Court of Appeals of Texas, Texarkana.

Richard Wayne OWEN, Appellant,

v.

BOWIE COUNTY, Texas, Appellee.

No. 06-01-00016-CV.

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Submitted June 12, 2001.

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Decided July 12, 2001.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

GRANT.

*1 Richard Wayne Owen, a former deputy sheriff with the Bowie County Sheriff’s Department, appeals from a summary judgment granted in favor of Bowie County in his suit brought for accumulated but unpaid annual leave, sick pay, and compensatory time.

Owen injured his back and wrist on June 25, 1994, while performing his duties as a criminal investigator for the Bowie County Sheriff’s Department. Owen has not returned to work, allegedly as a result of his injuries, since January 27, 1995. Starting on January 27, 1995, Bowie County continued to pay Owen his full salary, and the county’s workers’ compensation carrier reimbursed the county for seventy percent of Owen’s salary. On November 9, 1995, the Texas Workers’ Compensation Commission (TWCC) determined Owen had reached “maximum medical benefit” and assigned him a permanent impairment rating. On November 10, 1995, pursuant to this determination, the TWCC ceased paying temporary income benefits to Bowie County for Owen. Bowie County nonetheless continued to pay Owen his full salary.

Owen was last reappointed to his office by the sheriff on the first day of the sheriff’s new term on January 1, 1997. On May 15, 1997, the County ceased paying Owen his salary. Almost one year later, on April 1, 1998, the sheriff’s office sent to the Texas Commission on Law Enforcement a Report of Resignation or Separation of License Holder noting that Owen resigned his position, effective April 1, 1998, due to his medical condition. Owen maintains he only learned of the report in September 1998 and contends he did not terminate his employment.

Prior to Bowie County’s cessation of salary payments to Owen, he requested orally and in writing that the County pay him for his accumulated sick leave, annual leave, and compensatory time. He sent a written request by certified mail on May 12, 1997, three days prior to his removal from the County payroll. The County never addressed his request. In October 1999, Owen filed suit against Bowie County seeking recovery of “accrued, but unpaid, vacation pay, sick leave and compensatory time.”

Bowie County moved for summary judgment, alleging both traditional and no-evidence summary judgment grounds. The motion alleged the following grounds: (A.1) Owen was not entitled to compensation for accumulated and unused sick leave; (A.2) Owen produced no evidence that he was entitled to compensation for accumulated and unused sick leave; (B.1) Owen only could accumulate a maximum of twenty-one days of annual leave; (B.2) Owen produced no evidence that he was entitled to annual leave beyond the maximum twenty-one days; (C.1) Owen was paid his annual leave and compensatory time; and (C.2) Owen produced no evidence that he was not paid for any compensation time and any annual leave that he may have accumulated after accounting for the county’s inadvertent overpayment to him of approximately $39,000. The trial court granted the summary judgment.

Owen appeals the summary judgment and presents argument on grounds (A.1), (A.2), (B.1), (C.1), and (C.2).

*2 Because the trial court’s order does not specify the ground or grounds on which the summary judgment is granted, we affirm if any of the theories advanced in the summary judgment motion are meritorious. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). Where a summary judgment is granted in favor of the defendant, we must determine whether the movant carried the burden of showing there is no genuine issue of material fact and that a judgment must be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Burkett v. Wellborn, 42 S.W.3d 282, 286 (Tex.App.-Texarkana 2001, no pet. h.).

In conducting our inquiry, we take all evidence favorable to the nonmovant as true and indulge all reasonable inferences, including any doubts, in favor of the nonmovant. Rhone-Poulenc, Inc. v. Steel, 997 S.W2d 217, 223 (Tex.1999); Burkett, 42 S.W.3d at 286. The question on appeal is not whether the summary judgment proof raises a fact issue with reference to the essential elements of the plaintiff’s cause of action, but whether the summary judgment proof establishes that the movant is entitled to summary judgment as a matter of law. Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex.1990). Summary judgment is proper if the defendant-movant disproves as a matter of law one of the essential elements of each of the plaintiff’s causes of action. Lear Siegler, Inc., 819 S.W.2d at 471.

A. Sick Leave

Owen first contends the trial court erred in granting summary judgment on the ground that he forfeited the right to be paid for unused sick leave because he was not paid for the leave prior to the end of his employment with Bowie County. The County contended Owen’s claims were limited by the terms of the Bowie County Personnel Policy Manual (the policy manual) and submitted the policy manual as summary judgment evidence. The policy manual provides in Section 3.08 that an employee forfeits any unused sick leave upon termination of employment. The policy manual defines termination on page XIV as “the separation for any reason of an employee from his/her employment with Bowie County including, but not limited to, discharge, layoff, resignation, or retirement.” Thus, the summary judgment evidence establishes that an employee who separates from his employment for any reason forfeits his or her sick leave.

Although they dispute the date, both parties admit Owen has separated from his employment. The County contends he separated from his employment, at the earliest, on the date of the injury and, at the latest, on the date the TWCC ceased paying him temporary benefits, November 10, 1995. Owen contends the County terminated his employment on April 1, 1998. In either case, the summary judgment proof establishes Owen has separated from his employment and has forfeited his unused sick leave pursuant to the policy manual.

The summary judgment proof establishes that Owen made numerous oral requests and one written request that he be paid these benefits and that the County ignored those requests. But the County contends that it is inconsequential whether he requested payment and such request was ignored. It insists the issue is the fact of separation, and his undisputed separation is dispositive proof that he is not entitled to compensation for unused and unpaid sick leave. We must agree. As the County points out, the policy manual provides no exception for compensation for unused sick leave that was requested prior to separation, but was nonetheless unpaid. Summary judgment against Owen on this issue was proper.

*3 Owen also contends the trial court erred in granting a no-evidence summary judgment on the issue of unpaid sick leave. We need not reach this point, as it can have no effect on the disposition of this issue.

B. Compensatory Time

Owen contends the trial court erred in granting summary judgment on the compensatory time issue on the ground the County had overpaid him by more than the amount of his claim. In ground (C.1) of its Motion for Summary Judgment, the County alleges Owen ceased his employment on November 9, 1995 (the date on which he reached maximum medical improvement), but that the County paid Owen his full salary until May 15, 1997. This, the County alleged, resulted in an overpayment to Owen of $39,008.78, which should be offset against Owen’s twenty-one days of annual leave and his claim for 280 hours of accumulated compensatory time. In his response to Bowie County’s motion, Owen contends the alleged overpayment of $39,008.78 was, in fact, payment due him under the Texas Constitution and the Texas Labor Code.

As a preliminary matter, Bowie County argues that Owen’s contention that the Constitution entitled him to receive payments from the County after November 9, 1995, amounts to the assertion of an affirmative defense in the form of confession and avoidance. According to the County’s argument, Owen waived the defense because he failed to amend his pleadings to reflect it pursuant to Rule 94, which provides that in pleading to a preceding pleading, a party must affirmatively set forth any matter constituting an avoidance or affirmative defense. See Tex.R.Civ.P. 94; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988).

A plea in confession and avoidance is one which avows and confesses the truth in the averment of facts in the petition, either expressly or by implication, but then proceeds to allege a new matter which tends to deprive the facts admitted of their ordinary legal effect, or to obviate, neutralize, or avoid them. Woods, 769 S.W.2d at 517. In both its answer and summary judgment motion, Bowie County alleged Owen received $39,008.78 in excess compensation from Bowie County after ceasing his employment. The County contends this alleged overpayment should be offset against the amount for which Owen sues. But in his response, Owen not only refutes the County’s assertion that he ceased his employment on the date alleged by the County, but he relies on the Constitution to refute the County’s allegation that he was mistakenly overpaid amounts not due him. Owen asserts no affirmative defense in the nature of confession and avoidance. Rather, as discussed below, he makes allegations that raise fact issues, thus preventing Bowie County from conclusively establishing the affirmative defenses of payment and offset. Therefore, Owen was not required to amend his pleadings pursuant to Rule 94.¹

When a defendant moves for summary judgment based on an affirmative defense, it is the defendant’s burden to preclude all genuine issues of material fact with respect to that affirmative defense. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). The conclusive establishment of Bowie County’s affirmative defenses of payment and offset depends on its contention that Owen was entitled to no payments from the County after November 9, 1995. The County bears the burden to preclude all fact issues in this connection.

*4 Owen’s response and attached affidavit show two bases to support the proposition that he was entitled to continue receiving payments after November 9, 1995. One was the Texas Constitution, which he contends entitled him to receive his full salary until the end of the sheriff’s term, December 31, 1996, because he was physically unable to return to work as a result of his on-the-job injuries.² Article III, Section 52(e) requires that a deputy sheriff who becomes incapacitated in the course of official duties be paid his full salary until recovery of working capacity or until the expiration of the coincident term of the sheriff, whichever comes first. Tex. Const. art. III, § 52(e); Samaniego v. Arguelles, 737 S.W.2d 88, 89 (Tex.App.-El Paso 1987, no writ).

The summary judgment evidence, viewed in the light most favorable to Owen, shows that Owen suffers from some non-work-related ailments, such as obesity and degenerative disk disease, that may contribute to his incapacity. But we have found no authority for the proposition that in order to be entitled to salary benefits under the Texas Constitution, a deputy sheriff’s incapacitation can have no contributing factors that are not job-related. The summary judgment proof shows Owen underwent back surgery prior to his 1994 on-the-job injury. But the summary judgment proof also shows that surgery was performed as a result of a prior work-related back injury. Indulging all doubts and inferences in Owen’s favor, as we must, the summary judgment evidence shows that Owen’s slip and fall while performing his duties as a deputy sheriff on June 25, 1994, precipitated his current incapacity and is a factor in his inability to return to work. The summary judgment proof raises a fact issue with regard to whether Owen became incapacitated in the course of official duties, which bears directly on whether Owen was entitled to payments from the County under the Texas Constitution after November 9, 1995.

Owen has raised a fact issue with regard to whether the payments he received from Bowie County after November 9, 1995, were required salary payments or payments mistakenly made to a former employee. Because Bowie County fails to preclude all fact issues with respect to its affirmative defenses of payment and offset, it fails to meet its high summary judgment burden. The trial court’s summary judgment against Owen on the compensatory time issue cannot be upheld on this ground.

Owen next contends the trial court erred in granting a no-evidence summary judgment on the compensatory time issue. In reviewing a no-evidence summary judgment, we review the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). We reverse the no-evidence summary judgment if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex.R.Civ.P. 166a(i); Merrell Dow Pharm., Inc., 953 S.W.2d at 711. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable minds to differ in their conclusions. Merrell Dow Pharm., Inc., 953 S.W.2d at 711.

*5 As discussed above, Owen prevented Bowie County from conclusively establishing the $39,008.78 the County paid him after November 9, 1995 was improperly paid. Thus, Owen has brought forth more than a scintilla of evidence to raise a genuine issue of material fact with respect to whether he is entitled to compensation for compensatory time he may have accumulated after accounting for the approximately $39,000 paid him after November 9, 1995.

Summary judgment on the compensatory time issue was improper.

C. Annual Leave

The court granted summary judgment against Owen on his claim for payment for thirty-five days of annual leave. Bowie County presented four summary judgment grounds addressing this issue. In summary judgment ground (C.1), the County alleged Owen had been compensated for any annual leave and any compensatory time he may have accumulated. In summary judgment ground (C.2), the County contends Owen had produced no evidence he was entitled to compensation for annual leave or compensatory time after accounting for the County’s inadvertent payment to him of approximately $39,000. Owen’s argument to this court does not reckon with these two grounds as they apply to the annual leave issue.

Nevertheless, we hold that Owen’s argument under the compensatory time issue applies equally to the annual leave issue. In his argument under the compensatory time issue, Owen raises a fact issue with regard to the affirmative defenses asserted by the County in ground (C.1). Given Bowie County’s failure to conclusively establish the affirmative defenses, we hold ground (C.1) cannot serve as a proper basis for summary judgment on the annual leave issue. Owen’s argument and summary judgment proof under the compensatory time issue raise matters of fact that also render (C.2) an improper ground for summary judgment on the annual leave issue.

In the other two summary judgment grounds urged by the County on this issue, the County contests only the last fourteen of the thirty-five days for which Owen sues. In ground (B.1), the County contends Owen could only have accumulated a maximum of twenty-one days of annual leave. In ground (B.2), the County contends Owen failed to produce evidence of entitlement to any annual leave beyond the allegedly maximum accruable amount of twenty-one days. Although Owen addresses summary judgment ground (B.1)-albeit without disputing the County’s contention that he could only accumulate twenty-one days of leave-Owen fails entirely to address ground (B.2). We are therefore bound to uphold the summary judgment as it applies to any annual leave time beyond the undisputed maximum of twenty-one days.

We affirm the summary judgment with respect to the sick leave issue and days twenty-two through thirty-five on the annual leave issue, but reverse and remand for trial on the compensatory time issue and the first twenty-one days of annual leave.

	Footnotes
1		In this connection and although the issue is not presented for our review, we would note that the county may have failed to properly plead its affirmative defense of payment. Texas Rule of Civil Procedure 95 requires a defendant asserting a plea of payment to file an accounting stating distinctly the nature of such payment unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof. Tex.R.Civ.P. 95.
2		Bowie County contends Owen’s summary judgment response waived his right to rely on the Texas Constitution on appeal. As the County points out, a summary judgment response must point out the fact issues raised in the summary judgment proof. The County alleges that although Owen’s affidavit alleged he was physically unable to return to work, his response to the County’s summary judgment motion did not contend this entitled him to wage payments pursuant to the Texas Constitution. We disagree. Owen’s response states the Texas Constitution provides that a deputy sheriff who is injured in the line of duty, and as a result is not physically able to perform his duties as a deputy sheriff, is entitled to receive his full salary while so disabled during that term of the sheriff. The response goes on to allege Owen was injured in the line of duty on June 25, 1994, and as a result was unable to return to his duties as a deputy sheriff. The implicit conclusion is that the quoted provisions of the Texas Constitution apply to him. We hold that Owen’s response adequately points out the fact issues raised in the summary judgment evidence.