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Esquivel v. Garcia

Court of Appeals of Texas, Eighth District, El Paso

July 26, 2017

PATRICIA ESQUIVEL, Appellant,
v.
ENRIQUE GARCIA D/B/A GARCIA & REBE LAW FIRM PLLC, Appellee.

         Appeal from 384th District Court of El Paso County, Texas (TC # 2015-DCV1631)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.

          OPINION

          ANN CRAWFORD McCLURE, Chief Justice.

         A claimant may obtain summary judgment on either liability, damages, or both by showing the absence of any genuine issue of material fact on those issues. TEX.R.CIV.P.166a(a). Because we conclude the movant here failed to meet that burden, we reverse and remand the case to the trial court.

         PROCEDURAL AND FACTUAL SUMMARY

         Patricia Esquivel worked as a receptionist for attorney Enrique Garcia, who does business as Garcia & Rebe Law Firm, PLLC (collectively G&R). She began her employment in October 2011 and resigned on November 26, 2014. G&R later sued Esquivel, alleging that she left with several receipt books reflecting payments by the firm's clients, and that she embezzled approximately $4, 000 per month over an undisclosed period. The petition sought monetary relief of $144, 000 in "loss of revenue" and $56, 000 in exemplary damages. Esquivel answered with a general denial.

         G&R moved for summary judgment asking for $200, 000, or alternatively, for partial summary judgment on any part of the claim to which it proved entitlement. The motion was supported by the deposition of Esquivel, her discovery responses, several business records of the firm, and a surveillance video of Esquivel on her last day of employment. This last item was not attached in any manner to the motion, but was rather noted as being "available on request."[1]Esquivel filed an untimely response to the motion that did not include any evidence, but only argued that G&R had failed to meet its burden to show the absence of a genuine issue of material fact. The trial court granted the motion on both liability and damages, and entered judgment for G&R for $200, 000 plus court costs. To properly frame the issues on appeal, we discuss the evidence supporting the summary judgment in a bit more detail.

         Esquivel's Deposition

         G&R attached Esquivel's deposition transcript to the motion for summary judgment. The examination attempted to prove circumstances consistent with Esquivel having embezzled funds from the firm. For instance, the questioner attempted to elicit the amount of Esquivel's and her family's earnings. She was then questioned about her bank records, which were apparently made an exhibit to the original deposition, but not included as a part of the summary judgment exhibit. We presume that G&R believes it can show Esquivel made more deposits into her account than her legitimately earned income might support.

         On deposition, Esquivel was never asked directly if she stole from the firm, but she did deny any number of predicates surrounding G&R's case. She denied that she was the only person who accepted client funds or had access to the "receipt book" that documented those payments. She denied having knowledge that G&R had reconciled those receipt books shortly before she resigned, or that the firm harbored suspicions that she was stealing money. She denied taking anything on her last day of work other than her notary book and notary stamp. She claims she left the firm because she was being harassed. In sum, nothing in her deposition amounts to a confession of embezzling funds, but at most lays a groundwork for the circumstantial case G&R was attempting to make.

         Esquivel's Discovery Responses

         The second exhibit to the motion for summary judgment includes Esquivel's discovery responses. In her answers to interrogatories, Esquivel claims to have resigned due to working conditions at the firm, which she describes in detail. She claimed that client payments were accepted by anyone who may have been at the front desk, that the payments were documented in a receipt book, and that the monies were then given to Garcia directly, left on his chair, or given to another employee. Her responses to requests for disclosure claim as her legal theory, and the factual basis for the same: "I did not do it." In her responses to requests for admissions, she denied not turning over all cash payments to G&R at the end of each workday, and denied that she took any of the receipt books when she resigned from the firm.

         G&R's Business Records

         G&R attached a series of receipts of what are presumably client payments. While Garcia attached his own affidavit establishing himself as the firm's record custodian, the affidavit does not authenticate or explain what these records are, or how they are relevant to the litigation. Similarly, G&R attached a ledger that includes a column labeled "amount missing" for various clients between October 2013 and November 2014. The aggregate total is reported as $8, 169.75. There is no explanation as to who prepared the ledger, nor how it was prepared. The motion also attached an "employee warning notice, " dated November 26, 2014 (the day Esquivel resigned). The notice references two specific missing client payments ...


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