                                 NO. 07-03-0021-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL A

                                NOVEMBER 24, 2003

                        ______________________________


                           DONNA VAUGHN, APPELLANT

                                          V.

                  SEARS PANHANDLE RETIREMENT D/B/A CRAIG

               METHODIST RETIREMENT COMMUNITY, APPELLEE


                      _________________________________

            FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

             NO. 89,608-C; HONORABLE PATRICK A. PIRTLE, JUDGE

                        _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Appellant Donna Vaughn presents two issues by which she challenges a summary

judgment denying her claims as a matter of law and dismissing with prejudice her action

for retaliatory discharge filed under section 242.133 of the Texas Health & Safety Code
Annotated (Vernon 2001), against appellee Sears Panhandle Retirement d/b/a Craig

Methodist Retirement Community. Vaughn does not present a broad form issue which

authorizes argument as to all possible grounds upon which summary judgment should

have been denied. See Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.

1970). Instead, by her two issues, she contends (1) her termination twelve days after she

reported violations of the Texas Health and Safety Code and the Texas Penal Code

presented a material issue of fact and (2) the summary judgment evidence adduced “some

evidence” from which a jury may infer a causal link between her report and her termination.

Based upon the rationale expressed herein, we affirm.


       Vaughn commenced working for Sears at Windflower as the Director of Activities

for the Nursing Wing in August 2000. In August 2001, the new executive director of Sears

and Windflower’s new administrator decided to reorganize the Activities Department

thereby eliminating Vaughn’s position or the other director. Before Vaughn was notified

that her position would be eliminated, after hearing a rumor that a former director of

nursing might be temporarily reassigned to Windflower, Vaughn and another employee

met with Windflower’s new administrator and expressed their concerns about the rumor

that the former director of nursing would soon be reassigned to Windflower. During that

meeting, among other things, Vaughn told the new administrator that the former director

of nursing had participated in a cover-up of the circumstances of the death of a former

patient. The alleged cover-up occurred before Vaughn was employed by Sears and she


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had no “first hand” knowledge of it. Her information was obtained from third parties and

not acquired in the course and scope of the performance of her duties. In accordance with

the prior decision of the new executive director of Sears and Windflower’s new

administrator, Vaughn’s position was terminated 12 days after her meeting with

Windflower’s administrator.


      Contending her discharge was in retaliation for her comments to the administrator

concerning the alleged cover-up incident, Vaughn filed suit seeking damages pursuant to

section 242.133 of the Code. After discovery was conducted, Sears filed its traditional

motion for summary judgment containing two grounds. By its first ground, entitled “Vaughn

Did Not Make a Report Under Section 242.133,” Sears contended Vaughn’s statements

to the administrator that the former nursing director (1) hired an employee with a history

of abuse or (2) engaged in a cover-up of an incident some 18 months before Vaughn was

hired, did not constitute section 242.133(b) reports as a matter of law. By its second

ground, Sears contended there was no causal nexus between any alleged report and

Vaughn’s termination. After a hearing on the motion, summary judgment was granted and,

without specifying the grounds, the trial court dismissed Vaughn’s claim with prejudice.


                                  Standard of Review


      For a party to prevail on a traditional motion for summary judgment, he must

conclusively establish the absence of any genuine question of material fact and that he is


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entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). This requirement dictates

that when the defendant is the movant, he must conclusively negate at least one of the

essential elements of the plaintiff's cause of action.       Likewise, a defendant who

conclusively establishes each element of an affirmative defense is entitled to summary

judgment. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).

In Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985), the Court

set out the standard by which we are to review a summary judgment:


      1. The movant for summary judgment has the burden of showing that there
      is no genuine issue of material fact and that it is entitled to judgment as a
      matter of law.
       2. In deciding whether there is a disputed material fact issue precluding
       summary judgment, evidence favorable to the non-movant will be taken as
       true.
       3. Every reasonable inference must be indulged in favor of the non-movant
       and any doubts resolved in its favor.


Once the movant has established a right to summary judgment, the non-movant has the

burden to respond to the motion and present to the trial court any issues that would

preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d

671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston

[1st Dist.] 1996, writ denied). Issues which the non-movant contends preclude the granting

of a summary judgment must be expressly presented to the trial court by written answer

or other written response to the motion and not by mere reference to summary judgment

evidence.    McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993).

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Issues not expressly presented to the trial court in writing shall not be considered on

appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). Further, all theories in support

of or in opposition to a motion for summary judgment must be presented in writing to the

trial court. Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989). Moreover, where the non-

movant does not successfully challenge every possible ground upon which the trial court

based its summary judgment, it must be affirmed. Malooly Bros. Inc. v. Napier, 461

S.W.2d 119, 121 (Tex. 1970); Grace v. Colorito, 4 S.W.3d 765, 768 (Tex.App.--Austin

1999, pet. denied).


      By her first issue, Vaughn contends her termination 12 days after she reported

violations of the Texas Health and Safety Code was a material issue of fact. For the

reasons explained below, this issue presents nothing for review and is overruled.


      Sears did not contend that Vaughn did not tell its administrator that its former

director of nursing (1) hired an employee with a history of abuse or (2) participated in a

cover-up of circumstances surrounding a patient’s death. To the contrary, Sears argued

that notwithstanding Vaughn’s statements:


      [a]s a matter of law, neither of these accusations are Section 242.133(b)
      reports. In regards to her accusation regarding the CNA, there was no
      violation of law to report. In regards to her conjecture about an alleged
      cover-up, Vaughn did not put Sears Panhandle on notice that she was
      reporting a violation of law as contemplated by Section 242.133(b).




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In its motion Sears references Gonzales v. Methodist Retirement Communities, 33 S.W.3d

882 (Tex.App.--Houston [14th Dist.] 2000, pet. denied) in its discussion of the matter of law

ground. Vaughn did not except to the motion nor claim that it did not state the specific

grounds or was not sufficient to define the issues and to put her on notice with adequate

information to oppose the motion. See Inwood Forest, Etc. v. R.J.S. Development, 630

S.W.2d 751, 753 (Tex.App.--Houston [1st Dist.] 1982 , no writ). Instead, by her response

to the motion for summary judgment, Vaughn focused on the facts and summary judgment

evidence but did not respond to nor address the first ground that Vaughn’s statements did

not constitute reports for purposes of section 242.133(b). Accordingly, because Vaughn

did not challenge the contention that her accusations did not constitute reports for the

purpose of section 242.133(b) nor otherwise challenge the matter of law ground in the trial

court by written motion, answer, or other response, it may not be considered as grounds

for reversal. Tex. R. App. P. 166a(c); McConnell, 858 S.W.2d at 341.


        Moreover, the response of Sears that the judgment must be affirmed because

Vaughn does not challenge both grounds of the motion for the summary judgment on

appeal is correct. By her first issue, Vaughn set out the history and summary judgment

evidence but did not address the ground and point of Sears that her statements did not

constitute reports for purposes of section 242.133 as a matter of law. In Granada

Biosciences, Inc. v. Barrett, 958 S.W.2d 215, 224 (Tex.App.--Amarillo 1997, pet. denied),

we held:


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      [i]n order for a non-movant to obtain reversal of a summary judgment that
      does not specify the grounds on which it is based, the non-movant must
      show that each independent ground alleged in the motion was insufficient to
      support the judgment. . . . Notwithstanding a non-movant’s challenge to
      summary judgment grounds in a written response, the summary judgment
      must be affirmed when the non-movant does not assign error in the court of
      appeals challenging each independent ground asserted in the summary
      judgment motion.


Thus, even if presented by her response in the trial court, because Vaughn does not

address the matter of law ground on appeal, the judgment must be affirmed.


      We have not overlooked Vaughn’s reference to Tomhave v. Oaks Psychiatric

Hosp., 82 S.W.3d 381 (Tex.App.--Austin 2002, pet. denied). However, because the no

evidence motion there did not question whether the statement constituted a report for

purposes of section 242.133, Tomhave is not controlling. Accordingly, Vaughn’s first issue

is overruled. Our disposition of Vaughn’s first issue pretermits our consideration of her

second issue by which she contends that some evidence was presented to infer a causal

link between her report and her termination.


      Accordingly, the judgment of the trial court is affirmed.




                                                Don H. Reavis
                                                  Justice




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