                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-027-CV


RUTH GROOMER                                                    APPELLANT

                                       V.

TEXAS DEPARTMENT OF FAMILY                                        APPELLEE
AND PROTECTIVE SERVICES

                                   ------------

           FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                                I. Introduction

     In two issues, Appellant Ruth Groomer asserts that the trial court erred

by granting summary judgment to Appellee Texas Department of Family and

Protective Services (“TDFPS”). We affirm.




     1
         … See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

      In August 2007, Groomer, a TDFPS employee, sued TDFPS under the

Texas Whistleblower Act,2 alleging in her original petition that she became

aware of several incidents of illegal activity or conduct by her supervisors and

that, upon reporting this conduct, her supervisors retaliated through adverse

personnel actions and conduct against her.        Specifically, she alleged that

Supervisor Colleen Sells “illegally extorted” a $1,500 loan from Groomer in

2003 and then failed to repay it for a year and that Supervisor Myra

McClacherty used office furniture for her personal use and used state

employees on state time to help her move into her private residence in 2006.

The following is a partial timeline of this case’s procedural history:

      August 2007              Groomer files her original petition.

      October &                Groomer responds to TDFPS discovery.
      December 2007

      April 1, 2008            Scheduling order entered, setting August
                               29, 2008, as the discovery deadline;
                               September 12, 2008, as the deadline for
                               motions for summary judgment; and
                               November 3, 2008, as trial date.3



      2
          … See Tex. Gov’t Code Ann. § 554.002 (Vernon 2004).
      3
      … The trial court sent the parties a “Notice of Court’s Intention to
Dismiss,” stating that it would dismiss the case for want of prosecution unless,
among other things, a trial scheduling order was signed before April 4, 2008.

                                        2
     June & July 2008       A dditional discovery fro m Groom er to
                            TDFPS.

     September 4, 2008      T D FPS files no-evidence m otion for
                            summary judgment.

     September 17, 2008     Hearing on TDFPS’s no-evidence motion
                            for summary judgment is set for October
                            23, 2008.

     October 7, 2008        Deposition date for depositions of Rhoda
                            Bailey, Colleen Sells, and Kelly Bradford
                            per subpoenas issued September 25,
                            2008.

     October 16, 2008       Response to no-evidence m otion for
                            summary judgment is due, but none is
                            filed.4 See Tex. R. Civ. P. 166a(c).

     October 22, 2008       Amended Scheduling order entered, setting
                            January 23, 2009, as the new discovery
                            deadline, February 6, 2009, as the new
                            deadline for dispositive motions, and April
                            6, 2009, as the new trial date.

     October 23, 2008       First scheduled hearing on TDFPS’s no-
                            evidence motion for summary judgment.
                            Groomer fails to respond or file a motion
                            for an extension.

     October 30, 2008       Second hearing on TDFPS’s no-evidence
                            motion for summary judgment is set for
                            December 1, 2008.




     4
      … On October 21, 2008, TDFPS sent Groomer a letter requesting that
she submit a response to its no-evidence motion for summary judgment before
the hearing set for October 23, 2008, but Groomer failed to do so.

                                    3
      October 31, 2008         Trial court orders Groomer to respond to
                               TDFPS’s no-evidence motion for summary
                               judgment by November 6, 2008.

      November 7, 2008         Groomer files response to TDFPS’s no-
                               evidence motion for summary judgment.

      November 13, 2008        G roo m er files am ended response to
                               TDFPS’s no-evidence motion for summary
                               judgment.

      December 1, 2008         Trial court enters an order granting
                               TDFPS’s no-evidence motion for summary
                               judgment.5

This appeal followed.

                                 III. Discovery

      In her second issue, Groomer complains that granting the summary

judgment was improper because the parties had not completed discovery.

When a party contends that it has not had an adequate opportunity for

discovery before a summary judgment hearing, it must file either an affidavit

explaining the need for further discovery or a verified motion for continuance.




      5
       … We observe that the order not only states that the trial court heard the
motion on October 23, 2008, but also that the trial court considered “the
pleadings, motion, response[,] and arguments of counsel” before it granted the
motion. Neither party’s brief explains this incongruity with the timeline set out
above; however, as the second hearing on the motion was set for December 1,
2008, and the order was signed December 1, 2008, we infer that the parties
merely failed to provide the trial court with an updated order from the first
scheduled hearing on October 23, 2008.

                                       4
Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); see also

Ford Motor Co. v. Castillo, 279 S.W.3d 656, 662 (Tex. 2009) (stating that

Tenneco applies to cases in which the parties conducted formal discovery and

seek time for additional discovery). The record does not reflect that Groomer

did either. Therefore, we overrule her second issue.

                           IV. Summary Judgment

      In her first issue, Groomer asserts the trial court erred by granting

TDFPS’s no-evidence motion for summary judgment because she provided

sufficient evidence in her response to defeat the motion.

A. Standard of Review

      After an adequate time for discovery, the party without the burden of

proof may, without presenting evidence, move for summary judgment on the

ground that there is no evidence to support an essential element of the

nonmovant’s claim or defense.     Tex. R. Civ. P. 166a(i).    The motion must

specifically state the elements for which there is no evidence. Id.; Johnson v.

Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court

must grant the motion unless the nonmovant produces summary judgment

evidence that raises a genuine issue of material fact.      See Tex. R. Civ. P.

166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002).

                                      5
      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a

scintilla of probative evidence that raises a genuine issue of material fact, then

a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981

S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied). We review a

no-evidence summary judgment for evidence that would enable reasonable and

fair-minded jurors to differ in their conclusions.    Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802,

822 (Tex. 2005)).

      When a trial court’s order granting summary judgment does not specify

the ground or grounds relied on for its ruling, summary judgment will be

affirmed on appeal if any of the theories presented to the trial court and

preserved for appellate review are meritorious. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe,

915 S.W.2d 471, 473 (Tex. 1995).

B. TDFPS’s Grounds for Summary Judgment

      The Texas Whistleblower Act provides,




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      A state or local governmental entity may not suspend or terminate
      the employment of, or take other adverse personnel action against,
      a public employee who in good faith reports a violation of law by
      the employing governmental entity or another public employee to
      an appropriate law enforcement authority.

Tex. Gov’t Code Ann. § 554.002(a).

      A report is made to an “appropriate law enforcement authority” if the

authority is a part of a state or local governmental entity or of the federal

government that the employee in good faith believes is authorized to (1)

regulate under or enforce the law alleged to be violated in the report; or (2)

investigate or prosecute a violation of criminal law. Id. § 554.002(b). A “law”

for purposes of the Texas Whistleblower Act is a state or federal statute, a local

governmental entity’s ordinance, or a rule adopted under a statute or ordinance.

Id. § 554.001(1) (Vernon 2004). “Good faith” means that (1) the employee

believed that the conduct reported was a violation of law (the “honesty in fact”

element) and (2) the employee’s belief was reasonable in light of the

employee’s training and experience (that is, that a reasonably prudent employee

in similar circumstances would have believed the facts as reported were a

violation of law). Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320–21

(Tex. 2002) (quoting Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex.

1996)).




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      TDFPS moved for summary judgment on the grounds that Groomer could

produce no evidence of “good faith” in making her reports of violations of laws;

could not identify any “law(s)” she actually and objectively believed TDFPS

violated; and could produce no evidence to show that the reports were made

to an “appropriate law enforcement authority.”

      Groomer attached four pages of her own deposition to her response. In

those four pages, she testifies about the denial of a grievance she filed after

being forced to involuntarily transfer to another office and her medication

(Effexor) and attorney’s fees.     However, she did not raise the involuntary

transfer in her original petition, and no subsequent petitions are reflected in the

record.

      Groomer also testifies in those four pages that Supervisor Sells wrote her

up “for not submitting [her] travel in a timely manner” and that she wrote a

response and asked for it to be part of her file but did not file a grievance. She

testified that she did not know what law was violated by loaning money to

Sells and that she reported it in a letter to Sells, Ferrari, Wright, Ted Keating,

the Civil Rights Office, Joyce James, Kerry Cochrill, and Thomas Chapman.

She explained that Kerry Cochrill “is head of the—I don’t know.          He’s our

executive director or whatever, and [Joyce] James worked under him.”




                                        8
     Groomer attached seven pages of her deposition to her amended

response, of which four were the same that had been attached to her first

response. The remaining three new pages contained her testimony that she did

not recall what she had said in the letter or what else she had complained

about, “[j]ust that there were things going on in that office that should be

addressed.”

     With regard to Supervisor McClacherty, she testified that the office

furniture McClacherty allegedly took were chairs for a Thanksgiving dinner

party. However, Groomer could only testify that McClacherty sent an email

that said she was taking them; she testified that she did not know how many

chairs, or what kind, or whether McClacherty returned them, or whether

McClacherty was written up for taking them.       She merely stated, “I can’t

imagine someone admitting to taking state property if they didn’t.” And with

regard to McClacherty’s alleged use of state employees on state time to help

her move into her apartment, Groomer gave the following testimony:

     I know there’s a—there’s a letter that—a conference that she had
     with me, and it’s in documents that I’ve supplied. So it’s in that.
     All the information is in it where she’s talking about Suzie Perkins
     and I believe Courtney—I don’t remember Courtney’s last
     name—that they came during their lunch hour. She didn’t mention
     Jeremy, but Jeremy told me.




                                      9
She testified that Jeremy did not go to help McClacherty move on his lunch

hour, but she did not know when he went.         The documents, including her

letters, that she referred to were apparently not entered into evidence at her

deposition and were not attached to either her response or amended response.

      Groomer’s testimony fails to establish that she made her report on her

loan to Sells to an “appropriate law enforcement authority,” or to describe how

Sells “extorted” the loan from her in violation of some unidentified law, or how

Cochrill, the “executive director or whatever,” or the other individuals that she

named would be authorized to investigate or prosecute Sells if Sells did extort

a loan from her. See Needham, 82 S.W.3d at 319–22. Groomer’s testimony

also fails to establish whether McClacherty actually violated any law—she

testified that she did not know if McClacherty had actually taken any chairs

from the office and that she did not know when another employee allegedly

helped McClacherty move into her apartment. The deposition pages attached

to her response do not indicate that she made any reports about McClacherty’s

activities to an “appropriate law enforcement authority.” See id.

      Based on the evidence produced by Groomer in response to TDFPS’s no-

evidence motion for summary judgment, we conclude that the trial court did not

err by granting summary judgment for TDFPS because she failed to produce

more than a scintilla of probative evidence to raise a genuine issue of material

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fact with regard to at least one ground presented by TDFPS. See Moore, 981

S.W.2d at 269. Therefore, we overrule her first issue.

                              V. Conclusion

     Having overruled Groomer’s two issues, we affirm the trial court’s

judgment.


                                         BOB MCCOY
                                         JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: July 2, 2009




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