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NUMBER 13-04-616-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________________
ARTURO P. FLORES, Appellant,
v.
TOWN OF COMBES, TEXAS, Appellee.
___________________________________________________________________
On appeal from the 197th District Court
of Cameron County, Texas.
___________________________________________________ _______________
MEMORANDUM OPINION[1]
Before Justices Hinojosa, Yañez, and Rodriguez
Memorandum Opinion by Justice Rodriguez
This appeal arises from a summary judgment granted in favor of appellee, Town of Combes, Texas (Combes), and against appellant, Arturo P. Flores, in a suit brought pursuant to the Whistleblower Act (the Act). See Tex. Gov't Code Ann. ' 554.003 (Vernon 2004). By three issues, appellant asserts the trial court erred by (1) granting summary judgment in favor of appellee because appellee failed to conclusively establish its affirmative defense and appellant's summary judgment evidence raised an issue of material fact and (2) denying his motion to strike the affidavit of Marco Sanchez. We reverse and remand.
I. Background
Appellant, former Combes police chief, filed the underlying action, alleging that he was terminated in retaliation for reporting to local, state, and federal law enforcement authorities alleged violations of the law committed by the mayor and secretary of Combes. Appellee filed a motion for summary judgment, asserting an affirmative defense to appellant's cause of action. Appellant filed (1) a response to appellee's motion for summary judgment and (2) a motion to strike the affidavit of Marco Sanchez, a member of the Combes Board of Aldermen (the Board), the same Board that terminated appellant. The trial court granted summary judgment in favor of appellee.
II. Motion for Summary Judgment
A. Standard of Review
We review the granting of a traditional motion for summary judgment de novo. Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.BCorpus Christi 2003, no pet.) (citing Natividad v. Alexsis, Inc., 874 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.BCorpus Christi 2000, pet. denied)). To prevail, the movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Id. (citing Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991)). Only when the movant meets this burden does the burden shift to the nonmovant to raise a genuine issue of material fact. See M.D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). In determining whether there is a genuine issue of material fact, evidence favorable to the nonmovant is taken as true, and all reasonable inferences and doubts are resolved in favor of the nonmovant. Branton, 100 S.W.3d at 646. A traditional summary judgment is proper if the movant conclusively disproves at least one element of each of the plaintiff's causes of action or conclusively establishes each element of an affirmative defense to each of the plaintiff's claims. Id.; Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).
B. Analysis
By his first issue, appellant contends the trial court erred in granting summary judgment in favor of appellee because appellee did not conclusively establish an affirmative defense based on lack of confidence. We agree.
Section 554.002(a) of the Act provides the following:
A state or local government entity may not suspend or terminate the employment of, or take 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). In addition, the Act provides a state or local governmental entity with an affirmative defense to suit under chapter 554 if it "would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected under this chapter of a violation of law." Id. ' 554.004(b).
In its motion for summary judgment, appellee asserted, as its affirmative defense, that appellant was terminated based on lack of confidence. See Tex. Loc. Gov't Code Ann. ' 22.077 (Vernon 1999 & Supp. 2005). Appellee claimed that its reason for terminating appellant was unrelated to appellant's reporting of law violations. To support its affirmative defense, appellee attached the following summary judgment evidence to its motion: (1) the affidavit of Marco Sanchez; and (2) appellant's deposition testimony with exhibits, including appellant's answers to appellee's interrogatories, a newspaper article and editorial, and a letter and commentary allegedly written by appellant. However, appellee's summary judgment evidence failed to conclusively establish that the Board would have taken the action against appellant "based solely on information, observation, or evidence that is not related to the fact that [appellant] made a report protected under this chapter of a violation of law." Tex. Gov't Code Ann. ' 554.004(b) (Vernon 2004); Branton, 100 S.W.3d at 646; Cathey, 900 S.W.2d at 341.
Sanchez's affidavit stated only that appellant was terminated for lack of confidence.[2] However, the affidavit did not establish that the Board would have terminated appellant for lack of confidence "based solely on information, observation, or evidence . . . not related" to appellant's reports of alleged violations of the law by the mayor and secretary of Combes. Tex. Gov't Code Ann. ' 554.004(b) (Vernon 2004). Furthermore, although the remaining summary judgment evidence demonstrated that appellant distrusted the Board and referred to it as a "corrupted governing body," sentiments that appellee suggested supported the Board's decision to terminate appellant for lack of confidence, that evidence also failed to establish that the Board would have taken the action "based solely on information, observation, or evidence . . . not related" to appellant's reports. See id. Therefore, appellee's summary judgment evidence failed to conclusively establish all of the elements of its affirmative defense to the suit. See id.; Branton, 100 S.W.3d at 646; Cathey, 900 S.W.2d at 341. Thus, appellee failed to show that it was entitled to judgment as a matter of law. See Branton, 100 S.W.3d at 646 (citing Tex. R. Civ. P. 166a(c); Lear Siegler, Inc., 819 S.W.2d at 471). As a result, the trial court erred in granting summary judgment in favor of appellee and against appellant. We sustain appellant's first issue.
Through his second issue, appellant contends the trial court erred by denying his motion to strike the affidavit of Marco Sanchez. By his third issue, appellant asserts the trial court erred in granting summary judgment in favor of appellee because appellant's summary judgment evidence raised an issue of material fact. We, however, decline to address appellant's second and third issues as they are not dispositive of this appeal in light of our disposition of appellant's first issue. See Tex. R. App. P. 47.1.
III. Conclusion
Accordingly, we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.
NELDA V. RODRIGUEZ
Justice
Memorandum Opinion delivered and
filed this 13th day of April, 2006.
[1]All issues of law presented by this case are well-settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
[2]Sanchez's affidavit read in pertinent part:
I was a member of the Board on March 10, 2003 when the Board unanimously resolved to terminate Arturo Flores as the Town's Chief of Police. All five Board members were present at the meeting . . . and voted to terminate Mr. Flores. Mr. Flores was terminated for lack of confidence. Mayor Garcia was also present at the meeting, but he does not ever participate in any votes. . . .