Steve Chenault v. City of Irving and The Irving Fire Department--Appeal from 191st District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

Steve Chenault

Appellant

Vs. No. 11-02-00098-CV -- Appeal from Dallas County

City of Irving and the Irving Fire Department

Appellees

Steve Chenault sued the City of Irving and the Irving Fire Department for breach of contract after the Fire Department failed to hire him as a beginning firefighter when a vacancy arose in that position while he was number one on the eligibility list. Appellees moved for summary judgment, and the trial court granted their motion. We affirm.

Issues Presented & Grounds for Summary Judgment

In two issues, Chenault questions whether appellees violated the law by failing to hire him and whether the trial court improperly granted summary judgment when there was a fact issue regarding the employment status of beginning firefighters. The record shows that appellees moved for a traditional summary judgment and asserted that Chenault had no protected interest, no standing, and no justiciable interest and that the Fire Department was not an entity capable of being sued. See TEX.R.CIV.P. 166a(c). Appellees also moved for a no-evidence summary judgment, asserting that there was no evidence of a breach of contract. See TEX.R.CIV.P. 166a(i). Because the trial court did not specify which ground it relied upon to grant the summary judgment, we will affirm the summary judgment Aif any of the theories advanced are meritorious.@ State Farm Fire & Casualty Company v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

No Evidence of Breach of Contract

In order to review a no evidence summary judgment, we will review the evidence presented in opposition to the no-evidence motion and must accept as true evidence favorable to the non-movant, indulging every reasonable inference and resolving all doubts in the non-movant=s favor. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.App. Eastland 2000, pet=n den=d); see Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). However, we review only the evidence presented by the non-movant. Rule 166a(i); Hight v. Dublin Veterinary Clinic, supra at 618-19. A trial court must grant a properly requested no-evidence summary judgment unless the non movant brings forth more than a mere scintilla of probative evidence to raise a genuine issue of material fact. Rule 166a(i); Hight v. Dublin Veterinary Clinic, supra at 619.

The underlying facts in this case are not disputed. In 1996, Chenault applied for a position with the Fire Department as a beginning firefighter. He passed the examination and, in September 1996, was originally listed as No. 10 on the eligibility list. By May 1997, Chenault was No. 1 on the eligibility list. In July 1997, a vacancy arose in the position of beginning firefighter, but the Fire Department did not fill the vacancy at that time. Assistant Fire Chief Mike Evitts informed Chenault that the position would not be filled until January 1998. The eligibility list on which Chenault was listed as the No. 1 candidate expired on August 3, 1997. On July 20, 2001, Chenault filed the original petition in this case.

Under the heading of ABREACH OF CONTRACT@ in his petition, Chenault alleged the following:

10. The City of Irving breached a statutorily imposed contract of employment when it failed to appoint Plaintiff to a beginning position of firefighter despite the Department having a vacancy and Plaintiff being listed as number one on the eligibility list of the Department. As a body politic, the City of Irving operates under [TEX. LOCAL GOV=T CODE ANN. '143.001 et seq. (Vernon 1999 & Supp. 2003)] and Section 143.026, in particular....

11. The appointment requirement is mandatorily imposed on the Department by statute....The failure by the City of Irving to honor its mandated duty amounted to a breach of contract.

Chenault alleged no other causes of action against appellees.

In his response to the motion for summary judgment and in his appellate brief, Chenault addressed the issues of standing and justiciable interest but failed to address appellees=assertion that there was no evidence of a breach of contract. We hold that the trial court properly granted summary judgment on this ground. Section 143.026 provides that, when a vacancy occurs in a beginning position in a fire department, the chief executive Ashall appoint the person having the highest grade@ unless a valid reason exists for appointing the second or third person on the eligibility list. However, nothing in Section 143.026 or elsewhere in Chapter 143 created a contract between Chenault and appellees. Because we find that summary judgment was properly granted on the ground that there was no evidence of a breach of contract, we need not address the other grounds upon which the trial court might have granted summary judgment.

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

January 16, 2003

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.