JIMMIE B. SIGLER and FROM A DISTRICT COURT RICHARD O. BADGETT APPELLANTS, v. OF RICHARDSON INDEPENDENT SCHOOL DISTRICT, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01230-CV
JIMMIE B. SIGLER and                         FROM A DISTRICT COURT
RICHARD O. BADGETT
 
        APPELLANTS,
 
v. OF
 
RICHARDSON INDEPENDENT
SCHOOL DISTRICT,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES WILLIAMS FN:1 AND
 
STEPHENS FN:2
PER CURIUM OPINION
MAY 23, 1989
        Appellants, as employees of the Richardson Independent School District, filed suit seeking a declaratory judgment to establish that their health care benefits contained in the school's medical insurance plan were part of their compensation and that any loss resulting from a change in the insurance provider would be repaid to them as a compensable loss. The trial court granted summary judgment in favor of the school district and Sigler and Badgett appealed. In two points of error they contend the trial court erred in granting the summary judgment and in awarding attorney's fees. We disagree and affirm the trial court's judgment.
         Sigler, an administrator, was employed under a three- year term contract and Badgett, a teacher, was employed under a continuing teacher's contract. Both contracts were silent as to any specific group medical insurance provisions. Under its local district policy CRD (Local), however, the school district offered five options to its employees for group health insurance in 1987. Both Sigler and Badgett enrolled in the voluntary program for health care services to be provided by two different HMOs. In January 1988, after a notice of increase in premiums, the school district changed insurance companies and offered a different health care program to its employees. The changed health care program resulted in higher costs for Sigler and Badgett who had to pay for some of their medicine and medical services.
        The trial court found that Sigler and Badgett failed to state a cause of action and, after giving them an opportunity to amend their pleading, granted the summary judgment. The trial court ruled that Sigler and Badgett had no protected property interest in the group health care benefits and that their relationship with the insurance provisions was controlled by the school district policies and the insurance contracts.
        The issue on appeal in reviewing a summary judgment is if the movant, here the school district, met its burden by establishing that no genuine issue of material fact existed and it was entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979); TEX. R. CIV. P. 166-A. In order to prevail, the movant-defendant must show that a fact required to establish at least one element necessary to the plaintiff's cause of action does not exist. American Petrofina Co. of Texas v. Crump Business Forms, Inc., 597 S.W.2d 467, 470 (Tex. Civ. App.--Dallas 1980, writ ref'd n.r.e). An affidavit must be made on personal knowledge, and shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Querner Truck Lines, Inc. v. Alta Verde Industries, Inc., 747 S.W.2d 464, 468 (Tex. App.--San Antonio 1988, no writ). With these principles in mind we review the summary judgment evidence in the light most favorable to the nonmovant. See El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex. 1987).
        All the parties sought relief under the declaratory judgment statute. FN:3 The trial court earlier sustained the school district's special exceptions to plaintiffs' pleading. The district then moved for summary judgment. The school district asserted that the employees had no right to obtain the same level of benefits as they received under the previous medical insurance policies. Attached to its motion for summary judgment was an affidavit of a deputy superintendent who attested to the 43.3% increase in insurance premiums in 1988. He also verified the exhibits which included: (a) Sigler's employment contract (b) Badgett's employment contract (c) Policy CRD (Local) of the school district (d) and (e) pages from the applicable insurance policies in which the district was the policy holder and (f) the district's agreement with Kaiser health plan.
        Both employment contracts contained a statement in which the parties agreed to "discharge the duties required by . . . such local policies, rules and regulations as are in effect at this time or as may be amended or adopted by this State and/or Employer during the life of this Contract." (Emphasis added).
        The CRD local policy stated that "[t]he District shall participate in an approved group health and life insurance program for all eligible employees of the District." The school district's policies were incorporated by reference into the contract.
        Finally, the insurance policies themselves provided that the "policy may be changed at any time by written agreement between [the company] and the Policyholder, without the consent of any employee or other person." The school district was the policyholder. It also provided that the policyholder could discontinue coverage of all employees. The Kaiser plan agreement specifically provided that the "Group [school district] makes Health Plan [Kaiser plan] coverage available to persons who are eligible. However, this Agreement is subject to amendment, modification, or termination in accord with any provision hereof or by mutual agreement between Health Plan and Group without the consent or concurrence of Members [individual employees]." It also provided that by accepting medical services and benefits under the plan all members agreed to the terms and conditions of the agreement.
        Sigler and Badgett filed a response to the motion for summary judgment and their affidavits. Badgett stated that the original HMO plan was an incentive for his remaining employed with Richardson Independent School District and he relied on the continued availability of the plan and its benefits for his treatment as a diabetic. Sigler's affidavit was similar and complained of the reduction in the amount of money available for treatment of mental illness for one of his dependents. He stated: "I understood that the health plan was a benefit of my employment and part of my contractual rights and compensation."
        Both Sigler and Badgett argued that as school district employees they had a property interest in the level of health care benefits. Neither the contract of employment or the CRD (local) policy contained an agreement for a continuation of the same level of benefits or even a specific level of insurance benefits. The mere showing that the parties were economically impacted by the change of insurance does not amount to a showing of a loss of property. See Hix v. Tuloso-Midway Indep. School Dist., 789 S.W.2d 706, 711 (Tex. Civ. App.--Corpus Christi 1972, writ ref'd n.r.e.). Thus, in order to maintain a cause of action, the plaintiffs must have established a protected property interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, ___, 92 S. Ct. 2701, 2710, 33 L. Ed. 2d 548, 561 (1972).
        We conclude that the trial court was correct in granting a motion for summary judgment after the defendant's special exceptions were granted and the plaintiffs failed to amend their pleading to state a cause of action. See James v. Hitchcock Indep. School Dist., 742 S.W.2d 701, 704 (Tex. App.--Houston [1st Dist.] 1987, no writ).
        The appellants also complain that the trial court erred in awarding attorneys fees to the school district. The court granted a summary judgment based on the declaratory judgment statute which specifically allows the trial court to award reasonable and necessary attorneys fees. TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (Vernon 1986). We note the judgment itself contains a stipulation by the parties as to the reasonableness of the amounts of attorneys fees. Thus, there is no abuse of discretion in the award of attorneys fees.
        The judgment of the trial court is affirmed.
                                PER CURIAM
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01230.F
 
FN:1 The Honorable Claude Williams, Chief Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:2 The Honorable Bill J. Stephens, Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:3 Section 37.000, et seq., TEX. CIV. PRAC. & REM. CODE ANN. (Vernon 1986).
File Date[01-02-89]
File Name[881230]