot claim a lien on the property unless he complies with various statutory requirements, including execution of a written contract prior to furnishing the labor or material. Tex. Prop. Code Ann. §§ 53.001(1) (definition of “residential construction project”), 53.251, 53.254 (Vernon Supp. 2002). The Taylors say that because the statutory requirements were not met—which is not disputed by the parties—a lien was not created.
We need not resolve this dispute, however, because we find that the Taylors are estopped from arguing against the validity of whatever lien may exist.
Judicial estoppel protects the integrity of judicial proceedings by precluding a party from asserting a position in a legal proceeding which is inconsistent with a position previously taken by the party. Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 649 (Tex. App.—El Paso 1997, pet. denied) (citing Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir. 1988), and In re Phillips, 124 B.R. 712, 720 (Bkrtcy. W. D. Tex. 1991)). It prevents a party from “playing fast and loose” with the courts to suit its own purposes. Id.
Our Supreme Court has explained when judicial estoppel applies. In Long v. Knox, a judgment creditor attempted to execute on mineral interests allegedly owned by Knox, who filed a suit for injunctive relief. Long v. Knox, 291 S.W.2d 292, 294 (Tex. 1956). As part of his pleadings, Knox and his wife swore that the mineral interests were the separate property of Mrs. Knox. Id. The suit was dismissed for want of prosecution after the judgment creditor abandoned efforts to execute. Id. Later Knox died, and his daughter as administratrix filed a suit in which she asserted that the mineral interests were community property. Id. at 293. The Supreme Court held that the administratrix was barred by judicial estoppel from claiming as community property that which Knox formerly swore was Mrs. Knox’s separate property. The Court explained its reasoning:
[J]udicial estoppel is not strictly speaking estoppel at all but arises from positive rules of procedure based on justice and sound public policy. It is to be distinguished from equitable estoppel based on inconsistency in judicial proceedings because the elements of reliance and injury essential to equitable estoppel need not be present. . . . “[A] party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made.” 31 C.J.S., Estoppel, s 121, p. 390. . . . [Here] [t]he creditor was thus convinced and abandoned further efforts. Knox gained the advantage of preventing the property from being sold. Having thus sworn under oath in this judicial proceeding that his wife owned the property in her separate right he would not be heard now to maintain a contrary position in the absence of proof that the averment was made inadvertently or by mistake or by fraud or duress.
Id. at 295. Significantly, the Court cited and distinguished two cases in which a party was not estopped, even though there was an inconsistent sworn inventory and appraisement filed in a prior suit, because the party gained no advantage by the prior filing. Id. at 296.
The prior statement which works the estoppel may be oral or written. Miller v. Gann, 842 S.W.2d 641, 641 (Tex. 1992). In either instance, it must be “deliberate, clear, and unequivocal.” Am. Sav. & Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 589 (Tex. 1975); Owen v. Knop, 853 S.W.2d 638, 641 (Tex. App.—Corpus Christi 1993, writ denied). And the statement must be sworn. Miller, 842 S.W.2d at 641; Knop, 853 S.W.2d at 641; Miles v. Plumbing Services of Houston, 668 S.W.2d 509, 512 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.).
We agree with other courts of appeals that the elements of judicial estoppel are: (1) a sworn, prior inconsistent statement made in a judicial proceeding; (2) the party making the statement gained some advantage by it; (3) the statement was not made inadvertently or because of mistake, fraud, or duress; and (4) the statement was deliberate, clear, and unequivocal. E.g., Spera v. Fleming, Hovenkamp & Grayson, P.C., 25 S.W.3d 863, 871 (Tex. App.—Houston [14th Dist.] 2000, no pet.); In re Estate of Huff, 15 S.W.3d 301, 309 (Tex. App.—Texarkana 2000, no pet.); In re M.M.O., 981 S.W.2d 72, 84 (Tex. App.—San Antonio 1998, no pet.); Knop, 853 S.W.2d at 641.
The secured-creditors schedule that the Taylors filed in the bankruptcy proceeding meets these elements because it:
• was filed in a prior judicial proceeding;
• was inconsistent with their current position;
• was made under oath;
• worked an advantage to the Taylors, because it lulled United Bank into not taking action within the bankruptcy, when the facts were fresh and the original lender was a party, to determine whether it had a lien;
• was not made inadvertently or because of mistake, fraud, or duress; and
• was deliberate, clear, and unequivocal.
Therefore, the Taylors are estopped to assert that N. L. I. does not have a lien on their property.
We reverse the judgment and remand this cause for further proceedings.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Reversed and remanded
Opinion delivered and filed May 29, 2002
Publish
[CV06]