ACCEPTED
03-14-00296-CV
7124072
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/28/2015 1:05:50 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00296-CV
IN THE THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AT AUSTIN, TEXAS AUSTIN, TEXAS
______________________________________________________
9/28/2015 1:05:50 PM
JEFFREY D. KYLE
CITY OF BERTRAM, TEXAS Clerk
Appellant
vs.
VICKI REINHARDT
Appellee
______________________________________________________
Appeal From The 53rd Judicial District
Travis County, Texas
Honorable Eric M. Shepperd, Presiding
__________________________________________________________________
APPELLANT’S MOTION FOR REHEARING
AND FOR EN BANC RECONSIDERATION
OF THE COURT’S AUGUST 12, 2015 JUDGMENT
__________________________________________________________________
Joanna Lippman Salinas
State Bar No. 00791122
FLETCHER, FARLEY,
SHIPMAN & SALINAS, L.L.P.
1717 W. 6th Street, Suite 300
Austin, Texas 78703
(512) 476-5300
FAX (512) 476-5771
Email: joanna.salinas@fletcherfarley.com
Attorneys for Appellant,
City of Bertram, Texas
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ...........................................................................................i
INDEX OF AUTHORITIES ................................................................................ii-iii
INTRODUCTION .....................................................................................................2
ISSUE PRESENTED FOR REVIEW .......................................................................3
ARGUMENT.............................................................................................................3
CONCLUSION .......................................................................................................12
PRAYER .................................................................................................................12
CERTIFICATE OF SERVICE................................................................................13
CERTIFICATE OF COMPLIANCE.......................................................................13
i
INDEX OF AUTHORITIES
City of El Paso v. Heinrich 284 S.W.3d 366 (Tex. 2009) .......................................11
City of Elsa v. Gonzalez, 325 S.W.3d 622 (Tex.2010)..............................................7
City of Fritch v. Coker, No. 07-13-00287-CV, 2014 Tex. App. WL 812915
(Tex. App.-Amarillo February 27, 2014, pet. denied .............................................6,7
Dolcefino v. Randolph, 19 S.W.3d 906 (Tex.App.-Houston [14th Dist.] 2000,
pet. denied) ................................................................................................................7
Elizondo v. Krist, 415 S..W.3d 259 (Tex. 2013) .......................................................5
Gardner vs. Abbott, 414 S.W.3d 369 (Tex.App.-Austin 2013, no pet.).................5,6
In re Lipsky, 460 S.W.3d 579 (Tex. 2015) ................................................................5
Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638
(Tex.App.-Corpus Christi 2001, pet. denied) ..........................................................10
Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ...........11
Univ. of Houston v. Barth, 403 S.W.3d 851 (Tex. 2013) ........................................10
Wadewitz v. Montgomery, 951 S.W.2d 464 (Tex. 1997)...........................................5
Weech v. Baptist Health Sys., 392 S.W.3d 821 (Tex.App.-San Antonio 2012,
no pet.) .......................................................................................................................5
Willis v. Kimmel, No. 13-05-00257-CV, 2007 Tex.App. WL 1629951
(Tex.App.-Corpus Christi June 7, 2007, no pet.) ...................................................7,8
ii
TEX. GOV’T CODE Chapter 554 ............................................................................2
TEX. GOV’T CODE §554.001 ...............................................................................10
TEX. R. APP. P., Rule 41.2.......................................................................................2
TEX. R. CIV. P., Rule 166a ........................................................................................5
TEX. PENAL CODE, §37.10 .................................................................................8,9,11
iii
No. 03-14-00296-CV
IN THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
______________________________________________________
CITY OF BERTRAM, TEXAS
Appellant
vs.
VICKI REINHARDT
Appellee
______________________________________________________
Appeal From The 53rd Judicial District
Travis County, Texas
Honorable Eric M. Shepperd, Presiding
__________________________________________________________________
APPELLANT’S MOTION FOR REHEARING
AND FOR EN BANC RECONSIDERATION
OF THE COURT’S AUGUST 12, 2015 JUDGMENT
__________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
NOW COMES Appellant City of Bertram, Texas and submits this Motion
for Rehearing and for en Banc Reconsideration of this Court’s August 12, 2015
Judgment, generally upholding the Order of the 53rd Judicial District denying the
City of Bertram’s Plea to the Jurisdiction. Appellant asks this Court to withdraw
the August 12, 2015 Opinion and Judgment, reverse the Trial Court’s Order, and to
render judgment in favor of the City of Bertram.
1
INTRODUCTION
Former employee Vicki Reinhardt files suit against the City of Bertram
under the Texas Whistleblower Act, TEX. GOV’T CODE Chapter 554. The City filed
a Plea to the Jurisdiction and Motion for Summary Judgment that the Trial Court
denied. Denial of the Plea was timely appealed.
On August 12, 2015, a Panel consisting of the Honorable Puryear,
Pemberton and Field, issued a Memorandum Opinion remanding the matter to the
Trial Court with respect to the exhaustion of remedies issue, but otherwise
upholding the Plea denial. On August 28, 2015, the Court granted Appellant an
extension of time to September 28, 2015 to ask the Court for Rehearing and for En
Banc Reconsideration.
While en banc consideration of a case is generally not favored (Rule 41.2(c),
TEX. R. APP. P.), consideration is warranted in this matter to maintain uniformity of
the Court’s decisions, internally and consistent with the decisions of other
appellate courts and the dictates of the Texas Supreme Court. Additionally, the
decision is of critical importance to the jurisprudence of this State, as the current
ruling allows a claimant to deprive a government entity of its sovereign immunity
by merely making conclusory and factually unsupported allegations to support
each element of her cause of action.
2
ISSUE PRESENTED FOR REVIEW
The Court of Appeals Panel erred in allowing a conclusory and factually
unsupported affidavit that does not establish the required Whistleblower Act
elements to create a fact issue, improperly depriving the City of Bertram of its
sovereign immunity.
ARGUMENT
A factually unsupported and conclusory affidavit is not enough to raise a
fact issue. The City of Bertram asserted its Plea to the Jurisdiction largely relying
on the deposition testimony of Appellee Reinhardt to establish that she could not
establish the required elements of a Texas Whistleblower Act cause of action. The
Memorandum Opinion undermines the Plea to Jurisdiction process and purpose
and contradicts well-settled law by allowing a conclusory affidavit and no
probative factual evidence be enough to raise a fact question with respect to the
required elements of the Whistleblower cause of action. Specifically, Reinhardt
failed to offer probative evidence that she made a good faith report of illegal
activity to a law enforcement authority. Reinhardt’s deposition testimony details
the parameters of her knowledge and recollections, and establishes that the
required elements cannot be met, but the Court allows a conclusory affidavit to
raise a fact question.
3
THE DEPOSITION TESTIMONY: Reinhardt testified that she was asked
by the City of Bertram Mayor to prepare a financial document for a loan process; a
process that would involve creating a financial report, rather than just printing from
the accounting software program. (CR 56) Reinhardt claims that she did not feel
comfortable creating a financial document and she declined to do so. (CR 56-57)
Reinhardt could not recall what she was asked to reflect in the requested financial
report or if the Mayor identified what she wanted when they spoke. (CR 57, 72)
Reinhardt does not know what information was represented in the financial reports
that were ultimately prepared and submitted by the City, so she has no idea if they
accurately represented the City’s financial position. (CR 58, 59)
THE AFFIDAVIT TESTIMONY: In her Affidavit filed in response to the
City’s Plea, Reinhardt was suddenly able to recall that she was asked to create a
“false” financial report that did not reflect the City’s financial records. (CR 151)
Reinhardt provides no other details, information or documentation to support this
general allegation. Reinhardt claims that in February 2012 she reported to the
Chief of Police that in July 2011 the Mayor had asked her to create a false financial
report and that she had refused. (CR 151)
4
“Bare, baseless opinions do not create fact questions…” reminded the Texas
Supreme Court earlier this year. In re Lipsky, 460 S.W.3d 579, 592 (Tex.
2015)(orig. proceeding)(citing with support Elizondo v. Krist, 415 S.W.3d 259,
264 (Tex. 2013)(“Conclusory statement[s] ... [are] insufficient to create a question
of fact to defeat summary judgment.”)).
A conclusory statement is one that does not provide the underlying facts in
order to support the conclusion offered. See Weech v. Baptist Health Sys., 392
S.W.3d 821, 826 (Tex.App.—San Antonio 2012, no pet.). A conclusory affidavit
does not meet the requirements of Rule 166a(c), TEX. R. CIV. P., because it is not
credible or susceptible to being readily controverted. See, e.g., Wadewitz v.
Montgomery, 951 S.W.2d 464, 466 (Tex. 1997)(addressing the requirements of
expert affidavits with respect to the same rules that are applied to affidavits from
interested witnesses).
The Austin Court of Appeals previously discussed the insignificance of
conclusory testimony unsupported by facts in Gardner v. Abbott, 414 S.W.3d 369
(Tex.App.—Austin 2013, no pet.). The Court held that testimony by an employee
in a hostile work environment that did not provide sufficient facts or details about
the alleged circumstance was conclusory and insufficient to raise a fact issue. Id at
384 (rejecting as conclusory, testimony that the claimant was subjected to more
excessive scrutiny than other employees and that the individual regularly harassed
5
him).1 The Panel’s Opinion, by accepting Reinhardt’s Affidavit as probative
evidence of the elements of her claim, directly contradicts this opinion.
The Panel’s opinion even more directly contradicts City of Fritch v. Coker,
No. 07-13-00287-CV, 2014 Tex. App. WL 812915 (Tex.App.—Amarillo February
27, 2014, pet. denied.). This is a Whistleblower Act case where the Court
ultimately held that a conclusory statement about reporting a violation of law was
not sufficient to preclude dismissal for want of jurisdiction. Id.
In Coker, the Amarillo Court of Appeals held that an employee affidavit did
not support the claim he had a good faith belief that the law was violated when his
affidavit merely claimed that the City Manager had lied and that the City did not
follow proper procedure, acted illegally, and violated a citizen’s civil rights, but
made these accusations without providing any supporting facts. As noted by the
1In a footnote, provided in support of this assessment, the Court stated:
However, even without an objection, conclusory opinion testimony is not
evidence that could support a judgment. See, e.g., City of San Antonio v. Pollock,
284 S.W.3d 809, 816 (Tex.2009) (“Bare, baseless opinions will not support a
judgment even if there is no objection to their admission in evidence.”); Coastal
Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.
2004)(observing that “conclusory or speculative” opinions are “ ‘incompetent
evidence’ ... [that] cannot support a judgment”); Dallas Ry. & Terminal Co. v.
Gossett, 156 Tex. 252, 294 S.W.2d 377, 380 (1956)( “It is well settled that the
naked and unsupported opinion or conclusion of a witness does not constitute
evidence of probative force and will not support a jury finding even when
admitted without objection.”); Casualty Underwriters v. Rhone, 134 Tex. 50, 132
S.W.2d 97, 99 (1939)(holding that “bare conclusions” of lay fact witnesses did
not “amount to any evidence at all,” and that “the fact that they were admitted
without objection add[ed] nothing to their probative force”). We agree with [the
employee] that testimony is not conclusory when it recites some facts and gives
details that can be rebutted.
Id at f.n. 19 (emphasis added).
6
Court, “As conclusory statements without any underlying factual basis in the
record, they raise no issue of fact that would, as a matter of law, support the
conclusion that the trial court had jurisdiction.” Id.
Coker relies on City of Elsa v. Gonzalez, 325 S.W.3d 622 (Tex. 2010). In
Gonzalez, the employee alleged that he had reported “illegal acts” of the mayor,
without specifying what those illegal acts were, and provided no evidence of a
report where he actually reported that he believed that the mayor was acting
illegally. Id at 626.
Similarly, courts have long held that an affiant does not raise a fact issue
with respect to the truth or falsity of a matter by merely stating that the matter was
true or false. Dolcefino v. Randolph, 19 S.W.3d 906, 918 (Tex.App.—Houston
[14th Dist.] 2000, pet. denied)(holding that affidavit testimony that statement was
“false, defamatory, and has injured me in my profession” was conclusory and
constituted no evidence the matter was false).
In contrast, a statement about truth or falsity can be admissible and not
conclusory, merely by providing factual support for the same. Compare Dolcefino,
to Willis v. Kimmel, No. 13-05-00257-CV, 2007 Tex.App. WL 1629951
(Tex.App.-Corpus Christi June 7, 2007, no pet.). In Willis, there was probative
evidence that a statement was false when the affiant explained the basis for this
statement: “Mr. Kimmel knew that this information was false because he knew that
7
he had given me the check, which he had signed, during one of our meetings at his
home on or about September 2, 2002.” Id.
The evidence offered by Reinhardt about the financial information was 1)
the report was not one that could be printed from the City’s financial program; 2)
Reinhardt did not recall if the Mayor ever told her what was to be reflected in the
report (she refused before they got that far); 3) she does not know if what was
ultimately presented in the submitted financial report was accurate; and 4) a
conclusory Affidavit statement that she was asked to prepare a “false” financial
report.
Reinhardt’s deposition testimony clearly indicates that she had no idea what
she was being asked to reflect in the requested financial report and she does not
know if she ever did. Her concern was that the document would have to be
“created,” not printed. The Affidavit testimony that she was being asked to prepare
financial statements that were “false” without any details, factual support or
explanation, are conclusory statements that cannot be readily controverted or even
investigated. The only evidence of “falsity” offered by Reinhardt is that the report
could not be printed directly from the financial software system.
The Panel notes that a fact-finder could find that the Mayor asked her to
create financial statements that “departed from the true and actual accounting
figures” in the City’s financial system, citing the TEX. PENAL CODE §37.10(a). This
8
provision criminalizes knowingly falsely altering, making, or presenting a
government record. Id. This crime centers on falsity of an actual record, not the
creating or requesting the creation of government documents. Without probative
evidence of the falsity of documents presented there is no crime.
However, Reinhardt admitted that she did not know what she was being
asked to present in the document, just that it could not be printed off the financial
system. Without the conclusory statement about falsity, there is no probative
evidence of a report of a violation of law. No reasonable fact-finder could infer that
a financial document was illegal merely because it was created separate from an
existing software program.
By allowing Reinhardt to raise a fact issue by making a conclusory affidavit
statement that did not actually identify a report of a violation of law, the Panel
makes it impossible for any sovereign entity to seek early dismissal of a
Whistleblower Act claim. The employee can overcome every Plea with a
conclusory affidavit about what was reported – one which cannot be controverted
because not enough information is provided.
Additionally, Reinhardt’s alleged report was not of a violation of law. This
alleged report only implicates the Whistleblower Act if Reinhardt produces
evidence of a good faith belief that a law actionable under the Act was violated by
the conduct reported. An actionable law as statutorily defined is “a state or federal
9
statute,” “an ordinance of a local governmental entity,” or “a rule adopted under a
statute or ordinance.” TEX. GOV’T CODE, §554.001(1).
Reinhardt did not report that documents were falsified. Reinhardt does not
allege and there is no evidence that the City of Bertram falsified financial
documents. The undisputed evidence is that Reinhardt has no idea what documents
were submitted or what they reflected. Reinhardt’s alleged report to the Chief was
that seven months earlier she had been requested to prepare a “false” document and
she refused.
Reinhardt has never identified any statute or ordinance that prohibits or that
one reasonably could believe prohibits the request for creation of a financial
report. See, e.g., Univ. of Houston v. Barth, 403 S.W.3d 851, 855 (Tex. 2013). The
Panel Opinion, by not requiring the same, contradicts well-established law. While
courts do not require that a “law” be identified in the report, there must still be
evidence produced that there was an actionable law that was allegedly violated. As
the Corpus Christi Court of Appeals stated:
Though an employee need not identify a specific law when making a
report, and need not establish an actual violation of law, there must be
some law prohibiting the complained of conduct to give rise to a
Whistleblower claim. Otherwise, every complaint, grievance, and
misbehavior could support a claim under the Act.
Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638, 642 (Tex.App.—
Corpus Christi 2001, pet. denied).
10
Reinhardt fails to offer evidence that there is any “law” that could plausibly
apply to her alleged report that: seven months earlier I was asked to prepare a
document and I refused. TEX. PENAL CODE §37.10(a) does not prohibit the alleged
request for creation of a document.
Additionally, there is no probative evidence of any adverse personnel action.
Reinhardt makes conclusory statements about what she claims happened as a result
of her report. The City brought forward probative evidence addressing and refuting
each point and Reinhardt offered no probative evidence to controvert that proof.
Other than the conclusory statements by Reinhardt that she suffered adverse action,
there is no probative evidence from which a jury could find that she actually did.
The Panel did not address this issue at all in its Opinion.
If all an employee has to do to overcome a Plea to the Jurisdiction is to make
conclusory statements about what was reported and what happened as a result, then
government entities will be unable to secure dismissal even when there is no
probative evidence to support the same. It is well-settled law that when there is no
admissible evidence with respect to each element of the Whistleblower Act cause
of action, the fact-finder cannot infer to the contrary, and the government entity is
entitled preservation of its immunity. City of El Paso v. Heinrich, 284 S.W.3d 366,
378 (Tex. 2009); Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
228 (Tex. 2004). The City of Bertram is entitled to its sovereign immunity.
11
CONCLUSION
The Panel erred in failing to grant the City of Bertram’s Plea to the
Jurisdiction. Reinhardt offered no probative evidence of the essential elements of
her claim. The Panel relied on the conclusory and factually unsupported affidavit
of Reinhardt, in conflict with long-standing law. By allowing a claimant to
overcome a Plea to the Jurisdiction without probative evidence, the City of
Bertram is improperly deprived of its sovereign immunity.
Prayer
Appellant City of Bertram prays that the Court grant this Motion; withdraw
the August 12, 2015 Opinion and Judgment; reverse the Trial Court’s Order
denying the Plea to the Jurisdiction; render Judgment for the City of Bertram; and
for such other and further relief to which Appellant may show itself justly entitled.
Respectfully submitted,
/s/ Joanna Lippman Salinas
Joanna Lippman Salinas
State Bar No. 00791122
Fletcher, Farley,
Shipman & Salinas, L.L.P.
1717 W. 6th Street, Suite 300
Austin, Texas 78703
(512) 476-5300
FAX (512) 476-5771
Email: joanna.salinas@fletcherfarley.com
Attorneys for Appellant,
CITY OF BERTRAM, TEXAS
12
Certificate of Service
I hereby certify that a true and correct copy of the foregoing and attached
Appellant’s Motion for Rehearing and for en Banc Reconsideration has been
provided to:
Tracy D. Cluck
LAW OFFICE OF TRACY D. CLUCK
P.O. Box 855
Dripping Springs, Texas 78620
Zachary P. Hudler
ZACHARY P. HUDLER, P.C.
P.O. Box 1728
Johnson City, Texas 78636
by Electronic Service, on September 28, 2015, in accordance with the Texas Rules
of Appellate Procedure.
/s/ Joanna Lippman Salinas
Joanna Lippman Salinas
Certificate of Compliance
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 2,621 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification, certificate of compliance, and
Appendix). This is a computer-generated document created in Microsoft Word,
using 14-point typeface for all text, except for footnotes which are in 12-point
typeface. In making this certificate of compliance, I am relying on the word count
provided by the software used to prepare the document.
/s/ Joanna Lippman Salinas
Joanna Lippman Salinas
13
City of Bertram, Texas v. Vicki Reinhardt
Combined Opinion