Opinion
NO. 03-15-00793-CV
05-19-2016
Derek A. Anthony, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-15-001467, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDINGMEMORANDUM OPINION
Derek A. Anthony appeals the trial court's summary judgment in favor of the State of Texas, which sued Anthony on behalf of the Texas Ethics Commission to collect fines assessed against him for his alleged failure to file two statutorily required semi-annual reports disclosing campaign contributions received by a candidate for public office. See Tex. Elec. Code §§ 254.042, .063; see also Tex. Gov't Code §§ 571.171(a) (Texas Ethics Commission may initiate civil enforcement actions), 2001.202(a) (Attorney General may, at request of state agency, bring action in district court to enjoin violation of agency rule or order or to compel compliance with final order or decision of agency). Anthony contends that his affidavit attached to his summary-judgment response created a material fact issue on the question of whether he timely filed the reports and that summary judgment was, therefore, improper. We will affirm the trial court's final summary judgment.
Because the parties are familiar with the facts and procedural background, we dispense with a recitation of that information except as necessary to explain the reasons for our decision. See Tex. R. App. P. 47.4.
Anthony contends that the trial court erred in granting the State's motion for summary judgment because his affidavit created a material fact issue about whether he timely filed the requisite reports.See Tex. R. Civ. P. 166a(c); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (appellate courts review summary-judgment motion and response de novo to determine if competent summary-judgment evidence shows that there is no genuine issue of any material fact and that movant is entitled to summary judgment as matter of law). The entirety of the substantive and relevant portions of his affidavit reads:
At the hearing on the State's motion for summary judgment, the trial court sustained the State's best-evidence objection to Anthony's affidavit, which ruling Anthony also appeals.
The State claims I failed to file 2 semi-annual reports with the Texas Ethics Commission by July 15, 2014 and January 15, 2015. I timely filed those reports. However, I have been unable to locate my copies of the reports. I have diligently searched all my records, and have been unable to find my copies. The only explanation I have is that I moved, and perhaps the copies were inadvertently misplaced or discarded during the move. (Emphasis added.)The State responds that Anthony's statement in his affidavit that he "timely filed" the reports is merely conclusory and therefore insufficient to create a material fact issue.See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (holding that affidavits consisting only of conclusions are insufficient to raise issue of fact); Rizkallah v. Conner, 952 S.W.2d 580, 587-88 (Tex. App.—Houston [1st Dist.] 1997, no writ) (explaining that conclusory statement in affidavit that does not provide underlying facts to support conclusion is not proper summary-judgment proof). We agree.
Although the State did not make this particular argument below to the trial court, because it asserts a defect in the substance of Anthony's affidavit, it may be raised for the first time on appeal. See Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no pet.); Ramirez v. Transcontinental Ins. Co., 881 S.W.2d 818, 829 (Tex. App.—Houston [14th Dist.] 1994, writ denied); see also Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839 (Tex. 2010) (noting that opinion testimony containing only conclusory statements cannot support judgment even when no objection was made to statements at trial). --------
The statute under which the Commission assessed a fine provides for a civil penalty for a "late report" and bases the amount of penalty for certain reports on how late the report is filed, up to a maximum of $10,000. See Tex. Elec. Code § 254.042(a), (b). Anthony's statement that he "timely filed" the reports is a factual conclusion, and he does not support that conclusion with any supporting facts, such as the dates he allegedly filed the reports and the method by which he filed them (i.e., electronically or via mail). Therefore, his affidavit is incompetent to create a material fact issue on the timeliness of his filing the reports. See Ayeni v. State, 440 S.W.3d 707, 712 (Tex. App.—Austin 2013, no pet.) (to be competent summary-judgment evidence, affidavit must contain specific factual bases, admissible in evidence, upon which its conclusions are based). The State attached the affidavit of the Executive Director of the Texas Ethics Commission to its motion for summary judgment as well as an affidavit attesting to attorney's fees incurred by the Attorney General in the lawsuit. The Executive Director's affidavit averred that Anthony had failed to file the two requisite reports by their due dates and outlined the respective fines assessed for such failure, as provided for in the election code. Because Anthony did not submit evidence creating a material fact issue on the timeliness of the required filings, and because the State established its entitlement to summary judgment as a matter of law, we hold that the trial court properly granted the State's motion, and we overrule Anthony's issue regarding propriety of summary judgment.
In a second issue, Anthony contends that the trial court erred in sustaining the State's best-evidence objection to his affidavit and, accordingly, not considering his affidavit in its summary-judgment determination. However, as discussed above, even if the trial court had considered the affidavit, the facts recited therein were insufficient to create a material fact issue on the dispositive questions. Therefore, even if the trial court's ruling on the State's objection were erroneous, the error did not cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1) (no judgment may be reversed on appeal on ground that trial court made error of law unless court of appeals concludes that error complained of probably caused rendition of improper judgment); Steinkamp v. Caremark, 3 S.W.3d 191, 197 (Tex. App.—El Paso 1999, pet. denied) (holding that trial court's decision to exclude summary-judgment evidence will not result in reversal unless appellant was harmed by decision). Accordingly, we overrule Anthony's issue pertaining to the trial court's ruling on the State's best-evidence objection.
CONCLUSION
For the foregoing reasons, we affirm the trial court's summary judgment.
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: May 19, 2016