Summary
affirming summary judgment on ground that plaintiff in Whistleblower Act suit failed to timely file petition and claim was barred by limitations
Summary of this case from Travis Cnty. v. RogersOpinion
No. 13-05-117-CV
Opinion Delivered May 10, 2007.
On appeal from the 404th District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
Memorandum Opinion by Justice RODRIGUEZ.
MEMORANDUM OPINION
This appeal arises from a summary judgment granted in favor of appellee, Cameron County, Texas (the County), and against appellant, Robert Scott, in a suit brought pursuant to the Whistleblower Act (the Act). See Tex. Gov't Code Ann. §§ 554.002, 554.003 (Vernon 2004). By three issues, Scott contends the trial court erred in (1) granting the County's third special exception relating to Exhibit B of his summary judgment evidence, (2) granting the County's motion for summary judgment on the basis that Scott's report of an alleged violation of law was not made in good faith, and (3) granting the County's motion for summary judgment on the ground that the underlying suit was barred under the limitation period of the Act. We affirm.
Scott refers to this special exception in his brief as "Special Exception/Objection number two." However, based on the contents of Scott's brief, it is clear that he intended to challenge the County's third special exception rather than its second special exception. Therefore, we will refer to the challenged special exception as the County's third special exception.
I. Background
On September 5, 2002, Scott, a former County detention officer, allegedly reported to County Sheriff Conrado Cantu alleged violations of the law committed by Lieutenant Joel Zamora of the County Sheriff's Department. On September 15, 2002, Scott received written notice that he had been terminated by the County. In mid-December 2002, Scott allegedly observed a news story regarding a County employee who had allegedly been terminated by the County for reporting similar violations of the law by Lieutenant Zamora. Scott filed the underlying suit on January 13, 2003, alleging that he was terminated in retaliation for reporting to Sheriff Cantu the alleged violations of the law committed by Lieutenant Zamora. The County filed a motion for summary judgment on the bases that (1) Scott did not make any such report or, assuming he did, that he did not make such report in good faith, and (2) the action was barred under the limitation period of the Act. See id. §§ 554.002, 554.005. Scott filed a response to the County's motion for summary judgment, attaching seven exhibits as summary judgment evidence. The County filed special exceptions/objections to four of the seven exhibits. The trial court granted the County's special exceptions and granted summary judgment in its favor. This appeal ensued.
II. Special Exceptions
By his first issue, Scott contends the trial court erred in granting the County's third special exception relating to Exhibit B, an affidavit supplied by Scott, on the basis that the affidavit contained legal conclusions, hearsay, unsupported conclusory statements, and self-serving statements. However, Scott has failed to present clear and concise arguments to support this contention. See Tex. R. App. P. 38.1(h) (providing that appellant's brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). Therefore, we conclude that the briefing on this issue is inadequate and that the issue is waived. See id. Accordingly, we overrule Scott's first issue.
To the extent Scott may be attempting to assert the trial court erred in not providing him an opportunity to amend his affidavit based on the trial court's grant of the County's special exceptions to it, we conclude the briefing is inadequate. See Tex. R. App. P. 38.1(h). Accordingly, we will not consider such a contention.
On appeal, Scott does not challenge the trial court's grant of the County's first, second, fourth, and fifth special exceptions, wherein the County excepted to the following exhibits: Exhibit A, Scott's amended petition; Exhibit B, Scott's affidavit (the same affidavit excepted to in the County's third special exception; Exhibit C, a second affidavit of Scott; and Exhibit F, Scott's responses to interrogatories. Accordingly, we cannot consider these exhibits in our review of the propriety of the trial court's grant of summary judgment in favor of the County.
III. Propriety of Summary Judgment
By his second issue, Scott contends the trial court erred in granting the County's motion for summary judgment on the basis that he did not report the alleged violation of law in good faith. See Tex. Gov't Code Ann. § 554.002. Through his third issue, Scott asserts the trial court erred in granting summary judgment in favor of the County on the ground that the underlying suit was barred under the limitation period of the Act. See id. § 554.005.
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.-Corpus Christi 2003, no pet.) (citing Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex.App.-Corpus 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)). 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 (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)).
When, as in this case, a trial court's order granting summary judgment does not state the grounds upon which it was granted, the judgment must be affirmed if any of the grounds advanced in the summary judgment motion are meritorious. Branton, 100 S.W.3d at 647 (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex.App.-Corpus Christi 1998, no pet.)).
A. Limitation Period
By his third issue, Scott contends that pursuant to section 554.005(2) of the Act, he timely filed the underlying suit within ninety days from the date on which he discovered, through reasonable diligence, the County's alleged violation of the Act, and therefore, the trial court erred in granting the County's motion for summary judgment on the basis that his suit was barred under the limitation period of the Act. See Tex. Gov't Code Ann. § 554.005. We disagree.
Section 554.005 of the Act provides the following, in relevant part:
[A] public employee who seeks relief under this chapter must sue not later than the 90th day after the date on which the alleged violation of this chapter:
(1) occurred; or
(2) was discovered by the employee through reasonable diligence.
We note that Scott acknowledges that he did not file the underlying suit within ninety days of the date that the County allegedly violated the Act by terminating him. See Tex. Gov't Code Ann. § 554.005 (Vernon 2004). Thus, he does not challenge the trial court's grant of summary judgment on the basis of section 554.005(1). See id.
Id. Although the Act does not define "reasonable diligence," the phrase generally means "[a] fair degree of diligence expected from someone of ordinary prudence under circumstances like those at issue." Black's Law Dictionary 204 (2nd pocket ed. 1996). The term "diligence" is defined as "a continual effort to accomplish something" and "care; caution; the attention and care required from a person in a given situation." Id. at 203. Thus, in order to satisfy the limitation period set forth in section 554.005(2) of the Act, a plaintiff must have (1) engaged in a fair degree of care or continual effort to discover the alleged violation of the Act, in this case that Scott was allegedly terminated in retaliation for his whistleblowing, and (2) filed suit within ninety days of such discovery. See Tex. Gov't Code Ann. § 554.005(2); see also Black's Law Dictionary at 203, 204.
To support his assertion that he exercised reasonable diligence in discovering that he was allegedly terminated in retaliation for his whistleblowing and that he filed the underlying lawsuit within ninety days of that discovery, see Tex. Gov't Code Ann. § 554.005(2), Scott relies on Exhibit B, his affidavit, and on his deposition testimony. However, as noted above, we cannot consider Exhibit B in our review of the propriety of the trial court's grant of summary judgment in favor of the County. Therefore, we will limit our analysis of the propriety of the grant of summary judgment to the evidence contained in Scott's deposition testimony, which we conclude was properly before the trial court.
Scott also directs us to his response to interrogatory number six in support of this contention. However, as previously noted, the County filed, and the trial court granted, a special exception to Scott's use of his responses to the County's interrogatories as summary judgment evidence on the basis that "[a] party cannot rely on his own Answers to interrogatories to raise a fact issue." Nevertheless, Scott suggests that his responses to the County's interrogatories are proper summary judgment evidence because the County attached the responses as an exhibit to his deposition. We disagree. Although the Texas Supreme Court has held that a party's answer to an interrogatory may become competent summary judgment evidence for the answering party when (1) it is a deposition exhibit, (2) the party answering the interrogatory affirms in his deposition that the answer is correct, and (3) the party answering the interrogatory is subject to cross-examination about the assertions in his interrogatory answer, see Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (per curiam), the latter two elements are not present in the instant case. Therefore, we conclude that Scott cannot rely on his answer to interrogatory number six to support this contention.
We note that both the County and Scott relied on Scott's deposition testimony as summary judgment evidence and that the County did not except to the deposition testimony as summary judgment evidence. Therefore, it was properly before the trial court and is properly before this Court.
We also note that Scott does not direct this Court to any remaining summary judgment evidence to support his assertion that he exercised reasonable diligence in discovering that he was allegedly terminated in retaliation for his whistleblowing and that he filed the underlying lawsuit within ninety days of that discovery, see Tex. Gov't Code Ann. § 554.005(2), and we find none.
Scott asserts that the following deposition testimony demonstrates that he exercised reasonable diligence:
Q. If the Sheriff had not asked you about how things were going on at the jail, when do you think you would of [sic] made the report?
. . . .
A. Well, I wanted to have an opportunity to talk to the Sheriff cause I thought he was the designated person that I needed to talk to.
We disagree. Scott's testimony was given in response to a question related to his reporting alleged violations of the law committed by Lieutenant Zamora to Sheriff Cantu, not in response to a question related to exercising reasonable diligence in determining whether he was terminated in retaliation for whistleblowing. As a result, it does not support Scott's assertion that he exercised reasonable diligence.
Moreover, the following exchange took place during Scott's deposition:
Q. Did you inquire about why you were terminated?
A. No, I — I asked Lieutenant Zamora that same day he handed me — that same morning he handed me the termination letter and I asked him, is there a report that I was tardy or something because I had never been tardy nor reprimanded for anything, nor suspended, and his only answer was, your philosophy does not coincide with the Sheriff's Department.
Q. Okay. And with that response that day did you make any further inquiries?
A. No, I did not.
Q. Did you conduct any type of investigation into why you were terminated?
A. No, I did not.
The County argues that this testimony, by which Scott states that he did not make any further inquiry or conduct any investigation into his termination, establishes that Scott did not exercise reasonable diligence in discovering that he was terminated in retaliation for his whistleblowing. The County further argues that because Scott did not exercise reasonable diligence, he cannot satisfy the limitation period of section 554.005(2). See Tex. Gov't Code Ann. § 554.005(2). We agree.
Accordingly, we conclude the trial court properly granted summary judgment in favor of the County on the ground that the limitation period of the Act barred the underlying suit by Scott against the County because Scott did not use reasonable diligence in discovering the County's alleged violation of the Act. Therefore, we overrule Scott's third issue.
Having concluded that Scott's suit against the County was barred by the limitation period of the Act, we need not address Scott's second issue relating to the good faith element of his whistleblower cause of action. See Tex. R. App. P. 47.1; see also Tex. Gov't Code Ann. § 554.002(a).
IV. Conclusion
Accordingly, we affirm the judgment of the trial court.