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Clement v. City Of Plano8/24/2000
at *7-8; Anderson, 808 S.W.2d at 55. This defect in substance may be raised for the first time on appeal. See City of Wilmer v. Laidlaw Waste Sys. (Dallas), Inc., 890 S.W.2d 459, 467 (Tex. App._Dallas), aff'd, 904 S.W.2d 656, 660-61 (Tex. 1995). Therefore, we resolve in appellants' favor the part of their third issue complaining that Glasscock's affidavit does not provide summary judgment evidence to support the judgment. Other Objections to the Affidavit
In their fourth issue, appellants argue the trial court erred in overruling their objections that Glasscock's affidavit was incompetent because there was a conflict in the evidence and Glasscock was an interested witness, and then considering the affidavit in granting Plano's motion. Because we conclude Glasscock's affidavit is conclusory and does not support summary judgment, we need not address whether the evidence is contradictory. However, we address appellants' objection to Glasscock as a witness. Glasscock is not precluded from being an expert witness in this cause because of an interest in this case. The testimony of an interested witness or an expert will support summary judgment only if it is "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Tex. R. Civ. P. 166a(c). Good faith is an opinion that can be controverted by other expert opinion. See Texas Dep't of Pub. Safety v. Tanner, 928 S.W.2d 731, 736 (Tex. App._San Antonio 1996, no writ); City of San Antonio v. Bynum, 937 S.W.2d 596, 599 (Tex. App._San Antonio 1996, no writ). Therefore, Glasscock was an appropriate expert witness. Accordingly, we resolve appellants' fourth issue against them.
THE SUMMARY JUDGMENT
In appellants' second issue and in part of their first and third issues, they complain that the trial court erred in granting Plano's motion for summary judgment. The standard for reviewing a summary judgment is well established. The party moving for summary judgment has the burden of showing that, except for the amount of damages, no genuine issue of material fact exists and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). A defendant moving for summary judgment on an affirmative defense must plead and conclusively establish each essential element of an affirmative defense. See City of Houston, 589 S.W.2d at 678-79; Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex. App._Dallas 1992, no writ). A motion for summary judgment must state the grounds on which judgment is sought. See Tex. R. Civ. P. 166a(c); McConnell, 858 S.W.2d at 341. To determine if the trial court erred in granting the motion for summary judgment, we must consider the summary judgment evidence in the light most favorable to the non-movant, resolving doubts and indulging all reasonable inferences in favor of the non-movant. See Nixon, 690 S.W.2d at 548-49. We do not consider evidence favoring the movant unless it is uncontroverted. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).
First, we have concluded that Plano did not identify or address the affirmative defense of sovereign immunity and its elements in its motion for summary judgment. Second, we have determined that Glasscock's affidavit did not establish official immunity for Nunns because of its conclusory statements. Finally, the other testimonial evidence provided by Nunns's deposition does not state facts showing the Wadewitz risk factors. Therefore, there is no summary judgment evidence establishing Nunns's good faith as a matter of law. Beca
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