### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00665- CV

William “Bill” Moriart y; Mor iarty & A ssociates, LLC; Diane Hyatt ;

and Dian e Hyatt & Associate s, LLC, App ellants

v. Malcolm P irnie, Inc.; P arsons En gineering Science, Inc.; Jam es Clinton Walk er;

Lynn Mays; G reg Wie land ; and Bruce Todd , Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-0 8-0 0374 5, H ONO RAB LE GISELA D. TRI ANA-DO Y AL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n 2005, appellee s or their repr esenta tives met with the City of Austin’s city manag er
to prese nt alleg ations of financ ial improprieties by appellant Wil liam Moriarty , the projec t manag er of the Austin Clea

n Water Prog ram (“A CW P”) at the time. The city manag er, while investiga ting appellee s’ alleg ations, co n firmed that Moriarty was in a romantic and financ ial rela tionship with Diane Hy att, whose company had rec eived multipl e contra cts in c onnection with the ACWP. The city manag er then reque sted that Moriarty be remove d from the ACWP on the basis that Moriarty ’s rela tionship with Hy att cre ated a con fl ict of i ntere st. As a result, Moriarty was removed from the projec t, and appellants—Moria rty , Hy att, and their respe ctive companies—a lleg ed that th ey h ave incurre d damag es as a

result.Appellants filed suit ag ainst appel l ee s , asser ting claims for tortious interfe renc e with exis ting co n t ra ct s and prospec tive business rela tions. The district court g rante d appellee s’ motions for summary

judgme nt and re ndere d a take nothing judg ment on the tortious interfer ence claims. On appea l, appellants arg ue that they produce d enoug h evidenc e to raise a g enuine issue of materia l fac t on the question of whether appellee s’ actions wer e a substantial fac tor in t h e city manag er’ s decision t o reque st Moriarty ’s rem o v al from the AC WP

. We aff irm the j udg ment of the district cour

t.

Factual an d Procedural Background

The ACWP was a prog ram under which the City of Austin soug ht to pl an, d esi g n, and construct cer tain wastew ater fac iliti es to comply with an administrative order of t h e fede ral Environmental Protection Ag ency . I n 2001, the City of Austin enter ed into a contra ct with Earth Tec h, I nc. for the provision of prog ram manag ement consultant service s rela ted to the ACWP

. Earth Tec h, in turn, contra cted with the eng ineer ing firm Moriarty & Associates, L L C, by which Wil liam Moriarty

was to ac t as the prog ram mana g er w ith respec t to the ACW P.
I n April 2005, repr esenta tives from six eng ineer ing firms with o p era tions in the City twice met to discuss conce rns t hey had reg arding Moriarty ’s manag ement of the ACWP

. As

a re s u l t o f t hese two meeting s, three lobby ists repr esenting the firms met with Toby Futre ll, the city manag er, and J oe Canales, the deputy city manag er, in J une 2005. The primary al l egation made at the J une 2005 m ee ting was that Moriarty had been improperly steering ACWP -re lated subcontrac ts in accor dance with his own personal intere sts rather tha n in the intere sts of the City

.

2Following the meeting , Futre ll initiated investiga tions into the alleg ations ag ainst Moriarty

. These

investiga tions wer e conduc t ed b y the Offic e of the City Auditor (OCA) and by outside counsel Connie Cornell.

I n both investiga tion s , t h e alleg ations that Moriarty improperly steere d contra cts
to particula

r contra ctors wer e g ener ally found to be unsubstantiated. Howeve r, both investiga tions 1
deter mined that Moriarty

—while projec t manag er—ha d enter ed into a romanti c and financ ial rela tions h i p wi t h Diane Hy att, owner of Diane Hy att & Associates, L L C (“D HA”)

. Moriarty and Hy att admitted to a romantic rela tionship since May 2004. On J uly 20, 2004, they had signe d a co- 2
tenanc y ag ree ment and a deed for a house, wher e they wer e living toge ther by October 2004.
M o ri ar t y and Hy att also admitted that, during the time period in which they wer e in a romant i c rela tionship and cohabiting , Moriarty was the ACWP prog ram manag er and DHA was selec ted for
AC W P wo rk (DHA rec eived its first ACWP contra ct in May 2004). An analy sis of all ACW P rotation lists led to a finding that DHA ranke d twentieth out of the ninety -two consultants that had

rec eived pay

ments, whether as a prime or sub-consultant, and it was calc ulated that ACWP contra cts

wer e the source of approximately 75 perc ent of DHA’ s incom e. T h e nature of the rela tionship betwee n Moriarty

and Hy att had not bee n disclosed to the City

.
Represe ntatives of the six eng ineer i n g fi rm s had also repor ted some of their suspicions 1 to the Austin Police Depa rtment i n No v em ber 2004 and ag ain in April 2005. Acc ording to the depar tment’s notes, both case s were deter mined to be “unf

ounded.” Moriarty and Hy att testified that their first date was in M ay 2 0 0 4 , and that they took a 2 “re cre ational” trip toge ther to L as Veg as on the last wee kend of that month. Moriarty admitted that Hy att arr ived with him at a Marc h 17, 2004 party thrown by the may or, althoug h h e i n s isted they wer e ther e only

as prof essional collea g ues. Moriar ty also admitted that, reg arding the wee kend in Veg as, he had purcha sed the airplane tickets in Marc h 2004 based on his “hoping to make it a littl e bit of a surprise trip for Dia ne” a nd “hoping that in the future w e would g et tog ether .”

3Whil e i t wa s not clea r whether Moriarty was contra ctually or leg ally require d to disclose the rela

tionship, or the extent to which Moriarty was responsible for DHA’ s rec eiving the subcontrac ts in question, Futrell and Ca nales met with Phill ip Watts, Earth Tech’s vice president,

on November 3, 2005, to reque st that Moriarty ’s involvement i n t h e AC W P come to an end. On November 10, 2005, Watt s i nformed Moriarty by letter that his involvement in the AC WP would be terminated and that Earth Tec h was amena ble to a “mutually ag ree d upon voluntary termination of the Subcontra ct.”

Appellants Moriarty , Hy att, and their respe ctive companies o ri g inally filed suit

on J uly 31, 2006, and subsequently added appellee s as defe n d an t s i n the lawsuit. Appellee s Malcolm Pirnie, I nc. and Parsons Eng ineer ing Science , I nc. are two of the six eng ineer ing firms from which t h e o ri g inal alleg ations ag ainst Moriarty orig inated, and appellee s J ames Clint on Walker,
L y nn May s, Gre g Wieland, a nd Br uce Todd are repr esenta tives of those firms (Todd is also one of the three repr esenta tives who met with Futre ll in J une 2005). I n their lawsuit, appellants alleg e that appellee s tortiously

interfe red w ith appellants’ contr acts or pr ospective business r elations. Appellee s filed motions fo r s u m m ar y judgme nt. On J uly 16 and 18, 2008, the district court g rante d appellee s’ motions for summary judgme nt and re n d er ed take nothing 3

The district court also rende red summary judgme nt in favor of two other defe ndants 3 on J une 25, 2008, and in favor of the two rema ining defe ndants on September 10, 2008. These defe ndants have since settled with appellants and are not parties to this appea l. All four motions for summary judgme nt by

the var ious defenda

nts were based on the same g rounds. 4judgme nts on appellants’ tortious interfe renc e claims. Appellants appea l the distri ct co urt’s 4 judgme nts.

Anal ysis Appellants prese nt four issues on appea l: (1) the district court err ed by g ranting 5
ap p ellees’ “tra ditional” motion for summary judgme nt on the issue of proxi mate cause ; (2 ) t h e district court err ed by g ranting appellee s’ “no evidenc e” motion for summary judgme nt on the issue of proxi mate cause ; (3) the dis t ri ct court err ed by g ranting appellee s’ “no evidenc e” motion for summary judgme nt on the issue of damag es; and (4) the district court err ed in striking portions of appe l l an t s ’ summary judgme nt evidenc e. Be cause we hold that, even taking into acc ount the evidenc e at issue in appellants’ fourth point on appea l, summary judgme nt was proper based on the lack of a g enuine issue of materia l fact as t o t h e i s sue of proxi mate cause , we need only addre ss appellants’ f

irst issue on appea l. 6

The district court rende red the take nothing judgme nts w ith r espec t to all claims asser ted 4 in appellants’ third amende d petition, which is at issue in this appea l. Acc ording to the docket sheet, appellants filed a fo u rth amende d petition on J uly 16, 2008. I n its J uly 16, 2008 order , the distri ct court stated that the order “does not aff ect other differ ent claims, if any , broug ht ag ainst Parsons Eng ineer ing Science , I nc. and Wieland in Plaintiffs’ Four th Amended (or subsequen t ) Petition(s).” The f

ourth amende d petition is not in the appellate rec ord. Appellants orig i n al l y as serted six issues on appea l. I n their reply brief and at 5 oral a rg ument, they

withdrew two of

the issues. When the trial court does not specify t h e b as i s for its summary judgme nt, the 6 appea ling party must show err or on eac h g round asser ted in the motion. Star-Telegram, Inc. v. Doe , 915 S.W .2d 471, 473 (Tex. 1995). We must af firm the summary judgme nt if any one of the g rounds prese nted to the district court is meritorious. See P r o vi dent Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 216 (Tex. 2003). 5We revie w summary ju d g ments de novo. Joe v. Two Thirt y Nine Joint Venture , 145 S.W .3d 150, 156 (Tex. 2004). The standards for revie wing a “tra ditional” rule 166a(c ) motion for summary judgme nt are well established: (1) the movants must demonstrate that there is

no g enuine issue of materia l fac t and that they are entitled to judgme nt as a matter of law; (2) in deciding whether a disputed issue of materia l fac t exis ts that would prec lude summary judgme nt, we take all evidenc e favor able to the non-movants as true; and (3) we indulge ever y rea sonable infere nce and resolve any doubts in favor of the non-movants. See Tex. R. Civ. P. 166a(c ); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W .2d 546, 548-49 (Te x . 1985).

Appellee s’ motions for summary judgme nt attack the “proximate caus e” element of ap pellants’ torti ous interfe renc e claims. See Powell Indus., Inc. v. All en , 985 S.W .2d 455, 456 (Tex. 1998) (ele ments of ca use of a ction for tortious interfe renc e with contra ct). Prox imate ca use in the context of a tortious interfe renc e cl aim involves both cause -in-fa ct and fore seea bility

. See Richar d s o n -E a g l e, Inc. v. W

illiam M. Merc er, Inc. , 213 S.W .3d 469, 474 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)

. To constitute prox imate cause , the defe ndants’ acts or omissions must have bee n a “substantial f actor ” in br inging about the injury

. See Nixon , 690 S.W .2d at 549; Richardson-Eagle , 213 S.W .3d at 474. Prox imate cause can be a question of law when the evidenc e is without materia l dispute and wher e only one rea sonable i n fe re n ce may be draw n from the evidenc e. Ambrosio v. Carter’s Shooting Ctr., Inc. , 20 S

. W.3d 262, 266 (Tex. App.—Houston [14t h Dist.] 2000, pet. denied) . Prox imate ca use ca nnot be satisfied by

mere conjec ture, g uess, or specula tion. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W .3d 238, 246 (Tex. 2008).

6Appellants’ tortious interfe renc e cla ims rest on Futre ll’s reque st to Earth Tec h that

Moriarty be remove d as prog ram manag er of the ACWP

. There fore , to preva il on appea l, appellants
must demonstrate that there is a g enuine issue of materia l fac t with respe ct to whether appellee s’ actions wer e a substantial fac tor in Futre ll’s decision to reque st Moriarty ’s remova l from the ACWP

. See Powell Indus. , 985 S.W .2d at 456 (“A defe ndant may defe at a tortious interfe renc e claim on
summary judgme nt by

disproving one element of the claim as a

matter of la

w.”)

. Futre ll testified without contra diction that the rea son she re q uested Moriarty ’s

remova l from the ACWP was his relationship with Hy att. 7

I t’s beca use in the 11 months afte r an acknow ledg ed—re lationship acknow ledg ed in the investiga tion, over a million—almost a mill ion two dollar s of authorizations of contra cts wer e either added or exte n d ed i n a prog ram throug h eig ht differ ent contra cts with a woman that he ac knowledg ed having a re lationship with. That’s a problem.

. . . . He was stepping into the City ’s shoes to manag e our projec t, a nd we didn’t see that he could manag e primes when they wer e having as their sub the person that he lived with and was buy i n g a house with. That could potentially impact his decisionmaking

. . . .

. . . . This was a contra ct that g ave us the ability to ask for a differ ent projec t manag er, and that’s all we did. We asked for a chang e in a projec t manag er so that we didn’t have that conflict in place

. I t w asn’t a perf ormanc e issue. I t w as to resolve that conflict.

. . . .

Appellants conce de that Futre ll is not an “intere sted witness.” See Tex. R. Civ. P. 166a(c ); 7 Ragsdale v. Progre

ssive Voters League , 801 S.W .2d 880, 882 (Tex. 1990). 7The remo v al of Bill Moriarty from the projec t—my asking for a differ ent projec t

manag er w as base d on the re sults of the investiga tion. Allegations come and g o in org anizations sometimes substantiated, sometimes not. The decision was based on the re sults of the investiga tion, not the alleg ations themselves.

. . . . Outside of the fa ct that [the meeting with the firms’ repr esenta tives] broug ht to my attention conce rns, it did not play into the decision-making

.

Futre ll specifical l y s t at ed that neither the six eng ineer ing firms nor their repr esenta tives play ed a substantial fac tor in her de cision-making

.

There is no evidenc e in the rec ord that contra dicts or controve rts Futre ll’s testimony

. Acc ording t o a No v ember 7, 2005 memo from David Allan Smit h (the city attorney ) to the
may or and city council reg arding the investiga tions, thre e alleg ations wer e “ver ified,” all of which

conce rned Moriarty ’s rela tionship with Hy att or DHA. I n a memo sent internally within Earth Tec h

on November 4, 2005 , W at t s s t ated that the reque sts for Moriarty ’s remova l wer e based on a “common theme” from the i n v es t i gat i o n that there was a “per ceive d conflict of interest due to
Eart h Tec h’s subcontrac ting to Diane Hy att and Associates” and the “ac knowledg ed persona l rela tionship.” Appellants contend t h at Fu t rell first lear ned of Moriarty and Hy att’s rela tionship
at the J une 2005 mee t i n g with appellee s or their repr esenta tives and, there fore , that appellee s

are responsible for Futre ll’s reque sting Moriar t y ’s remova l. Even if appellants are corr ect with

re s p ect to the J une 2005 meeting , Futre ll did not act on the alleg ation of an exis ting rela tions h i p 8

We note that while there is some evidence (in documents struck by the district court a nd 8 subject to appellants’ final point on appea l) that the exis tence of a rela tionship betwee n Moriarty and Hy att was raised in the J une 2005 meeting , there is no evidenc e that at that time F utrell was awa re 8until af

t er i t was confirme d by the investiga tions. Acc ording to the preliminary results of the
OCA’s investiga tion, issued on Aug ust 19, 2005, Moriarty and Hy att share d a utilit y acc ount and phone number at a residenc e, and the rec ommendation was made that if a conflict of interest “in fac t

o r appea ranc e” wer e confirme d, “the City should take the nece ssary steps to rec tify the situati o n , which could i n cl u de removing one or more of the parties from the ACWP .” The OCA’s November 3, 2005 “summary of analy sis” found the persona l rela tionship to be s u b s tantiated, althoug h whether an actua l conflict exis ted was not deter mined. Simi larly , t h e Oc t o b er 11, 2005 investiga tion repor

t provided to Futre ll by Cornell, the City ’s outside counsel, included admissions by both Moriarty and Hy att that they wer e romantica lly involved and cohabiting

. The City Auditor’s
I nteg rity Unit made an investiga tive finding that “Moriar ty was involved in a persona l and financ ial rela tionship wit h an ACWP subcontractor.” 9

of the extent of that rela

tionship, t h e extent to which Hy att or DHA had been awa rded contra cts during the re lationship’s ex istence, or the extent to which Moriarty had notified Ea

rth Tec h or t he City reg arding the re lationship. Appellants observe that Futre ll and Canales’ s November 3, 2005 meeting wit h W at t s 9 occu r r e d b e f o r e th e in v e s ti g a ti o n s w e re completed, and appellants contend that this demonstrates that the true basis for Futre ll’s actions was th e ap p el l ees’ involvement, not the rela tionship betwee n Moriarty and Hy att. Howeve r, the rec ord evidenc e shows that at the time of Futre ll’s decision, the exis tence of the rela tionship had been substantiated and require d no additional investiga tion. Whil e conce ding that the November 7, 2005 memo from David Allan Smit h—the contents of which wer e p u blicly disclosed throug h a newspa per article —contained err ors in its alleg ations concern i n g Moriarty and Hy att, Futre l l t es t i fi ed that “the one thing that did not chang e was the very distinct conflict of interest.” Moreove r, g iven that Futre ll’s stated conce rn was the perc eption of a conflict of interest, no further rese arc h was nece ssary to deter mine wheth er t h e rela tionship constituted an actua l conflict of inter est as a le g al matter. 9I n Benne tt v. Com p uter Associates International, Inc. , the defe ndant
company had sued the plaintiff’s employ er for copy rig ht infring ement, and they eventua lly settled.
932 S.W .2d 197, 199-200 (Tex. App.—Amar illo 1996, writ denied)

. Meanw h i l e, the employ er fired the plaintiff afte r he had admitted to copy ing the defe ndant’s computer prog ram co d e and the employ er had independe ntly confirme d the plaintiff’s actio n s. See id. at 205. The plaintiff then asser ted a claim ag ainst the defe ndant for tortious inter fer ence with his employ ment contra ct. See id. at 199. The Amarillo Court of Appea ls held that summary judgme nt ag ainst the plaintiff

on the issue of proxi mate cause was proper beca use the employ er’ s testi m o n y reg arding the

cause of termination (the plaintiff’ s co p y i n g copy rig hted code) was “cle ar, direc t, positive, and
uncontra dicted,” an d es t abli shed that the employ er “ac ted unilatera lly upon information g arne red throug h its own investigation.” See id. at 205.

The same analy sis applies here

. Futre ll’s testimony that her decision t o request
M oriarty ’s remova l was based on an exis ting romantic and financ ial rela tionship that could b e
p er ce i v ed as a conflict was clea r, direc t, positive, and uncontra dicted. This decision was made by Futre ll and not by appellee s, and was based on investiga tions conducte d by both Futre ll’s office and independe nt third parties. There is no ev i d en ce or even alleg ation that the results of the investiga tion—as to the exis tence of the rela tionship—were inacc urate, an i m p roper basis for
reque sting the projec t manag er’ s remova l, or a prete x t for an unsta t ed j u s t i fi cation for Futre ll’s decision. We hold that appellee s have demonstrated as a matter of law that the cause for the City ’s
reque sting Moriarty ’s termina ti o n w a s the exis tence of a romantic and financ ial rela tionship betwee n him and Hy att, not the appellee s’ orig inal alleg ations that prec ipitated the City ’s investiga tions into the situation.
10Appellants ref er t o v ar ious piece s of evidenc e in the rec ord that, appellants arg ue, indicate appellee s’ actions wer e the rea son why the confirme d exis tence of the rela tionship was

cause for Moriarty ’s involvement with the ACWP to be terminated, which leads to the conclusion, appellants c ontend, that appe llees’ a ctions were a substantial fa ctor in such ter mination. Appellants ref

er to Watts’s Novemb er 4 , 2005 descr iption of his meeting with
Futre ll and Canales. Wat ts stated that Canales, in discussing the “per ceive d conflict of interest,” ref err ed to a “p er ce p t ion among the contra cting community .” Acc ording to appellants, the
contra cting community consisted only of the six eng ineer ing firms and their repr esenta tives. Even if appellants’ interpre tation of th e phrase “contr acting community ” is corr ect, Futre ll testified without contra diction that she herse lf perc eived the rela tionship to be a conflict of interest, that this conclusion was the basis for her decision, and that none of the appellee s play ed an ac t i v e ro l e or substantial fac tor in her decision-making

. There was also uncontra dicted evidenc e that a perc eption of a conflict was a conce rn reg ardle ss of the perc eption’s orig in or scope, g iven that it could become

more widespre ad. Susan Wy nne, an assistant city auditor, testi fi ed that the ACWP -re lated alleg at i o n s m er i ted investiga tion beca use, due to the siz e of the projec t and amount of money involved, there was a “hug e political risk” in rela tion to “the interac tion with the public and the duty that we have to uphold their trust.” Simi larly , J ohn Steiner, the City ’s integ rity office r, testified that in the case of such “an important city progr am ” t h e cit y manag er had a responsibility to act as quickly as possible. I n sum, there is no evide nce tha t Futre ll, by making ref

ere nce to a

perc eption of a conflict within “the contra cting community ,” indicated that her focus was on the identity of that community

rathe r than the c onflict itself.

11We also reje ct appellants’ contenti o n that there was evidence of additi onal contact

betwee n Futre ll and appellee s raising a rea sonable infere nce that appellee s wer e a substantial fac tor fo r Futrell’s decision. Appellants ref er to Futre ll’s testimony that “ther e wer e still people in t h e community that had conce rns they didn’t believe wer e resolved ” as ev i d ence that Futre ll had additional meeting s with appellee s. Howeve r, Futre ll’s statement was in ref ere nce to the conce rns expressed at the J une 2005 meeting that rema ined despite the two prior police investiga tions and that, she had deter

mined, require d investiga tion to “put these conce rns to bed.” Appellants next ref er
to the fac t that Futre ll and Cis My ers (one of the repr esenta tives at the J une 2005 meeting ) belong ed
to an informal “networ

king gr oup” of profe ssional women w h o gat h er ed at hom es approx imately four to six times a y ear , including during 2005. Howeve r, My ers testified tha t her only discussion with Futre ll reg arding Moriarty occur red at the J une 2005 meeting , and there is no evidenc e to
t h e co n trary

. Appellants also ref er to the following email by one of the eng ineer ing fi rm s ’
repr esenta tives (who is not a party to this appe al), sent on Oc tober 11, 2005: “Well, Iwent on the
Denve r trip with the Chamber and talked to both Br uce Todd and Toby

—and this subject came up. Br uce said the results will definitely be made public whene ver it’s considere d ‘done.’ We’ll see.”
We find nothing in this email that would raise a rea sonable infere nce that the ref ere nced discussion with Futre ll had any

impact on her

decision-making with reg ard to Moria rty

. A p p e ll a n ts a lso discuss the City ’s handling of unrela ted conflicts of interest that came
to light reg arding City officia ls or projec ts, but that did not result in any substantial investiga tion and did not end in the alleg ed violator being terminated or otherwise disciplined. Appellants asser t that the only differ ence betwee n their alleg ed conflict and o t h ers was that “the persons making the alleg ations ag ainst the Appellants we re la rg e eng ineer ing f

irms with powerful lobby ists.”
12We note that appellants’ asser tion is contra dicted by Futre ll’s testimony to the eff ect that the siz e of the ACWP was the cause for her t re ating the alleg ations reg arding the prog ram’s projec t manag er as a signific ant issue. More importantly , the evidenc e did not rise to a scintilla that the other conflicts alleg ed by appellants wer e sufficie ntly simil ar to Moriarty and Hy att’s situation

so as t o raise a re asonable infere nce tha t the orig inal source of t he allegations was a distinction of
any signific ance . Cf. Autozone, Inc. v. Rey es , 272 S.W .3d 588, 593-94 (Tex. 2008) (for employ ment discrimination claim based on disparate discipline, compar ed employ ees’ conduct must be “nea rly identical,” of “compa

rable seriousness” ). For example, when Futre ll hired her husband’s brother- inlaw, the City ’s integ rity office r conclude d there was no violation of the applicable nepotism policy

. Another example is a case in which the principal of a company that was awa rded a City contra ct was

a City employ ee’ s husband, but that case occur red befor e Futre ll beca

me city manag er. I n addition, no action wa s taken whe re a depar tment direc tor was oversee ing a contract performed by his wife beca use the direc tor’s retire ment was alre ady schedule d when the conflict was discovere d. We also
note that it i s u n cl ea r that the conflicts raised by appellants, in which no disciplinary action was taken, wer e the only conflicts to have been ident i fi ed by the City other than the one at issue in this l awsuit. 1 0

Conclu sion
To r a is e a g enuine issue of materia l fac t, the evidenc e must transce nd mere suspicion. Ford Motor Co. v. Ridgway , 135 S.W .3d 598, 601 (Tex. 2004). We conclude that appellants failed

For example, there was testimony to the eff ect that an independe nt contra ctor of the City 1 0 who had g iven a job or subcontrac t to his wife was terminated from his employ ment when this action was discove red. 13to raise a g enuine issue of materia l fac t reg arding whether appellee s’ conduct was a substantial fac tor

in Futre ll’s decision to reque st Moriarty ’s remova l from the ACWP

. Having concl u d ed that
summary judgme nt was proper o n t h e i s sue of proxi mate cause , we do not addre ss appellants’

rema ining issues on a

ppeal. We af

firm the judg ment of the district cour t.

__________________________________________ G. Alan Waldrop, Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: Mar ch 25, 2010

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