Linda Uballe v. Ryan Trimble, Bob Bindseil, Richard Culpepper, Tommy Giambernardi, and City of Blanco

Uballe v. Trimble TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN ON MOTION FOR REHEARING NO. 03-95-00260-CV Linda Uballe, Appellant v. Ryan Trimble, Bob Bindseil, Richard Culpepper, Tommy Giambernardi, and City of Blanco, Appellees FROM THE DISTRICT COURT OF BLANCO COUNTY, 33RD JUDICIAL DISTRICT NO. 4119, HONORABLE D. V. HAMMOND, JUDGE PRESIDING PER CURIAM We overrule appellees' motion for rehearing, withdraw our opinion and judgment of May 1, 1996, and substitute the following therefor. Appellant Linda Uballe appeals the trial court's take-nothing judgment in her suit against appellees Ryan Trimble, Bob Bindseil, Richard Culpepper, Tommy Giambernardi, and the City of Blanco. Uballe sued appellees alleging six causes of action after the Blanco City Council discharged her from her position as city clerk. When the events on which Uballe based her suit occurred, Trimble was mayor of the City of Blanco and Bindseil, Culpepper, and Giambernardi were members of the city council. The trial court granted appellees' motion for summary judgment on each cause. We will affirm in part and reverse and remand in part. In her first point of error, Uballe argues that the trial court erroneously granted summary judgment based on official immunity on five of her causes of action. Uballe concedes that her defamation claim was properly subject to summary judgment based on the defense of absolute immunity. Because appellees did not assert official immunity as a ground for summary judgment on Uballe's five non-defamation causes, we overrule point one. In her second point of error, Uballe contends that the trial court erred in granting summary judgment on her claim of malicious prosecution. Uballe asserted this claim only against Trimble. To prevail on her malicious prosecution claim, Uballe was required to prove seven elements: (1) the commencement of a criminal prosecution against Uballe; (2) which Trimble initiated or procured; (3) which terminated in Uballe's favor; (4) that Uballe was innocent; (5) that no probable cause existed for the proceeding; (6) that it was done with malice; and (7) that it resulted in damage to Uballe. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 293 (Tex. 1994); Futerfas v. Park Towers, 707 S.W.2d 149, 161 (Tex. App.--Dallas 1986, writ ref'd n.r.e.); Thomas v. Cisneros, 596 S.W.2d 313, 316 (Tex. Civ. App.--Austin 1980, writ ref'd n.r.e.). As a defendant moving for summary judgment, Trimble had to disprove, as a matter of law, at least one essential element of Uballe's malicious prosecution claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex. 1976). When reviewing a summary judgment, we take as true all evidence favoring the nonmovant, indulging every inference and resolving every doubt in her favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Uballe alleged in her petition that Trimble signed a complaint and caused her to be arrested for making harassing telephone calls to his home. In moving for summary judgment on Uballe's claim of malicious prosecution, Trimble alleged that probable cause existed to charge Uballe, that he did not initiate or procure the charge against her, and that Uballe was not innocent of the charge. On appeal, Uballe fails to attack this last ground, arguing instead that Trimble did not present lack of innocence as a ground in moving for summary judgment. In replying to Uballe's response to his supplemental motion for summary judgment, Trimble alleged that Uballe admitted making the telephone calls. Trimble combined his reply with a motion for leave to file a deposition transcript supporting this allegation. The combined reply and motion for leave were filed seven days before the hearing on appellees' supplemental motion for summary judgment, and in its order granting summary judgment, the court expressly granted leave to file the deposition transcript. Because the movant has no deadline for replying to the nonmovant's response, we determine that Trimble's reply, raising the ground of Uballe's lack of innocence, was properly before the trial court. Knapp v. Eppright, 783 S.W.2d 293, 296 (Tex. App.--Houston [14th Dist.] 1989, no writ); see Tex. R. Civ. P. 166a(c). The trial court did not specify the basis on which it granted summary judgment. By failing to attack all the grounds stated in the motion, Uballe has failed to show error in granting summary judgment on her malicious prosecution claim. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Thomson v. Norton, 604 S.W.2d 473, 477 (Tex. Civ. App.--Dallas 1980, no writ); Rodriguez v. Morgan, 584 S.W.2d 558, 559 (Tex. Civ. App.--Austin 1979, writ ref'd n.r.e.). We overrule point of error two. In point of error three, Uballe asserts that the trial court erred in granting summary judgment on her claims that appellees violated the Open Meetings Act. See Tex. Gov't Code Ann. §§ 551.001--.146. Uballe alleged in her petition that appellees violated two provisions of the Act, the first being the requirement that the City properly notify the public of its meetings. See §§ 551.041, .043. Uballe pleaded that the city council's meeting notices failed to specify the subjects to be discussed, improperly cited statutes, and were improperly posted. The Act requires a governmental body to give written notice of the time and subject of each meeting it holds and to post the writing in an accessible place at least seventy-two hours before the scheduled time of the meeting. Id. To support their motion for summary judgment, appellees submitted the posted agenda for the July 9, 1991, meeting, at which Uballe was terminated, and the affidavit of Bobbie Mowery, the City's secretary. Mowery testifies in her affidavit that her office was responsible for posting city council meeting notices. She then sets forth the City's practice in posting meeting agendas: the mayor and the city council determine the specific items to be included on the agenda; Mowery's office prepares the agenda and posts it in front of the door to the city council's meeting room at least seventy-two continuous hours before the meeting begins; and the agenda is available for public inspection at least seventy-two hours before the meeting. Uballe responded to appellees' motion that the agenda for the July 9, 1991, meeting contained a vague description of the subject to be discussed. Given the general allegation in Uballe's petition that notices were improperly posted and her failure to raise any controverting fact issue on the method of posting in her response, we determine that appellees conclusively proved that meeting notices were properly posted. Vilbig v. City of Waxahachie, 603 S.W.2d 370, 371 (Tex. App.--Waco 1980, writ dism'd). The agenda for the July 9, 1991, meeting clearly states the subject matter of the meeting and explicitly mentions that Uballe's employment status or termination will be considered. Uballe nevertheless argues that she raised a fact issue on the method of posting notice by presenting to the trial court her answers to interrogatories. Because Uballe was required to raise issues in opposition to the summary-judgment motion in her response rather than in her evidence, this argument has no merit. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). We therefore overrule point three as to Uballe's claim that meeting notices were posted in violation of the Open Meetings Act. Uballe also alleged in her petition that appellees Giambernardi, Culpepper, Bindseil, and Trimble violated the Act by meeting before council meetings to plan their actions at council meetings. Uballe claimed that the secret actions of the four appellees caused her termination and that the City's act of terminating her in violation of the Act was void. See §§ 551.141, .143. In their motion for summary judgment, appellees conceded that the four council members would from time to time speak with one another concerning issues of importance to City government. The appellees claimed, however, that a quorum of members never met without complying with the Act. Uballe responded that the Act could be violated even if less than a quorum of city council members met. She pointed out that a member or group of members of a governmental body commits an offense by knowingly conspiring to circumvent the Act by meeting in numbers less than a quorum for secret deliberations. (1) § 551.143. We agree that appellees' concession that council members talked about city issues outside formal meetings raises a fact issue whether they violated section 551.143 by meeting in numbers less than a quorum to secretly deliberate. Appellees assumed the summary-judgment burden of negating, as a matter of law, at least one essential element of Uballe's Open Meetings Act claim. Centeq Realty, Inc., 899 S.W.2d at 197; Citizens First Nat'l Bank, 540 S.W.2d at 294. Appellees stated in the summary-judgment motion that merely discussing a city issue outside a formal meeting, and even discussing one's vote with a colleague, does not violate the Act. We will treat this statement as appellees' allegation that they could negate the element of knowingly conspiring to circumvent the Act. Appellees raised no other ground in defense of Uballe's Open Meetings Act claim. Although appellees alleged that they did not knowingly conspire to circumvent the Act, they presented no summary-judgment evidence to prove that they did not. Rather than affirmatively offering evidence to disprove the charge that they conspired to plan Uballe's termination, appellees asserted that no evidence existed that the Act was violated when Uballe was terminated. Appellees have therefore failed to carry their summary-judgment burden. Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 435-36 (Tex. App.--San Antonio 1993, writ denied). However difficult it may be to prove that one did not act in a certain manner, because the evidence does not conclusively disprove that appellees violated the Act in connection with terminating Uballe, we must sustain point three as to Uballe's claim that appellees improperly engaged in secret deliberations. We reverse that part of the trial court's judgment relating to Uballe's cause of action for violating the Open Meetings Act by engaging in secret deliberations and remand that cause for a trial on the merits. We affirm the judgment in all other respects. Before Justices Powers, Aboussie and Kidd Affirmed in Part; Reversed and Remanded in Part Filed: July 17, 1996 Do Not Publish 1. 1 In the context of meetings of less than a quorum of members of a governmental body for the purpose of secret deliberations, "deliberation" appears to mean a verbal exchange concerning an issue within the jurisdiction of the governmental body or any public business. See Tex. Gov't Code Ann. §§ 551.001(2), .143 (West 1994). ontained a vague description of the subject to be discussed. Given the general allegation in Uballe's petition that notices were improperly posted and her failure to raise any controverting fact issue on the method of posting in her response, we determine that appellees conclusively proved that meeting notices were properly posted. Vilbig v. City of Waxahachie, 603 S.W.2d 370, 371 (Tex. App.--Waco 1980, writ dism'd). The agenda for the July 9, 1991, meeting clearly states the subject matter of the meeting and explicitly mentions that Uballe's employment status or termination will be considered. Uballe nevertheless argues that she raised a fact issue on the method of posting notice by presenting to the trial court her answers to interrogatories. Because Uballe was required to raise issues in opposition to the summary-judgment motion in her response rather than in her evidence, this argument has no merit. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). We therefore overrule point three as to Uballe's claim that meeting notices were posted in violation of the Open Meetings Act. Uballe also alleged in her petition that appellees Giambernardi, Culpepper, Bindseil, and Trimble violated the Act by meeting before council meetings to plan their actions at council meetings. Uballe claimed that the secret actions of the four appellees caused her termination and that the City's act of terminating her in violation of the Act was void. See §§ 551.141, .143. In their motion for summary judgment, appellees conceded that the four council members would from time to time speak with one another concerning